---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANESBURG

CASE NO: 27854/2021

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

NOT REVISED

DATE OF HEARING: 14 JUNE 2021

21 JUNE 2021

In the matter between:

ROYAL AM FOOTBALL CLUB                                                     FIRST APPLICANT

And

NATIONAL SOCCER LEAGUE                                                FIRST RESPONDENT

CHIPPA UNITED FOOTBALL CLUB                                  SECOND RESPONDENT

RICHARDS BAY FOOTBALL CLUB                                       THIRD RESPONDENT

SEKHUKHUNE UNITED FOOTBALL CLUB                      FOURTH RESPONDENT

 

JUDGMENT

NYATHI AJ

A.    INTRODUCTION

[1]   This is an urgent application which has its genesis in conduct that is believed to be inconsistent with the Constitution; or conduct that is alleged to flout the rule of law. That is what this matter is about.

[2]   Due to the multiplicity of parties involved in this matter, club names are used interchangeably with parties’ designation for ease of reference and/or emphasis.

[3]   The applicant, a football club playing under the auspices of the first respondent is before court on an extremely urgent basis having lodged its application with severely truncated time frames for the respondents to respond to its application by filing affidavits.

[4]   The first respondent is the National Soccer League (NSL) an association which conducts its affairs under the name and style of the Premier Soccer League.

[5]   The third and fourth respondents are football clubs and members of the first respondent, competing in the National First Division known as the GladAfrica Championship.

[6]   The applicant asks that its non-compliance with the Uniform Rules be condoned and that its application be entertained in terms of Rule 6 (12) of the Uniform Rules of Court. The applicant seeks the following two-pronged relief:

6.1    First, a declaratory order that the first respondent's conduct is inconsistent with the Constitution and/or PAJA[1].

6.2    Second, interim relief that pending the final determination of the application for leave to appeal and/or appeal under case number 25191/21: (an earlier matter heard before his Lordship Sutherland DJP)

1.2.1  The commencement of the 2021 GladAfrica Promotion/Relegation Playoffs is suspended; and

1.2.2 The operation and implementation of the arbitration award of Epstein SC is hereby suspended.

A.   THE LAW ON URGENCY

[7]   The law governing urgency is settled. In terms of Rule 6(12) of the Uniform Rules of Court an applicant is in law required to set out the circumstances which justify the hearing of an application on an urgent basis and the grounds on which it contends that it would not obtain substantial redress at a hearing in due course.

[8]   The guidelines were laid down in Luna Meubels Vervaardigers (Edms) Bpk v Makin t/a Makin Furniture Manufacturers and Another[2] and in the Court’s Practice directives.

[9]   In the matter of East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd and Others[3] it was held:

“The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules, it will not obtain substantial readdress. It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”

[10]   In Mogalakwena Local Municipality v the Provincial Executive Council, Limpopo and Others[4] the court stated:

“It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent. Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent's and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents, self-created urgency."

APPLICANT’S SUBMISSIONS

[11]   The applicant in its founding affidavit amplifies the relief it seeks, namely,

11.1  “…the first declaratory order relates to a declaration of constitutional invalidity based on breaches of section 5 (equality), section 22 (economic activity), section 33 read with PAJA (administrative justice) and section 34 (access to the courts). Insofar as breaches of PAJA are concerned, specific reliance was made on sections 6(2)(c); 6(2)(d); 6(2)(f) and 6(2)(i) as well as the principle of legality.”

11.2   Granting an interim order that pending the final determination of the application for leave to appeal and/or appeal:

10.2.1    The commencement of the 2021 GladAfrica Promotion/Relegation Playoffs is suspended; and

10.2.2 The operation and implementation of the arbitration award of Epstein SC is hereby suspended.

[12]   The applicant( Royal AM) states in its founding affidavit from paragraph 38 onwards the chronology of events that unfolded after its receipt of the order in the Polokwane review application and the press statement that was issued by the first respondent( NSL) as follows:

“MEDIA STATEMENT

12 JUNE 2021

PSL MEDIA STATEMENT ON GLADAFRICA CHAMPIONSHIP COURT OUTCOMES

Judge Roland Sutherland today, 12 June 2021, handed down an order dealing with the disputes that arose at the end of the GladAfrica Championship.

