APPEAL AGAINST THE FINDINGS OF MSA COURT OF APPEAL 362.
HEARING HELD AT MSA HEAD OFFICE AT 18H00 ON TUESDAY 17TH NOVEMBER 2009.
PRESENT: Advocates Pierre De Waal Court President
George Avvakoumides Court Member
Messrs Willie Venter Court Member
Mike Clingman Court Member
Richard Shuttle MSA Steward
Wayne Robertson Technical Consultant
Eldrid Diedericks Clerk of the Course
Neil Curtis The Kart Shoppe
Ian Young Appellant
Hector North Attorney for the Appellant
Michael North Attorney for the Appellant
Maurice Rosenberg Witness
Adrian Scholtz MSA
1. The appellant, Mr Ian Young, competed in the Super Rok category of the Engen Supa Karts South African National Karting Championship held at the Vereeniging Karting Circuit on 9 August 2009. Pursuant to the first heat, the technical consultant/chief scrutineer, Mr W Robertson, during an inspection, found an 8.5 mm hole drilled in the air box of the appellant’s kart. The air box was available for inspection during this hearing. It is common cause that this hole constituted a technical infringement of the regulations pertaining to this particular class as it constituted a prohibited modification.
2. Upon receipt of the written report of the technical consultant, the Clerk of the Course (“COC”), Mr Eldrid Diedericks, because of the absence of any indication by the technical consultant that the offending hole constituted an advantage as envisaged in GCR 176, found the appellant guilty of a technical infringement and imposed a fine of R1 000,00. This finding and the penalty was confirmed and recorded in a written notice as required, and signed by the COC at 13h56.
3. It is perhaps apposite to mention at this stage, that the technical consultant testified that he was unaware of the fact that it was required of him to indicate in his report whether the particular infringement in the exercise of the discretion bestowed upon him in terms of GCR 176, constituted an advantage. It was the first time that he had acted as a technical consultant/chief scrutineer. Somewhat ironically, as appeared from his testimony, he in fact considered the technical infringement to have constituted an advantage which, had it been made known to the COC at the time, would not have resulted in a fine being imposed in terms of GCR 176 i)a). However, it is unnecessary to speculate what the further course of events would have been had the COC known of the view of the technical consultant.
4. It appears from the evidence adduced, that the organisers had implemented a particular system (by using a “runner” by the name of Sam) to ensure that all notices were forthwith posted on the notice board. This gave rise to one of the disputes which this Court was called upon to adjudicate, namely whether the particular notice of the technical infringement and the penalty imposed, was in fact posted on the notice board and whether the protest which followed just over an hour later, was inadmissible because it was lodged out of time. For reasons which will appear herein later, it is unnecessary to determine whether the protest was lodged out of time and hence inadmissible.
5. Nevertheless, another competitor, Mr S La Réservée (competitor number 7), according to the testimony of the father of the appellant, Mr Ian Young (snr), was told of the findings of the COC shortly after it had been pronounced. However, as set out above, it is not necessary to deal with this issue any further.
6. The protest was essentially based on the fact that the technical consultant was of the view that the technical infringement resulted in an advantage having been gained. The protest was heard by the stewards who upheld the protest and excluded the appellant from the results of heat 1. The appellant duly lodged an appeal and paid the appropriate appeal fee at 17h25 on the same day.
7. The appeal was heard on 19 August 2009 by MSA Court of Appeal 362. The appeal was dismissed and the appeal fee retained, in addition to costs of R250-00 which were ordered to be paid by the appellant. The court of appeal found that it was unable to determine conclusively whether an advantage was gained by the presence of the offending hole in the air box, which, as a result of the deeming provision in GCR 176 i)a) and the onus which it casts on the particular competitor to prove the absence of an advantage, resulted in the onus not being discharged. It seems that the Court of Appeal found that the notice of the technical infringement was in fact not posted on the notice board as required. In this regard a fine of R500-00 was levied against Vereeniging Kart Club “for not complying with the notice board requirements”.
8. It is perhaps apposite to mention, and by doing so, hopefully affording some guidance to those tasked with the duties of being members of Tribunals, Courts of Enquiry and Courts of Appeal, that adverse findings against parties not represented (particularly those in respect of whom it was not required to be present and forewarned of the possibility of an adverse finding being made against them) at hearings should be avoided at all costs. It goes without saying that the basic notion of justice and fairness cannot be served if parties against whom adverse findings are made, are not, at the very least, informed of the basis on which they are (or may be) exposed to such a finding, and afforded an opportunity to be heard on it. It does not appear from the findings of the particular Court of Appeal, that the Vereeniging Kart Club was given any opportunity to present its case in defence of the finding relating to the placement of the notice of the technical infringement on the notice board. Moreover, the Court of Appeal was tasked to deal with the appeal of the appellant and was not constituted as a Court of Enquiry to investigate the conduct of the said Club. In this regard this Court, without making any finding, feels compelled to request MSA to consider repayment of the fine imposed on the Vereeniging Kart Club. The less further said about this unfortunate state of affairs, the better.
9. The appellant, clearly aggrieved by his appeal being unsuccessful, duly lodged an appeal to this Court and paid the required appeal fee. Mr La Réservée was not represented or present at the hearing before this Court, which was conducted as a de novo hearing in terms of the provisions of GCR 208 viii).
10. Mr H North, who represented the appellant, essentially raised two issues which this Court was called upon to decide. The first was that the protest was inadmissible and, if so found, would strip all subsequent proceedings of validity or force and effect. The second issue concerned the question of whether the appellant gained an advantage as a result of the offending hole having been drilled in the air box. Mr North, correctly so, readily accepted that the appellant in terms of the provisions of GCR 176 i)(a) bore the onus of proving that no advantage was gained.
11. In discharge of the onus to prove that no advantage was gained, the appellant led the evidence of Mr Maurice Rosenberg and Mr Neil Curtis. The credentials of the two gentlemen to have expressed the opinions which they did were, partly as a result of the absence of attendance by Mr La Réservée, not challenged. The absence of such a challenge notwithstanding, this Court carefully considered the evidence on this issue, and perhaps even more carefully because of the absence of an opposing party. Careful consideration of this evidence led this Court to conclude that there is no reason to doubt the evidence by, particularly Mr Rosenberg, that a dynamometer test attended by himself and Mr Brian Cook (who was not called to testify), revealed, in terms of a print-out furnished to this Court, that the offending modification did not demonstrate an advantage over an air box without a hole. Mr Rosenberg, quite candidly, conceded that it is impossible to simulate with exact precision the circumstances which would have prevailed on the day of the race. Mr Robertson, the technical consultant, testified that in his opinion a flow bench test would have been a more reliable test to demonstrate the presence or absence of an advantage. He also conceded that if it was clear that the hole created an advantage, he would have expected to see the result thereof on a dynamometer test. He cautioned on the fact that it may also not be demonstrated because of a variety of factors. Mr Curtis testified that the particular hole had been previously drilled by one of the technicians in his employ for purposes of allowing drainage of water that may accumulate in the air box whilst racing in the rain. During preparation of the appellant’s kart, this aspect was overlooked.
On the available evidence it appears that there was no ulterior motive for drilling the hole in the position in which it was found. However, for purposes of this judgment the issue of a motive is largely irrelevant given the finding on the second issue as set out hereunder.
12. Despite the deficiencies which one may attribute to the dynamometer testing which the appellant had performed under the supervision of Messrs Rosenberg and Cook, the standard of proof required to discharge the onus of proving the absence of an advantage, is no more than on a balance of probability. To have found, as the Court of Appeal did, that the appellant was to prove the absence of an advantage conclusively, would be to set the bar too high in terms of what is required of a competitor such as the appellant, to discharge the onus. As a matter of fact, it is conceivable that if the onus was that onerous, no competitor will ever be able to discharge that onus or, at the very least, such an onus will seldom be discharged. However, this Court was unanimously satisfied that the appellant succeeded in discharging the onus to prove the absence of an advantage on a balance of probability. It is consequently found that the offending hole in the air box did not result in the appellant gaining an advantage.
13. In the result it is found that the appeal is upheld. By reason of the provisions of article 14 ii) of Appendix R in terms of the appeal fee which is forfeited in respect of the appeal to the lower Court of Appeal, the minimum fee of R250,00 will apply in this instance. Effectively this results in retention of an amount of R4 250,00 despite the appellant being successful.
14. The following order is made:
14.1 The appeal is upheld and the findings of MSA Court of Appeal 362 pertaining to the appellant are set aside.
14.2 In terms of article 14 iii) of Appendix R an amount of R250-00 of the appellant’s appeal fee is forfeited.
EXPLANATORY NOTE:
The result of this finding is that the position of the appellant reverts to the finding made and the penalty imposed by the COC.
156274/098
(24 November 2009)
NATIONAL COURT OF APPEAL NO, 144
Appeal lodged by MSA against the findings of the Court of Enquiry 1005
Appeal heard at MSA Head Office on Tuesday, 8th September 2009 @ 18:00
Present: Advocate Pierre De Waal (SC) - Court Member
Jannie Geyser - Court Member
Richard Schilling - Court Member
Sean Slattery - Parent of Competitor Sean-Christopher Slattery
Faisel Hoosen - Parent of Competitors
Nishar Karim - Witness
Fred Rugheimer - Jury President
Clive Freemantle - Clerk of the Course
The events culminating in this appeal are, once again, demonstrative of how parents have an adverse effect on Motorsport and its participants where they act in a manner other than in accordance with the composure, restrained decency one would expect of adults who should set an example to minor competitors. The parents and competitors involved are, on the one hand, Mr Faisel Hoosen and his son Mr N. Karim, and on the other, Mr Sean Slattery and his son, Sean-Christopher Slattery.
1. An altercation occurred between Mr Hoosen and Mr Sean Slattery (with the active participation of his wife) after one of the heats at the AMU Quad MX Event on 30 May 2009 held at the Dirt Boyz Venue. The salient facts were not in dispute. Mr Slattery, accompanied by his wife, approached Mr Hoosen at the latter’s pit area (some distance away from all the other competitors) and confronted him and his family in a threatening and abusive manner. It also included at some stage during the altercation a racial remark levelled at Mr Hoosen who was called a “fokken coolie” by Mr Slattery. It appears that Mr Slattery and his wife felt the need to conduct themselves in this manner as a result of what they perceived to have been racing conduct by one of Mr Hoosen’s sons which they did not approve of. What is somewhat bizarre is that neither the clerk of the course, Mr Clive Freemantle, nor one of the jury members, Mr Fred Rugheimer, saw anything untoward in the manner in which the participating competitors conducted themselves during the particular heat. Mr Slattery (and clearly also his wife) formed the opinion that one of Mr Hoosen’s sons engaged in defensive riding in the second heat which prevented Mr Slattery’s son from passing. As stated, the COC and Mr Rugheimer denied this. According to Mr Hoosen, and denied by Mr Slattery, the latter in somewhat infantile manner, drew a line in the sand. Interestingly, Mr Rugheimer informed the Court that Mr Slattery had also drawn a line in the sand in his pit on the same day when Mr Slattery was also unhappy with something which Mr Rugheimer apparently did. Attempts by the COC and Mr Rugheimer to diffuse the situation some time after the event (but on the same day) proved to have the opposite effect in that it seemed to have inflamed the situation even more. On the evidence before this Court, it appears that the conduct of Mr Slattery and his wife was somewhat out of character and is not something that is often seen in this particular section of Motorsport. It furthermore appears that Mr Hoosen, at some stage during the altercation, had grabbed Mr Slattery’s shirt to prevent, what he perceived to be, an attempt by Mr Slattery to assault Mr Karim who had engaged in an altercation with Mrs Slattery. It transpired that Mr Hoosen’s action was based on a misinterpretation of a gesture of Mr Slattery with his hand which, according to Mr Slattery, Mr Hoosen could easily have understood or interpreted to be an attempt to hit Mr Karim.
2. The altercation initiated by Mr and Mrs Slattery was reported and led to a Court of Enquiry being constituted to investigate the altercation. Court of Enquiry 1005 apparently found that one of Mr Hoosen’s minor children who had competed (without identifying him) had transgressed the provisions of GCR 172 (once again, without identifying which part of the particular GCR had been transgressed. Moreover, the particular competitor (not properly identified by the Court of Enquiry) had his licence suspended for a period of 6 months, apparently as a result of the conduct of Mr Hoosen by reason of the provisions of GCR 19 which deems the parent of a minor competitor, to be the competitor. The Court of Enquiry also found that Mr Slattery had breached GCR 172. It is assumed that the reference to “Mr Slattery” relates to Mr Sean Slattery, the parent of Sean-Christopher Slattery. Mr Slattery senior holds a COC licence, which was withdrawn for a period of 12 months. Moreover, his son’s competition licence, was withdrawn for a period of 6 months (but suspended until 31 December 2009) (which is interpreted by this Court to have been a suspended suspension of the competition licence of Sean-Christopher Slattery. Suffice it to say that it is absolutely imperative for justice to be properly dispensed that tribunals, courts of enquiries and courts of appeal (not excluding all other disciplinary tribunals) should clearly set out the facts found to be proved, the specific (in this case) GCR which was transgressed and at the very least, identify the persons against whom the findings are made. Moreover, penalties should be clearly and unequivocally worded so that there is no doubt as to what the finding entails. In this regard, it has, unfortunately, to be said that the Court of Enquiry in this instance, failed to achieve the endeavour for findings to be clear and unequivocal. It is also not clear from the findings of the Court of Enquiry why Mr Hoosen (and indirectly one of his minor sons) was guilty of any transgression. Be that as it may, somewhat unusually but entirely appropriately, MSA appealed against the findings of the Court of Enquiry. As will appear from what is set out hereunder, the appeal was well-founded.
