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[2018] ZAGPPHC 177
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Gardiner v South African Sports Confederation and Olympic Committee and Others (14673/2018) [2018] ZAGPPHC 177 (26 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 14673/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SHANNON
GARDINER
APPLICANT
and
SOUTH
AFRICAN SPORTS CONFEDERATION AND
OLYMPIC
COMMITTEE
1
ST
RESPONDENT
PRESIDENT
OF THE SOUTH AFRICAN SPORTS
CONFEDERATION
AND OLYMPIC COMMITTEE
2
ND
RESPONDENT
SOUTH
AFRICAN GYM NAST ICS FEDERATION
3
RD
RESPONDENT
JUDGMENT
KUBUSHI
J
[1]
It is public knowledge that the Commonwealth Games are scheduled to
take place in Australia beginning
from 4 April 2018. The applicant,
Ms Shannon Gardiner (" Ms Gardiner " ), a fourth year
senior Olympic rhythmic gymnast
with Protea colours, is desirous to
be one of the athletes to compete at the Commonwealth Games. Due to
various reason s which
shall become apparent later in this judgment
she has not been selected to be part of Team South Africa. She has,
as such, approached
the court to have the decision not to select her
reviewed and set aside.
[2]
In preparation for the Commonwealth Games, the Commonwealth Games
Feder at ion (" CGF" ) developed
the Athlete Allocation
System to enable clear communication of deadlines , processes and CGF
Quota Allocation requirements. The
CGF prescribes in the Athlete
Allocation System the number of athletes from each Commonwealth Games
Affiliate (" CGA"
) which will participate in each sporting
code. The CGF also allocates the number of athletes for participation
in each different
sporting event
per
CGA. In rhythmic
gymnastics the CGF allotted a maximum of three athletes in Team
All-Around Finals and a maximum of two athletes
in individual
All-Around and Apparatus events
per
CGA. All in all Team South
Africa was allocated 101 slots which were not enough to cover all the
athletes in all sporting events.
Rhythmic gymnasts, as is said, can
compete either in the individual or team competition - a team is
comprised of three gymnasts.
Due to the limited number of the slots
allocated to Team South Africa, SASCOC decided to allow only two
slots for rhythmic gymnastics.
This mean t that only athletes
participating in individual All-Around and Apparatus event were to be
selected. The Team All-Around
Finals event was excluded. The
remaining slot s of the 101 slots allocated to Team South Africa were
allocated to deserving athletes
in other sporting events.
[3]
The first respondent the South African Sports Confederation and
Olympic
Committee
("SASCOC" ) is an association repr esentative of sports and
recreation bodies in South Africa. In terms of the
National Sports
and Recreation Act 110 of 1998, SASCOC is responsible for the
preparation and delivery of Team South Africa at
all multi-sport
international games including the Commonwealth Games.
SASCOC's Constitution empowers it to select,
on recommendation from
National Sports Federations (if any), athletes to represent South
Africa at all multi-sport international
games including the
Commonwealth Games. SASCOC mandates one of its structures, the High
Performance Commission ("the HPC")
to deal with the process
of selection of athletes to the various games.
[4]
The third respondent, the South African Gymnastic Federation ("SAGF"
), is the
governing body for gymnastics in South Africa. SAGF
recommended the name of Ms Gardiner together with two other gymnasts
for selection
on the team to represent South Africa at the
Commonwealth Games for rhythmic gymnastics. The recommendation was
that the three
be selected as a team on the basis that a team has a
chance of earning a team medal for South Africa. The two other
athletes were,
however, selected for individual entry. The applicant
did not make the cut and was not selected.
[5]
The application is opposed by SASCOC and the 2nd respondent. I shall,
in this judgment, refer
to the two collectively as the respondents.
The parties appeared before me in the urgent court and
when the matter
was first argued on 15 March 2018 points
in limine
were raised by SASCOC and the 2n d respondent. I made a ruling
that the points
in limine
be heard and determined prior to the
merits. Having heard argument on the points
in limine
I found
such points not valid and dismissed them. The matter was then argued
on merits. This judgment is, thus, on the merits of
the application.
