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[2021] ZASCA 113
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Federation Internationale de Football Association v Sedibe & Another (303/2020) [2021] ZASCA 113; [2021] 4 All SA 321 (SCA); 2021 BIP 11 (SCA); [2021] HIPR 180 (SCA) (8 September 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:
303/2020
In the matter between:
FEDERATION
INTERNATIONALE
de FOOTBALL
ASSOCIATION
APPELLANT
and
KGOPOTSO LESLIE
SEDIBE
FIRST
RESPONDENT
SOUTH AFRICAN FOOTBALL
ASSOCIATION
SECOND RESPONDENT
Neutral
citation:
Federation
Internationale de Football Association v Kgopotso Leslie Sedibe &
Another
(303/2020)
[2021] ZASCA 113
(08
September 2021)
Coram:
NAVSA
ADP, MBHA, MOCUMIE, GORVEN AND MABINDLA-BOQWANA JJA
Heard:
23 August 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time for hand-down is deemed to be handed down on 08
September 2021.
Summary:
Practice and procedure –
attachment to found jurisdiction – property attached in
relation to an envisaged review of
an administrative body taken in
Switzerland – attachment not permissible if claim is not a
claim sounding in money nor an
action
in
rem
for movables –
lack of jurisdiction cannot be cured by attachment.
ORDER
On appeal from
:
Gauteng Division of the High Court of South Africa,
(Vorster AJ, sitting as court of first instance):
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the high court is set aside and substituted as follows:
‘
1. The
order of Van der Westhuizen J dated 22 August 2018 is set aside.
2.
The first respondent is to pay the costs of the application.’
JUDGMENT
Navsa ADP (Mbha,
Mocumie, Gorven and Mabindla-Boqwana JJA concurring):
[1]
The central question in this appeal is whether the first respondent,
Mr Kgopotso Leslie
Sedibe (Sedibe), a former Chief Executive Officer
(CEO) of the second respondent, the South African Football
Association (SAFA),
was entitled to an order granted by the high
court, attaching all the trademarks of the appellant, the Federation
Internationale
de Football Association (FIFA), to found jurisdiction
in order to review a decision by the Adjudicatory Chamber of its
Ethics Committee,
suspending him from participating in football for a
period of five years and ordering him to pay a substantial fine,
following
findings of match-fixing against him by FIFA. The short
answer is no. The reasons are provided later in this judgment.
Coupled
to the aforesaid attachment order was an order granting
Sedibe leave to institute the envisaged review proceedings by way of
edictal
citation, which could only have been granted on the basis
that the high court had jurisdiction by virtue of the attachment. The
detailed background culminating in the present appeal appears
immediately hereafter.
[2]
This is an appeal against a decision of the Gauteng Division of the
High Court, Pretoria
(Vorster AJ), in terms of which an application
by FIFA, to set aside an order granted against it
ex parte
at
the instance of Sedibe, was dismissed with costs. The appeal is
before us with the leave of this Court. FIFA is the body responsible
for regulating football throughout the world. It is an association
registered in the Commercial Register of the Canton of Zurich
(Switzerland), in accordance with Article 60 of the Swiss Civil Code,
with its headquarters at FIFA-Strasse 20, Zurich, Switzerland.
Sedibe
is a South African citizen, residing in Johannesburg. SAFA, cited as
the second respondent in the high court, is an association
incorporated in accordance with the laws of South Africa and is
responsible for regulating football locally. It was cited for such
interest as it might have, with no substantive relief sought against
it. SAFA did not participate in the proceedings in the high
court or
in the present appeal. The background culminating in the appeal is
set out hereafter.
[3]
Sedibe, at some time in the past, also practiced as an
attorney. During August
2018, professedly intending to launch an
application for the review and setting aside of the aforesaid
decision by the Adjudicatory
Chamber of FIFA’s Ethics
Committee, Sedibe approached the high court for the orders set out
below. From his answering affidavit
filed in the high court, in
response to FIFA’s application, it appears that this sanction
followed on charges of match-fixing
of friendly matches played during
the run-up to the 2010 World Cup. The decision was taken more than
five years ago on 2 March
2016 and was communicated to Sedibe on 11
March 2016. Subsequently, Sedibe, during July 2018, approached the
high court,
ex parte
, and was granted orders in the following
terms:
‘
1.