3. On the evidence presented to this Court, it was clear that there is no basis upon which it can be said that Mr Hoosen (or for that matter, any of his children) transgressed any GCR. Even Mr Slattery testified that he was surprised at the findings of the Court of Enquiry in respect of Mr Hoosen’s alleged transgression that Mr Hoosen, Mr Karim and the other members of Mr Hoosen’s family were confronted by Mr Slattery and his wife without any justification whatsoever. Suffice it to say that any conduct of Mr Hoosen, Mr Karim or any other member of their family was directed at nothing but a defensive attitude adopted to a totally unjustified verbal attack with a racial undertone by Mr Slattery and his wife. The appeal in respect of Mr Hoosen and whomever the Court of Enquiry intended to refer to as “competitor Hoosen” are set aside, including the award of costs of R1 000,00 against Mr Hoosen.
4. As far as the findings in respect of Mr Slattery and his son are concerned, it is an entirely different kettle of fish. The conduct of Mr Slattery and his wife, both of whom were clearly members of their son’s pit crew in addition to the fact that Mr Slattery is deemed to be the competitor in terms of GCR 19, was totally inappropriate, unacceptable and uncalled for. This Court has no hesitation to find that Mr Slattery, as an official of MSA, as a deemed competitor and as a member of the pit crew of his son acted prejudicial to the interests of MSA and of Motorsport in general as contemplated in GCR 172 iv). As unfortunate as it may be, but for reasons of practicality and enforcement of disciplinary proceedings, Mr Slattery and his wife are the sole cause thereof that their son, Sean-Christopher Slattery is also found to have transgressed the provisions of GCR 172 iv) (albeit vicariously in terms of the provisions of GCR 113 xiv).
5. In deciding on an appropriate penalty, this Court has taken due cognisance of the personal circumstances of Mr Slattery such as the fact that his conduct on the day was somewhat contrary to his usual conduct, that the current state of the economy imposes its own difficulties in terms of finances and that he often assists with the running of Motorsport events. The facts underlying the particular transgression is viewed in a serious light. Not only did Mr Slattery and his wife engage in conduct which was totally unnecessary and uncalled for, but also entailed the expression of a racial slur which, by Mr Slattery’s own admission, was intended to “hurt”. It behoves no justification that conduct of this nature has no place in sport in general or, more particularly, in Motorsport. It should be discouraged in the strongest terms. What is more disturbing, is the fact that Mr Slattery, despite a suggestion by this Court and with ample opportunity to do so, did not see it fit to apologise for his conduct and the conduct of his wife. His overall attitude to the proceedings, especially where he elected not to attend the first hearing of this Court (resulting in a postponement), was demonstrative contemptuous conduct which is obstructive to the proper administration of justice in disciplinary matters. This Court also took due cognisance of Mr Hoosen’s plea on behalf of Sean-Christopher Slattery that this Court should not do anything to penalise the child for the conduct of his father. As ostensibly offensive as it may seem, this Court has no choice but to enforce the provisions of the GCR’s (to which all competitors and their parents, where applicable, agree to when they apply for an accept the issuing of competition licences). However, the penalty which this Court has decided to impose, is aimed at not interfering with the right of Sean-Christopher Slattery to participate in Motorsport, but to rather penalise his father (and, indirectly, his mother, for their conduct which unfortunately adversely impacts upon him).
6. In view of all the facts, evidence and circumstances of this case, and for reasons of practicality, the findings of the Court of Enquiry is set aside in its entirety in so far as it pertains to Mr Sean Slattery and his son, Sean-Christopher Slattery.
7. The findings in respect of their respective transgressions of GCR 172 iv) as set out above is confirmed.
8. The following penalty is imposed:
9.1 The COC licence of Mr Sean Slattery is withdrawn and he is declared unfit to possess such a licence for a period of 2 years;
9.2 A fine of R5 000,00 is imposed on Mr Sean Slattery in his personal capacity, his capacity as a deemed competitor and as an official of MSA;
9.3 Mr Sean Slattery is directed to pay costs in respect of the proceedings before the Court of Enquiry and this Court in an amount of R5 000,00 in addition to the fine imposed on him as set out above;
9.4 The competition licence of Sean-Christopher Slattery is suspended for a period of two years from 30 May 2009 which suspension is suspended for a period of three years on the following conditions:
9.4.1 that neither Mr Sean Slattery nor his wife, Mrs Slattery in an way whatsoever transgress the provisions of GCR 172 iv) of which threatening, abusive or anti-social conduct sufficiently severe to be considered a transgression of GCR 172 iv) is an element committed during the period of suspension;
9.4.2 that the fine imposed on Mr Sean Slattery and the costs which he has been ordered to pay, be and is paid within two calendar months of date of this order, or within such longer period as MSA may allow in its sole discretion.
Handed down at Johannesburg on this the 23rd day of October 2009.
155766/098
(24 November 2009)
NATIONAL COURT OF APPEAL NO, 145
FINDINGS OF MSA NATIONAL COURT OF APPEAL NO. 145
APPEALS LODGED AGAINST THE FINDINGS OF MSA COURT OF APPEAL 359. APPEAL HEARD AT MSA HEAD OFFICE AT 18H30 ON 30TH SEPTEMBER 2009.
PRESENT: Advocates Pierre De Waal Court President
Paul Carstensen Court Member
Messrs Mike Clingman Court Member
Iain Pepper Father of competitor Jordan Pepper
Maurice Rosenberg Technical Consultant
Anthony Taylor Appellant (Father of competitor Michael Taylor)
Kenny Maciver Appellant (Father of competitor Chad Maciver)
Wayne Riddell Representative for the appellants
Neil Robertson Chief Scrutineer
Adrian Scholtz MSA
1. BACKGROUND
This matter arose as a result of a protest by the father of competitor Jordan Pepper (kart number 8) at the 2009 Idube Karting National held on 04th July 2009 on the basis that, after Race 3, karts numbered 5, 10 and 126 in the Junior Rok class “did not have any engine seals on”. The stewards considered the protests of competitor 21 (Matthew Swanepoel) and 49 (Roman De Beer) to be frivolous, and in respect of the protest of competitor number 8 (Jordan Pepper) the stewards were of the opinion that the protest could not be upheld due to confusion in the scrutineering process.
Mr Pepper then appealed the decision of the stewards on the 4th of July 2009.
MSA Court of Appeal 359 upheld the appeal of Pepper and the competitors numbered 5, 10 and 126 were excluded from the results of Junior Rok Race 3 at the Idube Karting National event.
Competitor number 10 (Chad Maciver) represented by his father Kenneth Maciver and competitor number 126 (Michael Taylor) represented by his father Anthony Taylor, appealed to the MSA National Court of Appeal against the decision of MSA Court of Appeal 359.
2. PROCEDURAL ISSUES
Procedural issues were correctly complied with and the appropriate fee paid.
3. COMMON CAUSE FACTS ESTABLISHED
The facts were largely common cause and these included that:
- the competitors were each given two seals;
- competitors were instructed to use one seal on the exhaust system and a second seal on the chassis. The purpose of the seal on the exhaust system was to connect the manifold to the exhaust to ensure that same could not be changed;
- the karts of competitors 5, 10 and 126 all had two seals which complied with the instructions set out above;
- after Race 3, all three karts were scrutineered and the cylinder head, cylinder barrel, carburetor, exhaust restrictor and exhaust ports as well as the air box were found to be compliant;
- insufficient assistance was supplied to the scrutineers by the organising club;
- the scrutineers had not finished with the Junior Rok scrutineering when the Rok competitors arrived;
- during the scrutineering process, the scrutineers area and fuel control area became congested and chaotic;
- the scrutineers stated that it was impossible to say who had passed scrutineering or to work off a checklist;
- Mr Rosenberg, whose evidence was uncontested, stated that in his view none of the lap times of the karts in question were cause for any concern;
- according to the evidence of Mr Pepper (which was uncontested to the extent that none of the other witnesses who gave evidence at the court were present), the CoC instructed competitors to make sure that their engines were “sealed properly”.
4. MERITS
The complaint by Mr Pepper was, in essence, that the engines were not sealed although it was conceded that the exhausts were sealed to the manifold and the chassis were sealed as per the instructions set out above.
In terms of karting regulation 23.13(a) engines are defined as “the propelling unit of the vehicle in running order, including cylinder block, casing and possible gearbox, ignition system, carburetor/s (no injection system) and exhaust”.
In terms of article 19(ix)(a), “immediately after the time session weigh in, engines must be sealed or identified in a suitable manner to enable the scrutineers to carry out a post race examination effectively. Other additional seals or identification procedures may be utilised by scrutineers at any other time throughout the event. For all classes, engines may be required to be sealed and the carburetors and exhaust silencers suitably identified. Details in this regard shall be incorporated in the supplementary regulations for each event”.
5. It is immediately apparent from the aforementioned rule, the rule on which the complaint hinged, that engine sealing is not compulsory. The rule clearly states that engines must be:
Sealed; or identified in a suitable manner to enable the scrutineers to carry out a post race examination effectively.
6. In addition, the rule continues that “other additional seals or identification procedures may be utilised by scrutineers …”. This again indicates a discretionary procedure which may or may not be implemented.
7. The third sentence of the rule stipulates that “for all classes, engines may be required to be sealed …”:
Again engine seals are not compulsory. This is clearly an extension of the first sentence of the section.
8. In addition, the fourth sentence stipulates that “details in this regard shall be incorporated in the supplementary regulations for each event”.
9. Thus, any discretionary sealing. i.e.:
additional seals; or
identification procedures; or
engine seals, shall be incorporated in the supplementary regulations for each event.
10. The supplementary regulations for the event in question were handed in without objection but contain no details relating to engine seals except for (in paragraph 10 on page 3) the stipulation that “Sealing of engines – please refer to Section F, Article 19(ix) of the MSA Karting Regulations”.
11. Due to the fact that no details in regard to engine seals were incorporated in the supplementary regulations, engines were not required to be sealed.
12. Consequently, it is the finding of this court that there has been no breach of article 19(ix) and as a result the appeals are upheld.
13. In respect of the appeal fees:
Reference is to be had to Appendix R, article 14, (iii) which stipulates that “Notwithstanding that an appeal has succeeded, administrative costs shall be payable by the appellant. Such administrative costs will range between a minimum of R250 and a maximum of 25% of the appeal fee”;
The appellants, as a consequence of their success, are entitled to a repayment of their appeal fees, subject to the aforementioned article.
14. In terms of the provisions of GCR 219(i), “All appeals shall be in writing, specifying briefly the decision appealed against and the grounds of appeal, the relevant rule numbers, be signed by the appellant and shall state …”.
The notices of appeal in question made no attempt to comply with the aforesaid stipulated requirements but simply contained:
- a denial that there had been a breach of GCR 113 and 114; and
- a contention that the appellants would “walk the court through the procedures of a typical karting national championships as well as the event in question”;
- a statement that the appellants would attempt to bring to the court’s attention “the fact that the initial protestor may very well have had alternative motives for the protest”;
- a statement that the appellants: “will also attempt to show the court evidence of where the officials on the day had erred in their duties which led to the initial protests”.
15. Nowhere in the notice of appeal were the facts or argument relied upon at the hearing set out. Nowhere was the basis of the appeal detailed or even referred to, i.e. that there had been no breach of article 19(ix). This is unacceptable, leads to confusion and possibly the parties being misdirected as to the nature of what the points will be.
16. In the premises, neither the other parties nor the court were able to properly prepare for the arguments actually raised. Thus, the success of the appeals notwithstanding, 10% of the appeal fees paid is declared forfeited in terms of Appendix R, article 14(iii).
17. In the result:
- the appeals are upheld;
- 10% of the appellants’ appeal fees are declared forfeited in terms of Appendix R, article 14(iii).
The ruling on the fees in relation to the previous appeal is overruled and reversed.
(16 November 2009)
NATIONAL COURT OF APPEAL NO, 147
FINDINGS OF MSA NATIONAL COURT OF APPEAL NO. 147
APPEAL LODGED BY FATHER OF JUNIOR GP KARTING COMPETITOR AEDAN VAN VUUREN AGAINST THE FINDINGS OF MSA COURT OF APPEAL 364.
APPEAL HEARD AT MSA HEAD OFFICE AT 19H00 ON WEDNESDAY 14TH OCTOBER 2009
PRESENT: ADVOCATES ANDRE BEZUIDENHOUT COURT PRESIDENT
MESSRS JANNIE GEYSER COURT MEMBER
ANDRE VAN VUUREN APPELLANT FOR COMP. AEDAN VAN VUUREN
WAYNE MASTERS FATHER OF COMPETITOR KEAGAN MASTERS
DICK SHUTTLE MSA STEWARD
WILLEM VAN HEERDEN ASS. CLERK OF THE COURSE
WAYNE ROBERTSON TECHNICAL CONSULTANT
ELDRID DIEDERICKS CLERK OF THE COURSE
RICHARD DAVIS CLUB STEWARD
MAURICE ROSENBERG OBSERVER
IAIN PEPPER NAT GP JUNIOR REPRESENTATIVE
ADRIAN SCHOLTZ MSA
1. Introduction
1.1 The Appellant in this matter is Andre van Vuuren for Aedan van Vuuren (“the Appellant”).
1.2 This Appeal arises from events which took place on 9 August 2009 in round 4 of the Engen Supa Karts South African National Karting Championship, held under MSA permit 10385. During the Appeal, the Appellant conceded that it was not necessary to present viva voce evidence for the reasons which appear below.