A copy of the order is attached.

The Premier Soccer League (PSL) intervened in the proceedings and asked, by way of a counterclaim, for a declaratory order that the NSL Handbook is not silent, and that it deals fully with the way in which the NSL Disciplinary Committee and/or the SAFA Arbitration Tribunal must deal with misconduct matters in professional football in South Africa.

Judge Sutherland granted the declaratory order the League sought. Judge Sutherland also confirmed the two SAFA Arbitration Tribunal awards handed down by Advocates Epstein and Cassim SC which impacted the final log standings.

These awards where challenged by Polokwane City and TS Sporting. Neither challenge was upheld.

The consequence is that Sekhukhune United Football Club have secured automatic promotion to the DStv Premiership for next season, while Chippa United, Royal AM, and Richards Bay Football Clubs will contest the promotion/relegation play offs which will commence on the 15th of June 2021.

ENDS”

[13]   Upon receipt of the press statement, applicant held consultations with its lawyers overnight preparing a leave to appeal application and a letter to the first respondent seeking an undertaking that the playoffs would not take place pending their application for leave to appeal. The deadline given in the letter to respondent was 17h00 on Sunday 13 June 2021.

[14]   During the said overnight consultations, the applicant learnt that the majority of its players have taken the playing break and travelled to their homes in different parts of the country and the continent. The prominent example in this regard was applicant’s goalkeeper who was at home in Cameroon.

[15]   On Sunday 13 June 2021 at 17h00, applicant received a response from the first respondent wherein respondent was refusing to make the undertaking requested of it. On this basis, the applicant immediately sped up its preparations to launch this application on an extremely urgent basis and to seek to have the matter heard on Monday 14 June 2021 before the playoffs start the following day.

[16]   Applicant submitted that the relief sought cannot be substantially obtained in due course; and furthermore, that,

[17]   The urgency is not self-created, and that the vindication of Constitutional rights is inherently urgent.

FIRST RESPONDENT’S SUBMISSIONS

[18]   The first respondent submits that the applicant does not wish to participate in the playoff rounds and came to court instead. Further, that the application is an abuse of process and should be struck from the roll, alternatively dismissed.

[19]   According to the first respondent, the applicant has not met the requirements set out in Rule 6 (12) (b), namely, to set out in its founding affidavit why it could not be afforded substantial redress at a hearing in due course.

[20]   Mr Cockrell SC for first respondent, submits in paragraph 8 of the latter’s heads of argument as follows:

“But the commencement of that play-off game would have no impact on the applicant's rights. The applicant's complaint is that it may not be promoted to the Premiership if it does not win the play-off rounds. However, that is not a reason for the applicant not to participate in the play-off games and it is not a reason for this Court to interdict the commencement of the play-off games. If the applicant were to participate in the play-off games and were to be promoted, the applicant would have suffered no harm at all and the entire application would fall away.”

[21]   Counsel submits further:

“In other words, the urgency is hooked to an event — the commencement of the play-off games — that would not have any prejudicial consequences for the applicant. There is no reason why the play-off games should not continue and there is no reason why the applicant should not participate in those games. The applicant's participation in the play-off games could not leave it worse-off and, indeed, would leave it better-off if it were to win promotion. Once this is so, the entire case for urgency disappears.”

[22]   The first respondent submits that the applicant has abused the process of this Court by bringing the application on an extremely urgent basis. It asks that the matter be struck from the roll with attorney-client costs.

SECOND RESPONDENT

[23]   The second respondent (Chippa United) did not file a notice to oppose and did not appear in these proceedings.

