Royal AM Football Club v National Soccer League and Others (21/27854) [2021] ZAGPJHC 423 (26 July 2021)

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[2021] ZAGPJHC 423
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Royal AM Football Club v National Soccer League and Others (21/27854) [2021] ZAGPJHC 423 (26 July 2021)

REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO. 21/27854
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED.
26/7/2021
In
the matter between:
ROYAL
AM FOOTBALL CLUB
APPLICANT
AND
NATIONAL
SOCCER LEAGUE
FIRST RESPONDENT
DOLORES
THOKOZILE MADLALA
SECOND RESPONDENT
CHIPPA
UNITED FOOTBALL CLUB
THIRD RESPONDENT
RICHARDS
BAY FOOTBALL CLUB
FOURTH RESPONDENT
SEKHUKHUNE
UNITED FOOTBALL CLUB
FIFTH RESPONDENT
JUDGMENT
WINDELL,
J:
INTRODUCTION
[1]
This matter is the latest episode in a long-running court drama
involving soccer. The applicant, Royal AM Football Club (“Royal

AM”), instituted an urgent application
[1]
for, amongst other relief, a declarator and a finding of contempt of
court against the first respondent, the National Soccer league
(“the
NSL”) and the second respondent, the Acting Chief Executive
Officer of the NSL ("the CEO"), respectively.
The primary
focus of the application, however, is an order reinstating Royal AM
to the top of the National First Division log (currently
named the
GladAfrica Championship), so that it will automatically qualify for
promotion to the Premier Division (currently known
as the DSTV
Premiership).
[2]
The NSL is a private association with 32 professional clubs as its
members, which conducts its affairs under the name and style
of the
Premier Soccer League. The NSL is responsible for all aspects of
professional football in South Africa, including
inter
alia
, the administration, promotion,
organisation, control, regulation and governance of all aspects of
professional football in South
Africa.
[3]
The
GladAfrica Championship is the second
highest division of soccer in South Africa. It is just below the DSTV
Premiership. Both leagues
are organised by the NSL. At the end of
every season, the teams that place second and third in the GladAfrica
Championship, and
the team that came second last in the DSTV
Premiership, have to play a series of playoff promotion/relegation
matches (“the
playoffs”) to determine which team will
play in the DSTV Premiership and which two teams will play in the
GladAfrica Championship
next season. The team that ends the season in
the bottom position on the DSTV Premiership will automatically be
relegated to the
GladAfrica Championship. The team that ends the
season in the top position of the GladAfrica Championship will
automatically be
promoted to the DSTV Premiership. The winner of the
playoffs will participate in the DSTV Premiership in the following
season while
the other two teams will play in the GladAfrica
Championship the following season.
[4]
In the 2020/2021 season, which has now ended, the teams in the
GladAfrica Championship included Royal AM; the fifth respondent,

Sekhukhune United Football Club (“Sekhukhune FC”); and
Polokwane City Football Club (“Polokwane City”).
[5]
The entire controversy in this matter started with an arbitration
award granted by Advocate Epstein SC (“the Epstein award”).

The effect of the Epstein award was to place Sekhukhune FC at the top
of the GladAfrica Championship log and Royal AM, second.
Because, as
a result of the Epstein award, Royal AM moved from its previous first
place position on the log, to the second place
position, Royal AM
joined the urgent review proceedings before this court, instituted by
Polokwane City in May 2021, to set aside
Epstein’s award.
[6]
But, before I turn to the urgent review proceedings, it is necessary
to take a step back and briefly set out the events that
led to review
and the current application. On 2 January 2021 a GladAfrica
Championship match was played between Polokwane City
and Sekhukhune
FC. Prior to the game, Sekhukhune FC lodged a protest in terms of the
NSL’s rules as Polokwane City ’s
team did not include a
minimum of 5 players under the age of 23. Polokwane City elected to
continue with the match regardless,
with only four under 23 players
on its team sheet. Polokwane City won the match 1-0. Sekhukhune FC
was understandably aggrieved,
and followed up the protest with the
NSL. As a result Polokwane City was charged and brought before the
Disciplinary Committee
(“the DC”). The hearing before the
DC eventually took place on 28 and 29 April 2021. On 7 May 2021 the
DC found that
Polokwane City had violated Rule 35.2 of the NSL
Handbook and imposed what is known as a "deduction of points",
and a
suspended fine against Polokwane City. The deduction sanction
essentially meant that Polokwane City was stripped of the three log

points it received from the disputed match.
[7]
Sekhukhune FC appealed the sanction on 7 May 2021. An internal appeal
against the DC's decision served before an arbitrator
appointed by
the South African Football Association ("SAFA"), Advocate
Hilton Epstein SC. On 19 May 2021, Advocate Epstein
SC handed down
his award, which confirmed the substantive findings of the DC (“the
Epstein award”). But, instead of
merely ordering the deduction
of points from Polokwane City, the Epstein award declared that
Polokwane City had forfeited the disputed
match to Sekhukhune FC with
a score-line of 3-0. This in effect meant that Polokwane City would
not only lose the three points
they had initially earned from the
disputed match on the GladAfrica Championship log, but that
Sekhukhune FC would be granted three
points on the log.
[8]
The Epstein award was not immediately implemented by the NSL as it
caused uncertainty regarding the powers of its DCs and appellate

bodies. The final matches of the ordinary 2020/2021 GladAfrica
Championship however proceeded on Sunday, 23 May 2021. Royal AM
drew
its final match 1:1; and Sekhukhune won its match 3:1. After these
matches, and without taking into consideration the effect
of the
Epstein award, the log indicated that Royal AM topped the log, with a
total of 51 points; and Sekhukhune FC came second,
with a total of 50
points. Polokwane finished the season in twelfth position, well out
of the running. But, if the Epstein award
was to be implemented:
Sekhukhune FC ended the season at the top of the log, with a total of
53 points, and Royal AM dropped to
second position, with a total of
51 points. Polokwane City's position would remain unchanged.
[9]
On 23 May 2021, the NSL issued a press statement indicating that it
had been threatened with review proceedings, and that the
GladAfrica
Championship trophy handover would be postponed. Sekhukhune FC on the
other hand, demanded that the Epstein award be
implemented. On 24 May
2021, Polokwane City launched a review application, on an urgent
basis, to challenge the Epstein award and
to reinstate the ruling and
sanction of the DC. On 25 May 2021 Royal AM sought to intervene as
co-applicant, and the NSL brought
a counter-application raising the
legal question of whether the sanction of forfeiture was mandatory or
not.
[10]
The review application came before Sutherland DJP on 11 June 2021.
Polokwane City failed to file further papers or heads of
argument as
required, and failed to be present in court at the hearing of the
matter. On Saturday morning, 12 June 2021, Sutherland
DJP granted an
order dismissing the challenge to the Epstein award and granted the
counterapplication (“the Sutherland order”).
He indicated
that the reasons would follow later. The NSL immediately issued a
press release implementing the Epstein award which
meant that
Sekhukhune FC overtook Royal AM and took the first place on the
GladAfrica Championship log. This also meant that Sekhukhune
FC would
automatically go through to the DSTV Premiership Championships and
Royal AM, Chippa United Football Club, and Richards
Bay Football Club
(the third and the fourth respondents respectively) had to play in
the playoffs to determine which team would
go through to the DSTV
Premiership.
[11]
On Sunday, 13 June 2021, Royal AM filed an application for leave to
appeal the Sutherland order and also instituted urgent
court
proceedings to,
inter
alia
,
suspend the playoffs scheduled for 15 June 2021. The urgent
application served before Nyathi AJ on Monday 14 June 2021. After

hearing the parties, Nyathi AJ granted an order, suspending the
playoffs pending the outcome of the application for leave to appeal

and/or appeal of the Sutherland order and also declared the NSL’s
conduct “
inconsistent
with the Constitution and/or PAJA
[2]
”
(“the Nyathi order”).
[12]
On 15 June 2021 the judgment and reasons for the Sutherland order was
made available to the parties. On the same day, the NSL
filed an
application for leave to appeal against the Nyathi order, save for
the determination of urgency. This application for
leave to appeal is
still pending.
[13]
On Friday, 18 June 2021 the application for leave to appeal against
the Sutherland order was heard. Leave to appeal was refused.
Royal AM
immediately filed a petition to the Supreme Court of Appeal (‘the
SCA”).
[14]
On 19 June 2021 the playoffs went ahead and were finalized on 30 June
2021. Royal AM elected not to participate. Chippa United
FC was
victorious which means that Chippa United FC, along with Sekhukhune
FC, are going through to the DSTV Premiership.
[15]
All of the above happened in the space of one week. It is in this
context that Royal AM instituted these urgent court proceedings
on 29
June 2021 and set it down in the urgent week of 13 July 2021. Royal
AM contends that as a result of Nyathi order and the
petition to the
SCA against the Sutherland order, the “status quo” must
be restored (pre- arbitration award) and it
should be declared that
Royal AM is on top of the log. In other words, it suggests that
everything must remain frozen until the
SCA can decide the
application for leave against Sutherland’s order, and
telegraphs its intentions that if that is refused,
it will take the
matter to the Constitutional Court. The first, second and fifth
respondents oppose the current urgent application.
[16]
Before I deal with the merits of the current application, there is
one preliminary issue that is raised by the applicant. Royal
AM set
the matter down for hearing in the urgent court on 13 July 2021. In
doing so it imposed a deadline for the filing of answering
papers of
5 July 2021. Sekhukhune FC did not file its answering affidavit in
time, and only filed its papers on 8 July 2021, resulting
in a delay
of 3 days. Sekhukhune FC applies for condonation for its failure and
contends that the delay was as a result of one
counsel, who was
tasked with drafting the answering papers, that was unavailable
because of health reasons. It is submitted that
the short delay in
filing the answering affidavit cannot have caused any party any
prejudice.
[17]
In determining whether condonation should be granted the court
assesses the reasonableness of the application within the broader