1.3 This Court was presented with an Appeal bundle marked annexures “A” to “P”. The Appeal bundle was supplemented with a further bundle of documents marked “P1” to “P18”. Nobody objected to this Court receiving the further bundle of documents.
1.4 The Appeal before us was properly constituted in terms of the GCR’s.
1.5 The hearing of the Appeal commenced at 19h00 and adjourned at 20h25. Judgment was reserved. This is the Judgment.
2. The Control of Motorsport
2.1 The control of motor sport in South Africa is held by Motorsport South Africa (“MSA”), a Section 21 Company in terms of the Company’s Act, 61 of 1973. MSA holds the sporting authority to govern motor sport as it is the delegated authority by the FIA, CIK and FIM. MSA is structured with a Board of Directors, a Secretariat, a National Court of Appeal, an Executive Council, Specialist Panels, Sporting Commissions and Regional Committees. The Secretariat of MSA does not serve as bodies governing discipline of motor sport. It only attends to secretarial issues. Mr Scholtz represented MSA in this capacity. (See Articles 4, 5 and 6 of the MSA Articles of Association). The exercise of the sporting powers by MSA is in terms of the sporting codes of the FIA, CIK and FIM. As such, MSA has the right to control and administer South African National Championship competitions for all motor sport events. The National Court of Appeal of MSA is the ultimate final court of judgment of MSA.
3. The Events of 9 August 2009
3.1 The MSA Karting Commission Specification Sheet inter alia provides that the minimum weight of the flywheel, excluding the fastening nut, washer and key for the kart used by the competitors in the Engen Supa Karts, is 520 grams. At the end of the race event, the technical consultant appointed by MSA conducted a strip of the engines of multiple competitors, including competitor Keegan Masters (“Keegan”), kart 60. Keegan was represented in the proceedings before us by his father, Wayne Masters (“Mr Masters”).
3.2 All of the competitors who were the subject of the strip down duly signed a document recording the strip (see annexures “B”, “C” and “D” of the Appeal bundle). Annexure “D” records that the competitors did not object with the way in which the strip was conducted. Mr Masters signed this document.
3.3 The technical consultant weighed the flywheel and found that the flywheel weighed 518 grams. In consequence of this finding, the clerk of the course, Eldrid Diedericks (“Mr Diedericks”) concluded that the technical infringement took place and Keegan was excluded from the results of all three races held on 9 August 2009.
4. Protest Findings – 19 August 2009
4.1 Mr Masters protested the findings and on 19 August 2009 the stewards of the meeting dismissed the protest in consequence of which Keegan remained excluded from the race results.
5. MSA Court of Appeal 364 – 2 September 2009
5.1 Mr Masters filed an appeal to MSA Court of Appeal 364 and on 2 September 2009 his appeal was upheld and Keegan was reinstated into the race results.
6. Appeal to MSA National Court of Appeal 147 – 14 October 2009
6.1 The Appellant, in consequence of the findings of MSA Court of Appeal 364, appeals to this Court.
7. Legal and Factual issues which arise in this Appeal
7.1 The Appellant filed a document which is styled “Appeal to the MSA National Court of Appeal” (“the Notice of Appeal”). (See Appeal bundle, annexures “O” to “P” and “P1” to “P14”).
7.2 The Appeal, in essence, claims that the strip down and technical inspection conducted on 9 August 2009, was correctly conducted. The Appellant claims that an assize certificate was not requested on the day of the measurement and in any event, that a further weighing of the flywheel on 12 August 2009, substantially confirmed the weighing result on 9 August 2009, that the flywheel weighed 518 grams.
7.3 In our view, the following material legal issues (“the material legal issues”) crystallized in this Appeal:
7.3.1 an interpretation of GCR 142 v) as to whether the provision regarding assized scales for the weighing of race vehicles is also applicable to the weighing of components of race vehicles;
7.3.2 whether GCR 166 iv) (providing for the duties of scrutineers and assistant scrutineers, in particular that they should ensure that all necessary equipment and checking instruments approved by MSA, including a current assize certificate) means that in absence of a current assize certificate that the results of a technical consultant should be disregarded by a clerk of the course.
8. Process followed during the Appeal
8.1 All hearings of Appeals in terms of the GCR’s are held de novo. (See GCR 208 viii)).
8.2 At the outset of the Appeal hearing, it appeared to us that there is no dispute of fact in this Appeal. All the parties agreed that the test result conducted on 9 August 2009 resulted therein that the technical consultant reported to the clerk of course that the flywheel of Keegan weighed 518 grams. In view of this common cause fact, the Appellant elected not to present evidence on the merits of the matter. The Appellant persisted with submissions made to us.
8.3 We afforded each of the attendees the opportunity of addressing us, after the Appellant’s main submissions and the Appellant was granted the opportunity to reply thereto.
9. The Merits
9.1 Part VII of the GCR’s commencing with GCR 143, provides for the regulation provisions regarding officials. Without the involvement of officials in motorsport, there cannot be any fair competition. Officials are appointed by MSA at different levels to ensure that the GCR’s are implemented and that all involved parties in motorsport are assured that the sport is regulated to a high standard of scrutiny by competent officials to ensure fair play between all parties. The role of officials is therefore to either guide or be instrumental in the organization of events and to ensure that the governing rules of motorsport are complied with. Officials are carefully appointed and perform an agreed criteria of supervision at all race events. This includes the appointment of technical consultants which is specifically provided for in terms of GCR 167. Technical consultants assume primary responsibility for all technical aspects of the category to which they are appointed. They in turn advise the clerk of course and the scrutineers regarding technical matters. Whilst technical consultants make recommendations regarding a variety of issues to the clerk of course, the actual imposition of penalties remains the duty of the clerk of course. Technical consultants also therefore report to, and are responsible to MSA directly (See GCR 167).
9.2 GCR 166 specifically deals with the duties of scrutineers and assistant scrutineers. They should ensure inter alia in terms of GCR 166 iv) that all necessary equipment and checking instruments approved by MSA are present and in proper working order and, where required, the official scale, test weights and a current assize certificate, are available. (Our emphasis).
9.3 GCR 142 v) provides that where applicable, assized scales (preferably together with test weights to confirm the scale’s accuracy) must be provided by promoters of all motorsport events to allow for the weighing of race vehicles. (Our emphasis).
9.4 During the hearing of the matter, this Court enquired from all the attendees whether there is any GCR or other regulation of motorsport that prescribes that an assized certificate must be available on the date of a race meeting when the weighing of a race vehicle or components of race vehicles, take place. None of the attendees drew our attention to any such regulation. This Court posed a second question and enquired whether there is any GCR or other regulation that provides that in absence of an assize certificate, a technical consultant cannot conduct the weighing of race vehicles or components of race vehicles. Similarly, none of the attendees drew our attention to any such regulation.
9.5 Mr Masters, when afforded the opportunity to address us, presented a fanciful and convoluted argument. Mr Masters drew our attention to the assize certificate which was issued by a competent body on 30 March 2009 regarding the scale used on 9 August 2009 to weigh the fly wheel. The Appeal bundle originally contained an unreadable version of the assized certificate (annexure “G”). The original assized certificate was handed to us at the hearing and a copy is now included in the Appeal bundle as annexure “P16”. This certificate indicates that the scale had a capacity of 30kg and it was certified that the scale was calibrated and tested according to the accuracy of standard masspieces which are traceable to the National Standards, i.e. the SABS. Mr Masters submitted annexures “P17” and “P18” being a manual from the manufacturer of the specific scale. In the specifications of the scale (annexure “P18”), a tolerance is provided for (described as a division). For a D4, 30kg instrument, a tolerance of 1 gram is prescribed. This, in practical terms, means that there is a tolerance provided for in test results, of 1 gram. Mr Masters contended that he had a discussion with the manufacturer and it was explained to him that for each kilogram of capacity, there can be a tolerance of 1 gram. Mr Masters conceded that he is not equipped with any skills regarding mass meters and that he exclusively relies on the hearsay evidence which he obtained from an unidentified individual. The submission made by Mr Masters in this regard, simply cannot be so. If his logic is sound, it means that there is a tolerance of 30 grams provided for on a 30kg scale, i.e. in the present instance, the prescribed minimum weight of the flywheel of 520 grams, can be as low as 490 grams, as a result of the tolerance provision. When confronted with this issue, Mr Masters conceded that this interpretation simply cannot be sustainable. The assized certificate (annexure “P16”) also provides for the tolerance and prescribed it as “1 gram”.
9.6 All of this is in any event academic and irrelevant. There is no dispute that on 9 August 2009 the flywheel weighed 518 grams. Even if the tolerance of 1 gram is provided, the flywheel was still under the minimum weight.
9.7 The second weighing procedure conducted on 12 August 2009, is simply irrelevant and should not have been conducted. GCR 142 v) does not state that a technical consultant is obliged to have available at the testing of race vehicle components, an assize certificate. It provides that promoters have the responsibility to provide assized scales. GCR 166 iv) provides that scrutineers must ensure that all necessary equipment and checking instruments are present and in working order and where required, current assize certificates are available. There is no provision that provides that the “penalty” for not having assized certificates available, results therein that an offender of a technical regulation, can avoid sanction and escape the consequence of the transgression.
9.8 As we have seen in this matter, the assize certificate was current, it was valid, but may not have been immediately available when the weighing was conducted on 9 August 2009. It is common cause that by 12 August 2009, the assize certificate was made available to all the relevant parties.
9.9 As to the issues raised in paragraphs 7.3.1 and 7.3.2 above, we therefore hold as follows:
9.9.1 GCR 142 v) provides for the weighing of race vehicles. The weighing of components of race vehicles by technical consultants, can take place within the ambit of said GCR. This does not mean that promoters are responsible to provide assized scales for the weighing of components of race vehicles specifically. Generally, a technical consultant will provide or arrange for sufficient infrastructure for himself in order to execute his duties. The reliance of Mr Masters on GCR 142 v) is not sustainable;
9.9.2 failure to have an assized certificate for an assized scale available at the weighing, does not invalidate the process applied by the technical consultant in terms of GCR 166 iv). The interpretation of Mr Masters of GCR 166 iv) is not sustainable.
9.10 The Appeal must accordingly succeed. The flywheel of Keegan weighed 518 grams on an assized scale on 9 August 2009. The penalty of the clerk of course imposed on Keegan is not attacked and there is no reason to interfere with the penalty imposed by the clerk of course.
10. Findings
10.1 The Appeal is upheld and the Court finds that:
10.1.1 the flywheel of kart 60 raced by Keegan on 9 August 2009, weighed 518 grams as determined by the technical consultant;
10.1.2 the minimum weight of the flywheel according to the MSA Karting Commission Specification is 520 grams;
10.1.3 the penalty imposed by the clerk of course of exclusion of Keegan from all three races is reinstated;
10.1.4 the Appeal fee paid by the Appellant, less 25% thereof for administrative costs, shall be repaid to the Appellant in terms of Appendix R 14, Note iii.
Handed down at Johannesburg on this the 15th day of October 2009.
(15 October 2009)
NATIONAL COURT OF APPEAL NO, 146
FINDINGS OF MSA NATIONAL COURT OF APPEAL NO. 146
APPEAL LODGED BY BRIDGESTONE PRODUCTION CAR COMPETITOR MELVILL PRIEST ARISING FROM THE FINDINGS OF MSA COURT OF APPEAL 360. APPEAL HEARD AT MSA HEAD OFFICE AT 18H30 ON THURSDAY 17TH SEPTEMBER 2009
PRESENT:
ADVOCATE ANDRE BEZUIDENHOUT COURT PRESIDENT
MESSRS JANNIE GEYSER COURT MEMBER
ARNOLD CHATZ COURT MEMBER
ANDREW PRIEST APPELLANT’S FATHER
MELVILL PRIEST APPELLANT
LEE PHILIPS SAM RACING
VITO BONAFEDE REPRESENTATIVE FOR SAM RACING
LEEROY POULTER COMPETITOR
VIC MAHARAJ VMP MOTORSPORT
PIET SWANEPOEL CLERK OF THE COURSE
JIMI SMITH CLUB STEWARD
KEN CROMARTY MSA STEWARD
ADRIAN SCHOLTZ MSA
MRS MARIA BUYS MSA
Introduction
1. The Appellant in this matter is Melvill Priest (“the Appellant”). The Appellant is represented by his father, Andrew Priest (“Mr Priest”).
2. This Appeal deals with an incident which arose during the Bridgestone Production Car Race 2 at Kyalami held on 27 June 2009 (“the incident”). In consequence of the incident, a protest was filed by SAM Racing through Lee Philips (“Mr Philips”) representing the driver, Leeroy Poulter (“Mr Poulter”). The protest claimed that on the re-start of the second race, after the safety car exited the track, that the vehicle of the Appellant passed the vehicle of Mr Poulter before the start / finish line and that this conduct of the Appellant should be sanctioned by the Stewards of the Meeting (“the Stewards”). A protest hearing was held on 27 June 2009 and the Stewards held that in terms of SSR 45 viii), overtaking after a re-start in consequence of a safety car deployment, remains forbidden until competitors pass the green flag at the start / finish line. As extenuating circumstances, it was recorded that Mr Poulter admitted to missing a gear at the re-start. The Stewards held however, in terms of GCR 152 xxiv), that they were bound by the plain meaning of the words contained in SSR 45 viii) and not what the regulation is intended to mean. The Appellant was consequently penalised with 10 seconds in the second race, which was added to his race time.