PART A
1.1.
Leave is hereby granted to the Applicant to institute review
proceedings against the First Respondent by way of edictal citation
wherein the relief referred to in the document annexed to the notice
of motion marked "X" will, inter alia, be claimed.
1.2.
The Applicant is authorized to serve this application upon the First
Respondent in Zurich, Switzerland, at its business address
being FIFA
Strasse 20, Zurich, Switzerland and by email at its email address
being
Gianni.infantino@fifa.org
;
fatma.samoura@fifa.org
:
secretariat-
adjudicatory-chambers@fifa.org
; and
octavian.bivolaru@fifa.org
.
1.3.
The First Respondent is granted a period of 30 days from date hereof
to serve and file its notice of intention to oppose the
application
for review as set out in the founding affidavit, to be supplemented
if need be.
1.4.
The cost of the
Ex-Parte
application be costs in the main
application.
2.
PART B
2.1.
The Applicant is authorized to attach the trademarks owned, and/or in
which the First Respondent has a beneficial interest,
and all
trademarks controlled by the First Respondent in terms of the Section
41(2) of the Trademarks Act No. 194 of 1993 of the
Republic of South
Africa, in order to enable the Applicant to launch review proceedings
as more fully referred to in the founding
affidavit delivered by the
Applicant;
2.2.
The Sheriff of this Court is authorized to attach and cause to be
attached all of the First Respondent’s trademarks in
the
Republic of South Africa, wherever same may be found, and to seize
such trademarks and/or endorse the trademarks in accordance
with the
Section 41(2) of the Trademarks Act No. 194 of 1993, in order to
enable the Applicant to launch an application for the
review of the
decision taken by the First Respondent against the Applicant, and
whereby an order was made against the Applicant
for his suspension
for a period of 5 years, as well as a fine sounding in money;
2.3.
The costs of Part B of this application shall be costs in the cause
of the review application.’
[4]
The orders were granted by the high court (Van Der Westhuizen J), on
22 August 2018,
more than two years after the decision by FIFA.
Peculiarly, in terms of the order under Part A, although a time of 30
days was
afforded to FIFA, from the date of the order, to serve and
file its notice of intention to oppose the application for review, no
time had been set for the review application to be launched by
Sedibe. Copies of the orders granted by the high court were
subsequently
sent to FIFA by email. The email included a draft review
application, which, on Sedibe’s own version, was incomplete as
he
sought further information from SAFA, which he was adamant was not
provided. It is the communication of the orders by email that
caused
FIFA to launch an application in the high court seeking to have the
orders set aside. That application by FIFA to set aside
the order
granted
ex parte
was dismissed with costs. The bases for
FIFA’s application, gleaned from its founding affidavit in the
high court, are dealt
with in the paragraphs that follow.
[5]
First, FIFA contended that the order by the high court authorising
service on it by
email was unlawful. In that regard it pointed out
that in terms of the laws of Switzerland, where its headquarters are
located,
international service of court process can only be effected
by Swiss Government officials. In this regard, reliance was placed on
the
Guidelines of the Federal Office of Justice on International
Judicial Assistance in Civil Matters
, page 2, para I.B (3
rd
ed) 2003, updated in January 2013. It was pointed out that in
certain circumstances international service of process in Switzerland
without interposing Swiss authorities may constitute a criminal
offence in terms of the Swiss Criminal Code.
[6]
FIFA submitted further, that South African Courts have no
jurisdiction over FIFA to
set aside decisions taken in Switzerland by
its internal disciplinary bodies that are domiciled in Switzerland
and are subject
to judicial control by Swiss Courts. Sedibe, so FIFA
asserted, had a right of appeal to the FIFA Appeals Committee,
located in
Zurich, Switzerland. Thereafter, there was a right of
appeal to the Court of Arbitration for Sport, located in Lausanne,
Switzerland.