THIRD RESPONDENT’S SUBMISSIONS

[24]   Mr Coetzee, Counsel for the third respondent (Richards Bay FC) referred to paragraph 34.6 onwards, of the third respondent’s answering affidavit and submitted that:

24.1      Richards Bay FC (third respondent) are ready for the playoffs, they have been training continuously.

24.2      Postponing the playoffs now will severely impact on the preparations that third respondent has done over the past 3 weeks and would prejudice their players who had been using a specific training program suited for the playoffs.

24.3      The majority of their players’ contracts are due to expire on 30 June 2021 and those players will not be available and eligible to play for third respondent beyond 30 June 2021. The contracts of thirteen out of thirty of third respondent’s players' contracts will be expiring on 30 June 2021. Some of these players have already signed pre-contracts with other clubs and they will not be available to play for it beyond 30 June 2021. Even those that have not signed any pre-contracts will not be available to play for them as neither third respondent nor the League (first respondent) can force them to play for Richards Bay beyond 30 June 2021.

24.4     Players have been mentally prepared to start the playoffs, a postponement will be severely damaging to their physical and mental preparedness.

24.5     Third respondent will incur costs taking care of the players who had undertaken COVID 19 protocols at great expense including camping costs.

24.6     That the applicant should participate in the playoffs and could win them and still be promoted.

24.7      That the balance of convenience does not favour the applicant. 

[25]   Third respondent asks for application to be struck off the roll or dismissed with costs.

FOURTH RESPONDENT’S SUBMISSIONS

[26]   Mr Arendse SC, counsel for the fourth respondent (Sekhukhune FC) concurs with Messrs Cockrell and Coetzee’s submissions. He asks for the application to be struck off the roll or dismissed with costs for want of urgency and failure to comply with the Practice Manual as regards the issue of urgency.

[27]   It is contended further on behalf of the fourth respondent that the application is an abuse of process in that the court is asked to second guess an application for leave to appeal that is before the Deputy Judge President.

[28]   Mr Arendse submits that the NSL Handbook is a contract that binds all football clubs and all rights that the applicant asserts are properly regulated by it. The Handbook also regulates inter-club relations between member clubs, and there is no application before court to set aside the NSL rules.

[29]   Mr Arendse then sets out the disciplinary procedures provided by the Handbook in its rules.

RULING ON URGENCY

[30]   This application was brought before court in circumstances of extreme urgency. The applicant’s submissions are set out in its lengthy founding affidavit and emphasis was made by applicant’s Counsel that the source of the complaint was an alleged wrong by the first respondent in having “evicted” the applicant from its top position on the log resulting in its deprivation of a promotion to the Premiership league. The urgency then arose in the fact that the first respondent had scheduled relegation/promotion playoffs for the next Tuesday at 15h00. The applicant thus seeks an urgent intervention to have the playoffs paused pending the outcome of an application for leave to appeal that it has lodged before a review court where it had earlier been unsuccessful in having the arbitrator’s award set aside.

[31]   The applicant anchors its rights on the PAJA which in turn flows from the Constitution. Briefly, it seeks to assert its entitlement to just administrative action from the first respondent and claims that should the playoffs commence without its position being legally clarified, whatever success it may obtain in due course would be hollow, in that the proverbial horse would by then have bolted out of the stable.

[32]   I have stated the requirements for urgency above. Judgment regarding urgency entails the exercising of a discretion and is therefore not subject to an appeal.[5]

[33]   In their answering affidavits, the first, third and fourth respondents have not shown with any cogency that the requirements for urgency have not been met.

[34]   Having considered all submissions and opposition by the respondents I am of the view that the matter bears the hallmarks of urgency. I have therefore ruled that it be heard on an urgent basis and granted condonation for the non-adherence to the provisions of Rule 6 (12) as regards time frames for filing of affidavits

PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000 (HEREINAFTER “PAJA”)

[35]   Section 2 of the Constitution states that the Constitution is the supreme law in South Africa, and any law or conduct inconsistent with it is invalid.