3. On 27 June 2009, the Appellant filed an Appeal against the decision of the Stewards. On 29 July 2009, Motorsport South Africa (“MSA”) Court of Appeal 360 dismissed the Appeal and upheld the decision of the Stewards in that the Appellant contravened SSR 45 viii) by passing Mr Poulter before the start / finish line, after the safety car was withdrawn.
4. The Appeal before us was properly constituted in terms of the GCR’s. The Appeal was held de novo. At the commencement of the Appeal, it was agreed between all parties that it is common cause that at the re-start of the second race, and coming on to the pit straight at Kyalami, Mr Poulter missed a gear change after the race was re-started whilst Mr Poulter and the remainder of the filed were accelerating under full power towards the start / finish line. This common cause fact avoided the leading of protracted evidence on all the issues germane to the matter. The Appellant presented no oral evidence. The Court inter alia received video footage of the incident taken from inside Mr Poulter’s vehicle at the relevant time of the incident. SAM Racing was represented by Vito Bonafede (“Mr Bonafede”). The Appeal bundle was amplified during the hearing and ultimately comprised annexures “A” to “AK”.
Legal and Factual issues which arise in this Appeal
5. The Appellant filed a variety of documents in pursuit of his Appeal. On 7 August 2009, under cover of a letter from the Appellant, the Appeal was noted and the grounds of appeal were detailed (“the Notice of Appeal”) (see annexure “I” of the Appeal bundle). The Notice of Appeal was amplified in a document styled “FORMULATED APPEAL OF MELVILL PRIEST: START LINE INCIDENT WITH MR LEEROY POULTER” (“the formulated Appeal”). The formulated Appeal is a lengthy document comprising ten pages with detailed submissions.
6. The Appellant claims in the formulated Appeal (only the material issues are included below, and not all references and supporting argument submitted by the Appellant) that:
6.1 GCR 152 xxiv) was incorrectly applied by the earlier tribunals;
6.2 SSR 45 viii) was not considered by the earlier tribunals, in particular, SSR 45 xi), SSR 45 xii) and SSR 39;
6.3 the earlier tribunals failed to apply appendix H of the International Sporting Code, 2.9.10 of the “Code Sportive Internationale” (“CSI”), being the International Sporting Code of the FIA;
6.4 the Bridgestone Super Production Car Racing Driving Standard Document and its application could and should have been utilised by Mr Poulter and not the protest route.
7. At the commencement of the hearing, the Court invited the Appellant to indicate the relevance of annexures “AC” and “AD” to the Appeal bundle, being extracts from regulations published by the FIA as part of the International Sporting Code relevant to, inter alia, Formula 1 racing. Annexure “AH” which the Appellant submitted to the Appeal bundle is indeed styled “2010 F1”. The Appellant submitted that the GCR’s in its introduction specifically records that the control of motorsport of MSA derives from the sporting authority to govern motorsport as conferred and delegated by the FIA. The FIA has delegated their sporting powers to MSA and “the powers granted to it (MSA) may be exercised in a fair and equitable manner”. MSA has drawn up the GCR’s “which conform to the Codes of the FIA” (see MSA Handbook 2009, General Competition Rules and Appendices, part 1, Introduction, page 15). As such the Appellant submits that annexures “AC”, “AD” and “AH” are relevant. The Court did eventually not deal with this issue in limine, but as part of our judgment which follows below.
8. In our view, the following material legal issues (“the material legal issues”) crystallized from this Appeal:
8.1 the interpretation and the application of the SSR’s and GCR’s and in particular SSR 45 viii), SSR 45 xi), GCR 70 x), GCR 152 i) and GCR 152 xxiv);
8.2 the application and effect of the International Sporting Code of the FIA in this Appeal.
Merits
9. The participation of motorsport competitors in events managed by MSA is based on the law of contract. MSA has the sporting authority and is the ultimate authority to take all decisions concerning organizing, direction and management of motorsport in South Africa (see GCR Introduction – CONTROL OF MOTORSPORT). All participants involved in motorsport events subscribe to this authority. As such, a contract is concluded based on the “rules of the game”. The “rules of the game” of motorsport is structured in main on the Articles of MSA, the GCR’s, the SSR’s and the SR’s. For international events in South Africa, the International Sporting Code is also applicable. Any competitor who enters a motorsport event subscribes to these “rules of the game” (see GCR 19). It is expected of every competitor to acquaint themselves with the GCR’s, SSR’s and SR’s constituting the “rules of the game” and to conduct themselves within the purview thereof (see GCR 113 read with GCR 122). There is nothing in the GCR’s that indicates that for non-international events in South Africa that competitors should also be acquainted with and apply the International Sporting Code of the FIA. The “rules of the game” are there to ensure an orderly administration and participation in motorsport. 3
Without a disciplined approach to the “rules of the game”, the administration and participation in motorsport will fall in disrepute.
10. SSR 45 deals with incidents where a safety car is deployed. The purpose of making use of a safety car is to prevent the red-flagging of races as far as possible and to allow a race event to continue under controlled circumstances when there is a dangerous situation on the track. The deployment of a safety car is to neutralise a race to allow for the clearing of the track or a situation in which a rescue worker or competitors are subjected to danger that yellow flags do not afford sufficient protection. Once the critical situation which necessitated the deployment of the safety car has been rectified, the safety car will leave the track and the competitors will then re-start the race as provided for in terms of SSR 45.
11. Competitors must reduce their speed and line up behind the safety car and maintain the same speed as the safety car. Generally, overtaking under safety car controlled periods is strictly forbidden, unless a driver is signalled to do so. Once the clerk of the course decides to call in the safety car, a green flag will be waved on the start / finish line, to indicate the resumption of racing. The provisions of SSR 45 viii) provides that overtaking remains forbidden until competitors pass the green flag at the start / finish line (see SSR 45 viii)).
12. Much was said during the hearing as to the impact of SSR 39, which deals with rolling starts, on a re-start under safety car conditions. SSR 39 provides for a staggered formation as per the normal grid position. This means that competitors will approach the start / finish line in their staggered formation as per the normal grid position. This is not the position under a safety car resumption of racing. There is no definitive and prescriptive regulation as to the position of competitors under a re-start.
13. SSR 45 xi) provides that all competing vehicles must maintain the same speed as the safety car whilst in convoy and the same speed as the vehicle in front of them. The purpose of this SSR is plain: it is clearly designed to avoid a concertina effect of vehicles bunching up and extending their positions under controlled safety car conditions. SSR 45 xi) provides in the second sentence that all competitors shall maintain a maximum distance of 3 cars’ lengths and a minimum of one car’s length from the vehicle in front, before the commencement of racing.
14. SSR 45 viii) can not be read in isolation. The spirit and purport of the GCR’s are well documented in the introduction to part 1 of the GCR’s that the powers granted to MSA, which includes the powers of this Court, must “be exercised in a fair and equitable manner”. This principle is an overriding provision which demonstrates the spirit and the purport of the GCR’s, to deal fairly and equitably with incidents between competitors.
15. The video footage which we received clearly indicates the facts which transpired. The facts are so clear that the Appellant and SAM Racing agreed on the factual basis of the incident. The facts are indeed so clear that one would have been surprised if there was a dispute regarding the incident. The only disagreement that there is between the parties turns on the events which followed the incident and the application of the SSR’s and the GCR’s. The video footage taken from Mr Poulter’s vehicle indicates that he followed the vehicle immediately in front of him towards the start / finish line, in close proximity and certainly within the ambit of SSR 45 xi). Coming out of the last corner onto the pit straight when race two was re-started, Mr Poulter followed closely behind the vehicle immediately in front of him. When the race was re-started, one could see that all the vehicles in front of Mr Poulter accelerated hard towards the start / finish line. One could indeed hear from the engine revolutions of Mr Poulter’s vehicle that he accelerated to the maximum in second gear (so he informed us) whereafter he changed gear and for unknown reasons engaged fifth gear. One could hear clearly that the engine revolutions dropped substantially when Mr Poulter engaged fifth gear. Mr Poulter thereafter disengaged the gearbox from fifth gear and thereafter succeeded in engaging third gear. All of this took approximately two seconds. SAM Racing could not deny this expiry of time.
16. The club steward, Jimi Smith (“Mr Smith”), also attended the hearing. Mr Smith presented video footage taken from Mr Poulter’s vehicle towards the rear. None of the parties objected to this evidence and the footage indicated that the Appellant’s vehicle and other vehicles followed in an organised and controlled manner, the vehicle of Mr Poulter. The moment when Mr Poulter engaged the wrong gear, the following gap between Mr Poulter and the Appellant reduced dramatically and one could clearly see that the Appellant swerved sharp to his left hand side to avoid colliding with Mr Poulter.
17. From the video footage taken from Mr Poulter’s vehicle facing forward, one could indeed see that not only the Appellant passed Mr Poulter after the gear shift incident but also another competitor who followed the Appellant’s vehicle. Accordingly, two vehicles passed Mr Poulter’s vehicle before turn one after the pit straight.
18. GCR 152 xxiv) provides that the Stewards must consider the supplementary regulations as published. The findings of the Stewards indicate that they read more into GCR 152 xxiv) as what it contains. 4
GCR 152 xxiv) only provides that in considering “the SR’s” the Stewards must consider them as published. “The SR’s” are defined in GCR 16 as meaning the supplementary regulations that a promoter or organiser of a competition is obliged to issue. The Stewards, in their findings, and with reference to GCR 152 xxiv) held that “the Stewards must not interpret what SSR are intended to mean but rather the plain meanings of the word”. Their authority to which they refer in this regard is GCR 152 xxiv). As indicated above, there is no reference in GCR 152 xxiv) to the SSR’s. There is only reference to the SR’s. The Stewards and therefore Court of Appeal 360, clearly erred insofar as they held that GCR 152 xxiv) limited them to give expression only to the normal plain meaning of the wording and not what it intended to address.
19. We invited SAM Racing and Mr Bonafede to indicate to us when, in their view, would competitors be entitled to pass a struggling competitor (“the struggling competitor”) who cannot accelerate towards the start / finish line as a result of mechanical failure, mechanical limitation, driver error, etc. The best answer Mr Bonafede could produce was to reason that when a competitor comes to a stop prior to the start / finish line or is moving very slowly as a result of some restraint, that in such event the following competitors may pass the struggling competitor. If we have to apply the criteria suggested to us by Mr Bonafede, race events under re-start conditions similar to what happened in this instance, would result in chaos. It can never be expected of competitors who are accelerating towards the start / finish line once an event is re-started to slow down when a struggling competitor cannot accelerate towards the start / finish line as a result of an incident with his vehicle, whether mechanical or as a result of driver error. The test to be applied should be based on the facts of each incident. In this instance a delay of some two seconds by Mr Poulter resulted therein that the vehicles in front of him clearly on the video footage “disappeared” into the distance. The two vehicles following immediately behind him, being that of the Appellant and another competitor passed him into the first corner without any restraint. Mr Poulter is a recognised and highly skilled competitor and it is clear that the passing manoeuvre on him resulted from him engaging fifth gear from which he had to disengage and thereafter engage the correct gear. The video footage to the rear of Mr Poulter’s vehicle clearly indicates that the Appellant had to take action to avoid colliding with Mr Poulter by sharply veering to the left.
20. The Appellant attempted to convince us to hear the evidence of Piet Swanepoel (“Mr Swanepoel”), the clerk of the course. In view of the agreement on fact, we invited the Appellant to indicate why the evidence of Mr Swanepoel should be heard by us. We were informed that Mr Swanepoel’s opinion may contribute to our findings. We declined to hear Mr Swanepoel as his opinion would serve no purpose as the Court was enquiring into the facts of the matter, the evidence presented and would thereafter pronounce its own judgment and opinion on the issues. What is important is that Mr Swanepoel, a highly qualified and skilled clerk of the course of MSA, did not take any steps in terms of SSR 45 xii) against any competitor who gained an unfair advantage from a breach of the safety car regulations. Had Mr Swanepoel considered at the time that the Appellant or the other driver that passed Mr Poulter indeed gained an unfair advantage in passing Mr Poulter, he clearly would have acted against the Appellant and the other driver as provided for in terms of SSR 45 xii).
21. SSR 45 viii) prohibits overtaking under safety car re-starts until competitors pass the green flag at the start / finish line. Within the spirit and purport of the GCR’s, the SSR’s and the facts presented to us, the passing manoeuvre of the Appellant over Mr Poulter did not result therein that the Appellant gained an unfair advantage over Mr Poulter from a breach by the Appellant of the safety car regulations as provided for in terms of SS 45 xii). The passing manoeuvre was the exclusive result of Mr Poulter missing a gear and engaging the wrong gear when he accelerated towards the start / finish line. The Appellant only avoided colliding with Mr Poulter and was entitled to accelerate towards the start / finish line.
22. The International Sporting Code provides for overtaking under certain circumstances when a safety car is deployed (see annexure “AD” to the Appeal bundle). We have disregarded annexure “AH” which appears to be a sporting regulation for the F1, 2010 year. Clause 2.9.10 of appendix H provides that overtaking under safety car conditions is permitted if any car slows with an obvious problem. An obvious problem must be interpreted in the normal everyday grammatical use and will include where a driver misses a gear change and do not accelerate together with a field of competitors when a race is re-started. We find that annexure “AD” is not directly relevant in this Appeal as it cannot be expected of competitors in South African National events to acquaint themselves not only with the GCR’s and SSR’s, but also other International sporting regulations. The sporting regulations as published by the FIA are applicable in the countries where they directly apply or when International events are held in, for example, South Africa where they again apply. What is important from a reading of the relevant provision of the International Sporting Code is that it coincides with our approach to SSR 45 viii) that it is not a regulation to be applied to lead to absurdity that it is expected of competitors to virtually come to a standstill when there is a re-start under safety conditions when one of the competitors experience “an obvious problem” which slows down the car.