This lack of jurisdiction on the part of South Africa,
so it was submitted, could not be cured by an attachment to found
jurisdiction.
FIFA went on to state that South African Courts have
never recognised the attachment of assets to found jurisdiction in
relation
to an application for review of decisions taken outside of
South Africa by foreign adjudicatory tribunals.
[7]
Furthermore, so it was claimed on behalf of FIFA, since the repeal of
s 19(1)
(c)
(ii) of the Supreme Court Act 59 of 1959 and
its replacement with s 21(3) of the Superior Courts Act 10 of 2013
(Superior Courts
Act), the high court no longer has any power to
attach property to found jurisdiction over a foreign respondent, as
opposed to
attaching property to confirm jurisdiction where there is
a jurisdictional link between the case and the high court and the
high
court hearing it. Consequently, and concomitantly, so FIFA
submitted, s 41(2) of the Trade Marks Act 194 of 1993 (Trade Marks
Act)
should be treated as having been tacitly amended by
s 21(3)
of
the
Superior Courts Act so
that it no longer provides for attachments
of trade marks to found jurisdiction. This is especially so since
continuing to permit
such attachments would amount to arbitrary
deprivation of property in violation of s 25(1) of the Constitution.
Thus, FIFA objected
to the jurisdiction of South African Courts and
insisted that there were no grounds on which our courts could
exercise jurisdiction.
[8]
Moreover, according to FIFA, a binding arbitration clause in the FIFA
regulations,
meant that Sedibe was obliged to follow the arbitration
provisions. Consequently, a judgment by a South African Court would
not
be capable of enforcement in Switzerland. It would only be
executable in the event that service had been effected by a Swiss
Authority.
[9]
Additionally, it was contended on behalf of FIFA, that the order
obtained
ex parte
by Sedibe was liable to be set aside on the
basis that, in any event, the founding affidavit in the review
application had not
been served on it. All that FIFA received was a
draft affidavit, which Sedibe alleged would give a good idea of the
basis of his
review application. The attachments referred to in the
draft were not sent to FIFA. For all these reasons, FIFA stated that
it
was entitled to have the order set aside.
[10]
In opposing the application by FIFA, Sedibe noted that in all matters
relating to edictal citation,
and in relation to orders of attachment
to found jurisdiction, it has always been high court practice to
grants such orders ex
parte
. The following part of Sedibe’s
answering affidavit bears repeating:
‘
It
cannot be disputed that this Honourable Court granted the
ex
parte
Order for the
sole
purpose
of
enabling me to launch review proceedings against an administrative or
quasi-judicial decision . . . taken by the applicant’s
Adjudicatory Chamber on 2 March 2016.’ (My emphasis.)
[11]
In relation to not serving the review application in finalised form,
Sedibe stated that he was
still awaiting a host of documents that he
had sought from SAFA, as well as FIFA’s reasons for the
decision he sought to
have reviewed.
[12]
In respect of FIFA’s complaint that service by email was in
contravention of Swiss law,
which requires service of judicial
process by court recognised officials, instead of by way of email as
authorised by Van der Westhuizen
J, Sedibe contended as follows.
First, FIFA did not, for that assertion, rely on an expert in Swiss
law. Second, that, in any event,
his attorney is taking steps to
ensure that the
ex
parte
application would be served
officially.
[13]
Dealing with FIFA’s claim that instead of seeking to review a
decision taken in Switzerland,
he ought to have followed the internal
appeals procedure outlined above, Sedibe stated that he could not do
so because SAFA and
FIFA had denied him access to information and
confiscated his laptop, which were essential to an internal appeal.
He pointed out
that the internal appeal had to be launched within 3
days, which, in the prevailing circumstances, effectively precluded
him from
prosecuting it. In his view, this amounted to a negation by
FIFA of the
audi alteram partem
principle.
