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[2016] ZAECPEHC 82
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Despatch Rugby Club v Eastern Province Rugby Union and Another (1159/2016) [2016] ZAECPEHC 82 (20 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
number:
1159/2016
Date
heard: 18/8/16
Date
delivered: 20/9/16
Not
reportable
In
the matter between:
DESPATCH
RUGBY CLUB
Applicant
and
EASTERN
PROVINCE RUGBY UNION
First
Respondent
SOUTH
AFRICAN POLICE SERVICE (PE) RUGBY CLUB
Second Respondent
JUDGMENT
PLASKET,
J
[1]
Rugby, a game that the late president Nelson Mandela described as
both a sporting code of national importance and a national
asset,
[1]
occupies a special place in the hearts of many South Africans, not
least in the Eastern Cape. This matter concerns the question
of
whether the first respondent, the Eastern Province Rugby Union
(EPRU), acted contrary to its own rules when it either decided
or
announced that the second respondent, the South African Police
Service (PE) Rugby Club (Police), rather than the applicant,
the
Despatch Rugby Club (Despatch) would represent Eastern Province in a
national club competition, the Gold Cup, in September
and October
2016. Owing to the urgency of the matter I made an order, dated 9
September 2016, dismissing the application with costs.
These are my
reasons for so doing.
[2]
Both Despatch and Police are clubs that are affiliated to the EPRU.
They played in the EPRU’s 2015 inter-club competition,
the
Grand Challenge Cup. Both claimed to have finished the competition at
the top of the log and, on this basis, to have qualified
to play in
the Gold Cup.
[3]
As a result of this dispute and the EPRU’s decision or
announcement that Police won the Grand Challenge Cup and would
represent Eastern Province in the Gold Cup, Despatch launched this
application in which it sought orders:
‘
1.
That the decision of the First Respondent’s Management
Committee and the Club Affairs Committee allowing the Second
Respondent
to play in the Gold Cup as the First Respondent’s
representative be and is hereby reviewed, and thereafter declared to
be
ultra vires the Rules and Regulations guiding the Grand Cup
Challenge (sic), and set aside.
2.
That it is declared that the Applicant, as log leader of the Grand
Cup Challenge (sic) is the First Respondent’s representative
in
the Gold Cup;
Alternatively
, that the First Respondent
is ordered and directed to hold a semi-final playoff between the
Applicant and the Second Respondent
and that the winner of that match
be the First Respondent’s representative in the God Cup.
3.
Costs of the Application.’
The
facts
[4]
The point of contention in this matter concerns the cancellation by
the EPRU of fixtures that were to be played on 6 June 2015
as a
result of grounds being waterlogged. There is a hearsay allegation
made in the founding affidavit that the Despatch ground
was not
waterlogged. This does not appear to be relevant: because the other
grounds were not fit for play – and the municipality,
that
controlled their use, forbade play on them – all of the
fixtures were cancelled.
[5]
Mr RW van Wyk, Despatch’s secretary and the deponent to the
founding affidavit stated that Despatch later played the cancelled
game and, it would appear, won it with a bonus point. That is how it
is alleged that Despatch ended the season at the top of the
log.
[6]
The EPRU’s Competition Rules and Regulations for the 2015
season deal with cancelled fixtures and re-plays. Rule 8 is
the
applicable rule. Rule 8.1 deals with the abandonment of matches due
to ‘an act of God’. It is not disputed that
the fixtures
of 6 June 2015 were cancelled due to rain – an act of God for
purposes of rule 8.1. Rule 8.1.1 states
that when a match is
cancelled due to an act of God, ‘the points for these matches
will be shared by the Clubs (2 points
each with no bonus point) i.e.
regarded as a draw 14 all’.
[7]
Rule 8.3 allows for the replaying of a match earlier abandoned due to
an act of God. It provides:
‘
Should
circumstances, due to an act of God, warrant a possible rescheduling
of a match, within 7 (seven) days of a scheduled match
(excluding
match day), the CEO of EPRU after consulting with some relevant
stakeholders, will determine whether circumstances warrant
the match
to be rescheduled.’
[8]
The founding papers are cryptic as to how the replay occurred, not
even stating who Despatch’s opposition was and what
the score
was. All that is said is that the applicant ‘was advised to
replay the rained out match by the first respondent
which it did…’.
In answer to this, Mr. Phillip Joseph, the Deputy President of the
EPRU said:
‘
I
cannot find any record wherein the First Respondent lawfully and in
terms of its constitution or any duly authorised employee
instructed
the Applicant to replay the rained out match in terms of the
competition rules and regulations applicable to the 2015
season.
[9]
Having made the point that the match could only have been replayed in
terms of rule 8.3, Jackson stated that none of the requirements
of
the rule were met and that, as a consequence, ‘there can and
could not have been any replay of the rained out match as
alleged by
the applicant’.
