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[2021] ZAGPPHC 39
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Football Club Matime Lions NPC v La-Masia Football Club NPC and Another (296/2021) [2021] ZAGPPHC 39 (28 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
28-01-
2021
Case
Number
: 296/2021
In
the matter between:
FOOTBALL
CLUB MATIME LIONS NPC
APPLICANT
and
LA-MASIA
FOOTBALL CLUB NPC
FIRST RESPONDENT
SAFA
GAUTENG
PROVINCE
SECOND RESPONDENT
JUDGMENT
KUBUSHI
J,
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
The applicant, Football Club Matime Lions NPC, approached court on
urgency seeking an interim
order that pending the determination of
the relief sought in part “B” of this application the
participation of the
first respondent, La-Masia Football Club NPC, in
the second respondent, SAFA Gauteng Province ABC Motsepe Football
League, be suspended.
Directing further that second respondent, SAFA
Gauteng Province postpone all fixtures of the first respondent, in
the ABC Motsepe
Football League for the 2021 season pending
determination and finalisation of the relief sought in part “B”
of this
application.
[2]
Further, directing that any of the respondents opposing the relief
sought in Part “A”
of this notice of motion bear the
costs of this application and in the event of more than one so
opposing, the respondents bear
the costs jointly and severally, the
one paying the other to be absolved.
[3]
The first respondent is opposing the application and in addition to
the defence on the merits,
has raised a number of technical points.
[4]
The second respondent is not taking part in these proceedings and has
sent a letter confirming
that it is not
involved
in the dispute between the applicant and the first respondent and
will therefore abide by the judgement of the court.
[5]
The facts of this matter are common cause and are in no way disputed
by the first respondent.
What appears to be at issue is what the
parties refer to as the interpretation on the breach clause of the
agreement.
[6]
The facts as gleaned from the parties’ respective papers is
that the parties entered
into an agreement of sale relating to the
purchase of the
status of Football Club Matime
Lions, SAFA Gauteng.
The material terms
of the aforesaid agreement of sale are as follows:
"3.1
Football Club Matime Lions hereby franchise the
status of SFA Gauteng Motsepe League to the value of
R500 000,00.
"3.2
La Masia Football Club NPC hereby agrees to
purchase the status of Football Club Matime Lions, SAFA
Gauteng. The
buyer shall pay a full amount of R500 000,00 into the seller's FNB
business account: 627677951744 towards the sale
of the status. The
sale agreement shall become valid once the full initial amount of
R200 000,00 is paid to the seller
which is then followed
by an amount of R150 000,00 by the 30 September 2019 and the final
payment of R150 000,00 by the 30 November
2019.
If
the buyer fails to honour the above agreement the agreement will
automatically be declared null and void and the status will
remain to
be the property of Football Club Matime Lions"
[7]
At the time of the conclusion of the agreement of sale between the
applicant and the first
respondent, the 2019/2020 football league
season was just about to commence. The first respondent registered
and affiliated the
status acquired in terms of the agreement under
its name for the 2019/2020 football league season, registered players
and participated
in the 2019/2020 football season. What the applicant
seeks in this application is to have the status reverted to it in
order that
it be registered in its name with the second respondent.
[8]
It is not in dispute that the first respondent paid the deposit of
R200 000,00 as stated
in clause 3 of the agreement of sale. The first
respondent, however failed to pay the balance of the purchase price
by 30 November
2019 thereby allegedly committing breach of the
agreement. As stated in clause 3 of the sale agreement, failure to
comply with
the terms of the agreement, automatically rendered the
agreement of sale null and void and the status remained to be the
property
of the applicant. Therefore, by failing to honour payment of
the full purchase price by 30 November 2019, the respondent breached
the agreement. Such breach rendered the sale agreement null and void.
[9]
On 16 October 2020, the applicant instructed its legal
representatives to write to the first
respondent to confirm that the
status is repossessed by the applicant for failure by the first
respondent to honour the payments
as
per
the agreement of
sale. On the same date and upon receipt of the aforesaid letter, the
first respondent made payment of an amount
of R60 000,00 into the
applicant's business account. The first respondent's representative,
Mr Nazier Becker was advised that the
status is already repossessed
and that all payments made were to be refunded to the first
respondent.
[10]
What the first respondent fails to appreciate, in opposing this
application, is that once the agreement
was breached it became null
and void and of no force and effect. The none fulfilment of the terms
of the agreement, that is failure
to pay the full purchase price by
30 November 2019, rendered the agreement void from inception. The
fact that the respondent paid
some of the outstanding amount after
the cut-off time, or that there were discussions between the parties
that ensued after the
cut-off time of the agreement, did not revive
the agreement which by then was already defunct.
[11]
The agreement could only be revived by the waiver of the none
fulfilment of the said term of the agreement
by the seller. In this
instance, it is clear that the seller had no intention to revive the
agreement or to waive the none fulfilment
of the term of the
agreement breached by the first respondent. This is clearly indicated
by the fact that once the cut-off time
passed, a letter confirming
that the ownership of the status has reverted to the applicant was
sent to the first respondent. Even
so, a waiver, if there was any,
could have revived the agreement if it was made before the cut-off
time provided by the agreement.
Once the cut-off time had passed
there was no longer any agreement existing between the parties and
there could therefore, not
be any waiver to talk about.
[12]
Consequently, the application ought to be granted.
[13]
I make the following order
1.
It is directed that the matter be dealt with as
one of urgency in terms of Uniform Rule 6 (12) and that the normal
Rules relating
to applications be dispensed with and that insofar as
the applicant has not complied with the Rules of this Court, that its
failure
to do so be condoned.
2.
Pending the determination
of the relief sought in part “B” of this application, the
participation of the first respondent,
La-Masia Football Club NPC, in
the second respondent, SAFA Gauteng Province ABC Motsepe Football
League, is suspended.
3.
Pending the finalisation of the relief
sought in part “B” of this application, the
second
respondent, SAFA Gauteng Province, is ordered to postpone all
fixtures of the first respondent, in the ABC Motsepe Football
League
for the 2021 season.
4.
The first respondent is ordered to pay the
costs of the application.
E.M KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance:
Applicant’s
Counsel
: Adv. G M Young
Applicant’s
Attorneys
:
Botha Massyn & Thobejane Attorneys
First
Respondent’s Counsel
: Adv.
Nazwem Ferris
First
Respondent’s Attorneys
:
M F Jassat Dhlamini Incorporated.
Date
of hearing
: 27 January 2021
Date
of judgment
: 28 January 2021