[14]
Sedibe rejected the contention made on behalf of FIFA that
s 21(3)
of
the
Superior Courts Act tacitly
repealed the
Trade Marks Act. He
pointed out that our courts routinely grant an
incola
leave to
attach assets to found jurisdiction and that this is to enable the
institution of an action ‘at home’. This
is done in terms
of the common law, supplemented by legislation. Sedibe claimed that
the review application he intended instituting
was directed,
inter
alia
, at setting aside the FIFA sanctions described earlier,
including the payment of a fine, and additionally, the costs of the
hearing
by the Ethics Committee. He also envisaged instituting a
damages claim against FIFA for tarnishing his reputation. He denied
that
the attachment of FIFA’s trademarks constituted an
arbitrary deprivation of property, since FIFA retained ownership,
subject
to temporary control and custody by the Sheriff.
[15]
Sedibe responded to the contention made on behalf of FIFA that there
was no basis at all for
a South African Court to exercise
jurisdiction. He described how FIFA had delegated a certain Mr Eaton
to investigate the match-fixing
charges against him and to conduct
the enquiry in South Africa. According to Sedibe, the investigation
was conducted in violation
of the Swiss Federal Act on Private
International Law, on which FIFA presently relied.
[16]
Sedibe claimed that he was not given a proper hearing in relation to
the charges against him,
more particularly, as indicated earlier, he
had been denied access to critical information, including information
on his laptop.
This was vigorously denied by FIFA in its replying
affidavit. Sedibe alleged that Eaton had relied principally on
evidence obtained
from SAFA officials, who sought to exonerate
themselves by implicating him. This, he said, occurred at a time
after he had already
resigned from SAFA. Sedibe complained that Eaton
had released a preliminary report without affording him an
opportunity to respond.
Eaton had recommended that Sedibe be
investigated by the South African Police. The National Prosecuting
Authority however had declined
to prosecute. It is unnecessary and
beyond the scope of the present appeal to engage in a discussion of a
dispute in relation to
the propriety of FIFA’s disciplinary
process.
[17]
Sedibe said FIFA’s Ethics Committee, inexplicably, had not
conducted a full enquiry in
South Africa even though all the acts
complained of had taken place in South Africa. Sedibe contended that
FIFA, sitting in Switzerland,
had no jurisdiction to try him and that
it wrongly relied on Eaton’s findings of wrongdoing on his
part.
[18]
In respect of the envisaged review application, Sedibe reiterated
that the orders obtained by
him,
ex parte,
were in
contemplation of the application for a review of the Ethics
Committee’s findings and that he intended launching it
as soon
as possible. It is necessary to record that more than five years
after the decision in question and more than three years
after the
order granted
ex parte
, the review application by Sedibe has
not yet been launched.
[19]
Sedibe complained that an undertaking by Eaton, that he would be
afforded an opportunity to be
heard, was reneged upon. The charges
were never formally put to him and the first time he saw details
about them was when he saw
the final report prepared by investigators
of FIFA’s Adjudicatory Chamber.
[20]
Sedibe rejected the contention made on behalf of FIFA that South
African Courts have no jurisdiction
in respect of its adjudicatory
processes. He denied that he was bound to follow the arbitration
route, as provided for in the FIFA
agreement, particularly as he had
raised fundamental irregularities in the adjudication process. He
contended vigorously that international
agreements such as the one
relied on by FIFA could not detract from the Constitution of South
Africa, which guaranteed him certain
fundamental rights, including
the right to challenge the decision in court. In relation to the
ex
parte
order, he pointed out that FIFA was permitted an
opportunity to show cause why the relief sought by him,
ex parte
should not be granted.
[21]
I now turn to deal with the decision of the high court. Vorster AJ
handed down a judgment that
comprised slightly less than three pages.
The high court took the view that although Sedibe sought to review a
decision of FIFA’s
Ethics Committee, it was clear that he also
intended to ‘claim the fine he had to pay and the costs he had
to pay . . . and
further elaborated that he intended to claim damages
. . .’. This part of the judgment related to the contention by
FIFA
that an attachment to found jurisdiction could only be
authorised in relation to a claim sounding in money. Additionally, he
went
on to state the following:
‘
It
is clear to me that Sedibe not only seeks a review of the various
decisions. He mentioned in his founding affidavit also damages.