23. On the issue that SAM Racing and Mr Poulter should have utilised the Bridgestone Super Production Car Racing Driving Standard Document instead of the protest procedure, little has to be said to 5 dismiss this submission. Competitors are entitled to protest any issue which falls within the ambit of the SSR’s and GCR’s. A driving standards document can never limit the entitlement of a competitor to utilise the protest procedure.
24. On the grounds of appeal, we therefore find that:
24.1 GCR 152 xxiv) was incorrectly applied by the earlier tribunals;
24.2 SSR 45 viii) was not correctly applied by the earlier tribunals;
24.3 the International Sporting Code is not relevant in this Appeal;
24.4 SAM Racing and Mr Poulter were fully entitled to utilise the protest route following the incident.
Findings
25. We accordingly find that:
25.1 the Appeal is upheld;
25.2 the findings of the Stewards and Court of Appeal 360 are set aside in their entirety;
25.3 MSA is instructed to reinstate the Appellant in the official results of the second race without a penalty of 10 seconds which was added to his race time of the second race;
25.4 the Appeal fee paid by the Appellant less 25% (twenty five percent) thereof for administrative costs, shall be repaid to the Appellant in terms of appendix R14, Note iii.
26. It may be prudent for MSA to consider an amendment to the relevant GCR’s and in particular SSR 45 viii) to expressly provide as to when overtaking will be permitted under safety car deployment.
(22 September 2009)
NATIONAL COURT OF APPEAL, NO 142
APPEAL LODGED BY MR CORRIE BEZUIDENHOUT ON BEHALF OF MINOR KARTER CLINTON BEZUIDENHOUT ARISING FROM THE FINDINGS OF MSA COURT OF APPEAL 347.
APPEAL HEARD AT MSA HEAD OFFICE AT 18H00 ON TUESDAY 13th JULY 2009.
PRESENT: ADVOCATES ANDRE BEZUIDENHOUT - COURT PRESIDENT
MESSRS JANNIE GEYSER - COURT MEMBER
RICHARD SCHILLING - COURT MEMBER
CORRIE BEZUIDENHOUT - APPELLANT
MRS VERONICA BEZUIDENHOUT - WIFE OF THE APPELLANT
MESSRS HECTOR NORTH - ATTORNEY FOR THE APPELLANT
GEORGE JACOVIDES - WITNESS
BRETT MAYBERY - WITNESS
MRS MARIA BUYS - MSA
1. Introduction
1.1 The Appellant in this matter is Corrie Bezuidenhout (it was established at the commencement of this Appeal that there is no family relation or otherwise between the President of this Court and the Appellant and his family) for Clinton Bezuidenhout (a minor) (“Clinton”), (“the Appellant”). The Appellant is represented by Attorney Hector North (“Mr North”) of Schwarz-North Attorneys in this Appeal.
1.2 This Appeal deals with incidents which arose from the regional karting event held on 30th November 2008 at the Idube Raceway under MSA permit 5582 (“the event”). In consequence incidents which transpired on the day, two separate reports were filed. At 13h40 Gary Sherratt (“Mr Sherratt”), in his capacity as father of Jordan Sherratt (“Jordan”), filed a protest against Clinton for unsportsmanlike behaviour, using hand signs “not acceptable” to other competitors. The protest also included a reference to one Brett Maybery. There is no evidence of any steps taken or any enquiry made against this person. At 14h10, the Appellant filed an incident report as to the events which transpired in the last corner just before the finish line.
1.3 A meeting of the stewards took place on 30th November 2008, which resulted in the finding that the protest of Mr Sherratt was upheld. In consequence of that finding, Clinton was excluded from the results of the entire event. The Appellant appealed the decision of the Stewards and that Appeal culminated in the findings of Court of Appeal 347 (“COA 347”) handed down on 18th February 2009.
1.4 From the minutes it is clear that COA 347 was well attended with the clerk of the course being present, the guardians of Clinton and Jordan, the chief marshal and seven witnesses.
1.5 In view of what follows below, it is important to record the findings of COA 347:
• “There is no doubt in the Courts mind that competitor Bezuidenhout was driving in a reckless and dangerous manner.
• Whilst it is accepted the use of certain hand signals is the ‘norm’ in racing, the use of abusive hand signals is not allowed and the Court is convinced that competitor Bezuidenhout was guilty of this infraction.
• The decision of the Stewards is therefore upheld.
• The Court wishes to note the following: Competitor number 20, Jordan Sherratt was also clearly guilty of wild and reckless riving, but to a lesser extent.
• The Court therefore rules that the Appeal was not successful, and the Appeal fee is forfeited.
• Competitor Bezuidenhout is further disqualified from participation in any Motorsport event for a period of one (1) year. Said disqualification is suspended for 12 months. This disqualification will be effective immediately.
• Competitor Sherratt is disqualified from participation in any Motorsport event for a period of six (6) months, Said disqualification is suspended for 6 months. The disqualification will be effective immediately.
• The secretary of the meeting concerned is reprimanded for not complying with regulations pertaining to the official notice board.
• The MSA Steward of the meeting is also reprimanded for not having complied fully with all required regulations.
• The Court would like to note for the record that officials are appointed to do a particular function and all officials are reminded of the necessity of adequately fulfilling that function.
• Costs in the amount of R5000.00 (five thousand rand) are levied against competitor Bezuidenhout.”
1.6 The Appeal before us was properly constituted in terms of the GCR’s. The Appeal was held de novo and the evidence of the Appellant was received. The Appeal bundle comprised only twelve pages and no further documents were accepted by this Court.
2. Legal and Factual issues which arise in this Appeal
2.1 The Appellant filed a document which is styled “Appeal to the National Court of Appeal” (“the Notice of Appeal”) (see page 11 of the Appeal bundle).
2.2 The Appellant claims in the Notice of Appeal that a gross miscarriage of justice has occurred in that Clinton did not drive in a reckless or dangerous manner and that he was not utilising abusive hand signals.
2.3 At the commencement of the Appeal, Mr North raised two points in limine:
2.3.1 whether the meeting of the stewards on 30th November 2008 was competently convened in terms of the GCR’s as the stand-in club steward, Cobus Smit (“Mr Smit”), was only appointed after the Appellant (who was also a steward on the day in question) withdrew from the meeting of the stewards in view thereof that he had an interest in the Appeal. Mr Smit was apparently appointed to meet the requirements that at least two stewards shall be appointed to a meeting of stewards;
2.3.2 whether the protest filed by Mr Sherratt did not constitute an inadmissible protest within the purview of GCR 203 ii) insofar as it is a collective protest signed by more than one entrant or driver. The protest reflected the signatures of eight persons at the bottom of the protest.
2.4 In our view, the following material legal issues (“the material legal issues”) crystallized from this Appeal:
2.4.1 whether a gross miscarriage of justice has occurred regarding the sanction imposed on Clinton;
2.4.2 whether there is any merit in the points raised in limine by Mr North;
2.4.3 whether the sanction handed down by COA 347 regarding Jordan was competent and is sustainable;
2.4.4 whether the findings of COA 347 should be set aside in its entirety.
3. Merits
3.1 The participation of motor sport competitors in events managed by MSA is based on the law of contract. MSA has the sporting authority and is the ultimate authority to take all decisions concerning organizing, direction and management of motor sport in South Africa (see GCR Introduction – CONTROL OF MOTORSPORT). All participants involved in motor sport events subscribe to this authority. As such, a contract is concluded based on the “rules of the game”. The “rules of the game” of motor sport is structured in main on the Constitution of MSA, the GCR’s, the SSR’s and the SR’s. Any competitor who enters a motor sport event subscribes to these “rules of the game” (see GCR 19). It is expected of every competitor to acquaint themselves with the GCR’s, SSR’s and SR’s constituting the “rules of the game” and to conduct themselves within the purview thereof (see GCR 113 read with GCR 122). The “rules of the game” are there to ensure an orderly administration and participation in motorsport. Without a disciplined approach to the “rules of the game”, the administration and participation in motorsport will fall in disrepute.
3.2 We firstly deal with the two issues raised by Mr North in limine. This Court in NCA 138 previously held that a common sense approach must prevail in hearings before this Court which includes the reliance by Appellants on fanciful technical arguments, without getting to the root of the dispute, which is not conducive to the resolution of disputes. This is particularly so in motor sport where the participants and other role players are often engaged in a dangerous exercise where “unresolved disputes”, i.e. those disputes resolved merely on a technical basis without dealing with the true nature or merits of the dispute, may result in dissatisfaction amongst competitors and officials which in itself may become a festering catalyst of unhappiness leaving people to resort to conduct aimed at resolving disputes by means of self-help. This is patently unsatisfactory and should be discouraged in the strongest terms. The first point raised by Mr North falls into the category of fanciful technical arguments. The Appellant withdrew as a steward as he had to assist Clinton. The remaining steward could obviously not take a decision as a single steward and therefore called for the appointment of a second steward within the ambit of the GCR’s. We do not have any detailed evidence in this regard to assist us as to whether there was indeed an non-procedural step taken in the appointment of Mr Smit. What is important is that the Appellant, during the hearing before us, raised no objection as to the competency of Mr Smit, to have been so appointed. More over, when the meeting of the stewards took place, the Appellant was given the opportunity to raise an objection against the composition of the meeting of the stewards. He raised no objection as it was recorded in the minutes “There were no objections to the composition of the Court” (see page 7 of the Appeal bundle). The first point in limine raised by Mr North therefore has no merit. The second point in limine is likewise, without merit. GCR 203 clearly prohibits collective protests which are signed by more than one entrant or driver.
The protest filed in this matter is not a collective protest as a matter of fact. The document clearly provides for the name of the protestor. Against that entry, the name of Mr Sherratt was completed. There is also provision on the form for a signature. Next to that, a single signature of Mr Sherratt appears. At the bottom of the page, below the printed part, there appear eight signatures. Next to these signatures, in manuscript, appears the word “witnesses”. The Appellant did not adduce any evidence to this Court that the signatures which appear at the bottom of the protest were indeed intended to be affixed by the individuals with the intention to constitute a collective protest. We cannot speculate whether the word “witnesses” was affixed on the document at the time of the signatures or otherwise. In absence of such evidence, we accept the document at face value which clearly means, in our finding, that the persons who signed at the bottom of the document merely signed to have them identified as witnesses to the incident.
It is apposite at this juncture to point out that the availability of witnesses at enquiries, Courts of Appeal and National Courts of Appeal are of the utmost importance. It frequently happens in this Court that it is only the Appellant that arrives at the hearing with the attendance of several witnesses to support his or her Appeal. It is important to point out that hearings in Courts of Appeal and in the National Court of Appeal take place de novo. This Court, in NCA 138, was at pains to explain that hearings de novo do not mean that we are confined to the record of the hearing conducted a quo. None of the tribunals of MSA are courts or tribunals of record; there is no recording of the evidence adduced or the arguments presented. It is therefore of the utmost importance to remind competitors and the parties that it is in the interest of the administration of motor sport and the interest of the involved parties, at all material times, to participate in the tribunals of MSA until the matters are finally resolved in the Courts or tribunals. In the present matter, we were again limited to consider the facts of the matter as none of the “opposing” party’s witnesses (Mr Sherratt and his witnesses) were presented. This resulted therein that we received only evidence of the one party as to what transpired during the incident. This state of play is unhealthy and not in the interest of the general administration of motor sport. MSA is instructed to remind competitors (and all related parties in terms of the GCR’s) that they have an obligation to make themselves available in tribunals and Courts where disputes are ventilated to which they can and should contribute.
3.3 As to the merits of the matter, the Appellant testified how the incident happened on the day in question. Clinton is seven years old and Jordan ten years old. They were competing in the third and last heat of the day. In the last corner Clinton’s kart ran wide to the entry of the corner. Jordan tried to overtake Clinton and a collision took place between the two karts. Clinton’s kart veered off the track, but eventually came to a standstill on the racetrack, some metres short of the finish line. By that point in time, Jordan had crossed the finish line as the winner. The Appellant and some other spectators waved to Clinton that he should try and push his kart over the finish line.
He waved back to them that the sprocket of his kart was damaged and whilst he tried to push the kart, he failed to push the kart over the finish line. The Appellant, after the kart was recovered, filed the incident report. Mr Sherratt apparently later explained to the Appellant that he only filed the protest because he “thought” that the Appellant reported the matter in some way to the officials. This statement appears questionable as Mr Sherratt’s protest clearly preceded the incident report of the Appellant, in time.
3.4 The only other evidence which we have to our avail to consider before we come to any finding on the merits is that the marshal’s report supports the evidence of the Appellant. The entry indicates “Cart 20 bumped cart 57 on turn 9 out of race” (see page 1 of the Appeal bundle). Kart 20 was driven by Jordan and Kart 57 driven by Clinton.
In absence of any contradictory or conflicting evidence, we are therefore faced with all the evidence supporting the version of the Appellant. There is no evidence to contradict or gainsay the evidence of the Appellant. He impressed us with the straightforward manner with which he recalled the events and his testimony in general was balanced. On the merits of the matter there is therefore no reason why the Appellant should not succeed with his Appeal. There is no evidence that he was driving recklessly or in a dangerous manner. There is no evidence that he used abusive hand signals.