[6] The
high watermark of Ms Gardiner's case is set out in her founding
papers as follows:
"
I approach this court for urgent relief to review and set aside
SASCOC's decision, alternatively to declare it [ SASCOC's
decision]
unconstitutional and invalid in terms of this court's power insection
172 of the Constitution. I also seek an order directing
SASCOC to
include me in the team. In seeking this relief, I stress that I do
not intend to replace either of the two
women's rhythmic
gymnasts selected by SASCOC, but rather to be added as an additional
member of the team. I tender all the costs
associated with my travel,
accommodation and participation in the Commonwealth Games so that
SASCOC is not required to bear any
of the costs associated with this
court's order."
[7]
The relief sought in the application is to enable what is referred to
in the founding papers
as the top Commonwealth ranked rhythmic
gymnast in South Africa to join Team South Africa to compete at the
Commonwealth Games.
The contention is that SASCOC has unlawfully and
unfairly refused to include the applicant in the team that will
represent the
country at the Commonwealth Games. That decision is
said to be irrational , procedurally unfair and unconstitutional. I
am as such
expected to determine whether SASCOC's decision not to
select Ms Gardiner to compete at the Commonwealth Games was
irrational,
procedurally unfair or unconstitutional.
[8]
I intend to deal with this application in two phases. I shall ,
first, determine issues
pertaining to prayer 2 read with prayer 3 of
the notice of motion. If I find in favour of Ms Gardiner in that
respect, I will proceed
to deal with prayer 4 read with prayer 5.
Should I, however, find for the respondents when I deal with prayer 2
read with prayer
3 of the notice of motion, it will not be necessary
to consider the remaining prayers.
[9]
As already stated, SASCOC is conferred the power and is, thus,
responsible for the selection of athletes
to represent South Africa
at the Commonwealth Games. In doing so, SASCOC is required to
consider the recommendations from the relevant
National Sports
Federations ("NFs") and in the normal course, enter into a
number of Memoranda of Understanding ("MOUs")
with the
different Sporting Federations.
[10]
In March 2017, SASCOC entered into an MOU with participating NFs. The
MOU sets out the general
protocols governing the relationship between
the NFs and SASCOC in preparation for their participation in the
Commonwealth Games.
In signing the MOU the NFs indicate their
acceptance of the terms and conditions applicable to their
participation in the Commonwealth
Games. Clause 4 of the MOU is
relevant for purposes of this judgment and reads as follows:
"4.
Eligibility and Selection:
Athletes, who aspire for
selection as members of Team South Africa, must in the first place
qualify according to the Eligibility
Rules pertaining to
participation in the Commonwealth Games. Final Selection of athletes
and officials will be done according to
the official Selection Policy
and prescribed time-lines as agreed to between SASCOC and the NF.
Although it is the responsibility
of NFs to propose athletes and team
officials for selection,
the final selection authority rests with
SASCOC
. SASCOC will do the announcement of Team selection
according to the Project's media schedule." (my emphasis)
SAGF,
as one of the participating NFs, signed this MOU on 10 March 2017
accepting the terms and conditions set out therein and consequently
accepting that the final selection authority of athletes for
participation in the Commonwealth Games rests with SASCOC.
[11]
Each NF also enters into a further MOU with SASCOC wherein the terms
and conditions of
the eligibility of athletes and the sport-specific
selection criteria for the selection of athletes for participation at
the Commonwealth
Games, are agreed between the specific NF and
SASCOC. The general eligibility criteria are common to all the NFs,
but each NF sets
its own sport-specific selection criteria.
[12]
The selection of gymnasts for participation at the Commonwealth Games
is governed primarily by
the selection policy agreed between SASCOC
and the SAGF ("the Selection Policy"). Like other NFs,
SAGF's selection policy
provides the general eligibility criteria for
selection to the Commonwealth Games as well as the sport-specific
selection criteria.
The selection policy is then agreed between
SASCOC and SAGF by signing an MOU. The sport-specific selection
criteria for gymnastics,
was determined by SAGF and sent to SASCOC.
The criteria determined are that the athlete for selection must be
ranked in the top
ten of the Commonwealth and must meet the
eligibility and qualification criteria before 15 December 2017.
Pursuant to such determination
an MOU between SAGF and SASCOC was
entered into on 25 May 2017. It is quite clear from this MOU that the
only selection criteria
that a gymnast had to comply with in order to
qualify for selection is that she or he be ranked in the top 10 of
the Commonwealth
before 15 December 2017. This is the selection
criteria which SASCOC had to consider when exercising its discretion
in the selection
of athletes/gymnasts. Rhythmic gymnastics is covered
by this MOU.
