Brief Summary

Arbitration — Review of award — Applicant seeking to set aside award of arbitrator regarding eligibility of players — Award found to have been made without proper compliance with procedural rules — Court granting review and declaring that award does not preclude Applicant from participating in upcoming national playoffs. The Applicant, Young Bafana Football Club, sought to review an award made by the First Respondent, which found that the club fielded improperly registered players and imposed penalties. The Applicant contended that the award was procedurally flawed and sought to ensure its eligibility for the 2023 ABC Motsepe National Play-Offs. The legal issue was whether the award constituted administrative action subject to review under the Promotion of Administrative Justice Act and whether it was made in accordance with the relevant rules. The Court held that the award was reviewed and set aside, allowing the Applicant to qualify and participate in the national playoffs, as the award did not comply with the necessary procedural requirements.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an urgent application in the Gauteng Division, Johannesburg, seeking the review and setting aside of an arbitration award issued under the auspices of the South African Football Association (SAFA). The applicant also sought declaratory relief to the effect that the award did not disqualify it from participating in imminent national play-offs.

The applicant was Young Bafana Football Club (an amateur football club). The respondents were Dr Tsietsi Ramatsekisa N.O. (cited in his official capacity as arbitrator), Zizwe United Football Club (a rival amateur club), SAFA (the national body), SAFA Western Cape (the provincial body), and two players (Siraaj Williams and Sixolisiwe Madolwana) whose eligibility was the subject of the underlying complaint.

Procedurally, the matter came before the urgent court and an order was granted on 5 June 2023 dispensing with ordinary time periods in terms of Uniform Rule 6(12), reviewing and setting aside the award dated 1 June 2023, declaring that the award did not preclude the applicant from qualifying for and/or participating in the 2023 ABC Motsepe National Play-Offs, and granting costs against the opposing party/parties. The judgment delivered on 27 June 2023 provided reasons for that order.

The dispute concerned the effect and validity of an internal SAFA dispute process: in particular, whether an arbitrator’s award—arising from a club’s complaint regarding the alleged fielding of improperly registered players—was valid and enforceable against the applicant in circumstances where the applicant contended it had not been properly notified of, or participated in, the arbitration process, and where the applicable SAFA rules on arbitration procedure were allegedly not complied with.

Material Facts

SAFA organises and regulates football competitions, including the ABC Motsepe League, which is played provincially and culminates in national play-offs. In the Western Cape, the ABC Motsepe League had two streams. Young Bafana and Zizwe United each won their respective streams and played a two-match play-off to determine which club would qualify for the 2023 ABC Motsepe National Play-Offs in Pietermaritzburg scheduled for 6 to 11 June 2023.

The first match (23 April 2023) was won by Zizwe United (1–0). The second match (29 April 2023) was won by Young Bafana (1–0). The aggregate score was 1–1, and the tie was decided on penalties, which Young Bafana won. On that basis, Young Bafana qualified for the national play-offs.

Zizwe United lodged complaints with SAFA Western Cape on 3 and 4 May 2023 regarding the participation of two players (the fifth and sixth respondents in the High Court proceedings). The complaints were dismissed by SAFA Western Cape on 8 May 2023 for non-compliance with Rule 19.6 of the SAFA Uniform Rules.

A statement of claim dated 10 May 2023 was prepared by Zizwe United. The court recorded that the statement of claim had “peculiar features”, including that it cited parties incorrectly and, importantly for the applicant’s case, it was stated that it was never served on the applicant or on the two players. The relief sought in that statement of claim was directed at setting aside the dismissal of the complaints and having the matter heard afresh.

On 1 June 2023, Dr Ramatsekisa (as arbitrator) issued an award that set aside the dismissal of the complaints, found that the complaints complied with Rule 19, found that Young Bafana had fielded two improperly registered players lacking valid clearance documents in the 29 April match, and directed that three points be deducted from Young Bafana in relation to that match.