3.5 Now dealing with the sanction against Jordan, handed down by COA 347, we, at the outset of this Appeal, asked Mr North whether he had any view as to whether COA 347 acted competently by handing down a sanction against Jordan to disqualify him from participation in motor sport for a period of six months (which was suspended), for his involvement in the incident which was record as: ”Jordan Sherratt was also clearly guilty of wild and reckless driving, but to a lesser extent.” Mr North indicated that, in his view, there was no merit or provision in the GCR’s to be found that a Court of Appeal can summarily sanction a witness at an Appeal hearing where the witness has no locus standi or involvement other than being a witness. We are indebted to Mr North for his contribution in this regard. We find that COA 347 acted contrary to its power in terms of the GCR’s by handing down a sanction against a witness who had no locus standi as an Appellant at the Court of Appeal. There is no provision in the GCR’s providing for this unilateral conduct by a Court of Appeal handing down a sanction against a witness called to testify by a party. Accordingly, the sanction as to Jordan imposed by COA 347, must be set aside and annulled.
3.6 The remaining findings handed down by COA 347, all appear inter-related to the incident described above. Without any evidence to support any of these findings, we are of the view that all of the remaining findings should also be set aside and annulled.
4. Findings
4.1 We accordingly find that:
4.1.1 the Appeal is upheld;
4.1.2 the findings of COA 347 are set aside in their entirety;
4.1.3 the Appeal fee paid by the Appellant less 25% (twenty five percent) thereof for administrative costs, shall be repaid to the Appellant in terms of Appendix R 14 Notes: iii;
4.1.4 MSA shall refund the Appellant for the costs of R5 000.00 (Five Thousand Rand) imposed by COA 347;
4.1.5 MSA should officially inform competitor Jordan Sherratt and Mr Gary Sherratt of these findings.
Ref: 154202/98
(20 July 2009)
NATIONAL COURT OF APPEAL, NO 138
FINDINGS OF NATIONAL COURT OF APPEAL NO 138 LODGED AGAINST THE FINDINGS OF COURT OF ENQUIRY 967.HELD ON THE 4Th FEBRUARY 2009 IN THE MSA BOARDROOM,108 MONZA CLOSE,KYALAMI BUSSINESS PARK.
PRESENT:ADVOCATE PIERRE DE WAAL(SC)-COURT PRESIDENT
MR J J GEYSER-COURT MEMBER
MR M CLINGMAN-COURT MEMBER
MR HECTOR NORTH REPRESENTING THE APPELLANT
MR D BOSHI-APPELLANT
MR A WHEELER-MANAGER SPORTING SERVICES
1.This appeal stems from a hearing conducted by a Court of Enquiry (No 967) constituted in terms of GCR 211. The hearing was conducted in the absence of the appellant, Mr Denton Boshi. The Court of Enquiry (“COE”) was tasked to investigate ”correspondence distributed” by the appellant. It appears that the “correspondence” relates to an e-mail sent by the appellant to the Chairperson of the Maritzburg Junior Motocross Club (“MJMX”), Ms Debbie Schroeder, on 7 October, and copied to no less than approximately 14 people apparently involved in motocross. The e-mail contains a number of unsavoury and unfortunate, if not inappropriate, statements. It also speaks of an insulting and inflammatory tone which will not escape any ordinary reader thereof. It is not difficult to see why this was the originating cause of a COE and ultimately this appeal.
2.In terms of GCR 211 ii) a COE is effectively convened as an MSA Court of Appeal as a result of which any decision made by the COE may be considered by this Court. The appeal appears to be an admissible appeal and the appropriate appeal fee has been paid. There was no objection to the constitution of this Court.
3.A notification to attend the COE was sent by e-mail to the appellant on Friday 17 October 2008 at 4:58 pm (which the appellant alleges to have been after hours) as a result of which he only received it on Monday, 20 October 2008. The appellant, in an e-mail sent at 4.51 pm on 20 October 2008, informed the MSA Sport Co-Ordinator KZN that he would be unable to attend the court enquiry “due to prior commitments”. No detail of these “prior commitments” are contained in the appellant’s response. The COE conducted and concluded its affairs, in accordance with the notification sent to the appellant, on 24 October 2008. The COE recorded the appellant’s alleged inability to attend, rejected the apology and proceeded with the enquiry in his absence, a course of conduct specifically authorized in terms of the provisions of GCR 220. It is at this point that confusion appears to have set in which permeated to the proceedings before this Court. Based on certain evidence and representations, the COE found, correctly in our view, that the complaint should first have been dealt with by the Regional Motocross Sub-Committee at one of their monthly meetings before it being sent directly to MSA. However, it is the second part of the findings of the COE which forms the subject matter and reason for this appeal. It was found that the appellant was guilty of contravention of GCR 172 x). GCR 172 x) declares “abuse of officials by competitors and/or their family members and/or members of their pit crew” to be a breach of the GCR’s. What then followed contributed to considerable confusion and ultimately led to a delay of the proceedings before this Court.
4.The cause of the confusion was the sanction imposed by the COE which reads as follows: “... due to the findings of COE 946, Mr Boshi is hereby suspended from attending any MSA sanctioned Motorsport event for a period of 6 months as at 24/10/2008 up to and including 23/4/2009. The Court has no other alternative other than to impose the above sentence.”
5.Mr North, who appeared on behalf of the appellant in the proceedings before this Court, interpreted this sanction to have been the putting into operation of a previously suspended sentence imposed upon the appellant by a COE (COE 946) in terms of which the appellant was “suspended from attending any MSA sanctioned Motorsport event for a period of six months. This sentence is suspended for a period of 12 months on condition Mr Boshi is not found guilty of any contravention under GCR 172 in its entirety during the period of suspension”. Two members of this Court interpreted the finding of the COE as not constituting the imposition of an independent penalty to appellant’s “new” transgression, but rather the putting into operation of the previous suspended penalty. One member of this Court interpreted the findings of COE to constitute the imposition of a “new” sentence for a “new” transgression having taken into account the findings of the previous COE. The matter stood down in order to afford Mr North time to submit argument on the second interpretation as well.
6.Arising from the debate of the matter before this Court, another opportunity was granted to Mr North to stand down in order to take certain instructions pertaining to issues raised by this Court during argument which ultimately culminated in the matter being adjourned to afford the appellant to consider his position and to present full written argument on such issues as he wished to submit. MSA was afforded an opportunity to present a written answer to such further submissions by or on behalf of the appellant, and the latter was granted an opportunity of reply which, if he so desired, was to have reached this Court by no later than 4 March 2009. A reply was received and the matter was considered on the basis of the relevant documents submitted to this Court, the notice of appeal, Mr North’s oral argument and the content of the respective supplementary written argument. It should be mentioned that the appellant had clearly decided that there is no need to request an opportunity to present any further viva voce or documentary evidence.
7.This Court does not intend to summarize the various arguments presented to it on behalf of the appellant at the outset, but it shall be dealt with as part and parcel of the findings which follow.
8.It is apposite to refer to the first major bone of contention which relates to an issue raised by the Court with Mr North, and which he addressed in his supplementary written argument. This is the question whether this Court (and by implication the COE and MSA) has any jurisdiction to conduct a hearing in respect of the conduct of the appellant and, if appropriate, to impose a penalty. Mr North contended that there is no such jurisdiction by reason of the fact that the appellant has not entered into any agreement with MSA in terms of its rules and regulatory mechanisms and, that he is also not the holder of a licence issued by MSA. MSA argued to the contrary. There is no merit in the submissions submitted on behalf of the appellant.
9.During verbal argument Mr North informed this Court that although Mr Boshi is not a licence holder, he is the father of certain minor competitors and also the chairperson of a motocross club affiliated to MSA (referred to as “ECJMX”). He is involved in this matter in his personal capacity and not in his “official” capacity, so it was argued. It appears that the appellant, as the father of two competitors, in fact, co-signed the licence application forms of his sons to MSA during respectively November 2007 and January 2008 (i.e. pertaining to their intended participation in motocross in 2008). In terms of the aforesaid applications, the appellant acknowledged and consented, in conjunction with this minor sons, to the rules and regulatory provisions of MSA. Moreover, the parent or guardian of a minor competitor is deemed to be the competitor for purposes of the GCR’s in terms of GCR 19. Mr North’s response to this deeming provision is that neither the respondent nor his children were competitors at the relevant time (assuming it to mean at the time when the particular e-mail was sent). Accordingly, so the argument is developed, this Court is not entitled to hear any dispute between the complainant, Ms Schroeder, and the appellant. It is not clear on what basis this submission is founded. If Mr North’s argument is correct, it would mean, by parity or reasoning, that a competitor who is a member of an affiliated club who, for example, assaults another member at a meeting (i.e. not within the context of a competition) will not be subject to any sanction or penalty provided for in the MSA Handbook because such misconduct did not occur in the context of a competition.
10.The preamble or introduction contained in part 1 of the GCR’s makes it clear that MSA holds the sporting authority to govern motorsport in South Africa which “shall mean it holds the exclusive right to take all decisions concerning the organizing, direction and management of motorsport ...”. In terms of GCR 66, MSA, in its own right, or through the powers delegated by it to tribunals or courts constituted in terms of the GCR’s, exercises, inter alia, such judicial powers and functions concerning any motorsport matter or question arising within its territory (see also GCR 65). In addition, the appellant has, by reason of what is set out above, also confirmed his acquaintance with and submission to the GCR’s in terms of the provisions of GCR 122 i) and ii). The provisions of GCR 173, in the context of what has been set out above, is also important in that any person, directly or indirectly involved in motorsport, who commits a breach of the rules and regulations, may be penalized by any of the authorized structures of MSA or MSA itself. The appellant is furthermore a member (and not only a member, but also the chairperson) of an affiliated club. As such, he is a person, if not directly, at the very least, indirectly involved in motorsport. It is not surprising that the neither the appellant nor Mr North independently raised the argument at any earlier stage that the appellant is not subject to the jurisdiction of MSA or any of its duly constituted judicial structures. His conduct throughout speaks of submission to the GCR’s - which, had he thought differently, would surely have been raised even in his response to the COE’s notification of attendance. That response demonstrates more than a fair knowledge of the GCR’s. It matters not that the conduct of the appellant under investigation did not strictly occur within the context of a competition. Nothing in the context of the aforesaid provisions of the MSA Handbook is supportive of the limiting interpretation contended for on behalf of the appellant. This Court therefore finds that the appellant is a person envisaged in GCR 173 and is also deemed to be a competitor in terms of GCR 19, as a result of which the judicial powers exercised in respect of his conduct in terms of the GCR’s were and are entirely competent.
11.The second issue relates to the provisions of GCR 208 viii) which provides that all appeals in terms of the MSA Handbook are held de novo. Mr North submitted that the words “de novo” does not mean that this Court is entitled to “conduct a complete re-hearing of and a fresh determination on the merits of the matter with or without additional evidence”. He submits that this Court, in deciding the appeal, is limited to the evidence or information on which the decision of the COE was given. The essence of his submission is that this Court is only empowered to determine whether the decision appealed against is right or wrong. Mr North contended in his replying submission that the provisions of GCR 216 would be meaningless if the provisions of GCR 208 viii) is intended to mean a de novo hearing in the true sense of the word. GCR 216 deals with inadmissible appeals and contains nothing which, according to our reading of this GCR, would support an inference as contended for by Mr North. The remainder of his submission is accordingly henceforth considered. For the reasons set out hereunder, the appeal should succeed if Mr North’s submission is correct. If not, the matter has to be determined afresh and in such an event, all the other grounds of appeal set out in the notice of appeal would also come into play.
12.On behalf of MSA it was submitted that the words “de novo” simply means “from the beginning”, which requires a consideration of the matter anew as if it had not been heard before and as if no decision was previously arrived at. This appears to this Court to be a correct submission for the reasons that follow. There is accordingly no merit in Mr North’s submission.
13.According to the Trilingual Legal Dictionary, 3rd Edition by Hiemstra and Gonin, p 175 “de novo” means “afresh; anew”. For the submission made on behalf of the appellant be correct, the words “de novo” in GCR 208 viii) have to be regarded as superfluous with no special meaning. Moreover, the GCR’s should be read as if GCR 208 viii) does not exist. That is clearly an approach which defies commonsense and the principal that there is a presumption against such interpretation (i.e. words used are intended to bear a meaning and should bear its ordinary grammatical meaning unless the contrary appears or is stated). Put differently, some meaning has to be attributed to words used unless the context demonstrates that the words have been used with no demonstrable meaning to be gleaned therefrom. The latter is not the case here. No such inference can be found in the context of GCR 208 or any of the other GCR’s relating to appeals and enquiries in Part X of the MSA Handbook 2008. The context demonstrates the contrary.
14.GCR 220 strikingly draws a parallel between hearings and appeals. In both instances witnesses may be called by either MSA or the parties involved. This is not the case in an appeal where the appeal tribunal is confined to the record of the hearing conducted a quo. None of the tribunals of MSA are courts or tribunals of record. There is no recording of the evidence adduced, the argument presented and the like. It is our view that there is ample reason to be found not only in the relevant GCR’s but also on a commonsense approach why hearings before this Court is conducted afresh or anew in the true sense of the word. It may be added that there is another reason why this is so. The tenor of the GCR’s relating to protests, disputes and hearings in general is that disputes should be resolved (in the true sense of the word), i.e. fanciful technical arguments without getting to the root of the dispute is not conducive to the resolution of disputes. This is particularly so in motorsport where the participants and other role players are often engaged in a dangerous exercise where unresolved disputes (i.e. those disputes resolved merely on a technical basis without dealing with the true nature or merits of the dispute) may result in dissatisfaction amongst competitors and officials which in itself may become a festering catalyst of unhappiness leading people to resort to conduct aimed at resolving disputes by means of self-help. This is patently unsatisfactory and should be discouraged in the strongest terms. Hearings de novo will prevent fanciful arguments and possible technical deficiencies in procedure of an insubstantial nature standing in the way of the quest for fairness and justice (which the GCR’s are designed to achieve).