[13]
It is common cause that none of the athletes in gymnastics (including
rhythmic gymnastics)
were ranked in the Commonwealth in 2017. This is
so because there are no official events where all Commonwealth
countries participates
other than the Commonwealth Games. For this
reason, SAGF developed a methodology for calculating the gymnasts'
ranking in the top
ten of the Commonwealth. The method was that
gymnasts would be selected to compete at the Commonwealth Games based
on their results
at the World Championships. The method was
communicated by the Chief Executive Officer of SAGF, Mr Tseko Mogotsi
("Mr Mogotsi"),
to Ms Ninette Duvenhage ("Ms
Duvenhage"), the head of Programme Development for the Rhythmic
Gymnastics Technical Committee
of the SAGF.
[14]
When it became apparent that only two athletes in rhythmic gymnastics
competed at the World
Championships in 2017, the methodology was, on
enquiry by Ms Duvenhage extended as follows in an email by Mr
Mogotsi:
"We
need the World Championships results in order to determine the
Commonwealth gymnasts top 10 ranking. What we need to do
is attend
any FIG sanctioned event and use the scores that we achieve to map
against those achieved by the Top 10 Commonwealth
gymnasts at World
Championships. We use this to determine where we rank on the
Commonwealth list. We do not need more than 1 competition
to compare.
But it is up to the gymnast/club to determine if they want to attend
more than 1 FIG- sanctioned competition."
[15]
The methodology was disseminated by Ms Duvenhage to a number
of other
coaches who had potentially eligible gymnasts, as follows:
"We
have received the following information from SAGF regarding CWG
[Commonwealth Games] 2018.
Gymnasts
need to be ranked in the top 10 of the Commonwealth countries to be
eligible to participate. They will use the results
from the
Commonwealth countries at World Champs to compare our scores. All
gymnasts wanting to qualify for CWG will then need to
participate in
any FIG sanctioned event, they only need one, and then their scores
will be mapped against those achieved by the
Commonwealth countries
at World Champs. These competitions need to be completed before 15
December 2017."
[16]
As a result of the selection criteria and the methodology
disseminated to the
coaches, Ms Gardiner together with other
athletes, desirous to qualify for selection to the Commonwealth
Games, competed in various
FIG-accredited international competitions
before mid-December 2017. Ms Gardiner is said to have competed in
three FIG-sanctioned
international events between May and December
2017. She competed in the International Gracia Fair Cup in Budapest,
Hungary, the
AEON Cup in Tokyo, Japan and the North Rainbow Rhythmic
International Tournament in Israel.
[17]
On 4 January 2018 SAGF provided SASCOC with a motivation for
selection of athletes in gymnastics.
The document contained a list of
recommended names of gymnasts and a motivation why such athletes
should be selected to be included
in Team SA. The general motivation
for all the athletes in gymnastics read as follows:
"Performance
by the above gymnasts was recorded from various FIG-sanctioned events
around the world. Their scores were compared
against scores achieved
by Commonwealth gymnasts at the 2017 World Championships [n order to
determine a Commonwealth ranking.
We see this as the best way of
determining a Commonwealth ranking as there are no official events
where all Commonwealth countries
participate other than the
Commonwealth Games or the World Championships where the majority are
expected to participate ."
[18]
In the rhythm gymnastics, three athletes were recommended for
selection . The
first, Ms Grace Legote
( “ Ms
Legote"),
was ranked the most experienced gymnast achieving the Top ten
Commonwealth criteria, having achieved her selection
scores and
rankings at the 2017 World Championships. The other two gymnasts, Ms
Gardiner (the applicant) and Ms Chris-Marie van
Wyk
( “Ms
van Wyk"), made their criteria at a FIG- sanctioned event
held in Israel. SAGF motivated for all three athletes on the basis
that a team of three have a chance of earning a team medal for South
Africa. SAGF ranked the gymnasts on their medal potential
as follows:
first Ms Legote - potential medallist in ribbon and ball; second, Ms
Gardiner - potential medallist in hoop and clubs;
and third, Ms van
Wyk - potential medallist in clubs.