[10]
Despatch claimed, and were awarded, the points but, at a later stage,
this was reversed. How this happened – and whether
it occurred
in a procedurally fair manner – is at the heart of Despatch’s
case on the merits. It is the regularity
of that decision that it
challenged on review. Three points in limine were, however, taken by
Police. It is to them that I now
turn.
The
points in limine
[11]
The points in limine were that Despatch had no standing as it had no
capacity in terms of its constitution to sue and be sued;
that it had
failed to join the clubs that finished third and fourth on the log in
circumstances in which it should have done so;
and that it had failed
to exhaust an internal remedy available to it and was, on this basis,
non-suited.
[12]
Before dealing with these issues, it is necessary to say something
about the basis upon which this review application is to
be decided.
On the one hand, the relationship between the EPRU and Despatch is
governed by the former’s constitution. In
other words, a
contractual nexus exists between them in which the terms are
contained in the constitution. On the basis of a long
line of
authority – often referred to as the Jockey Club cases by way
of shorthand – it is accepted that a private
law relationship
exists between the parties; that the governing body – the EPRU
– exercises private and not public
power in relation to its
governance of its sport; that despite this, it is bound by its
constitution and is required to comply
with its terms in respect of
those falling under its power – such as Despatch; and that even
when the constitution is silent,
tacit terms may be imported into it
that require it to act in accordance with the ‘fundamental
principles of justice’
in relation to those over whom it
exercises power.
[2]
[13]
This orthodoxy has begun to be questioned recently. In
Tirfu
Raiders Rugby Club v SA Rugby Union & others
,
[3]
on facts that were fairly similar to those in this case, Yekiso J
found that the South African Rugby Union, in the administration
of
rugby, had exercised public power and that its exercises of power
were subject to review in terms of administrative law, in
particular,
in terms of the Promotion of Administrative Justice Act 3 of 2000
(the PAJA).
[14]
I have not had the benefit of full argument on this issue in the
context of the relationship between the EPRU and Despatch.
I
accordingly opt to leave open the question of whether the common law
– in the form of so-called private administrative
law
[4]
– or the PAJA applies. I do so because the result will be the
same in either instance. Irrespective of whether the EPRU has
exercised private, contractual powers or public, administrative
powers, it has to act lawfully – in accordance with its
constitution – rationally, and in a procedurally fair
manner.
[5]
Standing
[15]
The constitution of Despatch does not grant it an express power to
sue or be sued in its own name. In
Morrison
v Standard Building Society
[6]
Wessels JA, in what is still regarded as the leading authority on the
issue, stated:
‘
In
order to determine whether an association of individuals is a
corporate body which can sue in its own name, the Court has to
consider the nature and objects of the association as well as its
constitution, and if these show that it possesses the characteristics
of a corporation or
universitas
then it can sue in its own name.’
[16]
Despatch’s constitution is not a great example of the legal
drafter’s art but it appears to me that it contemplates
a
distinction between the club and its members; that the scheme for its
governance contemplates perpetual succession; that it,
as opposed to
its members, has the power to own property and to enter into
contracts; and that its primary purpose, being the playing
and
promotion of the game of rugby, is a lawful purpose. That being so,
it qualifies as a corporation and may, on the authority
of
Morrison
,
sue in its own name. To approach the same issue from a slightly
different perspective, given the characteristics I have outlined,
the
power to sue is essential to its functioning and is a tacit term of
its constitution.
[7]
[17]
My conclusion, accordingly, is that Despatch has the necessary
standing to have instituted these proceedings.
Non-joinder
[18]
In terms of the EPRU’s rules of the competition, the top four
teams on the log at the end of the season are required
to play
semi-finals and a final, with the winner of the final representing
Eastern Province in the Gold Cup. This did not happen
this season
because, it would appear, the clubs agreed to the log winner playing
in the Gold Cup.
[19]
That explains the primary relief sought by Despatch in paragraph 2 of
the notice of motion, namely that it be declared the
log leader and,
as such, the representative of Eastern Province in the Gold Cup. In
the alternative, however, it sought an order
directing the EPRU to
‘hold a semi-final play-off between Despatch and Police, with
the winner representing Eastern Province
in the Gold Cup.
[20]
No mention is made of the two other teams that would have to compete
in the semi-finals and then, of course, a final would
also have to be
played. The point taken was that those clubs ought to have been
joined as they have an interest in the matter.
The non-joinder point
disappeared, however, with the abandonment of the alternative relief
envisaged in paragraph 2 of the notice
of motion.
Exhaustion
of internal remedies
[21]
If the PAJA applies in this matter, the question arises as to wheher
s 7(2) places an obligation on Despatch to exhaust any
internal
remedy before it may approach a court by way of review. Section 7(2)
provides:
‘
(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(b)
Subject to paragraph (c), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph
(a) has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal for
judicial review in terms of this Act.
