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[2022] ZANCHC 35
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Northern Cape Pros Football Club v South African Football Association, NC and Others (994/2022) [2022] ZANCHC 35 (15 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case No:
994/2022
Heard:
21/05/2022
Date available:
15/06/2022
In
the matter between:
NORTHERN
CAPE PROS FOOTBALL CLUB
Applicant
And
SOUTH
AFRICAN
FOOTBALL
ASSOCIATION,
NC
1
st
Respondent
UPINGTON
CITY
FOOTBALL
CLUB
2
nd
Respondent
REAL
MADRID
FOOTBALL
CLUB
3
rd
Respondent
SAFA
HOUSE
4
th
Respondent
REASONS
FOR JUDGMENT
Mamosebo
J
[1]
This matter came
before me as an urgent application
on a certificate of
urgency
by
Mr
Craig
Cothill
for
the
applicant,
who
could
not appear on Friday afternoon, 20 May
2022, because he was in self isolation.
Mr MA Dhlamini of MF Jassat Dhlamini Inc
appeared instead.
I
was not persuaded that proper service on the respondents has
been
effected
and
that
it
be
done.
All
the
respondents
were duly served
later that same evening
and the application
was heard the
following
morning,
Saturday
21
May
2022
at
10:
00.
Having
heard
argument I
dismissed
the application with no order as to
costs
and reserved
the
reasons
which
now follow:
[2]
The relief sought by the applicant Football
Club was the following:
"2.
That
the
play-off
match
between
the
second
[Upinton
City
FC]
and
[Real
Madrid FC]
third respondents scheduled
for Sunday 22 May 2022 in the ABC Motsepe League is postponed
pending
finalisation
of the
following:
2.1
Reviewing and setting aside
the first
[SA Football Association]
and
fourth
[SAFA House]
respondents'
decision to:
2.1.1
refuse
to
hear
the
applicant
in
terms
of article 109 of the SAFA
Disciplinary Code; and
2.1.2
schedule
the
play-off
match
between
the first and second
respondents
to
take place on 22 May 2022.
2.2
The first and fourth
respondents
hearing
the applicant in accordance with
article 109 of the Disciplinary Code and employing the mechanisms set
out in articles 11O to
115
to
determine:
2.2.1
if the second respondent's
fielding of an ineligible player on 29 January 2022 in a football
match against Olifantshoek Young Stars
Football Club is
incompatible with the regulations of
SAFA;
and
2.2.2
If such conduct is found to
be incompatible with SAFA regulations, what the sanction ought to be;
2.2.3
Which teams should compete in
the abovementioned play-off and when that play-off should take place.
3.
Costs of suit in the
event of opposition.
4.
Further or alternative
relief."
[3]
The applicant, Northern Cape Pros FC, is a
soccer team and a member of the Northern Cape Professional Football
Club affiliated to
the South
African
Football
Association
(SAFA).
It
is seeking
to
review and set aside the decision by the South African Football
Association,
Northern
Cape and SAFA House, in refusing to conduct
a disciplinary enquiry invoking article 109
of the SAFA Disciplinary Code; and stopping the play-off between
Upington City FC and
Real Madrid FC in the
ABC Motsepe League scheduled for Sunday 22
May 2022,
pending
the
outcome
of
the
enquiry.
[4]
The first respondent is South African
Football Association, Northern Cape, (SAFA, NC) a member of SAFA with
its place of business
at 2522 Kameeldoring Street, Keimoes.
The second respondent
is Upington
City
FC,
a
voluntary
association
and
a soccer
team
competing
in
the
ABC
Motsepe
League,
Northern Cape.
The third respondent is Real Madrid FC also
a voluntary association and a soccer team competing in the ABC
Motsepe League.
The
fourth respondent, SAFA, governs and regulates professional
football
in
South Africa.
[5]
Upington City FC and Real Madrid FC all
compete in the ABC Motsepe League in the Northern Cape. The league
comprises
two
streams with nine teams each.
The winner in each stream will earn a spot
to compete and determine the Northern Cape overall winner.
SAFA identified Upington City and Real
Madrid as the winners of their respective stream and scheduled their
play-off match for Sunday,
22 May 2022, to determine the champion of
the League.
This
forms the main thrust of Northern Cape Pros FC's complaint
maintaining that it
ought to have been
itself instead of Upington City competing in the play-off.
