Private sporting bodies and the ‘supervisory disciplines of public law’: Ndoro v South African Football Association as an apt case study for line-drawing within a four-quadrant typology

Abstract

The public/private intersection is complex terrain. In this contribution, I seek to provide some conceptual clearing by crafting a four-quadrant typology to aid judicial line-drawing along the spectrum of public and private power. At the centre of these (non-watertight) categories is the realm of administrative action that may thus be subject to review under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Against this backdrop, I reflect upon the development presented in Ndoro v South African Football Association (‘Ndoro’). This case fits within Quadrant 4 of my typology insofar as it pertains to private actors – the Federation Internationale de Football Association (FIFA); the South African Football Association (SAFA); the National Soccer League (NSL); member football clubs; and their players – founded and governed entirely by contract and so exercising (ostensibly) private powers. Notwithstanding these private matters of form, in Ndoro, Unterhalter J persuasively chartered new substantive terrain. Through carefully principled reasoning, he found that ‘what these bodies do and the objects they strive after are public in nature’. To this end, the court brought the applicable powers and functions of these bodies within the scope of PAJA-review proper, rather than simply employing the common-law principles that would normally be used in this context. This raises interesting questions about what public – and indeed, administrative law – is all about, and it lays the groundwork for judicial intervention in the likes of the ‘Jockey Club-type cases’ via PAJA.