framework of considering the length of the delay, explanation for, or
cause of the delay, prospects of success for the party seeking

condonation, importance of the issues that the matter raises,
prejudice to the other parties and the effect of the delay on the

administration of justice.
[3]
Taking
into consideration that this is urgent court proceedings, in which
the time limits have been shortened, involving the same
parties as in
the previous court proceedings, dealing with more or less the same
issues, I am satisfied that the explanation a
dvanced
for the delay is reasonable. The delay is not long and has not
prejudiced Royal AM or any of the other parties before
this court.
Sekhukhune FC has a material interest in the outcome of these
proceedings, and it should not be deprived of the opportunity
to be
heard. It is in the interests of justice to condone the late filing
of its answering affidavit.
THE
CURRENT APPLICATION
[18]
The following relief is sought in the notice of motion:
“
2.
Rescinding and/or varying orders 3 and 4 granted by the Honourable
Nyathi AJ to read:
"3.
Granting an interim order pending the final determination of Royal
AM's application for leave to appeal
and/or
appeal
the commencement of the
2021 GladAfrica Promotion/Relegation Playoffs is suspended'.
(The
words and/or appeal was omitted in the written judgment)
3. Declaring that:
3.1. pending the
finalisation of the NSL's application for leave to appeal lodged in
terms of section 17(1)(a) of the Superior Courts
Act and/or any
subsequent appeals and in terms of section 18(1) read with section
18(3) of the Superior Courts Act, paragraph 2
of the Nyathi AJ order
to be operational and enforceable;
3.2. pending the
finalisation of Royal AM's application for leave to appeal against
the Sutherland DJP order, lodged in the Supreme
Court of Appeal in
terms of section 17(2)(b) of the Superior Courts Act, the NSL's
decision to remove Royal AM from the number
one spot on the
GladAfrica Championship log has continued to remain suspended in
terms of section 18(1) read with section 18(3)
of the Superior Courts
Act and/or the interim order issued by Nyathi AJ; and/or
3.3. the applicant
remains the lawful occupant of the first position in the GladAfrica
Championship log until lawfully removed;
and/or
3.4. the first
respondent is in contempt of court in respect of the Honourable
Nyathi AJ order.
4. Ordering that the
second respondent be committed to imprisonment for a period of 30
days, wholly suspended, on condition that
she forthwith gives effect
to the orders sought in prayer 3.4 above.
5. In the alternative
to prayer 4 above, ordering:
5.1. the second
respondent be committed to imprisonment for a period of 30 days,
alternatively, for such period as the Court deems
appropriate; and/or
5.2. that a warrant of
committal is to be issued by the Registrar of this Honourable Court
pursuant to an order of this Honourable
Court duly granted, on the
same papers, and duly supplemented as necessary, in the event of the
first or second respondents' failure
to purge the contempt of court
referred to in prayer 3.4 above.
6. Costs on the
attorney and own client scale.”
[19]
As can be seen from the above, the applicant seeks an array of relief
in the notice of motion. In its replying affidavit, Royal
AM has
proposed a "shortcut" and suggests, as a way forward, that
the court focusses on certain pertinent “questions”.
[4]
The issues raised in the questions are however much broader than the
relief sought in the notice of motion. In my view the dispute
between
the parties ultimately crystallizes into a more narrow legal issue,
namely, the status and effect of three “orders”,
namely
the Nyathi order, the Sutherland order and the Epstein award. In
order to ensure a fair and disciplined hearing, I intend
on
approaching the matter by analysing the three “orders”
and how it impacts Royal AM’s position, and then to
deal with
each of the prayers for relief sought in the notice of motion.
THE
NYATHI ORDER
[20]
It is common cause that the application to review the Epstein award
was dismissed by Sutherland DJP on Saturday 12 June 2021.
Royal AM
contends that what followed after the issuing of the Sutherland order
and before the issuing of the Nyathi order, lies
at the heart of the
present application.
[21]
On the same day (12 June 2021), and within an hour or two after the
Sutherland order was granted, the NSL issued a media statement.
It
announced that the review against the two SAFA Arbitration Tribunal
awards handed down by Advocates Epstein and Cassim SC (the
latter
award not relevant to the current proceedings) which impacted the
final log standings, were dismissed by Sutherland DJP,
“
and
as a consequence, Sekhukhune FC has secured automatic promotion to
the DSTV Premiership for the next season while Chippa FC,
Royal AM
and Richards Bay Football Clubs will contest the promotion/relegation
playoffs which will commence on the 15
th
of
June 2021..."
[22]
The NSL proceeded to update the GladAfrica Championship log and
demoted Royal AM from the number one spot to the second spot
on the
log, thereby requiring Royal AM to participate in the playoffs. It
also issued a fixture of the playoff games scheduled
to commence at
15h00 on Tuesday 15 June 2021. Royal AM contends that, this resulted
in certain “impugned conduct” by
NSL, namely firstly
demoting “
Royal AM again to the number 2 spot, second, it
set a date for the commencement of the 2021 GladAfrica
promotion/relegation playoffs
for 15 June 2021 and third, it issued a
new fixture identifying Royal AM and the two other clubs who are
rightful participants
in the playoffs, effectively ordering them also
to breach the court order.”
[23]
As a consequence of this, on 13 June 2021, at about 23h00, Royal AM
launched an urgent application in which it sought an order:
(1)
declaring NSL’s conduct “inconsistent with the
constitution and/or PAJA”; (2) granting an interim order that

pending the final determination of the application for leave to
appeal and/or appeal, the commencement of the 2021 GladAfrica
promotion/relegation playoffs be suspended; and (3) that the
operation and implementation of the Epstein award is suspended. The

NSL, Sekhukhune United FC and Richards Bay FC opposed the
application.
[24]
On 14 June 2021 Nyathi AJ gave the following order:
“
IT
IS ORDERED THAT:
2.The first
respondent's conduct is inconsistent with the constitution and/or
PAJA.
3.An interim order is
granted that pending the final determination of the application for
leave to appeal/or appeal.
4.The commencement of
the 2021 GladAfrica promotion/relegation playoffs is suspended.”
[25]
On 15 June 2021, the NSL announced that the 15 June 2021 playoff
fixture was postponed and released a new fixture in respect
of which
the playoffs would commence on Thursday 17 June 2021. On 16 June
2021, Royal AM, through its attorneys addressed a letter
to the NSL
and its representatives, demanding an undertaking that it will
,
inter alia
“
refrain from committing any further conduct
or issuing statements and/or documents which are in contempt of
court; make a public
statement indicating that it will comply with
the above and the law, and that no playoffs will be played in breach
of the Nyathi
AJ order.”
[26]
On 17 June 2021, the NSL, through its attorneys, replied to Royal
AM's letter in which it denied that it had breached the Nyathi
order,
but stated that because of the dispute between NSL and Royal AM about
the correct interpretation of the Nyathi order, the
commencement of
the 2021 GladAfrica playoff matches between Chippa United FC and
Richards Bay F, scheduled for 15h00 that afternoon,
would be
postponed. On the same day, the NSL also issued a media statement
announcing the postponement of the 17 June 2021 playoffs.
In the
evening of Friday 18 June 2021, Royal AM's application for leave to
appeal the Sutherland order was heard. The application
for leave to
appeal was dismissed. A petition to the SCA was immediately filed.
[27]
The playoffs commenced on Saturday 19 June 2021 and was finalized on
30 June 2021.
[28]
Nyathi AJ’s written judgment, which included the reasons for
his order was delivered on 21 June 2021. Notably, the words
“and/or
appeal” in paragraph 3 of the original order, were omitted from
the order in the written judgment. All the
parties are
ad idem
that the Nyathi order must be interpreted by not only having regard
to the order granted, but also to the reasons for the order
in the
written judgment. In the judgment Nyathi AJ held as follows:
“
[70]
FINDINGS
I
am persuaded that the applicant has made out a case for the granting
of interim interdict, pending the application before his
Lordship
Sutherland DJP. I make the following order:
"HAVING read the
documents filed of record and having heard the submissions by
Counsel:
—
IT
IS ORDERED THAT:
1.
The application be heard and determined as one of urgency as
contemplated by Rule 6(12) of the Rules of Court.
2. The first
respondent's conduct is inconsistent with the constitution and/or
PAJA.
3. An interim order is
granted that pending the final determination of the application for
leave to appeal.
4. The commencement of
the 2021 GladAfrica promotion/relegation playoffs is suspended.”
Prayer
3
[29]
Royal AM relies on the decision in
National
Gambling Board v Premier, Kwa-Zulu Natal and Others
[5]
and
contends that paragraph 3 of the order is an interim order, intended
to restore the
status
quo
before the Sutherland order was made namely, where Royal AM was the
automatic qualifier at the top of the GladAfrica Championship
log. It
is submitted that the intention of the interim order was to suspend
the playoffs, not only until the application for leave
to appeal of
the Sutherland order was finalized, but until all appeals and the
“rights of the parties have finally been determined”.
It
is further submitted that as paragraph 3 of the order is interim, the
operation of the interim order was not suspended by merely
filing the
application for leave to appeal. It is submitted that the NSL was
required to obtain an order in terms of section 18(2)
of the Superior
Court’s Act prior to proceeding with the playoffs.
[30]
It is trite that the wording of an order is not dispositive and that
regard must be had to the effect of an order when assessing
its true
character. In
Metlika
Trading v Commissioner, South African Revenue Service
,
[6]
the High Court had granted an "interim order" in terms of
which one of the appellants was ordered to take all necessary
steps
to procure the return of an aircraft to South Africa. The SCA held as
follows:
"
The order that
steps be taken to procure the return of the aircraft to South Africa,
as well as the other orders relating to the
aircraft, were intended
to have immediate effect, they will not be reconsidered at the trial
and will not be reconsidered on the
same facts by the court a quo.
For these reasons, they are in effect final orders”
[31]
Recently in
Minister
of COGTA v De Beer
[7]
,
the SCA reiterated that an order is final if it is not subject to
reconsideration by the court.
[8]
[32]
Paragraph 3 of the order of Nyathi AJ will never be reconsidered by
this court. The judgment of Nyathi AJ and paragraph 3 of
his order is
therefore, in my view, clear. Although framed by Nyathi AJ as being
interim, paragraph 3 of the order is a final interdict
granted for a
limited time.
[33]
In the original order the “interim order” was said to
apply “pending the final determination of Royal AM’s