(c)
A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.’
[22]
As will be seen, the EPRU constitution contains internal remedies
but, not being ‘any other law’ as contemplated
by s 7(2),
any obligation that there may be to exhaust those remedies cannot
arise by virtue of the PAJA, even if it otherwise
applies.
[8]
[23]
That is not, however, the end of the enquiry. At common law, the mere
existence of an internal remedy is not decisive: judicial
review will
only be deferred on account of a failure to exhaust internal remedies
‘if such intention is clearly evident from
the governing
legislation or, in the case of a private organisation, from the terms
of agreement between the complainant and the
association
concerned’.
[9]
[24]
Clause 10.10 of the EPRU constitution is concerned with the
appointment of an enquiries committee and an appeals committee,
as
well as their composition. Clause 10.10.2 provides that the appeals
committee comprises of three members and it has the ‘sole
duty
to hear and determine and adjudicate upon appeals brought before it
by any Player, Club or Official of the Union against any
decision of
the Union’.
[25]
Clause 10.10.7 proclaims the decisions of the appeals committee to be
‘final and binding’. Clause 10.10.8 then
provides:
‘
No
affiliate or person(s) belonging to a club shall institute legal
proceedings against the Union in a Court of Law, unless
ALL
the normal rugby channels/procedures (structures) have been exhausted
or consulted or a ruling confirmed. (
If
no appeal is held within 21 days as per clause 10.10.6 then the party
could refer the matter to any Court of law for an appropriate
order.
)’
[26]
Clause 20 deals with the leagues that are administered by the EPRU.
Clause 20.3.5 provides that appeals ‘in connection
with a
decision to reverse a result shall be dealt with i.t.o. the
provisions of Clause 20.9’. That clause, in turn, is in
the
following terms:
’
20.9.1
The UNION COMMITTEE shall have the sole and exclusive right to decide
disputes arising from matches played under the control
of the UNION.
20.9.2
Any appeal regarding a match shall be lodged in writing with the
UNION within ten (10) days, calculated from the day
and time after
the date and time on which the particular match was completed.
20.9.3
Clause 20.9.1, 20.9.2 and 20.9.3 above are subject to the provisions
of Clause 10.4.5 above. The UNION COMMITTEE and/or
the EXECUTIVE
COMMITTEE are empowered to refer disputes to the APPEALS COMMITTEE
for final adjudication.’
[27]
It is clear from both clauses 10.10 and 20.9 that when a dispute
arises, the EPRU constitution requires it to be dealt with
internally
before an aggrieved party may approach a court. In other words,
clause 10.10.8, read in its broader context, places
an obligation on
an aggrieved player, club or official to exhaust their internal
remedies before seeking the review of a decision.
To this extent, the
right to approach a court is deferred.
[28]
It is common cause that Despatch did not appeal internally against
the decision about which it complains. That being the case,
its
application is premature and cannot succeed.
Conclusion
[29]
Given the above conclusion, it is unnecessary to consider the merits
of the matter. In summary, I have found that there was
no merit in
the non-joinder point once the alternative relief was not being
pursued, that Despatch had standing but that it had
not exhausted its
internal remedy of appealing against the disputed decision and was
precluded from approaching a court, in terms
of clause 10.10.8 of the
EPRU constitution, until it had done so. As a result, I dismissed the
application with costs.
_________________________
C
Plasket
Judge
of the High Court
APPEARANCES
For
the applicant: B Dyke instructed by Vlok Attorneys
For
the second respondent: K Williams instructed by D Gouws Inc
[1]
President
of the Republic of South Africa & others v South African Rugby
Union & others
2000 (1) SA 1
(CC), para 15.
[2]
Turner v
Jockey Club of South Africa
1974 (3) SA 633
(A) at 645H-646B.
[3]
Tirfu
Raiders Rugby Club v SA Rugby Union & others
[2006] 2 All SA 549
(C), paras 25-28.
[4]
This term
is used in
Klein
v Dainfern College & another
2006 (3) SA 73
(T), para 24.
[5]
National
Horseracing Authority of Southern Africa v Naidoo & another
2010 (3) SA 182 (N).
[6]
Morrison
v Standard Building Society
1932 AD 229
at 238.
[7]
Bantu
Callies Football Club (also known as Pretoria Callies Football Club)
v Motlhamme & others
1978 (4) SA 486
(T) at 490A-B.
[8]
Marais v
Democratic Alliance
2002 (2) BCLR 171
(C), para 47;
Van
Zyl v New National Party & others
2003 (10) BCLR 1167
(C), paras 58-59.
[9]
Baxter
Administrative
Law
at 720; Hoexter
Administrative
Law in South Africa
(2 ed) at 539.