[36]   Section 33 of the Constitution deals with the fundamental rights of everyone in the country. This section provides for the right to just administrative action, which includes the right to administrative action that is lawful, reasonable and procedurally fair and the right to be given written reasons when rights have been adversely affected by administrative action. Our country’s Parliament has promulgated the Promotion of Administrative Justice Act 3 of 2000 (PAJA) to give effect to section 33 of the Constitution.[6]

[37]   It therefore follows that no one has inherent powers to do as he or she pleases.

REQUIREMENTS FOR AN INTERIM INTERDICT

[38]   Defining an interim interdict, the Constitutional Court said: “An interim interdict is by definition a court order preserving or restoring the status quo pending the final determination of the rights of the parties. It does not involve a final determination of these rights and does not affect their final determination. The dispute in an application for an interim interdict is therefore not the same as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision of the main dispute. At common law, a court’s jurisdiction to entertain an application for an interim interdict depends on whether it has jurisdiction to preserve or restore the status quo.”[7]

[39]   The requirements for the granting of an interim interdict are trite, having been restated over the years since 1914 in Setlogelo v Setlogelo. They are as follows: a prima facie right, a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted, that the balance of convenience favours the granting of an interim relief, and that the applicant has no other satisfactory remedy.[8]

[40]   In Urban Tolling Alliance (“OUTA”)[9] the Constitutional Court endorsed the Setlogelo requirements and held that an applicant that claims an interim interdict must establish a prima facie right even if it is open to some doubt.

BACKGROUND

[41]   Over and above the declaration of constitutional invalidity of specific conduct by the first respondent, the applicant seeks interim interdictory relief.

[42]   In the applicant’s founding affidavit, deposed to by its President, Shawn Mabongy Florah Junior Mkhize, it appears that the application is premised upon a dissatisfaction with a decision by the first respondent in allocating team positions on the log. The applicant had been at the top berth of the log for the GladAfrica league, and according to it, it was eligible for promotion to play in the Premiership league in the next season. All this happened pursuant to disciplinary processes and an arbitration involving the fourth respondent (Sekhukhune FC) and Polokwane City FC, a club also contesting in the GladAfrica league as the applicant. There was also a High Court review of the arbitration award in which the same parties were involved at about the same time.

[43]   Polokwane City FC was not satisfied with the outcome of the arbitration and on 24 May 2021, launched an urgent review application (“Polokwane review”) in which it sought an order reviewing and setting aside the arbitration award. In terms of the notice of motion, the urgent application was to be heard on 28 May 2021.

[44]   On the 25 May 2021, the applicant served its intervention application. The applicant intervened in the Polokwane review and also sought an order reviewing and setting aside, and declaring the award unlawful, irrational and invalid, albeit on different grounds.

[45]   On 27 May 2021, whilst the review application by Polokwane FC was pending, Sekhukhune United FC launched an urgent application in which it sought an order compelling the first respondent (NSL) to implement the impugned Arbitrator’s award. At that stage, both the applicant and the first respondent opposed the Sekhukhune United FC application, and both launched counterapplications thereto. In Other words, it was the position of the NSL that until the Polokwane review proceedings are finally determined, the applicant would occupy the first position and Sekhukhune United FC would occupy the second position.

[46]   On the 28 May 2021, the day on which the Polokwane review was to be heard, the first respondent (NSL) filed a counterapplication for a declaratory order that:

"...where a Disciplinary Committee or arbitrator makes a finding of misconduct in terms of the NSL Handbook, for which there is no express sanction specifically provided in the NSL Handbook, the Disciplinary Committee or arbitrator has a discretion on the appropriate sanction considering all relevant circumstances and the range of possible sanctions contained in Rule 57,13 of the NSL Handbook. The Disciplinary Committee or arbitrator is not obliged to apply Article 22 of the FIFA Disciplinary Code".