Logically the damages claim will follow the successful review as the
causa
for
the damages must be the irregular decisions he wants to be reviewed
and set aside.’
Vorster AJ
concluded as follows:
‘
.
. . I find that the review process that Sedibe is in the process of
instituting does include as a consequence thereof a
possible
monetary claim or
claims as stated above. Therefore the
ex
parte
application and
order to authorise the attachment is not irregular as argued and I
find no reason to set it aside
.’
(My
emphasis.)
It is against
those conclusions and the resultant order that the present appeal is
directed.
[22]
It is true that in the
ex parte
application, Sedibe stated
that he had instituted defamation actions against certain individuals
who had maligned him. However,
the
ex parte
approach to the
court for the attachment order was never on the basis that it was
sought in relation to any such action. Furthermore,
given the
vigorous and determined challenge by Sedibe to the FIFA decision, it
is self-evident that the fine imposed was not paid.
Before us counsel
on his behalf conceded as much. Of course, the fine would be
nullified were the review application to be successful.
But the order
for attachment was never sought for the purpose of recovering the
fine, more especially since it had not been paid
and its recovery was
not the basis for the attachment order sought.
[23]
An action for damages based on defamation or the like was never the
basis for the attachment
order sought and obtained by Sedibe. The
high court’s speculation concerning a possible monetary claim
in the future is just
that – speculation. If a costs order
ultimately redounded to the benefit of Sedibe in the review
application, assuming it
were viable, and it remained unsatisfied and
if FIFA refused to pay and Sedibe sought to institute an action to
recover it and
if it were to be considered by a court to be
justified, then the argument for an attachment might be advanced.
There are
too many ifs, buts and maybes that pose an insurmountable
obstacle. The framing of the second paragraph of Part B of the notice
of motion in the
ex parte
application, tagging on the fine as
part of the decision sought to be overturned on review, was clearly
designed to pre-empt FIFA’s
argument that because the
litigation envisaged by Sedibe was not one that sounded in money an
attachment was thus unwarranted.
[24]
The principles in relation to the attachment of property to found or
confirm jurisdiction are
well-settled. The purpose of an attachment
ad fundandam jurisdictionem
is two-fold. First, it is to found or create jurisdiction where no
other ground of jurisdiction exists at all. Second, it is to
provide
an asset in respect of which execution can be levied in the event of
a judgment in favour of a plaintiff.
[1]
[25]
The purpose of an attachment
ad confirmandam
jurisdictionem
is to strengthen or confirm a
jurisdiction that already exists.
[2]
There too, the object of the attachment is to provide an asset on
which execution can be levied in total or partial satisfaction
of a
plaintiff’s judgment.
[3]
[26]
It is important to appreciate that the privilege afforded
incola
plaintiffs to attach the property of
peregrini
defendants arose from considerations of commercial convenience.
[4]
As indicated above, attachments to found or confirm jurisdiction are
associated with the principle of effectiveness. In
Thermo
Radia
nt, this Court said the following:
‘
It
appears to me therefore, that in the law of Holland already one of
the purposes of the attachment of property to found jurisdiction
was
to enable the
incola
to execute on that property after judgment. In other words, the
attachment of property served to found jurisdiction and thereby
enabled the Court to pronounce a not altogether ineffective
judgment.’
The
authorities point out that this principle has been eroded by the
long-standing practice of our courts to permit the attachment
of
property, the value of which does not bear a realistic comparison to
that claimed in the litigation. However, the property attached
must
at least have a saleable value.
[5]
[27]
It is clear that the right of an
incola
to attach the property of a
peregrinus
to
found or confirm jurisdiction does not apply to all cases but is
limited to (a) actions in
personam
in contract, quasi contract, delict, quasi-delict or other like
causes to give, do or make good something for an opponent, that
is,
in cases sounding in money and (b) actions
in
rem
for movables.