[19]
Upon further clarity requested by SASCOC from SAGF, it became evident
that: none of the three recommended gymnasts had a world ranking; the
fact that Ms van Wyk competed in the 2017 World Championships
in
Italy was not recorded; although SAGF motivated for all three
athletes to compete as a team, they had not competed or qualified
as
a team during 2017.
[20]
A meeting of the HPC was held on 10 January 2018 to discuss and
debate the
selection process in all sports. SAGF's submissions were
also considered. It was decided in that meeting that only world
ranking
be considered and adjusted to determine Commonwealth ranking
of athletes (that is, by removing athletes from other countries from
the list of World Championships).
[21]
SAGF was requested to resubmit its submissions showing the world
rankings
of the gymnasts and clarifying the benchmarking. In its
response SAGF chose not to include Ms van Wyk' s World Championship
results
as, according to SAGF, the results were not good. The scores
used for her were in respect of the Israel tournament . It further
became apparent that only the results of world events (World
Championships and World Cups) were comparable as the events are
organised
and monitored by the FIG Technical Committees. In those
events they use the highest qualified judges and the events are of a
higher
standard.
[22]
A further communique was on 12 January 2018 sent by SAGF to SASCOC
providing
the following clarification:
"FIG
EVENTS: world events such as World Championships and World Cups are
organised or monitored directly by the FIG Technical
Committees. We
believe their results are comparable. They use the highest qualified
FIG judges and are generally higher standard
events;
FIG-SANCTIONED
EVENTS: are invitational competitions organised by countries. They
are required to follow FIG guidelines and only
use FIG qualified
judges. They are however not directly monitored or organised by FIG
and are therefore not of the same standard
as FIG events.
[23]
After receiving this information, the HPC met again on 17 January
2018.
On the basis of the advice furnished by SAGF that the judging
of various events was different from judging the World Championships
and the World Cups and the desktop research done by SASCOC on the
all-round ranking, it was resolved that:
In
the absence of accurate world rankings, selection would be based on
the results from World Championships which meant that all
athletes
needed to have participated in the World Cup or World Championship to
qualify for selection.
Ms
Legote and Ms van Wyk were recommended for selection because they had
participated at the WorldChampionships. Ms Legote came
54
th
in the tournament and was ranked 5th in the all-round Commonwealth
ranking whereas Ms van Wyk came 88
th
in the world and was
ranked 10
th
in the Commonweatlh. Ms Gardiner, on the other
hand, was not recommended for selection as her scores were only from
FIG-sanctioned
events and she did not attend the World Championships.
[24]
On 29 January 2018, SASCOC informed SAGF of its decision, that is,
the selection
of Ms Legate and Ms van Wyk and the non-selection of Ms
Gardiner , for participation at the Commonwealth Games. At SAGF' s
request,
the decision as to the selected gymnasts was not made public
with the other selections. SAGF advised SASCOC of its intention to
appeal the decision not to select Ms Gardiner and Ms Caitlin
Rooskrantz ("Ms Rooskrantz"). The gravamen of the appeal
being the reconsideration of the selection in respect of Ms Gardiner
based on the fact that SAGF
'expected that there would be some
turmoil with her non
selection and the fact that she was the
junior gymnast that represented South Africa at the
previous Youth Olympic Games
and has extensive international
experience'.
[25]
On further enquiris by SASCOC as to the reason why Ms Gardiner did
not attend the World Championships and to provide results from any
other sanctioned international competitions at which she competed,
SASCOC was informed that Ms Gardiner missed one of the two trials
that were held for the World Championships and her scores for
the
second trial was not high enough to be number 2. Further information
was requested about any other FIG-sanctioned events Ms
Gardiner
attended during 2017 besides the Gracia Fair Cup in Budapest, Hungary
and the North Rainbow Invitation in Israel. It appears
no response
was provided to this enquiry. Having reconsidered the additional
information at its disposal, and based on its previous
selection
criteria (being that Ms Gardiner did not have a Commonwealth ranking
for 2017 by virtue of not having competed on the
same level as Ms
Legate and Ms van Wyk at the World Championships) the HPC confirmed
its decision to select Ms Legate and Ms van
Wyk to represent South
Africa at the Commonwealth Games. The decision was communicated to
SAGF.
[26]
It is not in dispute that SASCOC is required to exercise its powers
to select athletes in a manner consistent with its mandate to promote
and develop sport, to advance the Olympic movement, and to
improve
South Africa's position on the medals table at the Commonwealth
Games.