15.This Court will therefore approach this hearing “de novo”. This requires consideration of the appellant’s contention that he was not given ample notice of the hearing which was held by the COE and that the notice requiring his attendance did not state in which capacity his attendance was being required as provided for in GCR 220. Despite the fact that the appellant may only have received the notification to attend the hearing by the COE 4 days before it was to be heard, the notice was sent in compliance of the required 7 days prior to the scheduled hearing. In terms of GCR 68 ii), faxed or e-mail communications are deemed to have reached the addressee within 7 days. In terms of the notice the appellant could not have been under any misapprehension that his attendance was being required in his personal capacity and that it would involve the correspondence which he distributed (of which copies were annexed). Consequently it is found that there is also no merit in these points raised by on or behalf of the appellant.
16.Mr North also took issue with the fact that the COE proceeded in the absence of the appellant. As indicated above, the COE was perfectly within its right to do so, particularly where no reasons of substance whatsoever was given for the alleged inability of the appellant to attend. Whilst this Court may have approached the matter differently, mere disagreement does not constitute sufficient ground upon which it can be found that the COE acted incorrectly in exercising its discretion to proceed in the absence of the appellant. However, even if there was merit in all of the aforesaid “technical arguments” (i.e. an inadequate notice period, a deficient notice and the conducting of the COE in the appellant’s absence), any prejudice or potential prejudice which he may have suffered, is cured by the fact that this hearing is conducted de novo. This Court finds that any deficiency in any of the areas mentioned is not of sufficient gravity to vitiate the proceedings in totality.
17.As far as the merits of the findings of the COE are concerned this Court does not intend to deal with the finding at any great length. It is obvious that Ms Schroeder was not an “official” as contemplated in GCR 172 x). The word “official” has a very specific meaning. The context of the MSA Handbook Part VII (GCR 143-171) clearly, and in our view conclusively, indicates that “officials” are persons specifically involved to some or other extent in the context of the actual organising and running of a competition. Whilst it is not inconceivable that the chairperson of a particular club affiliated to MSA may in certain circumstances also be an official, there is no evidence before this Court to indicate that this was the case in this instance. To that extent, this Court is satisfied that the COE’s finding was incorrect and that the appellant is not guilty of transgressing GCR 172 x).
18.Fortunate as that may be from the appellant’s perspective, it remains to be considered whether the e-mail which the appellant sent to Ms Schroeder constitutes “any proceeding or act prejudicial to the interests of MSA or of motor sport (sic) generally” as contemplated in GCR 172 iv). This issue was pertinently raised by this Court with Mr North during argument upon which he presented verbal argument which is repeated in paragraph 6 of the written submissions filed on behalf of the appellant. In essence, it is submitted that there is no evidence upon which this Court can decide that the appellant acted prejudicial to the interests of MSA or of motorsport generally. During verbal argument, Mr North contended that absent such evidence, this Court is not empowered to decide whether a particular act is prejudicial as defined or not by relying on its own view of what is or is not prejudicial. It is also contended that electronic correspondence, presumably in the nature of the e-mail in question, is inadmissible and in conflict with the provisions of GCR 220. In our view there is also no merit to these submissions. During verbal argument it was not contested that the appellant had in fact sent the offending e-mail. In fact, Mr North was pertinently asked whether it is denied that the appellant is the author of the e-mail and that he had sent it. The response was that the appellant does not dispute this - a concession which was properly made. If the submission intends to suggest that only evidence introduced through the testimony of a witness who gives viva voce evidence is admissible, such submission is incorrect and unfounded. GCR 220 does not state that evidence may only be received by means of the viva voce testimony of witnesses. The strict rules of evidence applicable in normal courts of law (whether they be civil or criminal) also do not apply in matters of this nature. Any evidence may be received provided that the proceedings and receipt of evidence is done in a manner which promotes fairness and justice to all parties. There is nothing in this case which offends that principle. This is also particularly the case in respect of the offending e-mail. This Court rules that the e-mail is not only admissible but constitutes conclusive proof of its contents and that the appellant is the author thereof by reason of his own admission. This issue is therefore not deserving of further consideration.
19.This Court is par excellance empowered and enjoined to decide on matters involving policy considerations such as whether a particular act is prejudicial to the interests of MSA or of motorsport in general. It is similar to any court of law deciding whether a particular form of conduct is contrary to public policy or accords with the “reasonable man”-test. There is no doubt that the particular e-mail referred to in paragraph 1 above, is not conducive to a proper, civilized and professional method of resolving disputes which may arise not only between competitors or officials inter se, but also between administrators (who often are parents of competitors) of different clubs (as was the case here). The appellant could have availed himself of any and all measures provided in the GCR’s aimed at dispute resolution. He chose not to. This is to be discouraged. If Mr North’s submissions are correctly understood he argues that the appellant’s conduct was not demonstrated to constitute any irreparable or anticipated irreparable prejudice or impairment of the interests of MSA or motorsport in general. Actual prejudice is not a requirement. Potential prejudice is sufficient.
20.In coming to this decision, this Court has not lost sight of the fact that a reasonable opportunity should always be given to a person’s freedom of expression even if it is done somewhat robustly and not entirely to the liking of others. However, such freedom is not boundless or unlimited. Within the bounds of what is regarded as proper in an open and democratic society, particularly given the nature of motorsport in general, inflammatory and insulting correspondence serves no purpose and is likely to result in contributing adversely to any potentially explosive situation rather than to defuse it. Having said that, it is also true that in society in general, harsh, unfortunate and even insulting comments are exchanged between normal people. The somewhat egocentric nature of those who find motorsport attractive, may also call for a personality of courser fibre than would be found at the local ornithological society - a gloves-off approach is to some extent part and parcel of motorsport. This does not mean that abuse of others are to be tolerated. However, in this particular case the appellant saw fit to distribute the contents of his rather offensive e-mail with gay abandon. This Court is also not oblivious to the fact, as also argued by Mr North, that the appellant’s conduct may not have been entirely unprovoked. It is clear that there was a preceding history and probable build-up of emotions which came to the fore and gave rise to the appellant’s unrestrained and unfortunate publication and dissemination of the particular e-mail. In doing so, he acted in a manner prejudicial to the interests of MSA and motorsport in general. He would be well advised to desist from such conduct in future if he is to meaningfully contribute to any form of motorsport, particularly where juniors are involved. The notion of parents behaving badly is an occurrence that is all too frequent in all forms of junior motorsport. The sentence imposed on the appellant by COE 946 pursuant to an altercation between him and another parent which took place on 24 May 2008, is ample illustration of this fact. It is accordingly found that the appellant is in breach of GCR 172 iv).
21.What remains to be considered is firstly, the penalty imposed by the COE and secondly, if this Court is inclined to interfere with such sentence, what the appropriate penalty should be.
22.Whilst this case is a good illustration of other MSA tribunals’ (in the general sense) affinity to resort to imposition of penalties in the nature of a prohibition on the person involved to attend any MSA sanctioned motorsport event for a particular period, it is, and not surprisingly, a fact that there is simply no provision for such a penalty to be found in the MSA Handbook or elsewhere in any of MSA’s regulatory provisions. GCR 177 clearly sets out the nature and scale of penalties which may be imposed. The penalty imposed by COE 967 (irrespective of whether it is an independent penalty or aimed at putting into operation the suspended penalty imposed by COE 946) and the penalty imposed by COE 946, albeit that it was suspended for a period of 12 months, is irregular and not within the powers of any tribunal to impose in the format found in this instance. This does not affect the right of the organisers of any event to restrict access of undesirable persons in terms of their right of admission which is a different situation altogether.
23.Whilst it is possible to achieve the same result by including such a “suspension of attendance” as part of a condition of suspension, this Court finds that it is unnecessary in this instance to deal with such a possibility and how it could be achieved. This Court is disinclined to express views which may be only of academic significance. The penalty imposed by the COE 967 is therefore set aside. This particular finding is not to be understood to be a setting aside of the penalty imposed by the COE 946 - this Court has, absent an appeal on that penalty, no power to interfere It is important to invite attention to the fact that it is in any event not proper to simply put into operation a previously suspended sentence without giving notice the person concerned of the intention to do so. In this particular instance, the COE should have imposed the penalty for the transgression which the appellant was found to have contravened. The enquiry as to whether a previously suspended penalty or sentence should be put into operation, is an entirely different and separate enquiry (which may be done at any time after conclusion of an enquiry which may render the particular offender liable to the suspended penalty being put into operation). These comments are not intended to be a criticism of the particular COE as much as it is deemed necessary to afford guidance on how to approach matters of this kind. This Court is painfully aware of the time and effort which members of various MSA tribunals contribute, invariably free of charge, to ensure that motorsport affairs are conducted in an organized and efficient manner. There is also no doubt that mistakes occur inter alia as a result of bona fide misinterpretations of authority (and for a host of other reasons). Fortunately, structures are in place to correct injustices which may result from mistakes, bona fide or not. However, all tribunals will be well advised to always consider the scope of their authority in deciding whether a breach of the GCR’s has occurred in a particular instance and what the appropriate permitted penalty (or a combination thereof), is.
24.The appellant is clearly not averse to controversy. However, for purposes of deciding on an appropriate penalty, this Court will disregard the findings of COE 946 (the altercation of 24 May 2008)for present purposes. Whilst accepting that there must have been some measure of dissatisfaction which prompted the appellant to send the particular e-mail to Ms Schroeder and a number of other people, it was unacceptable to do so in the manner and form chosen by the appellant. As set out above, conduct of this nature may very well further inflame a situation which may culminate in a state of disorganization of the particular form of motorsport and may even result in adverse consequences occurring during competition. It is also taken into account that the appellant apparently extended an apology for his conduct.
25.In view of all the circumstances, this Court is of the view that the imposition of a suspended fine will be appropriate. This Court wishes to specifically caution that the penalty imposed in this instance should not be interpreted that the appellant’s conduct is not regarded in a serious light because the penalty is wholly suspended. Had it not been that the appellant will forfeit his appeal fee, which in itself is not insubstantial, the penalty may well have been much more severe. Hopefully the suspension of the current penalty will serve to persuade the appellant to contribute to motorsport in a more positive way and to set an example. If not, the suspended penalty may very well be put into operation. Parents are also reminded that their inappropriate and untoward actions in the context of their involvement in motorsport may very well influence their children’s participation in the sport by reason of, inter alia, the provision of GCR 172 x). Whilst the intention is not to visit the sins of the fathers on their children, the nature and intensity of and dangers associated with motorsport, in appropriate instances, may result in penalty aimed at preventing such parents from contributing to the spiral of negative influence caused by their actions. It is also for that reason that minor competitors and their parents are regarded as one. Parents are required to act with the necessary maturity in the interests of their children, failing which they may very well jeopardize the participation of their children in a potentially dangerous sport such as motorsport.
26.In the result this Court finds as follows:
26.1 The findings of Court of Enquiry 967 is set aside in its entirety;
26.2 The appellant is found to be in breach of GCR 172 iv);
26.3 A fine of R10 000,00 is imposed which is wholly suspended for a period of 3 years on condition that the appellant is not again found to be in breach of GCR 172 iv) or 172 x) committed during the period of suspension and for which a penalty other than a reprimand is imposed;
26.4 In terms of article 14 iii) of Appendix R the appeal fee is forfeited.
ALLAN WHEELER
MANAGER:SPORTING SERVICES
151755/098
(17 April 2009)
NATIONAL COURT OF APPEAL, NO 141
FINDINGS OF MSA NATIONAL COURT OF APPEAL NO 141
APPEAL LODGED BY MR CORRIE BEZUIDENHOUT ON BEHALF OF MINOR KARTER CLINTON BEZUIDENHOUT ARISING FROM THE FINDINGS OF MSA COURT OF APPEAL 340.
APPEAL HEARD AT MSA HEAD OFFICE AT 17H30 ON TUESDAY 17th MARCH 2009.
PRESENT:
ADVOCATES PIERRE DE WAAL COURT PRESIDENT
PAUL CARSTENSEN - COURT MEMBER (LATE ARRIVAL)
MESSRS MIKE CLINGMAN - COURT MEMBER
CORRIE BEZUIDENHOUT - APPELLANT
MRS VERONICA BEZUIDENHOUT - WIFE OF THE APPELLANT
MESSRS HECTOR NORTH - ATTORNEY FOR THE APPELLANT
RODNEY WILLIAMS - OBSERVER
WILLEM VAN HEERDEN - OBSERVER
ADRIAN SCHOLTZ - MSA
1. This matter is yet another example of the consequences of a lack of basic knowledge of the MSA Handbook which contains the General Competition Rules (“GCR’s”) and Appendices applicable for that year. This Court has highlighted this problem in other matters in recent times. In this instance, unfortunately, it also holds true in respect of those of whom a better knowledge and understanding of the GCR’s could be expected. This appeal arises from the findings of a Court of Appeal (No 340) held on 16th October 2008 in terms of which the granting of a competition licence to Clinton Bezuidenhout (“Clinton”) was the subject of an appeal lodged by another competitor, Jonathan Wing (“Jonathan”), duly assisted by his father, Mr Craig Wing (“Mr Wing”). The facts of the case are simple. The litany of errors which occurred (and which were compounded) is not.