[6]
The facts are not complicated. On 29
January 2022 Upington City fielded an ineligible player in a match
against Olifantshoek Young
Stars FC.
SAFA,
Northern Cape, lodged a misconduct complaint against
Upington
City
couched
in
the
following
terms:
"On
or about 29 January 2022, the respondent
[Upington
City FC]
contravened the provisions of
Rule 26.1 and 26.4 by fielding the suspended player to wit Philane
Gumede, My SAFA No. 00F3D, with
Jersey No.17, during and under
Fixture No. 44, (Upington City FC v Olifantshoek Young Stars).
[7]
The disciplinary
hearing
was
chaired
by Mr
Moetleetsi
Mogwera
on 19 February
2022.
Upington
City
FC
pleaded
guilty
to
the
charge and SAFA accepted the plea and a
verdict of guilty was returned accordingly.
The
following
sanction
was
imposed
on
the
same
day:
7.1
that in terms of Rule 19.11.8 of the
SAFA Competitions Uniform Rules, the
Upington City forfeit three points won
under the match number 44: Upington City FC
v Olifantshoek Young Stars;
7.2
Upington City to pay a fine of
RS,000.00 (Five Thousand Rand) towards the costs of the Disciplinary
Committee within thirty
days
of
the
finding
and
order;
7.3
that player Philane Gumede, My SAFA
No. 00F3D, with Jersey No.17,
observe
and
complete
his
period
of
suspension,
that is
one
game
from
date
of
this
finding
and
order;
and
7.4
that SAFA reimburse the money paid
by Olifantshoek Young Stars for the initiation of these disciplinary
proceedings within thirty
days
of
this
finding
and
order.
[8]
Aggrieved
by the outcome of the disciplinary enquiry Upington City FC lodged an
appeal on 11 March 2022 for the setting aside of
the SAFA
Disciplinary
Committee decision. The papers of the appeal did not form part of the
papers before me.
However,
Mr Dhlamini, for the applicant, made the submission that the
appeal
was successful. Olifantshoek Young Stars, the requester, took the
matter to arbitration in terms of Article 81 of the SAFA
Regulations
and Disciplinary Code
[1]
before
the arbitrator, Adv. T Tshitereke whose award is dated 16 May 2022.
The
facts before the arbitrator were as stated hereinbefore.
Upington
City is cited in the arbitration proceedings
as
the first respondent and SAFA Northern Cape
as
the second respondent.
In
its statement of defence Upington City contended that the request for
arbitration was lodged outside the seven (7) day period
contemplated
in Rule 19(2) of the SAFA Competition Uniform Rules
"NCP
1"
[2]
and
prayed that the
complaint
be dismissed purely on that basis.
[9]
Among the considerations by the arbitrator
was that the requester was
a
participant in the match where the ineligible player was
fielded on 29 January 2022 and hence could
have lodged the complaint as early as the following day, 30 January
2022 or the latest
by 05 February 2022.
Notwithstanding the explanation by Mr
Coetzee, provincial secretary, SAFA Northern Cape, regarding the
computation of dates excluding
weekends in the Northern Cape, because
of the remote and rural areas in the
province, the
complaint
was only lodged on 08 February
2022,
three days out of time.
The
arbitrator
remarked
that
allowing
the
teams
to
lodge
their
disputes
out
of
time
would
open
an
assortment
of
problems
with
a detrimental effect on the SAB League,
streams and a further ripple effect on SAFA soccer activities.
Article 81 (13) of the SAFA Regulations and
Disciplinary Code provides that the arbitrator's decision
shall
be
final and
binding
on all parties.
[10]
Mr
Dhlamini submitted that Rule 19(1) excludes the applicant, NC Pros
FC, because it did not participate in the game and the Rule
further
states that no third party complaints are accepted.
The
NC Pros FC only received the arbitration award on 16 May 2022 at 19:
58 and immediately contacted its legal representative for
advice.
On
17
May
2022, Jassat Dhlamini Inc addressed a letter
to
SAFA urging the
association
to invoke Article 109 of the SAFA Disciplinary Code.
[3]
Mr Dhlamini argued that had SAFA invoked Article 109 there would have
been an investigation of the complaint contemplated in Article
110 by
the secretariat under the Chairman's guidance.
[11]
SAFA responded to NC Pros FC's letter ("NCPS")
on Wednesday 18 May
2022
and
stated
that
the
internal
remedies
have
been
exhausted regarding this complaint and NC Pros FC was advised to
either
approach
the
Court
of
Sports
(CAS)
or
the
High
Court.
