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[2014] ZASCA 189
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South African Sports Confederation and Olympic Committee v Lane (1016/2013) [2014] ZASCA 189 (27 November 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 1016/2013
NOT
REPORTABLE
In
the matter between:
SOUTH
AFRICAN SPORTS CONFEDERATION
AND
OLYMPIC
COMMITTEE
.............................................................................................
Appellant
and
LARAINE
LANE
...................................................................................................................
Respondent
Neutral
citation:
SASCOC v Lane
(1016/13)
[2014] ZASCA 189
(27
November 2014)
Coram:
M
pati
P, Lewis, M
aya
,
Bosielo
JJA
and
Fourie
AJA
Heard:
5 November 2014
Delivered:
27 November 2014
Summary:
Voluntary resignation – suspension from board membership
rendered moot by a subsequent resignation.
ORDER
On
appeal from
:
South
Gauteng
High Court,
Johannesburg
(
W
right
J sitting
as the court of first instance)
1
The appeal is upheld with costs including the costs of two counsel.
2
The order of the court below is set aside and replaced with the
following:
‘
The
application is dismissed with costs.’
JUDGMENT
Maya
JA (Mpati P, Lewis, Bosielo JJA and Fourie AJA concurring):
[1]
These proceedings arise from the controversy surrounding the
treatment accorded Ms Mokgadi Caster Semenya, a South African middle
distance runner and world champion, at the International Amateur
Athletics Federation world championships held in Berlin in October
2009. The appellant (SASCOC) appeals against the decision of the
South Gauteng High Court, Johannesburg (Wright J) which set aside
its
decision of 4 November 2009 to suspend the respondent (Ms Lane), a
board member of Athletics South Africa (ASA) at the time.
The appeal
is with the leave of the court below.
[2]
SASCOC and ASA are associations incorporated under s 21 of the old
Companies Act 61 of 1973. SASCOC’s key object is ‘to
promote and develop high performance sport and recreation in the
Republic of South Africa and, to that end, act as the controlling
body for the preparation and delivery of Team South Africa at all
multi-sport international games including but not limited to
the
Olympics, Paralympics, Commonwealth Games, World Games and All Africa
Games’.
[1]
Its membership
comprises various national sports federations which include ASA. Its
powers, which it exercises through its board
of directors, are inter
alia:
‘
9.3.1
to oversee, direct, control, administer and if necessary manage the
activities of SASCOC, which shall include and shall not
be restricted
to:
9.3.1.1
the activities of SASCOC’s members;
…
9.3.1.3
inquiring into the administrative and/or financial affairs of
Members, and, where necessary, to recommend corrective measures
in
this regard, and if these measures are not implemented to take over
the administrative and/or financial affairs of the Member
until these
are placed on a satisfactory footing;
…
9.3.1.5
suspend, fine and terminate the membership of any individual
affiliated through their respective National Sports Federation
to
SASCOC or to suspend or fine any National Sports Federation or Member
who infringes the Constitution, directives or resolutions
of SASCOC,
or engages in any act of misconduct, improper practices,
misdemeanour, acts of defiance, or brings SASCOC into disrepute.’
[2]
[3]
For over three decades, Ms Lane has been involved in various
disciplines within the country’s sporting industry as a
competitive athlete, coach, manager, selector, advisor and mentor to
athletes and a member of various committees and commissions.
By
virtue of her position as a board member of ASA, Ms Lane was also an
ex
officio
member of SASCOC in terms of clause 6.5 of SASCOC’s Articles of
Association.
[3]
[4]
O
n 5 November 2009, the SASCOC board, acting in terms of
clause 9.3.1.5 of its Articles of Association, suspended the entire
board
of ASA. The members’ suspension would operate with
immediate effect pending the outcome of a disciplinary enquiry on a
charge
of bringing ASA, SASCOC and the South African sport into
disrepute. This resulted from the manner in which the board handled
Ms
Semenya’s gender testing and her consequent humiliation.
A
SASCOC board member, Mr Ray Mali, was designated as ASA’s
administrator and tasked to assume control of its office with
immediate effect.
[5]
SASCOC effected the suspension,
about which
the ASA board had been forewarned in September 2009,
on the
recommendation of the
Legal and Arbitration
Commission (the commission) led by Mr Michael Collins, an advocate.
SASCOC
had prompted an investigation into the events in terms
of s 13(4)(
a
) of the
National Sport and Recreation Act 110 of
1998
which allows ‘an investigation to be undertaken to
ascertain the truth within a sport or recreation body, where
allegations
of any malpractice of any kind in the
administration have been made’.