[6]
After all, the rationale for an attachment is to ensure that the
creditor’s claim can be satisfied, either partially or
altogether. In
Ex Parte Hay Management
Consultants (Pty) Ltd,
[7]
the court held, in relation to the interdict sought in that case
against a
peregrinus
,
preventing it from committing delicts outside the country, that it
had no control over that defendant nor over the cessation of
the acts
in question and could not entertain an application for an interdict
against it. It is thus hardly surprising that one
cannot find
authority and we were referred to none, where an attachment was
justified in relation to an administrative decision
of the kind in
question.
[28]
It is to be noted that legislation in respect of attachments of
property, whether in the form
of the
Superior Courts Act or
the
Trade
Marks Act, must
be read with the principles of the common law.
[8]
[29]
Faced with the authorities referred to in the preceding paragraphs,
it is no wonder that there
was an attempt to contort the relief
sought against FIFA as one sounding in money, by reference to the
fine that was not paid and
a costs order, payment of which might or
might not eventuate. That was not what was being claimed in the
review litigation.
[30]
FIFA’s complaint about the method of service authorised by Van
der Westhuizen J, namely
that it was in contravention of Swiss law,
appears justified and the assertion that it was not confirmed by an
expert in Swiss
law is unpersuasive in that the provisions of Swiss
law referred to were not contested. However, having regard to the
conclusions
reached above, which are dispositive of the appeal, it is
not necessary to come to a definitive finding in that regard. In
light
of the conclusions reached above, none of the other points
raised on behalf of FIFA, referred to earlier in this judgment
require
consideration.
[31]
In Sedibe’s opposing affidavit, his heads of argument and in
argument on his behalf before
us, there was an impassioned plea for
the Court to appreciate that a South African citizen was at the mercy
of a global giant in
the form of FIFA and was being denied his
rights. That, with reference to a footballing metaphor, ought to be
seen as a call for
a hometown decision. In this case, the away side
is entitled to a win.
[32]
Van der Westhuizen J and Vorster AJ ought to have considered that the
application for an order
to authorise service in the manner sought
was unfounded, as was the application for attachment for want of
jurisdiction. For the
reasons aforesaid the appeal must
succeed.
[33]
The following order is made:
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the high court is set aside and substituted as follows:
‘
1. The
order of Van der Westhuizen J dated 22 August 2018 is set aside.
2.
The first respondent is to pay the costs of the application’.
M S NAVSA
ACTING DEPUTY PRESIDENT
APPEARANCES:
For
appellant:
M
Chaskalson SC, with C Robertson
Instructed by:
Edward Nathan Sonnenbergs, Sandton
Webbers Attorneys, Bloemfontein
For first respondent:
G Meyer
Instructed
by:
Fluxmans Inc Attorneys, Johannesburg
Lovius Block Inc, Bloemfontein.
[1]
See Van Loggerenberg
et
al Erasmus Superior Court Practice
(Erasmus) at A2-107 and the many cases cited there, including
Thermo
Radiant Oven Sales (Pty)Ltd v Nelspruit Bakeries (Pty) Ltd
1969(2) SA 295 (A) at 305C-308F and more lately,
Tsung
v Industrial
Development
Corporation of SA Ltd
2006 (4) SA 177
(SCA).
[2]
See
Thermo Radiant
Ovens
fn 1 above at 300C-D and
Simon
NO v Air Operations of Europe AB
[1998] ZASCA 79
;
1999
(1) SA 217
(SCA) at 230 D-E and the discussion in
Erasmus
at A2-108
[3]
See
Tsung
fn 1
above at 181A and
Erasmus
fn 1 at A-2 108.
[4]
See Wessels
Roman
Dutch Law
at 678
et
seq
and Van Leeuwen
Roman
Dutch Law
vol II at 696-7.
[5]
See
Thermo Radiant
Ovens
fn 1 at 306H-307A.
[6]
See
Erasmus
fn 1 above at A2-109.
[7]
Ex Parte Hay Management Consultants (Pty) Ltd
[2000] 2 All SA 592
(W);
2000 (3) SA
501
(W) at 507 F-I.
[8]
See
Erasmus
fn 1 above at A2-107.