application for leave to appeal and/or appeal”. In the written
reasons of Nyathi AJ, the “interim order” was
said to
apply “pending the final determination of Royal AM’s
application for leave to appeal” (i.e. the words
“and/or
appeal” do not appear). The order granted by Nyathi AJ was
plainly meant as a short-term measure which would
hold off the
finalisation of the 2020/2021 football season, until Sutherland DJP’s
reasons were handed down and he could
hear Royal AM’s
application for leave to appeal. The “interim order”
therefore came to an end when Sutherland
DJP refused leave to appeal
on 18 June 2021.
[34]
As stated, Nyathi AJ removed the words “or an appeal” in
his written judgment. Royal AM attempts to latch onto
this, and
suggests that if these words are re-introduced, the effect is that
the “interim relief” applies until every
conceivable
application for leave to appeal and/or appeal is exhausted. In other
words, it reads the order as a licence for it
to stop all
professional football for as long as it likes. This was clearly not
the intention of the Nyathi order. The intention
could only have been
that the relief may have been extended had Sutherland DJP granted
leave to appeal – which did not happen.
But even if it was
intended to extend beyond the application for leave to appeal, as
suggested by Royal AM, then the interdict
is final in effect –
as it will inevitably and completely stop the 2021/2022 football
season from commencing. In this event
the NSL’s application for
leave to appeal against the Nyathi AJ order, suspends the order as it
falls within the ambit of
section 18(1) of the Superior Courts Act.
This means that, when the NSL lodged its application for leave to
appeal against the
order of Nyathi AJ on 15 June 2021, the operation
and execution of paragraph 3 of the order of Nyathi AJ was suspended.
It continues
to be suspended at the present time.
[35]
Nothing of substance however turns on the difference in wording
between the ex tempore order and the written order. It is clear
from
the terms of either version of the order, read with the reasons, that
once Royal AM’s application for leave to appeal
was dismissed
on 18 June 2021 by Sutherland DJP, there was no longer any “interim
order” that restrained the commencement
of the playoffs. Nyathi
AJ made this plain in his reasons when he said that he has “
exercised
care not to prejudice the matter that is pending before Deputy Judge
President Sutherland. [Royal AM] is apprehensive
that if it submits
to the [NSL’s] instructions, and participate in the playoffs
and lose, it may forfeit the right to promotion
it had secured. If
[Royal AM] were to succeed in the pending matter before the DJP, how
will [the NSL] then unscramble the scrambled
egg to reverse the
decisions it has taken?”
[36]
The relief in paragraph 3, granted in favour of Royal AM, tracked the
formulation in Royal AM’s notice of motion. Read
with the
affidavits filed by Royal AM itself, it is clear that this relief was
intended by Royal AM to remain in place until Sutherland
DJP could
hear Royal AM’s application for leave to appeal against the
order of 12 June 2021, and any appeal in the event
that leave was
granted. The relief proposed by Royal AM in the current application
essentially seeks to re-interpret Nyathi AJ’s
order as a much
bolder, braver move, designed to operate for a much longer period,
until every conceivable application for leave
to appeal to every
higher court was exhausted, and until any appeal was finalised. Royal
AM exhausting all applications for leave
to appeal to all possible
higher courts, or any appeals, would obviously take a considerable
amount of time. This relief would
prevent the finalisation of the
2020/2021 football season, which would in turn mean that the
2021/2022 season could not begin.
[37]
But such an interpretation of Nyathi AJ’s order is wrong. It is
clear from the judgment that Nyathi AJ was alive to the
fact that the
substantive issues were serving before Sutherland DJP in a more
considered manner and that his role was merely to
ensure that nothing
irreversible happened before the proceedings before Sutherland DJP
were wrapped up. I agree with the NSL that
it would be a logical
absurdity for Nyathi AJ to have held that Royal AM had established a
prima facie
right that would apply even if Sutherland DJP were
in due course to find that Royal AM had no prospect of success on
appeal. That
would have required Nyathi AJ to find that Sutherland
DJP would be wrong if he were to refuse leave to appeal.
Understandably,
this formed no part of the reasoning of Nyathi AJ.
[38]
Nyathi AJ clearly did not intend any outcome of this kind, which
would have far-reaching consequences for all professional
football
teams in the Premiership and Championship. If it were otherwise, all
of these teams would also have had to be joined to
consider the
effects of the proposed interdictory relief on their interests.
[39]
For any of the reasons set out above, the Nyathi AJ order suspended
the commencement of the playoffs pending the final determination
of
the application for leave to appeal and/or appeal. Therefore, the
promotion/relegation playoffs that were scheduled for 15 June
2021
could not commence. There was, however, no order interdicting the
commencement of the playoffs when the games began on 19
June 2021.
Paragraph
2 of the Nyathi order
[40]
In prayer 3.1. to 3.3 of the notice of motion in the current
application, Royal AM asks an order in the following terms:
1. Paragraph 2 of the
Nyathi AJ order to be operational and enforceable pending the
finalisation of the NSL's application for leave
to appeal against the
Nyathi order;
2. That the NSL's
decision to remove Royal AM from the number one spot on the
GladAfrica Championship log remain suspended, pending
the
finalisation of Royal AM's application for leave to appeal against
the Sutherland DJP order;
3. That the applicant
remains the lawful occupant of the first position in the GladAfrica
Championship log until lawfully removed.
[41]
The basis for the relief sought in prayer 3 in the notice of motion
is essentially paragraph 2 of the Nyathi order. It is therefore

necessary to carefully examine the status and effect of paragraph 2
of the Nyathi order, as it is instrumental in determining whether

Royal AM is entitled to any of the relief sought.
The
effect of paragraph 2
[42]
In paragraph 2 of the Nyathi order, the court declares “
conduct
of the NSL inconsistent with the constitution and/ or in
contravention of PAJA.”
The declaratory order is imprecise,
but from a perusal of the notice of motion in that matter, in so
doing, Nyathi AJ merely adopted
the phrasing of the relief sought by
Royal AM. Understood in the context of the pleadings in the
proceedings before Nyathi AJ,
this relief could only refer to the
“impugned actions” (referred to earlier in the judgment)
taken by the NSL on 12
June 2021 to implement the Epstein award,
following immediately upon the Sutherland order. The “impugned
actions” were
taken before the urgent application before Nyathi
AJ was instituted, before Sutherland DJP gave his reasons for the
dismissal of
the review, and before the application for leave to
appeal was dismissed.
[43]
Royal AM submits that paragraph 2 of the order of Nyathi AJ had the
effect of reinstating Royal AM to the top spot in the GladAfrica

Championship. Royal AM’s reliance on the declaratory order to
justify its argument and concomitant relief sought in paragraph
3 of
its notice of motion is misconceived.
[44]
In terms of section 172(1) of the Constitution, the court has two
distinct powers: It must declare conduct which is unlawful
to be so
(section 172(1)(a)); and it
may
make a consequential order
which is “
just and equitable”
(section 172
(1)(b)). Nyathi AJ was only asked to make a declaratory, and that is
all it did. At most the court found that the
actions of NSL on
Saturday, 12 June 2021, was “inconsistent with the constitution
and/ or PAJA”. It was not asked,
and the court did not take the
further step of also setting that conduct aside, or even declaring it
invalid.
[45]
Declaratory relief that specified conduct is unlawful does not
automatically translate into a finding that the conduct is set
aside.
This is clear from section 8(1)(c) of PAJA, which highlights that
setting aside a decision is one of several consequential
“just
and equitable” orders which a court may make. The court has a
discretion to allow unlawful conduct to stand.
This is done based on
the dictates of certainty and justice; where the relief would not
have any practical effect; where third
parties have based their
affairs on the lawfulness of the decision and would be prejudiced if
it were set aside; where the relief
would cause a financial loss
without any potential benefit; where striking down a decision would
have domino-effect on subsequent
decisions; or where the
administrative “slip” does not justify judicial sanction.
This accords with the approach indicated
in
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
,
[9]
in which the Constitutional Court highlighted that the power to
declare unlawful conduct to be so, was mandatory. It could not
be
avoided on the basis that that it would be inappropriate to grant
consequential relief. A declaration of unlawfulness must thus
be made
first, and thereafter consequential, discretionary relief may (or may
not) be considered. But the fact that a declaration
of unlawfulness
is given does not mean that consequential relief – including
relief setting aside the unlawful action –
must follow.
Consequential relief must be sought and granted, in the discretion of
the court. Thus, even if this court pronounces
that Nyathi AJ’s
declaratory relief still stands and is effective, the fact remains
that the NSL’s actions (taken on
12 June 2021) to implement the
Epstein award were never actually set aside or declared invalid. On
the contrary, Nyathi AJ specifically
elected to leave the Epstein
award in place, and did not grant the relief sought by Royal AM to
suspend the validity and effectiveness
of the award pending any
further leave to appeal or appeal processes. The declaratory relief
therefore has no real effect and it
is unclear how it can prevent the
NSL from implementing the Epstein award.
[46]
But even if one assumes, for the sake of argument that the NSL’s
actions on 12 June 2021 were declared invalid
and
set aside,
the relief by Nyathi AJ, related to the specific action taken by the
NSL on 12 June 2021 to implement the Epstein award.
The circumstances
under which the relief was granted had been superseded by subsequent
events. The application for leave to appeal
was heard and dismissed
by Sutherland DJP; the NSL subsequently took new action thereafter to
implement the Epstein award,
and
the playoffs were finalized
on 30 June 2021.
[47]
Based on the declaratory relief granted by Nyathi AJ, Royal AM now
seeks extended relief (particularly that in paragraphs 3.2
and 3.3 of
the notice of motion) which is aimed at holding in place the
Championship log positions as they would have been if the
Epstein
award is ignored (pending endless processes to challenge the Epstein
award). But this is plainly not what the limited relief
granted by
Nyathi AJ required, or what it sought to achieve.
The
status of paragraph 2
[48]
All the parties are in agreement that the relief granted by Nyathi AJ
in paragraph 2 is a final order. The NSL filed an application
for
leave to appeal against the Nyathi order and contends that the order
(including paragraph 2) is automatically suspended in
terms of
section 18(1) of the Superiors Court Act. Royal AM disagrees. It
contends that “it is not legally tenable to argue
that that
institution of the application for leave to appeal somehow breathed
life back into
and resurrected the nullity that was the unlawful
removal or “eviction” of Royal AM from the number one
spot. Moreso
because the alleged resurrection was still performed
without a hearing and in breach of all the other constitutional
rights which
had been invoked before Nyathi AJ and underlied the
declaration of unconstitutionality and/or invalidity.”
[49]
Royal AM’s submission in this regard is misconceived. I have no
doubt that NSL’s application for leave to appeal
suspends the
Nyathi order in this regard.
THE
SUTHERLAND ORDER
[50]
Sutherland DJP dismissed the application to review and set aside the
Epstein award. The subsequent application for leave to
appeal was
also dismissed. It is common cause that Royal AM has now petitioned
the SCA.
[51]
Royal AM contends that when it applied to the High Court for leave to
appeal against the order of Sutherland DJP and subsequently