The
commission’s main terms of reference were ‘to ascertain
the truth about events leading to the participation and
testing of
[Ms Semenya] and subsequent conduct of the officials of ASA …
and make recommendations to SASCO on how the matter
should be handled
going forward, which could include one of the various options
available to SASCOC in terms of legislation, the
SASCOC Articles of
Association or the ASA Constitution.’
[6]
Ms Lane participated in the investigation and was one of the board
members who submitted reports and were interviewed. On 2
November
2009, the commission issued its report which found contradictions in
her evidence and that she had been aware that proper
procedures were
not being followed. The report further found as follows:
‘
Mr
Leonard Chuene, [ASA’s president], through his actions,
disregarded the interests of Ms Semenya and has allowed the whims
of
third parties to supersede Ms Semenya’s interests. In doing so
he has had a guiding hand in the violation of Ms Semenya’s
rights. He ignored the advice of a team doctor who has had a long and
successful history with ASA … Regrettably, Mr Chuene
chose to
turn Ms Semenya’s confidential medical issues into a political
case. That constitutes irrational, selfish, irresponsible
and
reprehensible conduct. He has publicly and repeatedly lied and in the
view of this committee, he is guilty of gross misconduct
as well as
bringing ASA, the sport of athletics and SASCOC into disrepute.
The
board of ASA approved of Mr Chuene’s conduct notwithstanding
the evidence available in the public domain at the time clearly
pointing towards dishonesty on his part. The board members, having
associated themselves with his conduct, are in the same position
as
Mr Chuene and should share the responsibility for his conduct. It is
indeed surprising that the board of ASA failed to take
any corrective
measures to rectify the wrongs committed by its office bearers and
officials or even properly investigating the
matter. The vote of
confidence in Mr Chuene by the board is, in itself and in the
circumstances, an act which has brought ASA,
the sport of athletics
and SASCOC into disrepute.’
[7]
On 15 November 2009 and before the disciplinary proceedings started,
Ms Lane resigned from the ASA board by way of a letter
sent to ASA’s
General Manager, Mr Molatelo Malehopo, one of the suspended
individuals. Her reasons were that her professional
standing as a
psychology practitioner had been compromised by the incident, that
she had no wish to fight ‘against friends
and colleagues within
the sport’ or be entangled in an extended legal battle that
would impoverish ASA and prolong the ‘sad
situation’.
[8]
On 20 January 2010 she received a letter from SASCOC’s
president, Mr Gideon Sam. It informed her that Mr Collins had been
appointed to conduct the contemplated disciplinary proceedings, which
had already started, on behalf of SASCOC and ASA’s
interim
board and that she would be contacted shortly regarding the
investigations. It was anticipated that the proceedings, which
she
welcomed in her written response as an opportunity to clear her name
notwithstanding her resignation, would be finalised during
the first
quarter of 2010. She waited in vain. Between late January and
November 2010, she exchanged email correspondence with
Mr James
Evans, the chairperson of ASA’s interim board who was
eventually appointed President of the ASA board. She complained
about
SASCOC’s delay in convening the disciplinary hearing.
[9]
In November 2010, SASCOC invited all the suspended board members who
had resigned to subject themselves to a disciplinary hearing
should
they wish to serve in athletics or any code affiliated thereto as a
member of SASCOC. Ms Lane did not respond to this invitation.
She
also declined an invitation to participate in a forensic audit and
investigation into alleged irregularities at ASA commissioned
by
SASCOC. This exercise was conducted by Deloittes and cleared some of
her suspended colleagues of wrongdoing which led to the
withdrawal of
charges against them and the lifting of their suspensions. Instead,
she approached various offices – President
Zuma’s Hotline
which referred her to the Minister of Sport and Recreation, the Human
Rights Commission and the Public Protector
– to intervene in
the matter. Between July 2010 and September 2012 she was engaged in
continuing communications with these
offices which, in turn,
communicated with SASCOC on her behalf. But the interventions
ultimately came to naught. The Minister of
Sport eventually conceded
he had no jurisdiction over SASCOC and the Public Protector’s
office merely informed Ms Lane that
SASCOC indicated to it that it
would subject board members who had resigned to disciplinary
proceedings only if they wished to
stand for office in sporting
bodies.
[10]
In June 2012, she saw a press statement which reported that
‘Chuene and other [ASA] board members were banned from
involvement in any sport under the jurisdiction of [SASCOC] and the
Olympic Committee, for up to 7 years, following investigations
of
fraud and corruption, and their involvement in the Caster Semenya
gender debacle’. This prompted her to write to Mr Sam
on 16
July 2012, demanding to be subjected to a disciplinary hearing so
that she could clear her name. The letter went unanswered.