2. On 14th December 2007, Clinton’s father, Mr Corrie Bezuidenhout (appellant) lodged two applications for competition licences at the head office of MSA in Johannesburg. Both were in respect of regional competition licences aimed at enabling Clinton to compete in karting in KwaZulu-Natal in the Junior GP class, and in the Northern Regions. It is the application and subsequent granting of a competition licence enabling Clinton to compete in KwaZulu-Natal which is the subject matter of this appeal.
3. The core of the problem arose from the fact that Clinton was born on 25th March 2001 but wanted to compete in the Junior GP Class in KwaZulu-Natal when the particular year in which he intended to compete (i.e. 2008), would have been the year of his 7th birthday. In terms of the MSA Karting Regulations applicable in 2008, there is a minimum age limit for someone to compete in the Junior GP Class in terms of article 15 iii)b). It is open to all drivers from the year of their 8th birthday to 31 December of the year in which their 12th birthday occurs.
4. Upon lodging the application for a Junior GP licence, Clinton’s father submitted not only a duly completed application form in the prescribed format, but also submitted Clinton’s birth certificate and a letter setting out particulars of Clinton’s ability and/or experience in karting under cover of which Clinton’s “curriculum vitae” in respect of his racing career was set out in full detail. It appears that Clinton had been participating in kart racing since the age of 4 years. Mr Bezuidenhout submitted the aforesaid documents in this format in order to obtain permission from MSA for a special dispensation to permit Clinton to race in the Junior GP Class despite the fact that he was ineligible in terms of the prescribed age limit. It is unnecessary to deal with the reasons for this request. Mr Bezuidenhout disclosed those reasons in minute detail to this Court and it appears that there was good reason for doing so. For purposes of this appeal, however, it is not relevant whether those reasons were good or not. What is important is that MSA issued a regional competition licence to Clinton to compete in the Junior GP Class. According to the evidence before this Court, Clinton thereafter competed with full knowledge of all and sundry (particularly the officials in control at the various race meetings in which he participated) until Jonathan, duly assisted by his father Mr Wing, lodged an objection to Clinton’s participation in the KwaZulu-Natal Junior GP Karting Series. This “objection” is dated 22 September 2008. As a result of this objection, the circumstances surrounding the granting of Clinton’s Junior GP licence were investigated by MSA pursuant to which a decision was taken to permit him to continue with his participation in the KZN Junior GP Championship. This is confirmed in a letter addressed to Mr Wing by Mr A Scholtz, the MSA Manager - Sporting Services. Mr Scholtz who also gave evidence before this Court.
5. In response to the aforesaid letter of Mr Scholtz, Mr Wing recorded his dissatisfaction with MSA’s decision, reminding Mr Scholtz that “as an attorney”, he has “read the regulations thoroughly”, and that there is “no provision” in terms of which special dispensation could have been granted to Clinton. He threatened to lodge an appeal, which he duly did on 30th September 2008 as appears from a notice of appeal signed by Jonathan duly assisted by Mr Wing. Whilst evidence was led regarding the motivation for the vigorous pursuit of this issue by Mr Wing, it is not necessary for this Court to consider whether or not it was truly motivated by his concern for the safety of Clinton and other competitors or whether it was motivated to achieve elimination of a championship contender.
6. An appeal hearing was scheduled to take place on 16th October 2008. On 14th October 2008 Mr Wing, in terms of an e-mail sent to Mrs Maria Buys of MSA, adopted an unfortunate approach, given that he is an attorney. In the e-mail he adopts the stance that he believes that it was “procedurally” incorrect for the matter to be referred to appeal (it is not necessary to deal with the correctness of this point of view or the reasons therefor at this point). He also adopts the stance, correctly in our view, that the subsequent decision by MSA to either grant or confirm the previous grant of special dispensation to Clinton, rendered his appeal academic. He appears to then withdraw the appeal. However, in terms of a postscript to this e-mail, clearly motivated by a disciplinary enquiry being held, inter alia, into his conduct for having confronted Mr Bezuidenhout at race meeting on 21st September 2008, he advises that the withdrawal of his appeal is conditional upon withdrawal of the disciplinary enquiry into his conduct by the KZN Kart Club. It is perhaps best not to say too much about this approach. It is not clear whether the contents of this e-mail and the “conditional withdrawal” were brought to the attention to the Court of Appeal.
7. Against the aforesaid background, the appeal by Mr Wing (which he did not believe was competent and yet proceeded with because he was the subject of a disciplinary enquiry) was heard. It is not clear what evidence the Court of Appeal received and what the representations were, but it would appear that the particular findings bar one, were all based on interpretations of certain GCR’s and the karting regulations. Mr Wing’s appeal (which was, strictly speaking, the appeal of his son) was upheld and his appeal fee was directed to be returned. Clinton’s Regional Junior GP licence was suspended and certain recommendations were also made. This appeal is directed against the suspension of Clinton’s Junior GP Regional licence.
8. It should perhaps be mentioned that the one finding of the Court of Appeal which was seemingly made on evidence presented, was that the allegations of “misbehaviour” on the part of Clinton could clearly not be substantiated from reports of officials. The raison d’etre of the appeal was Clinton’s alleged immaturity as a driver and the concerns of his fellow competitor (probably rather the concerns of the latter’s father) relating to the “medical and/or other insurance implications” had any of the alleged incidents, reflective of Clinton’s alleged immaturity, resulted in injury to Clinton or another competitor. It shall unfortunately remain a mystery whether these apparently noble concerns were in fact the true reason for commence¬ment of and persistence with an appeal which exposed more than it resolved.
9. The appellant lodged an appeal to this Court. In terms of GCR 19, by reason of the fact that he is the parent of Clinton, he is deemed to be a competitor, and an appeal by him in his own name is therefore competent. The grounds of appeal are essentially twofold. Firstly, the appellant contends that MSA could and did exercise a discretion to issue a licence to a person who did not otherwise meet certain minimum qualifications. Secondly, it was contended that the appeal by Jonathan, assisted by his father, was an inadmissible appeal. The appellant was represented by Mr H North, of Schwarz-North Incorporated, in the proceedings before this Court.
10. It is perhaps apposite to deal with the second ground of appeal first An argument was developed that Jonathan’s appeal was inadmissible by reason of the provisions of GCR 216 vi) in that it was an appeal contrary to the provisions of GCR 208 ix). GCR 208 ix) does not come into play at all. The latter provision relates to appeals against a judgment or order of an MSA Court of Appeal to the National Court of Appeal. Jonathan’s appeal was an appeal to a Court of Appeal and not the National Court of Appeal. There is accordingly no merit in the second ground of appeal.
11. However, the first ground of appeal does not suffer the same fate and requires further consideration. It is perhaps at this point apposite to mention that it is somewhat disturbing that neither Mr Wing (who is apparently, as stated in his correspondence, an attorney) nor the Court of Appeal seemed to have considered the provisions of the note in bold at the end of GCR 127. In terms of the note, MSA explicitly reserves the right to, in its sole discretion, issue a licence to an applicant who may not meet the “stipulated minimum qualifications” (see the note in paragraph i) of the provision relating to the reservation of rights in GCR 127). There is one proviso to the exercise of this discretion and that is that the applicant should satisfy MSA as to his ability and/or experience, of which he must submit full particulars in writing in support of his application for a licence. That article 15 iii) b) of the MSA Karting Regulations contains “stipulated minimum qualifications” is patently beyond dispute. There is a specified minimum age level which is encompassed in the notion of “minimum qualifications”.
12. Clinton applied for the discretionary issuing of a licence because he did not meet the minimum age requirement. Moreover, he also clearly submitted full particulars of his ability and experience as required. A licence was then issued, presumably because he had satisfied MSA of his ability and experience. It should be mentioned that the appellant was quite candid that the person to whom he handed the substantiated application virtually immediately issued the licence. Whether she was authorised to issue the licence in these circumstances is not clear. The distinct impression was gained from the evidence of Mr Scholtz that she probably was not authorised to take the decision to issue a licence where it involved the discretion of MSA to waive the stipulated minimum age requirement.
13. However, even if MSA, through an unauthorised employee, incorrectly issued a licence, it does not necessarily follow that the issuing of such a licence can be summarily withdrawn (as effectively happened in terms of the findings of the Court of Appeal), especially where the applicant did absolutely nothing wrong, made a full disclosure and competed for many months on the strength of the licence issued. In this context, he clearly would have been entitled to assume that he was rightfully granted a licence to compete as a result of which he could reasonably and legitimately expect that the dispensation granted him, would be honoured. There was no duty on the applicant or his father to enquire whether the actual issuing of the licence complied in all respects with the internal channels of authorisation of MSA. From their perspective, they would have been perfectly entitled to assume that the person who in fact issued the licence was authorised to do so.
14. Even if it can be said that the issuing of the licence, in the circumstances fully explained to this Court by the appellant, was erroneous or incorrect (whether for want of authorisation by the administrative clerk tasked with the issuing of licences or otherwise), any failure to have exercised the discretion specifically provided for in GCR 127, occurred before the initial appeal of Jonathan was lodged. The importance of this fact is dealt with hereunder.
15. For purposes of this appeal, and without finally deciding it, this Court shall accept that the granting or issuing of a licence and the exercise by MSA of a sole discretion in favour of granting a special dispensation to a fellow competitor, either at the time of his initial application for a licence or thereafter, constitutes an appealable action or decision as contemplated in GCR 215 ii). Furthermore, whilst the relevant provision of GCR 127 under consideration is probably intended to relate to an exercise of a discretion at the time when the licence is issued, the notion of a “sole discretion” embodies, in our view, the right to exercise such a discretion even if it constitutes a ratification of an earlier otherwise incorrect or erroneous action. It is also perhaps important to record that the appeal by Jonathan was not premised on the grounds upon which the exercise of a true discretion can normally be attacked, such as capriciousness, etc.
16. It therefore follows that MSA could and did issue a licence to Clinton (even if it was ratified subsequently) in terms of the sole discretion it had to do so, and that it was not issued “erroneously” as found by the Court of Appeal. It is also unfortunate that the Court of Appeal did not consider the provisions of GCR 215 ii) in making the finding that an appeal would only be competent following an “official protest”. It is also difficult to reconcile the finding of the Court of Appeal that Clinton’s licence was granted erroneously in that he was under age and that he had not been granted a special dispensation, with the finding that MSA, as seems to be suggested, albeit for the wrong reasons, had the discretion to do what it did. In our view the reference to GCR 67 by the Court of Appeal is misplaced. The discretion exercised by MSA in the context of GCR 127 is completely different from the exercise of a sole and absolute discretion to add to, amend, repeal or substitute any GCR, SSR or SR as contemplated in GCR 67. An exercise of a discretion as envisaged in GCR 67 simply does not feature. All tribunals empowered to consider appeals (i.e. Courts of Appeal or Courts of Enquiry) are again reminded of their obligation to ensure a good knowledge and application of all the relevant provisions which they are enjoined to apply. A bona fide but incorrect interpretation of a particular provision (GCR, SSR, SR or any other regulation) cannot be criticised. The failure at all to consider or apply a provision which is applicable is inexcusable. It may lead to patent unfairness and injustice not to mention a wasting of resources, all of which the relevant grievance procedures are designed to avoid.
17. In this context, and in addition to what has already been set out above, the Court of Appeal may also have misdirected itself as far as the issue of the appeal fee is concerned. In terms of article 14 iii) of Appendix R to the GCR’s administrative costs are payable even by a successful appellant. It may very well be (although it is not stated by it) - and it is assumed in favour of the Court of Appeal - that these provisions were considered and that its finding relating to the return of the appeal fee relates to the balance of the appeal fee i.e. R3 750.00 seeing that the minimum that is peremptory to be retained, is R250.00. There is no discretion to order otherwise. However, by reason of the ultimate finding of this Court, the appeal by Jonathan Wing is ultimately unsuccessful. Evidence was presented to this Court by Mr Scholtz that Mr Wing (ostensibly also on behalf of his son) waived the right to attend this hearing. Given the originating course of the events which ultimately led to the appeal of the appellant to this Court, the disinterest of Jonathan (more likely, his father), is not difficult to understand given Mr Wing’s conditional withdrawal of his appeal referred to in paragraph 6 above. For the reasons set out above serious consideration would have been given to an adverse costs order against Mr Wing had he been present to submit reasons why such an order should not follow. The impression that the initial appeal may very well have been frivolous continues to linger. However, and somewhat reluctantly, this Court will persist only with the consequences naturally flowing from the provisions of article 14 of Appendix R to the GCR’s, i.e. that the ultimately unsuccessful appeal of Jonathan should result in the appeal fee of R4 000.00 being forfeited.
18. In the result the following finding is made:
18.1 The appeal of the appellant is upheld and the findings of the Court of Appeal No 340 are set aside in their entirety.
18.2 In terms of article 14 iii) of Appendix R to the GCR’s the prescribed minimum of R250.00 of the appellant’s appeal fee is to be retained and the balance shall be returned.
18.3 The appeal fee relating to the appeal of competitor Jonathan Wing assisted by his father Mr Craig Wing heard by Court of Appeal 340 is, in terms of the provisions of article 14 iii) of Appendix R to the GCR’s, forfeited in its entirety.
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