As to notice and participation, the applicant’s version was that it was not notified of the arbitration in any proper way and only became aware of the matter through indirect channels shortly before the play-offs. The applicant’s deponent described seeing a letter circulating on social media on 30 May 2023, receiving reassurance from an official of SAFA Western Cape that the applicant was not the cited party and should focus on preparations, receiving a telephone call on 31 May 2023 from a person identifying herself as calling from SAFA and asking whether the applicant would attend an arbitration (to which he responded that he was unaware of any arbitration involving the applicant), and finally receiving a copy of the award via WhatsApp on 1 June 2023.

The applicant launched an urgent High Court application on 2 June 2023 due to the imminence of the national play-offs and the need to confirm participation at official registration scheduled for 5 June 2023. SAFA initially noted an intention to oppose, then withdrew that opposition and filed a notice to abide.

In the answering affidavit, Zizwe United disputed the applicant’s assertion that it was unaware of the arbitration, contending that the applicant knew of the arbitration and did not participate. However, as the court later emphasised, Zizwe United’s papers did not allege compliance with the SAFA arbitration procedure requiring (among other steps) a signed submission to arbitration.

Legal Issues

The central questions for determination were whether the arbitration award of 1 June 2023 was susceptible to being reviewed and set aside, and whether the applicant was entitled to a declaration that the award did not prevent it from qualifying and/or participating in the imminent national play-offs.

The dispute raised issues of law and the application of law (and rules) to fact, rather than the resolution of the underlying merits of player eligibility. In particular, the matter turned on (a) whether the award constituted reviewable administrative action under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) given SAFA’s status as a private association, and (b) whether the arbitrator had jurisdiction to make the award in light of the procedural requirements in Article 81 of the SAFA Disciplinary Code (especially the requirement that the parties sign a submission to arbitration).

Although the applicant advanced procedural fairness contentions grounded in audi alteram partem, legitimate expectation, section 33 of the Constitution and PAJA, the determinative issue as articulated in the reasons ultimately centred on jurisdictional competence under SAFA’s own arbitration framework, including whether an arbitration was validly constituted at all.

Court’s Reasoning

The court first addressed the basis on which the applicant sought review. It held that PAJA cannot be used as a review remedy where the impugned “administrative decision” is made by a private entity. In support of this approach, it relied on Calibre Clinical Consultants (Pty) Ltd and Another v National Bargaining Council for the Road Freight Industry and Another 2010 (5) SA 457 (SCA), which emphasises that review under PAJA depends on whether the decision-maker was exercising a public power or performing a public function as contemplated in the statutory definition of “administrative action”. The court further noted that these views had also been accepted in Hendricks v The Church of the Province of Southern Africa, Diocese of Free State (108/2021) [2022] ZASCA 95 (20 June 2022).

Having disposed of PAJA as the operative mechanism on the facts as characterised by the court, it considered that the applicant was left with other potential bases (as pleaded), namely the common law, the principle of legality, and/or a breach of section 33 of the Constitution. The reasons, however, focused on whether the arbitrator had jurisdiction under the applicable SAFA rules.

The court examined the internal SAFA rules placed before it, particularly Article 81 of the SAFA Disciplinary Code governing arbitration. It highlighted that Article 81 requires, among other things, that within two days of the appointment of an arbitrator, the parties must sign a submission to arbitration setting out the disputes and confirming that the arbitration will proceed under the rule, and that the parties are entitled to attend and be represented. The court treated these provisions as directed at ensuring procedural fairness and regularity in dispute resolution.

In dealing with Zizwe United’s answering affidavit, the court recorded that although Zizwe United alleged that the applicant knew of the arbitration (principally relying on a telephone call from an official), Zizwe United did not allege compliance with the procedural requirements that would establish a valid arbitration under Article 81. In particular, the answering affidavit did not state that the parties signed a submission to arbitration, nor did it provide the minimum detail that would ordinarily be expected about whether the arbitrator was mutually agreed upon or appointed by the SAFA CEO as contemplated by Article 81.