She wrote
to SASCOC again in August asking for a hearing and also posted the
letter on the website of SASCOC’s Chief Executive
Officer, Mr
Tubby Reddy. These too elicited no response from SASCOC.
[11]
Finally, in November 2012, her attorneys wrote to SASCOC demanding
confirmation that her suspension was withdrawn and a written
apology.
SASCOC replied that the matter was, at Ms Lane’s instance,
being attended to by the Public Protector and the Human
Rights
Commission with which it had co-operated. Ms Lane’s subsequent
request for the matter to be referred to arbitration
was firmly
rejected by SASCOC on the basis that she had no standing and that
there was no arbitrable dispute.
[12]
That response triggered her high court application. She sought an
order setting aside her suspension, various interdicts and
declaratory relief against SASCOC to enable her to participate in
sporting and athletic activities in any capacity and hold office
in
sporting and athletic bodies falling under SASCOC’s auspices or
otherwise. Her case was premised on the grounds that SASCOC
did not
properly apply its mind to the matter, acted unreasonably in
suspending her without advancing substantive charges and failed
to
comply with the provisions of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA). The nub of her complaint was that
the result of
SASCOC’s failure to subject her to a disciplinary process
condemned her to a lifelong stigma of the suspension
and ban from
standing for office or participating in any sporting activities as an
administrator, sports psychology practitioner
or otherwise without
being afforded a hearing.
[13]
The court below found in Ms Lane’s favour. Her resignation was
declared invalid and of no force and effect on the basis
that it was
not established that it came to SASCOC’s knowledge. The court
below rejected SASCOC’s defence that it acts
contractually and
does not exercise public power when it executes its functions and
that it derived its authority to suspend from
its Articles of
Association and Constitution which preclude the application of PAJA.
In the court’s view, SASCOC’s
decision to suspend
constituted administrative action reviewable under PAJA and had to be
set aside for want of notice and a fair
hearing to Ms Lane. The court
below then reviewed and set the suspension aside and declared that
she is entitled to participate
in any sporting and athletic
activities in any capacity, stand for and hold office in any sport
code under the jurisdiction of
SASCOC or otherwise.
[14]
The central issue on appeal was whether Ms Lane resigned as a board
member of ASA after her suspension. Other secondary issues
were
whether the suspension was a matter to be determined by the
contractual relationship between Ms Lane and SASCOC – ie
the
rules of natural justice determined from the parties’
agreement
[4]
– as the
latter contended, or if the decision constituted an administrative
action reviewable under PAJA as Ms Lane contended
and, if it was,
whether she complied with the relevant statutory provisions
particularly in regard to instituting legal proceedings
within a
reasonable period.
[15]
SASCOC contended that she did resign and thus rendered her suspension
moot. It further contended that she sought the wrong
relief as she
should have applied for an order quashing the resignation and
reviewing its purported failure to take disciplinary
action against
her which was her real concern. Ms Lane, on the other hand,
supported the reasoning and decision of the court
below. She disputed
that her resignation was valid. This was on the basis that her
resignation letter was addressed to her co-members
on the board who
were also on suspension at the time and so had no authority to
represent ASA. She also argued that whether or
not she did resign
was, in any event, immaterial in so far as the declaratory relief was
concerned. This was so, she contended,
because of SASCOC’s
stance that even those members who resigned would be barred from any
involvement in sports under the
auspices of SASCOC.
[16]
The first question for determination concerns the status of Ms Lane’s
resignation letter. That she had indeed resigned
was not placed in
issue in her affidavits. She described herself as a former member of
the ASA board. She also stated in her founding
affidavit that she
‘welcomed an investigation and enquiry,
despite [her]
resignation from ASA
, as [she] wanted to dispel any allegations
of wrongful conduct on [her] part’. (My emphasis.) She did
allege to have resigned
‘under duress’ because of a
‘barrage of threatening e-mails from [Evans]’.
Surprisingly though, all the
emails exchanged between her and Mr
Evans spanning a year, which she attached to her founding affidavit,
showed nothing but that
the latter, who repeatedly expressed an
expectation that the disciplinary hearing would be conducted soon,
actually commiserated
with her plight and that they enjoyed a good
relationship. None of the threatening mail that she said she had
received was placed
before the court below even after her allegation
was pertinently denied in SASCOC’s answering affidavit.
Significantly, despite
its ultimate finding that her resignation ‘was
in vain’, the court below did not accept her allegations of
duress,
correctly so in my view.