[27]
It was argued on behalf of Ms Gardiner that in exercising its
discretion
not to select Ms Gardiner, SASCOC acted irrationally,
procedurally unfair and unconstitutional.
[28]
It
is trite that in exercising its discretion to select athletes, SASCOC
is constrained by the constitutional principle of legality
that
requires that a decision-maker exercises the powers conferred on her
or him lawfully, rationally and in good faith.
[1]
There must be a rational relationship between the decision it makes
and the purpose for which the power was given.
[2]
[29]
The gravamen of Ms Gardiner's complaint is that SASCOC changed the
selection
criteria. In argument before me, Ms Gardiner's counsel
conflated the selection criteria and the methodology used to
determine ranking
in the top ten Commonwealth, insinuating that
SASCOC changed the selection criteria. But, I do not agree.
[30]
It is evident from the papers before me that the selection criteria
and
the methodology used to determine the Commonwealth ranking are
two separate factors. The selection criteria for rhythmic gymnasts
were, at all times and as determined by SAGF, the ranking of the
gymnasts in the top ten Commonwealth. Due to the fact that none
of
the gymnasts had a Commonwealth ranking a methodology was determined
of how the ranking was to be calculated. The methodology
was
determined by SAGF and forwarded to SASCOC.
The
methodology was to select gymnasts based on their results at the
World Championships. In her own version Ms Gardiner states
in her
founding papers that Ms Duvanhage was informed that gymnasts were to
be selected to compete at the Commonwealth Games based
on the results
at the World Championships. This is the same met hodo logy used by
SASCOC in the selection of the two gymnasts selected
to participate
in the rhythmic gymnastics event at the Commonwealth Games. They were
selected on the basis of their having participated
at the World
Championships by mid-December 2017. I have already alluded in
paragraph [23] of this judgment to the resolution taken
by the HPC on
17 January 2018.
[31]
Ms Gardiner submits further that it was unlawful of SASCOC not to
select
the gymnasts on the basis of the recommendation of SAGF and
thus changing the selection criteria without informing her. I have
already ruled that SASCOC did not change the selection criteria. The
intention was always to select gymnasts who ranked in the top
ten of
the Commonwealth. The method used by SAGF to calculate the required
ranking was also not changed. The aim, as already stated,
was at all
times to calculate the ranking on the basis of the gymnast s'
respective results in World Championships. This is the
criteria and
method used by SASCOC. The methodology was extended to include
FIG-sanctioned results when it became it appeared to
SAGF that some
athletes will be excluded for having not participated in the World
Championships .
[32]
In calculating the ranking of athletes in the top ten of the
Commonwealth,
SAGF used two sets of results. It used the results of
the World Championship for Ms Legate and used the results of
FIG-sanctioned
events for Ms Gardiner and Ms van Wyk. The results of
the FIG-sanctioned events were mapped against the results of the
World Championships.
This method, I might say, was adopted to assist
gymnasts like Ms Gardiner who did not compete in the World
Championships in 2017.
This, as argued by SASCOC, was wrong, and I
agree.
[33]
The events used for comparison by SAGF are not on the same level and
are incompatible. As counsel for SASCOC submitted, SAGF did not
compare apples with apples. The uncontroverted evidence before me
is
that international competitions are placed in different categories
(groupings). In terms of the FIG General Judges' Rules Cycle
2017-
2020 there are four groupings: Group 1 consisting of Olympic Games,
World Championships and World Cup competitions qualifying
for the
Olympic Games; Group 2 consists
of Continental senior and junior Championships, World
Challenge Cup
Competitions, World Cup Competitions, the World Games and Youth
Olympic Games; Group 3 consist of Commonwealth Games,
Continental
Games, Mediterranean Games, Universlade and World and Continental Age
Group Competitions; Group 4 consists of Regional
Championships, Tests
Events for the World Games, Tests Events for the Olympics Games, All
other Multisport Games and All other
FIG-approved international
tournaments and competitions.