petitioned the SCA for leave to appeal, it had, as a matter of law
and in terms of section 18 of the Superior Courts Act, the effect
of
"suspending the implementation of the Epstein award" and
“reinstating Royal AM to the top of the GladAfrica

Championship”.
[52]
Relying on the judgment in
Department
of Transport and Others v Tasima (Pty) Ltd; Tasima (Pty) Limited and
Others v Road Traffic Management Corporation and
Others
,
[10]
Royal AM contends that section 18(1) reiterates the common law
position to the effect that the operation or execution of a judgment

is suspended when there is an application for leave to appeal or an
appeal. What ultimately happens to the suspended operation
or
execution of a judgment subject to an appeal process would be
determined by the outcome of the appeal. If the appeal is
unsuccessful
the suspension would cease, unless of course, “
a
further application for leave to appeal is made”.
[11]
It is submitted that it
is clear from this explanation by the Constitutional Court, that the
purpose of the section 18 regime was
to ensure that it would only
fall away “once no further application for leave to appeal is
made or all appeal avenues have
been exhausted.” It is further
submitted that the contrary approach has been adopted by the
respondents, which must accordingly
be rejected.
[53]
The facts and finding in
Tasima
,
referred to above, are clearly distinguishable from the facts in the
current application. The facts in
MV
Snow Delta Serva Ship Ltd v Discount Tonnage Ltd
[12]
,
however,
is relevant to the current situation. In
Snow
Delta
the SCA dealt with the implication of an appeal against the dismissal
of an application. Harms JA held that an order of absolution
from the
instance
or
dismissal of a claim or application is not suspended pending an
appeal, simply because there is nothing that can operate or upon

which execution can be levied”
(emphasis
added).
[13]
More recently,
Opperman J in the matter of
Cotty
v Registrar of the Council for Medical Schemes,
[14]
held
that it is not possible to “restore what never was” and
stated as follows:
"... the result
in Resolution Health is consistent with the common-law rule and the
application of
section 18(1)
of the
Superior Courts Act 10 of 2013
to
appeals against the refusal to confirm a rule nisi or grant an order
conferring some benefit. An appeal cannot give rise to
a confirmation
of the rule nor to an order confer in the benefit. An appeal cannot
restore what never was."
[54]
Royal AM submits that as far as the respondents rely on the
“
inapplicable
and distinguishable principles set out in the MV Snow Delta case”
this
court should rather adopt “
the
more recent and preferable approach”
adopted in the
Uitzig
Secondary School Governing Body and Another v MEC for Education,
Western Cape
[15]
judgment, in which Masuku
AJ took a different approach. The court in
Uitzig
considered
section 18(1)
and held that an application for leave to
appeal did suspend the decision which was unsuccessfully sought to be
reviewed.
[16]
It is argued
that the approach in
Uitzig
accords better with the real purpose of
section 18
(read with
sections 9 and 34 of the Constitution), which is to give maximum
protection to appellants and would-be appellants, failing
which their
right of appeal may ring hollow. To that extent, the court is
required to grant the declarator sought at payer 3.2
in terms of
section 21(1)(c) of the
Superior Courts Act.
[55
]
In other words, this court must find that despite the fact that
Sutherland DJP had dismissed its review of the Epstein award,
Royal
AM’s application for leave to appeal had nonetheless somehow
given Royal AM the relief it sought in the review, namely,
that the
Epstein award would not operate? This argument, and the judgment in
Uitzig
, is directly at odds with the binding authority of the
SCA in
Snow Delta
, and would have the effect that the
dismissal of the review application would somehow confer some benefit
to Royal AM, in this
instance to get Royal AM to where it wants to
be, namely at the top of the GladAfrica Champiosnhip.
[56]
I do not intend to follow the decision in
Uitzig.
Sutherland
DJP had dismissed the application to review the award of Epstein SC.
There was accordingly nothing that could be “suspended”

by Royal AM’s application for leave to appeal against the order
of Sutherland DJP. It follows that Royal AM's petition for
leave to
appeal against the order of Sutherland DJP also does not entitle it
to the declaratory relief it seeks in the current
application, namely
reinstating it as the “
lawful occupant of the first position
in the GladAfrica Championship until lawfully removed.
”
[57]
It must be kept in mind that Nyathi AJ did not grant the suspension
of the Epstein Award. That is fatal to the case now advanced
by Royal
AM.
THE
EPSTEIN AWARD
[58]
At the heart of the current application is an attempt by Royal AM to
compel the NSL to ignore the sanction imposed in the Epstein
award.
[59]
Following this court’s approach in
Ndoro
and Another v South African Football Association and Others,
[17]
the Epstein award is an exercise of “administrative action”
as defined in the Promotion of Administrative Justice Act
3 of 2000
(“PAJA”). As such the well-established principle applies
that the Epstein award must be respected, and treated
as valid,
unless and until it is set aside. The NSL has no discretion to
implement the Epstein award. Its role is merely one of

implementation.
[60]
This is akin to the situation in
Sigcau
and Another v Minister of Cooperative Governance and Traditional
Affairs and Others
[18]
.
In that case a statutory Commission made a final decision (regarding
the identity of the rightful king of a traditional community),
which
had to be implemented by the President. The question arose whether
any further procedure was required by the President before
he
implemented the decision. The Constitutional Court noted that
implementation meant putting a decision into effect and held as

follows with regard to the President’s implementation role:
“
This
necessarily means that it is not envisaged that anybody or
functionary will have any role to play or any decision or step to

take between the time when the decision reaches the President and the
time when it is implemented by the President. As long as
the decision
of the Commission stands, the President may also not do anything
inconsistent with
the notion of
‘immediate implementation’ of the decision of the
Commission.”
[61]
On this basis I agree with the respondents that there can be no
question that the NSL was bound to hear from any other party
before
implementing the Epstein award. There would also be no point in it
doing so. The NSL would have no discretion to refuse
to implement the
award. Royal AM is thus asking for relief which would have no
meaning, and no significance other than to compound
confusion for its
own aims. The consequence of this is that the Epstein award remained
in place, as a final and binding determination,
which had to be
respected by all parties. As such, the sanction it imposed (including
the award of log points to Sekhukhune FC)
remained in place, and had
to be implemented.
THE
RULE 42(1)(b) APPLICATION (PRAYER 2)
[62]
On 14 June 2021, Nyathi AJ granted an ex-tempore order that mimicked
the relief sought by Royal AM in prayers 1, 2 and 3.1
of its notice
of motion. On 21 June 2021, Nyathi AJ handed down the written
judgment and order. The order contained therein is
different from the
order granted ex tempore on 14 June 2021, in that the words “and/or
appeal” was omitted.
[63]
Royal AM seeks an order rescinding and/or varying orders 3 and 4
granted by Nyathi AJ to read:
3. Granting an interim
order pending the final determination of Royal AM’s application
for leave to appeal
and/or appeal
the commencement of the 2021
GladAfrica Promotion/Relegation Playoffs is suspended”.
[64]
Rule 42(1)(b) provides that the court may rescind or vary an order or
judgment in which there is an ambiguity, or a patent
error or
omission, but only to the extent of such ambiguity, error or
omission. The purpose of the rule is “to correct expeditiously