[47]   In the counter application in the Polokwane review, Acting Chief Executive Officer Dolores Thokozile Madlala (‘Madlala’) of the first respondent, deposed to an affidavit in which she stated at paragraph 16 thereof:

“In holding FIFA Art 22 to apply, the arbitrator incorrectly found that the NSL Handbook was silent on the issue of sanction. In doing so he made a material error of law that entails serious ramifications for the degree to which the NSL's DCs have hitherto in several disputes been recognised as retaining an overall discretion with respect to sanction in respect of those breaches for which a specific sanction is not mandated by the NSL Handbook.”

[48]   Madlala continued at paragraph 19 and states:

“I am advised that the consequence of the arbitrator's material error of law is that the Award falls to be set aside as unlawful administrative action and falls to be remitted to the Arbitration Tribunal to exercise a discretion as to sanction untrammelled by FIFA Art 22. The NSL, however, does not itself seek this relief, and abides by the outcome of the relief Polokwane seeks. The NSL instead advances its counter-application for declaratory relief with respect to the discretion retained by its DCs on the issue of sanction for misconduct, irrespective of the fate of the Polokwane (and Royal AM) relief.”

[49]   On the same day, 28 May 2021, the applicant also filed a counterapplication in the Sekhukhune application seeking inter alia the temporary suspension of the Epstein SC award pending the review application.

[50]   The applicant (Royal AM FC) supported the relief sought by the first respondent (NSL) because the issues raised in the NSL counterapplication were integral to its review application.

[51]   On 11 June 2021, the now consolidated urgent review applications were heard by the Honourable Deputy Judge President and judgment was reserved.

[52]   On 12 June 2021, an order was delivered electronically and communicated to the parties.

[53]   The first respondent issued a media statement in which it conveyed the crux of the court’s decision in the following words:

“The consequence is that Sekhukhune United Football Club have secured automatic promotion to the DStv Premiership for next season, while Chippa United, Royal AM, and Richards Bay Football Clubs will contest the promotion/relegation play offs which will commence on the 15th of June 2021.”

[54]   On 14 June 2021, the applicant filed for leave to appeal the order by the Deputy Judge President Sutherland.

[55]   On 14 June 2021, the applicant set down an urgent application for hearing at 17h00.

ANALYSIS AND CONCLUSION

A prima facie right

[56]   The first requirement for an interim interdict is the existence of a prima facie right, even if it is subject to some doubt.

[57]   Royal AM were at the top of the log and harboured a legitimate expectation of being promoted to the DStv Premiership league. The about- turn by the first respondent was a direct threat to the applicant’s prospects.

[58]   When Madlala stated in the affidavit that there was a “material error” in the arbitrator’s award, the NSL was affirming the applicant’s position at the top of the log.

[59]   By turning around from that position without giving the applicant reasons for this turn of events, the first respondent was unilaterally evicting the applicant from its top position.

[60]   In OUTA[10], Moseneke DCJ cautioned that a court granting interim relief should not prejudge the issue that would be before a court hearing a review application. And on this basis, I have exercised care not to prejudge the matter that is pending before Deputy Judge President Sutherland.

[61]   Applicant is apprehensive that if it submits to the first respondent’s instructions, and participate in the playoffs and lose, it may forfeit the right to promotion it had secured. If applicant were to succeed in the pending matter before the DJP, how will first respondent (NSL) then unscramble the scrambled egg to reverse the decisions it has taken?[11]

Irreparable harm

[62]   Having received the media statement on the 12^th of June 2021 in which the applicant was being unilaterally ordered by the first respondent to subject themselves to the play offs, their position was now at stake.

[63]   Participating in the play offs would not guarantee that applicant would win the game thereby gaining promotion status once more.

Balance of convenience

[64]   All clubs incur costs of maintaining their players, of complying with Covid-19 protocols and other related expenses.  

[65]   An application for an interim interdict has to be decided on the basis of the balance of convenience, which must favour that an interdict be granted. In this case, I had to weigh the harm to be suffered by the applicant if temporary relief is not granted, as against the harm that the respondents may suffer if the interdict is granted.