[34]
Just from the aforesaid it is quite clear that the World
Championships
fall in group 1 whilst the FIG-sanctioned international
tournaments fall within the fourth group. There is also evidence on
record,
undisputed, which confirms that the two groups are vastly
different and incompatible. This evidence is in the form of
information
provided to SASCOC by Mr Mogotsi before the selection of
the athletes was done. The information is contained in two letters,
dated
11 January 2018 and 12 January 2018 respectively, written by Mr
Mogotsi to SASCOC. In the said letters Mr Mogotsi informs SASCOC
that
only the results of world events like World Championships and World
Cups are comparable because the events are organised and
monitored by
the FIG Technical Committee, the highest qualified judges are used
and the events are of a higher standard. I might
as well add that the
events are comparable because they fall within the same grouping.
This, in comparison with FIG sanctioned
events in group 4, which
are invitational competitions organised by countries. FIG-sanctioned
events are required to follow FIG
guidelines and use FIG qualified
judges but, they are not directly monitored or organised by FIG and
therefore not of the same
standard as FIG events. It is incorrect for
SAGF to have compared results of events which are of a higher
standard, that is FIG
events, and results of events of a lower
standard, meaning FIG- sanctioned events. The results could never
have been balanced,
correct and could never have produced the correct
ranking of athletes. That the outcome of the method as applied by
SAGF could
never have produced the desired outcomes is evident from
the various inconsistent calculations it produced. On 4 January 2018
SAGF
under the heading "RG Motivation" Ms Legote is listed
as the most experienced gymnast; in the document under the heading
"COMMONWEALTH GAMES QUALIFICATION RANKING" Ms Gardiner is
ranked 2nd, and Ms Legate is ranked 3rd ; in a further motivation
on
9 January 2018 Ms Gardiner is ranked 2nd, Ms van Wyk 3rd and Ms
Legate 5th and in the Sunday Times of 11 March 2018, Mr Mogotsi
states that Ms Gardiner is ranked 2nd in SAGF's rankings.
[35]
As it is, having used what I would say was the incorrect method of
mapping,
SAGF produced a list of recommended names wherein Ms
Gardiner is said to be more qualified than Ms Legote and Ms van Wyk
whilst
in fact she did not compete in a World Championship during the
qualifying period. This cannot be correct. The starting point for
me
is the results of the athletes who competed in the World
Championships. This is so because the methodology as determined by
SAGF was to select on the basis of the results obtained at the World
Championships. In this instance, both Ms Legote and Ms van
Wyk had
competed at the said championships and were from the word go eligible
for selection. Ms Legote is said to have come 54th
in the tournament
and Ms van Wyk came 88th. When only the gymnasts from the
Commonwealth countries were considered Ms Legote was
ranked 5th in
the all-round Commonwealth ranking and Ms van Wyk was ranked 10th It
is common cause that Ms Gardiner did not
compete in any World
Championship in the 2017 cycle. She is said to have competed in three
FIG-sanctioned international events.
Mapping her results from such
international events against the results obtained at the World
Championship events could never have
produced the desired outcome. It
was also unfair of SAGF to have excluded the World Championship
results of Ms van Wyk and only
considered her results from a
FIG-sanctioned event only to be able to compare her results with
those of Ms Gardiner. I hold, therefore,
that the calculation, upon
which Ms Gardiner claims that she is the top ranked South African
rhythmic gymnast in the Commonwealth,
is deeply flawed.
[36]
In selecting the gymnasts SASCOC sought to rank them within the top
ten in
the Commonwealth. From the reading of the minutes of the HPC
it is apparent that SASCOC was aware that there were no world
rankings
for the athletes in rhythmic gymnastics. It consequently,
adopted and used the methodology determined by SAGF in calculating
their
ranking in the Commonwealth. That method was to select gymnasts
on the basis of their results in the World Championships. SASCOC
looked for results of South African gymnasts in rhythmic gymnastics
within the World Championships and found the results of two
athletes,
namely, Ms Legate and Ms van Wyk. It used such results to determine
their ranking in the Commonwealth by removing the
names of athletes
from countries that were not part of the Commonwealth from the World
Championships . Having done so, Ms Legate
was ranked 5th and Ms van
Wyk was ranked 10th . Once the results of the two athletes were
found, SASCOC had no reason to look elsewhere
because there were only
two slots allotted for rhythmic gymnastics in Team SA, besides, there
were only two athletes who competed
in the World Championship in
2017.
[37]
Ms Gardiner's submission that SASCOC did not consider the fact that
she
could not compete in the World Championships because of the
injury she sustained during trials for qualification to the
tournament
, has no merit. Whether SASCOC was aware of the injuries
or not makes no difference as far as I am concerned . Fact is Ms
Gardiner
had not competed in a World Championship by December 2017.