an obviously wrong judgment or order.
[19]
In
Firestone
South Africa (Pty) Ltd v Gentiruco AG
[20]
the court dealt with its power to supplement or amend its findings in
contradistinction to its orders:
“
The
Court may correct a clerical, arithmetical or other error in its
judgment or order so as to give effect to its true intention.
. . .
This exception is confined to the mere correction of an error in
expressing the judgment or order; it does not extend to
altering its
intended sense or substance.”
[65]
In
West
Rand Estates Ltd v New Zealand Insurance Co Ltd
[21]
Kotzé JA stated:
''The Court can,
however, declare and interpret its own order or sentence, and
likewise correct the wording of it, by substituting
more accurate or
intelligent language so long as the sense and substance of the
sentence are in no way affected by such correction;
for to interpret
or correct is held not to be equivalent to altering or amending a
definitive sentence once pronounced.''
[66]
The court has a discretion whether or not to grant an application for
variation. Royal AM contends that the court should exercise
its
discretion in favour of the variation for the “
obvious
reason that there is a patent error in the order”.
[67]
There is no opposition by any of the respondents to this relief being
granted. As alluded to above, it makes no material difference
to the
outcome whether the first or the second version of the interdict of
the Nyathi order is found to be the correct formulation.
However,
Royal AM must still persuade this court that it is entitled to the
relief sought in prayer 2.
[68]
The founding affidavit does not make out a case in support of the
bald averment that this was a “patent error”
(founding
affidavit para 92) and an “actionable ambiguity”
(founding affidavit para 92). Indeed, Royal AM itself appears
to
harbour doubts on this score, since the founding affidavit contends
that Nyathi AJ had no “jurisdiction” to alter
his
ex
tempore
order in circumstances where he
was “functus officio” (founding affidavit para 94). The
contention that Nyathi AJ sought
to amend his earlier order in
circumstances where he had no competence to do so, is inconsistent
with the contention that the change
in wording was a “patent
error”, within the meaning of Rule 42(1)(b).
[69]
In the result the
allegations that the
error was “patent” or that there was an “actionable
ambiguity” are not supported by
any facts. The applicant failed
to make out a case for the amendment of the order.
EXECUTION
OF DECLARATORY ORDER (PRAYER 3.1)
[70]
In prayer 3.1 of the notice of motion, Royal AM seeks an order
“declaring” that “pending the finalisation
of the
NSL’s application for leave to appeal lodged in terms of
section 17(1)(a)
of the
Superior Courts Act and/or
any subsequent
appeals and in terms of
section 18(1)
read with
section 18(3)
of the
Superior Courts Act, paragraph
2 of the Nyathi AJ order to be
operational and enforceable [sic]”.
[71]
As stated above, paragraph 2 of the Nyathi order does not give any
relief consequential upon the declarator. Royal AM’s
submission
that if prayer 3.1 were to be granted, this would in some mysterious
way have the effect of restoring Royal AM to the
top spot of the
GladAfrica Championship, is therefore misconceived. For this reason
alone, the relief sought in prayer 3.1 should
be dismissed.
[72]
But there is in any event no basis for the relief sought in prayer
3.1, because Royal AM failed to meet the requirements for
such
relief.
In
University
of Free State v Afriforum and Another
[22]
the SCA stated that the requirements introduced by
sections 18(1)
and
(3) are more onerous than those of the common law. In comparing the
present position with the previous one, Fourie AJA held
as follows:
“
Apart
from the requirement of ‘exceptional circumstances’ in
s
18(1)
,
s 18(3)
requires the applicant ‘in addition’ to
prove on a balance of probabilities that he or she ‘will’
suffer
irreparable harm if the order is not made, and that the other
party ‘will not’ suffer irreparable harm if the order
is
not made. The application of
rule 49(11)
required a weighing-up of
the potentiality irreparable harm or prejudice being sustained by the
respective parties and where there
was a potentiality of harm or
prejudice to both of the parties, a weighing-up of the balance of
hardship or convenience, as the
case may be, was required.
Section
18(3)
, however, has introduced a higher threshold, namely proof on a
balance of probabilities that the applicant will suffer irreparable

harm if the order is not granted and conversely that the respondent
will not, if the order is granted.”
Exceptional
circumstances
[73]
Section 18(1)
of the
Superior Courts Act requires
Royal AM to prove
the existence of “exceptional circumstances”. It is trite
that each case has to be decided on its
own facts and that it is not
possible to lay down precise circumstances that are to be regarded as
exceptional.
[23]
[74]
The following factors have been cited by Royal AM as exceptional
circumstances warranting the envisaged order of execution:
1. The declaration of
unconstitutionality in paragraph 2 of the Nyathi order. Royal AM
contends that if this was to be ignored,
Royal AM would be prejudiced
due to the fact that at the end of the season (on 30 June 2021), the
ultimate winner will be promoted
to the DSTV Premiership while the
“court has specifically declared the demotion to be
unconstitutional and consequently unlawful.”
Should the
incorrect club be automatically promoted this will have a devastating
impact not only on the correct club but on the
entire league and the
season. The ripple effects of this will be catastrophic and
incalculable on people’s lives and livelihoods.
2. If the dispute is not
adjudicated, it will spill over into the intended start of the next
2021/2022 season scheduled for 14 August
2021. Royal AM submits that
this dispute poses a threat not only to the direct parties but the
season cannot start until the identities
of all 16 participating
clubs has been finally determined. It is submitted that the
“self-evident impact of the present impasse”
will
therefore affect all professional players, their relevant clubs and
the millions of football loving supporters countrywide.
3. The matter “raises
very weighty constitutional issues and the dignity of the judiciary”
Royal AM states that football
is a multibillion-dollar industry
ultimately controlled by FIFA, and the matter implicates the “golden
rule” that football
should be won on the pitch, not in the
courts.
4. The economic impact on
all the stakeholders of Royal AM. Royal AM states that difference
between playing in the “
First Division and the Premier
League is like chalk and cheese” in respect of the
[75]
None of these reasons give rise to any exceptional circumstances that
warrant Royal AM (rather than Sekhukhune FC) being placed
at the top
of the Glad Africa Championship. The high watermark of Royal AM's
case is that unless the order is granted, then "at
the end of
the season (on 30 June 2021), the ultimate winner will be promoted to
the DSTV Premiership". But the season has
ended with the fifth
respondent at the top of the log. Royal AM also states that the
matter implicates the “golden rule”
that football should
be won on the pitch, not in the courts. This suggestion is difficult
to understand because Royal AM itself
is seeking to defend a protest
that Sekhukhune FC raised against a game between Sekhukhune FC and
Polokwane City. Ironically, Polokwane
City, the club actually
involved in that match, has abandoned its review of the Epstein
award.
Irreparable
Harm to Royal AM
[76]
Section 18(3)
of the
Superior Courts Act requires
Royal AM to prove
on a balance of probabilities that it will suffer irreparable harm in
the absence of the relief sought in prayer
3.1. Royal AM deals with
irreparable harm in two short paragraphs of its founding affidavit
(paras 108 and 109). The allegations
in these two paragraphs are
denied.
The founding affidavit makes no
attempt to identify any other harm that would be suffered by Royal AM
if the declaratory order were
not put into effect.
[77]
Royal AM states that the most devastating harm it will suffer is that
any success on appeal in respect of the judicial review
and setting
aside of the Epstein SC award will be a hollow and meaningless
victory. If paragraph 2 of the Nyathi order is not executed
and the
season starts with the incorrect club participating therein, the harm
to Royal AM will be practically irreversible and
incurable.
[78]
Royal AM would suffer no irreparable harm if it were not given leave
to execute paragraph 2 of the order of Nyathi AJ, because
paragraph 2
of the order of Nyathi AJ is a declarator with no consequential
effect. Since paragraph 2 of the order of Nyathi AJ
does not restore
Royal AM to the top position of the GladAfrica Championship, there
would be no irreparable harm to Royal AM if
this order were not
carried into immediate effect.
[79]
Royal AM further submit that it will suffer irreparable harm if it
“
will be required to compete for a spot in the DSTV
Premiership under circumstances where it had acquired automatic
promotion. This
is a violation of its Constitutional rights which is
inherently unreparable.
” I agree with the submissions on
behalf of the respondents that the “irreparable harm” now
complained of (i.e.
the fact that it will not be promoted to the DSTV
Premiership) might have been avoided if Royal AM had participated in
the playoff
games. Royal AM would then have had a one-in-three chance
of winning the playoffs and being promoted to the DSTV Premiership.
Having
spurned that opportunity, Royal AM cannot now say that it is
the failure to implement the declaratory order of Nyathi AJ that
would
cause it to suffer “irreparable harm”. Having been
reduced to second position in the 2020/2021 Championship competition,

Royal AM could still have achieved promotion to the Premiership by
participating in end-of-season promotion/relegation matches.
As the
team ending the season in second position on the Championship log, it
had this right and obligation. For reasons of its
own, Royal AM
elected to not participate in those matches.
[80]
It is therefore difficult to understand how the squandering of a
potential benefit can be said to constitute “irreparable
harm”.
If Royal AM’s review were ultimately to be upheld on appeal,
then the appeal court would have a wide discretion
to make a just and
equitable remedy that ensured that Royal AM does not suffer harm.
Irreparable
harm to the NSL
[81]
In terms of
Section 18(3)
of the
Superior Courts Act, Royal
AM must
prove, on a balance of probabilities, that there will not be
irreparable harm to the NSL if the relief in prayer 3.1 were
to be
granted. If Royal AM fails to do so, then a jurisdictional
requirement is not satisfied. In
Knoop
v Gupta
[24]
the SCA explained it as follows:
“
Section
18(3)
requires the applicant for an execution order to establish that
the respondent will not suffer irreparable harm if the order is

granted. … [T]he requirements of irreparable harm to the
applicant and no irreparable harm to the respondent, unlike the

common-law position, do not involve a balancing exercise between the
two, but must both be established on a balance of probabilities.
If
the applicant cannot show that the respondent will not suffer
irreparable harm by the grant of the execution order that is fatal.”
[82]
A repeatedly stated, paragraph 2 of the Nyathi order does not restore
Royal AM to the top spot of the GladAfrica Championship
log. However,
if it were to be assumed for the sake of argument that Royal AM is
correct that this is the effect of paragraph 2
of the Nyathi order,
and if Royal AM were given leave to execute paragraph 2 on this
basis, then this would cause irreparable harm
to the NSL because it
is likely to delay the commencement of the DSTV Premiership season.
That harm would be massive. Not only
for the NSL, but for soccer and
all professional football teams. The reasons are fully set out in
NSL’s answering affidavit.
It would
also cause irreparable harm to Sekhukhune FC and all the other teams
that participated in the playoffs. Sekhukhune FC,
unlike Royal AM was
not afforded an opportunity to participate in the playoffs. To use
the words of Nyathi AJ, how would that scrambled
egg be unscrambled?
[83]
As noted, the relief sought by Royal AM must meet the requirements
for immediate implementation under
section 18
of the
Superior Courts
Act, including
a finding that there would be no prejudice to others.
Royal AM cannot do so. Sekhukhune FC would be clearly prejudiced if
the new
2021/2022 season starts with the fiction in place that Royal
AM ended the 2020/2021 Championship on the top of the log. Sekhukhune

FC would be deprived of its position on the top of the log, which
must be situation, unless the Epstein award is artificially ignored.