[66]   And in my view, there was no factual submission that was cogently made that the balance of convenience does not favour the applicant. 

No other remedy

[67]   Given that the first respondent would ordinarily be the point of recourse for the applicant but has changed its stance, applicant’s last resort is therefore to approach the court. 

[68]   It cannot be denied that if the first respondent is not restrained, it will proceed with the playoffs in which the applicant will not be able to participate due to amongst others , not having assembled its team.

[69]   There is, in my view, a well-founded anxiety by the applicant (Royal AM) that the Respondent (NSL), by hastily issuing a media statement on 12 June 2021, the respondent had pre-judged the postponed Sekhukhune application and rendered it moot. It is, in my view, inescapable that the first respondent had created a predicament for itself. The first respondent authored its own misfortune, literally, through the contents of the affidavit deposed on its behalf. By alleging material error on the arbitrator’s part, the first respondent gave the applicant affirmation that its right to be at the top of the log. When NSL altered its outlook and opted to endorse playoffs, it did not engage with or provide reasons to the applicant as befits fair and reasonable administrative action.

[70]   FINDINGS

I am persuaded that the applicant has made out a case for the granting of interim interdict, pending the application before his Lordship Sutherland DJP. I make the following order:

“HAVING read the documents filed of record and having heard the submissions by Counsel: -

IT IS ORDERED THAT:

1.          The application be heard and determined as one of urgency as contemplated by Rule 6(12) of the Rules of Court.

2.          The first respondent's conduct is inconsistent with the constitution and/or PAJA.

3.          An interim order is granted that pending the final determination of the application for leave to appeal.

4.          The commencement of the 2021 GladAfrica promotion/relegation playoffs is suspended.

5.         The Respondents to pay the Applicant’s costs including the costs occasioned by the employment of two counsel.”

J.S. NYATHI

Acting Judge of the High Court

Gauteng Local Division, Johannesburg.

Date judgment delivered: 21 June 2021.

 

On behalf of the Applicant: Adv DC Mpofu SC with

                                           Adv Motlwenya

Instructed by:

MABUZA ATTORNEYS

1^st Floor, 83 Central Street

Houghton

JOHANNESBURG

2198

Tel: (011) 483 2387/0476

Fax: (011) 728 0145/086 678 2748

Email: eric@mabuzas.co.za; rudolph@mabuzas.co.za; mathews@mabuzas.co.za

REF: Mr ET Mabuza/RN Baloyi

 

On behalf of the First Respondent: Adv A Cockrell SC

                                               With: Adv

NATIONAL SOCCER LEAGUE

PSL Place

2 Winchester Road

Parktown

JOHANNESBURG

Email: matom@psl.co.za

c/o WEBBER WENTZEL ATTORNEYS:

90 Rivonia Road, Sandton

Tel: (011) 530 5232

Email: Dario.milo@webberwentzel.com

Lavanya.Pillay@webberwentzel.com

REF: D Milo/L Pillay/3048209

 

On behalf of Third Respondent: Adv Coetzee

                                                 

RICHARDS BAY FOOTBALL CLUB

uMhlathuze Sports Complex,

Via-Verbana Street

Veld-en-Vlei, Richards Bay

Email: info@richardsbayfc.co.za

fakude@richardsbayfc.co.za

sfisobiyela69@gmail.com

 

On behalf of Fourth Respondent: Adv Norman Arendse

                                                     With Adv Borgstrom

SEKHUKHUNE UNITED FOOTBALL CLUB

3 Young Avenue

Bedfordview

JOHANNESBURG

c/o TSHABUSE ATTORNEYS

Cell: 076 990 7600

Unit 55, The View Estate

487 Boundary Road

North Riding AH, 2188

Email: karabo@tshabuselaw.com

Ref: Sekhukhune/HCAppl-PSL/ARB5/11/05/2021

 

---