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[2011] ZAGPPHC 210
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Motorsport South Africa v World of Motorsport ZA and Others (31885/11) [2011] ZAGPPHC 210 (18 November 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(
NORTH GAUTENG HIGH COURT)
PRETORIA
CASE:31885/11
DATE:2011/11/18
In
the matter between:
MOTORSPORT
SOUTH AFRICA
…............................................................................
Applicant
and
WORLD
OF MOTORSPORT ZA & 2 OTHERS
Judgment
ERASMUS
J:
In
this matter I heard argument on Tuesday, and indicated to the parties
that I shall hand down judgement today. I have not prepared
a written
judgement and this judgement will be regarded as an ex tempore
judgement. I want to indicate at the outset that I am
not going to
deal with all the points raised, either on the papers nor in argument
and shall confine the findings as to what I
perceive to be the
primary points. The applicant seek an order against the respondents
for the relief as set out in the notice
of motion which was amended
during argument, after a previous application for an amendment
sought, was opposed. For the reasons
and conclusions I come to in
this matter, it is however not necessary to deal with all the
different attempts to amend, the nature
thereof and the objections
thereto.
In
my view the matter turns primarily on the question whether the
applicant herein made out a case for an interdict, more particularly
whether it crossed the threshold of providing proof of a clear right.
The
applicant claims that, it is a national federation as defined in
section 1
of the
National Sport and Recreation Act 110 of 1998
.
That
act defines a national federation as follows; "it means a
national governing body of a code of sport or recreation activity
in
the Republic recognised by the International Controlling Body as "he
only authority for the administration and control
of the relative
code of sport or recreation activity in the republic". Therefore
it is on this premise that the applicant
brings its case.
In
order for this court to establish that it is a national federation as
defined, the applicant has to prove the following;
(a)
That it is a national governing body of a code of sport or
recreational activity;
(b)
It must be recognised by the relevant International Controlling Body;
(c)
That recognition must be, that it is the only authority for the
administration and control of the relevant code of sport or
recreational activity in the republic of South Africa.
Having
said this, it does not follow that even from that definition and once
the applicant has provided proof of the compliance
with the
definition that it grants the applicant the exclusive right that he
claims, I shall deal with that in a moment.
In
the papers it was alleged that the applicant is recognised and
authorised as a national governing body in that it was recognised
and
so authorised by the Domestic Department of Sport and Recreation, the
South African Sports Confederation and Olympic Committee
otherwise
known as SASCOC, and the relevant International Motor sport
Controlling Bodies.
It
is common cause that in the definition the requirement of recognition
and the authority of the first two mentioned domestic bodies
is not
relevant. What is relevant is the recognition by the relevant
International Controlling Body. In its founding papers that
the
applicant sought to provide proof of this in the following manner,
and I quote from the founding affidavit;
"MSA
is the only authorised national governing body for the
administration, control, promotion and organisation of motor sport
in
South Africa, and it recognised and authohsed by: 10.3 The relevant
International Motor Sport Controlling Bodies as provided
for in terms
of
section 1
of the Act, including Semicolon.
10.3.1
CIK: Commissioner International De Karting as per annexure FA 3
hereto.
10.3.2
FIA: Federation International de /' Automobile as per annexure "FA
4" hereto.
10.3.3
FIM: Federation International de Motorcyclisme as per annexure FA 5
thereto".
These
annexures, that were referred to are printouts from documents without
any supporting affidavits to explain its contents as
from the
documents itself it is not apparent that this complies with what the
applicant sought it to be. What it must show, in
order for the
applicant to reach the threshold as I have indicated before, is that
the relevant international controlling body
would recognise them as
the only authority for certain purposes, it is not apparent from
these affidavits.
Might
I add that, even the other documents in support of the department and
from SASCOC also does not pass the evidential threshold,
but it being
irrelevant I shall not deal with that. Furthermore the requirement of
the act is that, it must be the relevant international
controlling
body. Paragraph 10.3 as quoted above says, it includes these ones.
The applicant indicate that the inference to be
drawn from this is
that, and I quote,
"Consequently,
the MSA, to the exclusion of ail other bodies, holds the sporting
authority to govern motorsport as confirmed
or delegated by the FIA,
CIK and FIM and all other international and national sporting bodies,
associations and federations which
means that it holds the exclusive
right to take all decisions concerning the organisation, direction
and management of motor sport
in South Africa" In a replying
affidavit, that is the subject of another dispute, which I deem not
necessary to decide, the
applicant had correctly pointed out that,
the
National Sport and Recreation Act is
the legal basis upon which
they were authorised to administer, control and promote this in South
Africa. No such case was made
out on the papers.
The
applicant in an application must set out in its founding affidavit
sufficient facts to disclose a cause of action. The evidence
presented must be admissible evidence. All the necessary allegations
upon which the applicant relies must appear in the founding
affidavit. The applicant will generally not be allowed to supplement
their affidavit by adducing supporting allegation in replying
affidavits.
In
this matter the dispute arose in 2006 and it was ongoing, the
applicant clearly should have been in a position to set out its
case
in its founding papers in a proper manner and get the necessary
affidavits to support same, this was not done.
But
even if I had admitted the replying affidavits, which was the subject
of a dispute, it would not have helped the applicant to
overcome this
technical hurdle. The applicants further argue that, within this
definition of a national federation on which their
case stands or
falls the mere international recognition element thereof will clothe
them with exclusive rights within the Republic
of South Africa.
Although
it is not necessary to decide this point as I have found previously
that they failed to overcome the hurdle of proving
a clear right by
admissible evidence. It is not necessary to decide this point for
that reason.
But
my view is that, such an interpretation would be untenable, that you
can have an organisation, and by the mere virtue of them
being
recognised by an international body it gives them exclusive rights.
It could never have been the intention of the legislator that this
section to
be
interpreted as such. This interpretation could be irrational, as it
excludes domestic participants from activities on the basis
of a
competitors recognition abroad. There is a presumption that in the
interpretation of statutes that one would not interpret
the statute
to the extend that it will have an unconstitutional result. If it is
irrational it would be unconstitutional. Therefore
even if the
applicant had overcome the first hurdle, they would still have been
faced with the interpretation issue.
I
am aware that disputes like this leads to unfortunate and unnecessary
tension within the sporting world and in the country in
particular.
And I am with the applicant that, the purpose of the act was to
promote and develop sport, but also one must read into
the other
sections of the act, it wants to create harmony hence it has a
dispute resolution clause, where disputes can be resolved
outside of
the forum of the court.
Even
though I have come to the conclusion that the applicant failed to 10
proof its case, I would advise the parties herein to seek
the
assistance and the guidance of the Sports Confederation on this case
it is SASCOC and the Department of Sport and Recreation
to assist in
resolving this issue between them.
I
am aware that attempts were made by the respondents to engage the
relevant minister on this aspect. But it can not be in any ones
interest, least participants of these sporting activities that these
type of disputes are taken into the future.
For
the reason that I have stated on the law and the facts of this
matter, the application brought by the applicants is dismissed.
Costs
will follow the result that, the applicant must pay the respondents
costs including the costs of two counsel.
-oOo-