Sekhukhune FC would then be deprived permanently of its right to
automatic promotion. In addition, Sekhukhune FC would also be

deprived of the right to participate in the playoffs, which it should
have had if it was to be treated as the team which ended
second on
the log. The relief sought by Royal AM would have radiating effects,
touching everyone employed in football, or in the
industries
supporting football. Even a short delay in the start of the new DSTV
Premiership season would have catastrophic consequences
for everyone
involved. It would result in huge losses from broadcasting rights and
would upset steps already taken to set the fixtures
for the new
season. The new season will commence on 1 August 2021 and the first
games are scheduled to take place on 14 August
2021.
No
reasonable prospect of success on appeal
[84]
Royal AM contends that there are no reasonable prospects that the
Nyathi order will be overturned on appeal. It contends that
the
declaration of unconstitutionality of NSL’s conduct is still
operational and the NSL has failed to convince Nyathi AJ
that their
actions did not fall under the Constitution and/or PAJA. It could
not, so it is argued, because PAJA applies to the
decisions of the
NSL, which have an external legal effect and are made in terms of the
empowering provision (ie the NSL Handbook).
It is submitted that the
declaratory relief of unconstitutional conduct was based on the
obvious breaches of the players’
right to dignity and the
owners’ rights to economic activity in terms of sections 10 and
22 of the Constitution respectively.
Finally, the conduct of the NSL
seeks to undermine Royal AM’s right of appeal and its retention
of the application for leave
to appeal against the Nyathi order is
not genuine but a tactical stratagem to justify its breach of the
relevant court order.
[85]
Royal AM further contends that the NSL had made a prior decision to
retain Royal AM on the top of the log for several weeks
in spite of
the Epstein SC award. This clearly created a legitimate expectation
on the part of Royal AM that if a different decision
were to be
taken, it would be afforded a hearing at the barest minimum.
[86]
I am not convinced that there is no reasonable prospects that an
appeal court would uphold paragraph 2 of the order of Nyathi
AJ. The
most obvious reason for this is that paragraph 2 of the order of
Nyathi AJ is unfortunately so vague that it has no meaningful

content. The SCA has recently affirmed the well-established principle
that, since an order of court binds all those to whom it
applies, it
must be “written in a clear and accessible manner”. That
is because “litigants who are required to
comply with court
orders, at the risk otherwise of being in contempt if they do not,
must know with clarity what is required of
them”. Paragraph 2
of the order of Nyathi AJ does not satisfy these requirements. It
does not indicate what conduct of the
NSL is found to be inconsistent
with “the constitution and/or PAJA”, and it does not
indicate which provisions of “the
constitution and/or PAJA”
have been contravened.
[87]
In
Minister of Water and Environmental Affairs v Kloof Conservancy
the court held that:
“…
the
order is indeterminate, open ended and irredeemably vague. For, it
seems impossible for the Minister to know with any measure
of
confidence what she is obliged by the order of court to do. Here, the
court offers the Minister no guidance as to when she is
required to
step in. Litigants who are required to comply with court orders, at
the risk otherwise of being in contempt if they
do not, must know
with clarity what is required of them . . . Courts are entitled to
operate on the assumption that government
will comply with orders of
court . . But, in order to do that, it has to know where its
obligations start and end. It does seem
to me to be difficult in the
extreme for the Minister to know with any measure of confidence
precisely what steps she is required
to take to comply with the order
of the high court.”
[88]
The only provision of the Constitution that is referred to in the
reasons of Nyathi AJ, is section 33 (administrative justice).
To the
extent that Nyathi AJ found that the conduct of the NSL was
inconsistent with section 33 of the Constitution, such a finding
was
foreclosed by the principle of subsidiarity. The principle of
constitutional subsidiarity means that “where legislation
is
enacted to give effect to a constitutional right, a litigant may not
by-pass that legislation and rely directly on the Constitution

without challenging that legislation as falling short of the
constitutional standard”. To the extent that the Nyathi order

declares that the conduct of the NSL is inconsistent with section 33
of the Constitution, it did not take the principle of subsidiarity

into consideration.
[89]
There is also a reasonable prospect that the declaratory order of
Nyathi AJ would be overturned on appeal insofar as it refers
to PAJA.
That is because it is doubtful whether the conduct of the NSL in
giving effect to the Epstein award, was subject to PAJA
let alone
inconsistent with section 3 of PAJA. The parties (including the NSL)
were bound by an arbitration process that had led
to the Epstein
award. In recognizing the effect of the final and binding arbitration
award it is doubtful whether it was required
from the NSL to “engage
with” Royal AM. The reasons for this were explained by Lewis JA
in
Nedbank
Limited v Mendelow
:
[25]
“
[24]
As I said in Kuzwayo v Estate Late Masilela, not ‘every act of
an official amounts to administrative action that is reviewable
under
PAJA or otherwise’. I found there that the act of signing a
declaration by a Director-General of the Department of
Housing to the
effect that a site permit be converted into the right of ownership,
and the signing of the deed of transfer giving
effect to that
declaration, were simply clerical acts.
[25]
Administrative action entails a decision, or a failure to make a
decision, by a functionary, and which has a direct legal effect
on an
individual. A decision must entail some form of choice or evaluation.
Thus while both the Master and the Registrar of Deeds
may perform
administrative acts in the course of their statutory duties, where
they have no decision-making function but perform
acts that are
purely clerical and which they are required to do in terms of the
statute that so empowers them, they are not performing
administrative
acts within the definition of the PAJA or even under the common law.
As Nugent JA said in Grey's Marine ‘[w]hether
particular
conduct constitutes administrative action depends primarily on the
nature of the power that is being exercised rather
than upon the
identity of the person who does so . . .’.
[26]
A distinction must thus be drawn between discretionary powers and
mechanical powers. Professor Hoexter points out that a mechanical

power involves no choice on the part of the holder of the power. A
discretionary power, on the other hand, does impose such a choice….”
[90]
If PAJA applied in the present circumstances, it would mean that the
NSL has to give a hearing to all other teams in the league
before it
awards points to the winning team at the end of every football match.
That would be absurd. In any event, a legitimate
expectation arises
“either from an express promise given on behalf of a public
authority or from the existence of a regular
practice which the
claimant can reasonably expect to continue”. The affidavits of
Royal AM do not refer to any promise or
practice on the part of the
NSL. If it were to be assumed for the sake of argument that section 3
of PAJA applied, then the hearing
before Sutherland DJP in any event
afforded Royal AM a reasonable opportunity to make representations
regarding the effect of the
award of Epstein SC, within the meaning
of section 3(2)(b)(ii) of PAJA.
[91]
The court in University of Free State (supra) held that it has now
been settled that in satisfying the onus, an applicant must
establish
that he or she has strong prospects of success on appeal before the
extraordinary and exceptional relief contained in
section 18 can be
granted. For all the reasons set out above, the relief in prayer 3.1
is dismissed.
THE
NSL’S DECISION HAS NOT BEEN SUSPENDED (PRAYER 3.2)
[92]
In prayer 3.2 of the notice of motion, Royal AM seeks an order
declaring that “
pending the finalisation of Royal AM’s
application for leave to appeal against the Sutherland DJP order,
lodged in the Supreme
Court of Appeal in terms of
section 17(2)(b)
of
the
Superior Courts Act, the
NSL’s decision to remove Royal AM
from the number one spot of the GladAfrica Championship log has
continued to remain suspended
in terms of
section 18(1)
read with
section 18(3)
of the
Superior Courts Act and/or
the interim order
issued by Nyathi AJ”.
[93]
It is difficult to discern the basis for this relief from the
founding affidavit. Sutherland DJP dismissed the application
by Royal
AM to review the award of Epstein SC. When Royal AM petitioned the
SCA for leave to appeal against this order, there was
nothing that
could be “suspended”. Furthermore, the Nyathi order
ceased to operate once the application for leave to
appeal was
refused. In any event, paragraph 3 of the order of Nyathi AJ did not
“suspend” the NSL’s decision
to remove Royal AM
from the number one spot There is accordingly no basis for the relief
sought in prayer 3.2.
RETROSPECTIVE
REINSTATEMENT OF ROYAL AM TO FIRST POSITION ON THE LOG (PRAYER 3.3)
[94]
In prayer 3.3 of the notice of motion, Royal AM contends that
paragraph 2 of the order of Nyathi AJ means that “
Royal AM
had … been ipso facto reinstated into the number one spot on
the log by operation of law”.
It seeks an order declaring
that Royal AM “
remains the lawful occupant of the first
position in the GladAfrica Championship log until lawfully removed”.
[95]
Royal AM seeks this relief only in the alternative and only in the
event that the
section 18(1)
application is not granted. In its heads
of argument it is however contended that the relief claimed under
this prayer is also
“self-standing” It contends that the
declaratory order of Nyathi AJ means that the NSL’s conduct of
updating
the GladAfrica Championship Log, removing Royal AM from the
number one spot and organising/conducting the playoffs is void ab
initio
and of no force and effect.
[96]
As discussed above, paragraph 2 order of the Nyathi order did not
have the effect Royal AM contends for. In any event, as the
relief in
prayer 3.1 is not granted, it would mean that paragraph 2 of the
order of Nyathi AJ is suspended by the NSL’s application
for
leave to appeal. It follows axiomatically that, in terms of
section
18(1)
of the
Superior Courts Act, paragraph
2 of the order of Nyathi
AJ was suspended when the NSL applied for leave to appeal. Although
Royal AM denies that this is the case,
it offers no real basis for
its denial. It would then be logically impossible for Royal AM to get
the relief it asks for in prayer
3.3. It follows that the relief in
prayer 3.3 should be dismissed for this reason alone.
THE
DECLARATORY RELIEF: IN CONCLUSION
[97]
To the extent that there are declarators sought by Royal AM which are
based on
section 21(1)(c)
of the
Superior Courts Act, the
court has a
discretion following a two-legged enquiry. The Court must first be
satisfied that the applicant is a person interested
in an existing,
future or contingent right or obligation; and if so, whether the case
is a proper one for the exercise of its discretion.”
[98]
In
Oakbay
Investments (Pty) Ltd v Director of Financial Intelligence Centre
[26]
the court reiterated the
factors a court should consider in determining whether it should
exercise its judicial discretion positively
or negatively in an
application for declaratory relief. These include the existence or
absence of a dispute; the utility of the
declaratory relief and
whether if granted, it will settle the question in issue between the
parties; whether a tangible and justifiable
advantage in relation to
the applicant’s position appears to flow from the grant of the
order sought; considerations of public
policy, justice and
convenience; the practical significance of the order; and the
availability of other remedies.
[99]
In my view it is abundantly clear, from all the reasons already set
out in this judgment, that this is not an appropriate case
in which
to grant any declaratory relief.
CONTEMPT
OF COURT (PRAYERS 3.4, 4 AND 5)
[100]
Royal AM seeks an order declaring the NSL and the CEO to be in breach
and wilful contempt of the Nyathi order, as well as
an order
committing the CEO to prison if she fails to purge the contempt.
[101]
There are four requirements that must be satisfied.
[27]
First: that a court order was granted against the respondent. Second:
that the respondent was served with the order or was informed
of its
contents. Third: that the respondent did not comply with the court
order. Fourth: that the non-compliance was wilful or
mala
fide.
Once
the first three elements are established, wilfulness and
mala
fides
are presumed and the respondent bears an evidentiary burden to
establish a reasonable doubt. Should the non-compliant party (known