On the
same day, 18 May 2022, Northern Cape Province Provincial Executive
Council (NCP: PEC) addressed a communication to all ABC
Motsepe
League
Teams
confirming
the
date
of
the
positional
play off for the season 2021/2022 as
22 May 2022 at the Showgrounds Postmasburg between Kimberley Real
Madrid and Upington
City FC
at
14:00.
[12]
The applicant has to meet the test for interim relief, namely, the
well-known requirements for the
grant of an interim interdict set out
in
Setlogelo
v Setlogelo
[4]
.
The
test requires that an applicant that claims an interim interdict must
establish (a) a
prima
facie
right
even if it is open to some doubt; (b) a reasonable apprehension of
irreparable and imminent harm to the right if an interdict
is not
granted; (c) the balance of convenience favours the granting of the
interdict; and (d) that the applicant has no other remedy.
[13]
Mr Dhlamini maintains that the urgency was not self-created because
his client, NC Pros FC, could only
take steps after receiving the
arbitration award on 16 May 2022 and that the prima right relied upon
by NC Pros FC is its recourse
in terms of Article 109. Should the
interim relief not be granted NC Pros FC's irreparable harm would
entail its inability to be
escalated to play at national level and
forfeit the sponsorships that the team stands to gain, counsel
contended. He also states
that the balance of convenience favours the
granting of the interim relief because there will be sufficient time
to re-schedule
the play-off before the national competition commences
around 13 June 2022 and that the prospects of the applicant
succeeding in
its article 109 are high. The applicant maintains that
there was no other remedy but to approach the High Court on urgency.
[14]
Mr
Dhlamini
further submitted that the
impugned
decision of SAFA's failure or refusal to invoke article 109 and to
schedule the play-off to take place on 22 May 2022 constitutes
administrative action within the meaning of the Promotion of
Administrative Justice Act (PAJA)
[5]
•
This
principle has already been pronounced upon in the unreported
judgment
by
Mbha
J,
then,
Louisvale
Pirates
v
South
African
Football
Association
[6]
and
Unterhalter J in
Ndoro
and Another v South African Football Association and Others
[7]
•
I
am satisfied that the decision falls within the ambit of PAJA and I
deem
it unnecessary to
rehash
the principle.
[15]
Rule 1 of the SAFA Competitions Uniform Rules is a good starting
point. It reads:
"1.
Composition
1.1
All
clubs affiliated (inclusive of their
officials, servants, or duly authorised {express or implied}
representatives) together with
all amateur players registered for the
purposes of participating in all the South African Football
Association ("SAFA'') amateur
Leagues {Men's Provincial League,
Men's Regional League, Women's National League, Women's Provincial
League, Women's Regional League
and
the SAFA Junior Football (SJF) Leagues
-
U13
&
U15 Boys
&
Girls}
shall
be bound by the Rules contained hereunder and the Regulations hereof,
regulating each of the aforementioned SAFA Competitions.
1.2
Each SAFA League Competition
is made up of teams affiliated to SAFA Local Football Associations
registered to participate in them
and comprises streams within each geopolitical province ("Province"),
SAFA Region and
SAFA Local Football Association ("LFA")."
[16]
Of importance in this entire application is whether Mr Dhlamini is
correct in his submission that NC
Pros FC is excluded by the
provisions of Rule 19.1 in the SAFA Competitions Uniform Rules "NCP1"
which stipulate:
"19.1
A team that has not
lodged a protest in respect
of a game in which it participated,
may
lodge a complaint with the League, in respect of any act of
misconduct/offence allegedly committed. No third party complaint
shall be accepted.
"
[17]
Mr Dhlamini contended NC Pros FC served a letter on the first
respondent, SAFA, Northern Cape, on 18
May 2022 at approximately
11:42 requesting that SAFA invoke Article 109 of the SAFA
Disciplinary Code, which stipulates:
"Section
2.
Disciplinary
Committee
Subsection 1.
Commencement of proceedings and investigation Article 109
Commencement of proceedings
1.
Disciplinary
infringement
are
prosecuted
ex
officio.
2.
Any person or body may report conduct
that he or it considers incompatible with the regulations of SAFA to
the judicial bodies.
Such complaints shall be made in writing.
3.
Match officials are obliged to
expose
infringements
which
have come to their notice."