[17]
For its interpretation of the resignation letter, the court below
relied only on Mr Sam’s subsequent letter of 20 January
2010
informing her about an impending disciplinary hearing to cast doubt
on whether SASCOC became aware of her resignation and
justify its
finding that her resignation ‘was in vain’. This
approach clearly ignored Ms Lane’s pleaded
case and the
evidence as it was not disputed in the affidavits that the letter
came to SASCOC’s attention. In an email dated
19 August 2012
which she sent to Mr Sam’s assistant, Ms Sonia Grobler, for
distribution to all SASCOC directors and members,
she stated that
‘Gideon Sam and James Evans were notified of my resignation. It
was also reported in the media’. The
court below appears to
have also relied, erroneously, upon a refrain in Ms Lane’s
affidavits actually contradicted by the
commission’s findings,
that Mr Collins assured her that she had done nothing wrong. However,
nothing really turns on this
misdirection.
[18]
It is trite that resignation is a unilateral, final and binding act
which may be express or tacit.
[5]
An express resignation such as the one here must merely be
communicated. It need not be accepted by the employer or, in this
case,
ASA and SASCOC. Ms Lane needed no consent from these bodies for
the resignation to come into effect. Therefore, that they did not
respond to her resignation letter is entirely irrelevant and does not
detract from its effect. All the authorities relied upon
by Ms Lane
in this regard cannot assist her case as they are distinguished by
their own facts. This too was not considered by the
court below.
[19]
As rightly pointed out by SASCOC, it is not insignificant that in
four years Ms Lane made no attempt to have the resignation
declared
invalid to pave the way for the review of the decision to suspend
her, seek reinstatement or compel SASCOC to hold a disciplinary
enquiry against her. All indications are that she intended to resign
and no longer regarded herself as a member when she launched
the
review proceedings. Her resignation necessarily superseded her
suspension and deprived her of any right to challenge the suspension
as its validity was no longer a triable issue.
[6]
SASCOC was equally divested of any jurisdiction to subject her to
disciplinary action when she was no longer its member, as was
pointed
out to her even before she approached the court below.
[20]
It is obvious from the record that nothing precluded her from
engaging in sporting activities or seeking office, at which stage
she
would be subjected to a disciplinary hearing. The perceived ‘lifelong
ban’ she fears, which is based on no more
than a media
statement that did not mention her name, is unfounded. She was
therefore not entitled to the relief granted by the
court below in
respect of the suspension. Nor was it necessary to seek the
declaratory relief. This finding is in my view dispositive
of the
matter. It also dispenses with the need to determine the nature of
SASCOC’s decision to suspend Ms Lane and whether
she was
afforded a fair hearing in respect of which it is, in any event,
doubtful that she would succeed. The appeal must succeed
and no
reason has been shown why the costs order should not follow the
result.
[21]
The following order is accordingly made:
1
The appeal is upheld with costs including the costs of two counsel.
2
The order of the court below is set aside and replaced with the
following:
‘
The
application is dismissed with costs.’
_______________________
MML
MAYA
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant:
PG Cilliers SC
(M
Feinstein, A Saldulker)
Instructed
by:
Jay
Reddy Attorney
,
Durban
c/o
Phatshoane Henney
, Bloemfontein
For
the Respondent:
JG Rautenbach SC
Instructed
by:
Ellis
Coll Attorneys
,
Johannesburg
c/o
Honey Attorneys
, Bloemfontein
[1]
This
objective (and SASCOC’s ancillary objectives) is contained in
its Memorandum of Association signed on 19 July 2008.
[2]
These
are set out in SASCOC’s Articles of Association which,
together with its Memorandum of Association and Regulations,
form
SASCOC’s Constitution.
[3]
The clause provides that ‘[t]he members of
the
[ASA]
Board shall also be members of SASCOC in an ex officio capacity and
shall be entitled to attend, speak and vote at any Board
Meeting or
General Meeting of SASCOC.’
[4]
Jockey
Club of South Africa v Transvaal Racing Club
1959
(1) SA 441
(A);
Turner
v Jockey Club of South Africa
1974 (3) SA 633 (A).
[5]
Rustenburg
Town Council v Minister of Labour and others
1942
TPD 220
;
Potgietersrust
Hospital v Simons
1943
TPD 269
at 220;
Stewart
Wrightson (Pty) Ltd v Thorpe
1977
(2) SA 943
(A) 954A-B;
African
National Congress v The Municipal Manager, George Local Municipality
(202)
31ILJ 69 (SCA) para 11.
[6]
Wessels
v Sinodale Kerkkantoor Kommissie van die NG Kerk, OVS
1978
(3) SA 716
(A) at 723H, 725H.