as the contemnor) fail to discharge this burden, contempt will have
been established.
[28]
[102]
The rationale for the mechanism of contempt of court allows a private
litigant, who has
obtained
a court order requiring an opponent to do or not do something
,
to approach the court again, in the event of non-compliance, for a
further order declaring the contemnor to be in contempt of
court and
imposing a sanction (emphasis added). The sanction usually has the
object of inducing the contemnor to fulfil the terms
of the previous
order. Contempt orders are designed to vindicate the rule of law,
but, “are not there for the asking”.
[29]
Such an order should only be issued after the court is satisfied that
there has been a wilful and mala fide refusal to comply with
an order
of the court. Even a deliberate disregard is not enough, since the
non-complier may genuinely, albeit mistakenly, believe
herself to
have been entitled to act in the way claimed to constitute the
contempt. In such a case, good faith means that no contempt
has taken
place. In the context of suspended court orders, the SCA has held
that where an alleged contemnor has acted on legal
advice that the
operation and execution of a court order has been suspended because
an application for leave to appeal has been
lodged, it will be
impossible to infer that the court order was intentionally or
wilfully flouted.
[30]
Contempt of court is therefore committed not by mere disregard of a
court order, but by the deliberate and intentional violation
of the
court's dignity, repute or authority that this evinces. Honest belief
that non-compliance is justified or proper is incompatible
with that
intent. Thus even a refusal to comply that is objectively
unreasonable may nonetheless be
bona
fide
.
[103]
Because of the criminal consequences of contempt, the criminal burden
of proof applies to the current contempt proceedings.
This means that
Royal AM must show that the order was breached and that the breach
was both wilful and
mala fide
. If no breach of an order of
this court is established, then that will be the end of the matter.
If there has been a breach, but
the CEO has presented evidence
raising a reasonable doubt whether she acted wilfully or mala fide
then contempt will not have been
established and the application
should be dismissed.
[104]
The first question is if the NSL and the CEO beached any order of
this court? In order to answer this question, it is again
necessary
to have regard to the events as they unfolded over the last month in
order to assess the conduct of the NSL and the CEO.
Relevant
facts
[105]
In her answering affidavit the CEO explains that the various court
applications created logistical challenges for the NSL
because they
were brought very close to the end of the season and completing the
season by 30 June 2021 was extremely important
for several
reasons
[31]
.
The NSL therefore had to find a way to manage the flurry of
litigation at the end of May 2021 in a manner that would facilitate

the proper adjudication of the matters and enable the playoffs to be
completed before the end of June 2021. The NSL therefore took
the
lead in trying to ensure a workable timetable for all the matters to
be heard before the urgent court and in order to facilitate
the
hosting of the playoffs in the light of whatever determination was
made by the court. A timetable for managing the reviews
was therefore
put in place with the input of all parties. It was decided that the
matters would be heard in the urgent court before
Sutherland DJP on
11 June 2021; an order would be handed down on 12 June; if the order
required the arbitrators to reconsider their
awards, they would be
urgently convened for that purpose on 13 June 2021; and the playoffs
would begin on 15 June 2021 either on
the basis of the court order
(if the reviews were dismissed) or on the basis of any new decisions
handed down by the arbitrators
(if the reviews were successful). The
CEO states that this agreed timetable is very important because it
refutes Royal AM’s
allegation throughout the court litigation
that it has not been given an opportunity to be heard and the
allegation that the NSL’s
conduct after the Sutherland order
was in breach of its legitimate expectations to be heard before it
was “evicted”
from the top of the log.
[106]
She states that all the participants in the review proceedings before
Sutherland DJP therefore knew exactly what was going
to follow his
judgment. If Royal AM was successful in its review and the Epstein’s
award was set aside, there would be an
arbitrator on standby to give
a new award on Sunday 13 June 2021 and whatever the outcome of that
decision would then determine
who contested the playoffs on Tuesday,
15 June 2021. If Royal AM was unsuccessful in its review, then
Sekhukhune FC would be at
the top of the log, and would be
automatically promoted to the DSTV Premiership, and Royal AM would
have to contest the playoffs.
So, when Sutherland DJP dismissed Royal
AM’s review, this meant that the Epstein award stood and
Sekhukhune was at the top
of the log. After receiving the Sutherland
order on 12 June 2021, the NSL therefore prepared the fixtures for
the playoffs that
would commence on 15 June 2021 and sent this out to
the various clubs.
[107]
Later that same day, Royal AM brought an application for leave to
appeal against the Sutherland order and contended that the
effect of
this application for leave to appeal was to suspend the Epstein award
and would therefore not operate. The NSL took legal
advice, and based
on the advice they sent a letter to Royal AM’s attorneys
explaining that the playoffs would proceed on
the basis that the
Epstein award was in place and Royal AM therefore needed to contest
the playoffs.
[108]
When the Nyathi order was delivered on 14 June 2021 (prohibiting the
payoffs pending the outcome for the application for leave
to appeal
against the Sutherland order), and after the NSL had lodged an appeal
against the Nyathi order, the NSL, after seeking
legal advice,
notified the clubs that the Nyathi order had been suspended as a
result of the application for leave to appeal and
that the playoffs
would go ahead on Thursday, 17 June 2021. Correspondence between the
parties continued to be exchanged. It was
clear from the
correspondence that there was a real dispute between the NSL and
Royal AM as to the proper construction of the Nyathi
order. As a
result, the NSL, and its CEO, took further legal advice and decided
to delay the playoffs scheduled for 17 June 2021.
The NSL issued a
media statement explaining this development to all the clubs.
[109]
Sutherland DJP agreed to hear the application for leave to appeal
during the evening of Friday, 18 June 2021. The NSL Executive