[18]
The transgression of the player, Philane Gumede, My SAFA No. 00F3D,
with Jersey
No.17,
occurred
on
29
January
2022.
Article 109 does not specify the timeframe within
which an aggrieved party should lodge its complaint.
The article, however, enables
"any
person"
to
report,
in
writing,
conduct
contrary
to
the
regulations.
It
is
inexplicable why NC Pros FC did not lodge a complaint any time after
the 29th January 2022.
Since
the complaint would have been conduct related nothing would have
prevented SAFA from consolidating the complaints pertaining
to the
same player for the same
transgression
and
conducting
a
joint
disciplinary
enquiry
on
19 February
2022.
It
is
common
cause that
a
disciplinary
enquiry and a sanction for the said
transgression was meted out.
The
only explanation
by
NC
Pros
FC in
an effort
to
justify
urgency
is
that
it only
learned about the arbitration outcome on 16 May 2022.
This explanation
is inadequate for
the
following
reasons:
(i)
not only does it
fail
to
explain
the
inaction
by
NC
Pros
FC
from
29 January
2022
but
(ii)
it
also
fails
to
address
the
reason
why
the
club
had
to
wait for
the
outcome
of
the
arbitration
before
invoking
article
109.
[19]
A reading of the SAFA rules and regulations paints a picture of the
importance
of
timeframes
and
why
teams
competing
at
set
time
allocations must comply, failing which they must
fully account for their inability to do so.
In
my
view, the applicant has not satisfied the requirements for an interim
interdict for the following reasons:
19.1
When one weighs the balance of
convenience in restraining the play-offs already set for the
following day as opposed to
the
inordinate delay taken by the applicant in
seeking relief,
the
prejudice
would
have been greater;
19.2
Not only was there an adverse effect
on the two streams with nine teams in each stream but also on
Upington City FC and Real Madrid
FC in the ABC Motsepe League that
were already identified
as
the
teams
for
the
play-offs
on
22
May
2022;
19.3
The offending player, Philane
Gumede, has already been punished
for
his transgression
as it
appears
in
the
sanction by the
chairperson
at
para
7 above;
19.4
The supporters and the organisers
were at an advanced stage of
hosting
and
watching
the
play-off.
The
irreparable
harm on the afore-mentioned would also be
greater than on the applicant
and
also
held
the
risk
of
unruly
protest
by
supporters
for
not having
had
advance
notice;
19.5
The applicant had an alternative
remedy in terms of the said article 109 which it
delayed invoking thereby
the application
on urgency
was
self-created.
[20]
It is for the aforementioned reasons that I dismissed the application
and made no order as to costs.
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the applicant:
Mr MA Dhlamini
Instructed
by:
MF Jassat Dhlamini Inc
For
the respondents: None
[1]
Article
81(1)
stipulates
that all disputes with the decisions of the Appeal Board shall be
submitted to the Association for arbitration within
seventy-two (72)
hours of the decision being made known to the parties in writing,
provided that the arbitrator may, on good
cause shown, condone
non-compliance with this time limit. Such request for arbitration,
or a request for direct arbitration in
terms of article 33 of the
constitution, shall be accompanied by a deposit as specified in the
Schedule of Fees.
[2]
Rule
19(1) A team that has not lodged a protest in respect of a game in
which it participated, may lodge a complaint with the
League, in
respect of any act of misconduct/offence allegedly committed. No
third party complaint shall be accepted.
(2)
The complaint must be lodged in writing within seven (7) days of the
incident, and accompanied by a complaint fee, as determined
in the
Competition Rules and/or SAFA Schedules. The CEO/ designated SAFA
official shall dismiss any complaint submitted which
does not comply
with this Rule.
[3]
Article
109 Commencement of Proceedings Disciplinary infringements are
prosecuted
ex
officio
Any
person or body may report conduct that he or it considers
incompatible with the regulation of SAFA to the judicial bodies.
Such complaints shall be made in writing.
Match
officials are obliged to expose infringements which have come to
their notice.
[4]
1914
AD 221
at 227
[5]
Act
3 of 2000
[6]
(40614/2011)
[2012] ZAGPJHC 78 (4 May 2012) paras 21 - 30
[7]
(16/16836)
[2018] ZAGPJHC 74;
[2018] 3 All SA 277
(GJ);
2018 (5) SA 630
(GJ)(24
April 2018) at paras 33 and 34