The court also regarded SAFA’s stance—initially filing an intention to oppose, then withdrawing it and filing a notice to abide—as noteworthy in context. However, on the record before it, there was no confirmation from SAFA that Article 81 had been complied with. The court therefore concluded that it had no basis to find that the applicant had agreed to arbitration as required by the applicable SAFA dispute-resolution framework.

On that basis, the court held that it was not convinced that the arbitrator ever had jurisdiction to determine the complaints and issue the award. The telephone call relied upon by Zizwe United did not, in the court’s reasoning, cure the absence of the essential jurisdictional component required by Article 81. This jurisdictional defect provided the basis for reviewing and setting aside the award.

Although the papers also contained disputes about the proper registration of the players and the relevance of different registration platforms, and although the applicant advanced procedural fairness grounds (including audi alteram partem), the reasons demonstrate that the court’s decision to set aside the award rested on the failure to establish that a valid arbitration process—properly constituted under Article 81—had been agreed to and followed.

The court further dealt with two preliminary objections raised by Zizwe United (concerning the distance of the applicant’s attorney from the seat of court and the issuing of papers without a case number). These objections were not pursued in argument and were, given the urgency, condoned.

Outcome and Relief

The court granted urgent relief. It dispensed with the ordinary time periods and processes under the Uniform Rules and heard the matter on an urgent basis in terms of Uniform Rule 6(12).

It reviewed and set aside the arbitration award dated 1 June 2023 made by the first respondent as arbitrator under SAFA’s auspices. It further declared that the award did not preclude the applicant from qualifying and/or participating in the 2023 ABC Motsepe National Play-Offs scheduled for 6 to 11 June 2023.

The application was granted with costs.

Cases Cited

Calibre Clinical Consultants (Pty) Ltd and Another v National Bargaining Council for the Road Freight Industry and Another 2010 (5) SA 457 (SCA).

Hendricks v The Church of the Province of Southern Africa, Diocese of Free State (108/2021) [2022] ZASCA 95 (20 June 2022).

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000.

Constitution of the Republic of South Africa, 1996 (section 33).

Rules of Court Cited

Uniform Rules of Court 6(12).

Uniform Rules of Court Rule 49.

Held

The High Court held that review under PAJA was not available on the basis advanced because the impugned decision was made within the framework of a private association rather than through the exercise of a public power or public function as contemplated in PAJA.

On the papers before it, the court held that the essential procedural requirements to constitute an arbitration under Article 81 of the SAFA Disciplinary Code, in particular the requirement of a signed submission to arbitration, were not established. As a result, the court was not persuaded that the arbitrator had jurisdiction to determine the dispute and issue the award.

The award was accordingly reviewed and set aside, and a declaration was issued confirming that the award did not preclude the applicant from qualifying and/or participating in the imminent national play-offs. Costs were awarded in favour of the applicant.

LEGAL PRINCIPLES

The applicability of PAJA depends on whether the impugned decision constitutes “administrative action” as defined, which in turn requires that the decision-maker be an organ of state exercising public power or performing a public function, or a private person exercising a public power or performing a public function in terms of an empowering provision. Where the decision is taken within the domain of a private association without the requisite public-power character, PAJA review is not available on that footing.

In disputes arising from private regulatory frameworks, a decisive question may be whether the decision-maker had jurisdiction in terms of the association’s own rules. Where the rules prescribe prerequisites for a valid arbitration—such as a properly constituted process and agreement to arbitration through a signed submission—non-compliance with those prerequisites may mean the arbitrator lacked jurisdiction to issue an award.

Procedural frameworks within private associations may also embody procedural fairness expectations (including participation by affected parties). However, on the reasoning given, the jurisdictional requirement that an arbitration be properly constituted under the applicable rule was central to the setting aside of the award in this matter.

Young Bafana Football Club v Dr Ramatsekisa N.O and Others (2023/02228) [2023] ZAGPJHC 744 (27 June 2023)