Committee therefore scheduled a meeting for 9am the following morning
so that it could decide on the next step following whatever
order
Sutherland DJP granted on Friday evening. Sutherland DJP dismissed
Royal AM’s application for leave to appeal later
on Friday
evening and the Executive Committee convened for its meeting on
Saturday morning, 19 June 2021, at 9am. When the Executive
Committee
convened for a virtual meeting on the morning of Saturday, 19 June
2021, it was addressed by both the NSL’s internal
and external
lawyers. The CEO explains in her answering affidavit that the
Executive Committee considered the advice it had been
given and the
considerable hardship that would result if it did not manage to
complete the playoffs before the end of June. After
weighing all
these considerations, the NSL decided to proceed with the playoffs.
Was
the order breached?
[110]
Firstly, as held earlier, the Nyathi order is clear in its terms. It
suspended the commencement of the promotion relegation
playoffs
pending the final determination of the application for leave to
appeal. Paragraph 3 of the Nyathi order came to an end
when the
Sutherland DJP refused leave to appeal on 18 June 2021. The “interim
interdict” was therefore not in operation
when the playoffs
commenced on 19 June 2021.
[111]
Secondly, the Nyathi order, is the subject of a pending application
for leave to appeal. If leave to appeal were to be granted
and if the
appeal were to succeed, the Nyathi order would be set aside with
retrospective effect. It is premature for Royal AM
to seek committal
in circumstances where the order that is alleged to have been
breached, is the subject of a pending application
for leave to
appeal. For this reason alone, the relief in prayer 3.4 is
misconceived.
[112]
Thirdly, I am not convinced that the NSL and the CEO is in breach of
the Nyathi order. The CEO states that when the order
was handed down
by Sutherland DJP on 12 June 2021, there was no indication that the
order would be appealed until the next day
(13 June 2021). By
the time Royal AM lodged its application for leave to appeal, the
Epstein award had already been implemented
on 12 June 2021, given the
urgent need for the playoffs to begin on 15 June 2021. The day
after Nyathi AJ handed down his
order, the NSL brought an application
for leave to appeal against his order. This had two consequences: In
so far as the declaration
of invalidity was concerned, there was no
dispute between the parties that that relief was final. The effect of
the application
for leave to appeal was therefore to suspend the
declaration of invalidity pending the appeal. In so far as the
interdict prohibiting
the commencement of the playoffs was concerned,
there was a dispute between the parties about whether it was interim
or final in
effect. As a result, the NSL delayed the commencement of
the playoffs until Sutherland DJP had decided Royal AM’s
application
for leave to appeal.
Once
Sutherland DJP had dismissed the application for leave to appeal,
Nyathi AJ’s interdict came to an end and therefore
scheduling
the playoffs was not in breach of the order. In its replying
affidavit, Royal AM appears to try to broaden its case
for contempt
by referring to the print-out of a fixtures list and a charge that
has been laid against Royal AM for failing to contest
the playoffs.
These were no part of its founding case for relief. They also bear no
relation to the notice of motion.
[113]
Fourthly, the NSL and the CEO could not be said to have acted in
breach of a declaratory order, because the order is so vague
that it
has no discernible meaning. In
Minister
of Home Affairs v Scalabrini
,
[32]
the SCA held that
litigants who are required to comply with court orders, at the risk
otherwise of being in contempt if they do
not, must know with clarity
what is required of them. The CEO therefore contended in her
answering affidavit that the relief sought
did not make sense, was
not capable of being implemented and was therefore incompetent. There
has been no response to this from
the applicant. It does not even
address this issue in its replying affidavit. The need for court
orders to be precise in circumstances
when contempt of court is
alleged, was highlighted in the matter of
Kebble
v The Minister of Water Affairs and Forestry
.
[33]
In this matter a mining
company was accused of contempt of court for failing to comply with a
court order concerning certain environmental
remediation around a
mine. The directors of the company contended that the court order was
so lacking in clarity that it was incapable
of enforcement. The SCA
agreed and held that they could not be found in contempt because they
could not have known precisely what
steps should have been taken to
comply with the order. Royal AM’s relief in this case does not
identify the conduct that
is required from the CEO to “purge”
her alleged contempt and it is unclear what is required of her. The
relief sought
is therefore incapable of enforcement and is refused.
The same difficulty arises in relation to the alternative relief
sought in
the notice of motion. The alternative relief is that the
CEO be committed directly to prison or that the Registrar issue a
warrant
of committal on duly supplemented papers in the event that
the NSL and the CEO fail to “purge the contempt of court
referred
to in prayer 3.4 of the notice of motion”. But once
again, because prayer 3.4 does not specify any conduct that is
required
to be performed, it is not possible to identify what must be
done to purge the contempt.
[114]
Fifthly, at all relevant times, the CEO, together with her fellow
Executive Committee members, acted on the advice of internal
and
external lawyers. As has been set in the answering affidavits, the
advice was based on settled case law from the highest courts.
The CEO
was advised of the effect of the various applications for leave to
appeal and what they meant for the legal rights and
obligations of
the NSL. She, and her fellow committee members, were cautious in the
face of this advice because when it appeared
that they may be a real
dispute about the proper characterization of Nyathi AJ’s
interdictory order, the NSL delayed the
playoffs so that certainty
could be obtained. This is not the conduct of a party intent on
wilfully flouting court orders.
[115]
For all of the reasons set out above, there is no basis for the
relief sought in prayer 3.4.
CONCLUSION
[116]
The relief Royal AM seeks runs contrary to the previous findings of
this court. Royal AM failed in review proceedings brought
before this
court and failed to convince Sutherland DJP that it had prospects of
success in any possible appeal. Royal AM received
some relief before
Nyathi AJ, but, it failed to get relief preventing the implementation
of the Epstein award.
[117]
Royal AM provide no reason why this court should now step into the
breach, and demand that the Epstein award is ignored. Royal
AM’s
application is without merit and must be dismissed. It cannot halt
all football while it pursues every appeal of which
it can conceive;
and also, cannot claim any entitlement to the top spot on the
Championship log at the end of the 2020/2021 season.
The Epstein
award has been and must be implemented.
[118]
In the result the following order is made:
1. The application is
dismissed with costs, including the costs of two counsel where so
employed.
L.
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 26 July 2021.
APPEARANCES
Attorneys
for the applicant:
Mabuza Attorneys
Counsel
for the applicant:
Advocate DC Mpofu SC
Advocate
T Motloenya
Attorneys
for the first respondent: Webber Wentzel Attorneys
Counsel
for the first respondent:   Advocate A Cockrell S.C.
Advocate
S. Scott
Advocate
T Ngakane
Attorneys
for second respondent: DMS Attorneys
Counsel
for second respondent:   Advocate K Hofmeyr
Attorneys
for fifth respondent:       Tshabuse
Attorneys
Counsel
for fifth respondent:
Advocate N Arendse SC
Advocate
D Borgström SC
Date
of hearing:

14
July 2021
Date
of judgment:

26 July 2021
[1]
The
urgency of the application is not disputed.
[2]
The
Promotion of Administrative Justice
Act
3 of 2000
(the
PAJA).
[3]
[4]
Paragraph
12.1 What is the automatic legal effect of a declaration of
unconstitutionality issued by Nyathi AJ in order 2 and in
terms of
section 172(1)(a) of the Constitution? 12.2 What is the relationship
between the declarator referred to above and the
suspension order
which was granted by Nyathi AJ in (the varied) order 3? 12.3 Can the
effect of the declaration of unconstitutionality
and invalidity
(order 2) be "resurrected" by the application for leave to
appeal against it, which was lodged by the
first respondent on 15
June 2021, ie in terms of
section 18
of the
Superior Courts Act?
12.4 Can
the suspension order be "suspended" by the same
application for leave to appeal referred to at 12.3 above? 12.5 Does

the suspension of a decision envisaged in section 18 of the Act
operate immediately and/or retrospectively? Can the NSL escape
from
its anticipated stance that the Epstein SC order is initiated by
material error of law in terms of section 6(2)(d) of PAJA?
12.7 Did
the NSL create a legitimate expectation that a hearing would be
afforded to Royal AM before it could be removed from
the number one
spot in the GladAfrica Championship log? What is the correct
interpretation of order 3 of the Nyathi AJ order?
12.9 Did the NSL
and/or The CEO, separately or in concert, breach or fail to comply
with the Nyathi AJ order? 12.10 If so, what
are the legal
consequences and/or suitable sanctions which must follow?
[5]
2002 (2) SA 715 (CC)
[6]
2005 (3) SA 1 (SCA)
[7]
[2021]ZASCA
95 (1 July 2021) para 77
[8]
See also Phillips v NDPP
2003 6 SA 447
(SCA) para 20.
[9]
2011
(4) SA 113
(CC) at para 84.
[10]
[2018]
ZACC 21
;
2018 (9) BCLR 1067
(CC) para [52].
[11]
With
reference to
Tasima
supra
at para 52 and with reference to
Ntlemeza
v Helen Suzman Foundation and Another
2017
(5) SA 402
SCA at para 36.
[12]
MV
Snow Delta Serva Ship Ltd v Discount Tonnage Ltd
2000 (4) SA 746
(SCA) para
[13]
Confirmed
by the SCA in
National
Director of Public Prosecutions v Rautenbach and Others
2005 (4) SA 603
(SCA) para 12.
[14]
[2021]
All SA 793
(GP) para 58.
[15]
2020
(4) SA 618 (WCC).
[16]
At
paras 12, 13 and 17a.
[17]
2018
(5) SA 630 (GJ)
[18]
2018
(12) BCLR 1525
(CC) 12 at para 25.
[19]
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(E) at 471 E-F.
[20]
1977
(4) SA 298
(A) at 307C – G
[21]
1926
AD 173
at 186 – 7.
[22]
2018
(3) SA 428 (SCA)
[23]
In
Avnit
v First Rand Bank Limited
[2014] ZASCA 132
[24]
Knoop
NO and another v Gupta (Tayob as intervening party)
[2021] 1 All SA
17
(SCA) para 48.
[25]
2013
6 SA 139 (SCA).
[26]
2018
(3) SA 515 (GP)
[27]
Consolidated
Fish Distributors (Pty) Ltd v Zive
1968 2 SA 517
(C) at 522;
Wright
v St Mary’s Hospital, Melmoth
1993 2 SA 226
(D) at 227I-228A;
Uncedo
Taxi Service Association v Maninjwa
1998 3 SA 417
(E) at 425G-H;
Mjeni
v Min of Health & Welfare, Eastern Cape
2000 4 SA 446
(Tk) at 454H;
Pheko
v Ekurhuleni City
2015 5 SA 601
(CC) at para 32.
[28]
Secretary
of the Judicial Commission of Inquiry into State Capture v Jacob
Zuma
(CCT 52/21) at para 37.
[29]
Maccsand
CC v Macassar Land Claim
Committee 2005 JDR 0107 (SCA) at para 23.
[30]
Maccsand
at
paras 26 and 27
[31]
Set
out in the first and second respondents’ answering affidavits
[32]
2013
6 SA 421
(SCA) at para 77.
[33]
2007
JDR 0872 (SCA) paras 20 to 22