What were required were her result s, if any, in a World Championship
and she had none to show. Since she could not produce same, there was
no way in which SASCOC could have considered her. The results
she had
for the FIG-sanctioned international events, as I have already said,
could not be compared with those obtained at World
Championships. The
fact that she was injured during the trials is not unique in the
circumstances of this matter . From time to
time, athletes do sustain
injuries that make them ineligible to participate in tournaments.
That an athlete gets injured is not
unique as I have said, but comes
with the exigencies of the territory. The criterion used to
disqualify her was also not specific
to her only. For instance, one
of the gymnasts recommended for selection by SAGF, Ms Roos krantz,
was also not selected for participation
in the Commonwealth Games due
to her lack of World Championship results. Just like Ms Gardiner she
could not compete in the World
Championships because of an injury
sustained during the trials leading to such tournament. For that
reason, Ms Rooskrantz, was
not selected for participation in the
Commonwealth Games.
[38]
That SASCOC did not have all the information before it relating to Ms
Gardiner
before it took the decision not to select here, does not
assist Ms Gardiner's case. The information that it is contended was
not
before SASCOC is the results of the AEON international event that
took place in Tokyo and the injuries sustained by Ms Gardiner
during
the trials held in the build-up to the World Championships. But, AEON
is a FIG sanctioned international event that
SASCOC could not
have looked at, anyway. I have already addressed the issue of the
injuries sustained by Ms Gardiner. The calculations
made by SAGF
which placed Ms Gardiner on a higher ranking than Ms van Wyk stood to
be rejected by SASCOC on the grounds I have
already explained in
paragraphs [34] and [35] of this judgment. In essence, SASCOC
considered all the information that was placed
before it by SAGF.
Where issues were not clear it sought clarification from SAGF. In
fact, except the results of Ms van Wyk which
she obtained from the
World Championships, all the information, at the disposal of SASCOC
before it took the decision not to select
Ms Gardiner , was provided
to it by SAGF. SASCOC did its own desktop research, as well. From
that research, it discovered that
Ms van Wyk had competed at a World
Championship in Italy during 2017 and that her results of that
tournament were not taken into
account by SAGF when calculating her
ranking . SASCOC in its desktop research also discovered that Ms
Gardiner, who was punted
as the best gymnast in rhythmic gymnastics
in South Africa, did not meet the criteria for selection as she had
not competed in
a World Championship in 2017. If the desktop research
was not done, SASCOC could have rubber stamped SAGF's recommendations
and
the athlete who did not qualify would have gone to the
Commonwealth Games.
[39]
The reasons given for the non-selection of Ms Gardiner are apparent
from the
minutes of the HPC held on· 7 January 2018. The
reasons are the following: In the absence of accurate world rankings,
selection
would be based on the results from World Championships
which meant that all athletes needed to have participated in the
World Cup
or World Championship to qualify for selection.
Ms
Legote and Ms van Wyk were recommended for selection because they had
participated at the World Championships. Ms Legote came
54th in the
tournament and was ranked 5th in the all-round Commonwealth ranking
whereas Ms van Wyk came 88th in the world and was
ranked 10th in the
Commonwealth. Ms Gardiner, on the other hand, was not recommended for
selection as her scores were only from
FIG-sanctioned events and she
did not attend the World Championships.
[40]
There is no evidence on record showing that Ms Gardiner requested
reasons
from SASCOC for its decision not to select her. Ms Gardiner
relied on a letter written by the Chief Executive Officer of SASCOC
to SAGF informing SAGF of the decision of SASCOC not to select Ms
Gardiner. Ms Gardiner ought to have requested reasons directly
from
SASCOC, this she did not do. I am as such constrained to can accept
the reasons stated in the CEO's letter as those of SASCOC.
[41]
I have to conclude therefore that SASCOC exercised its discretion
rationally.
The decision was rationally connected to the purpose for
which it was taken, the power for which it was conferred on SASCOC,
the
information before it or the reason given for it by SASCOC.
Similarly I hold that the procedure followed by SASCOC was
procedurally
fair.
[42]
On
the issue of costs, Ms Gardiner's counsel implored me to follow the
Biowatch
judgment
[3]
in the event I find in
favour of the respondents. In accordance with that judgment it has
become settled law that unsuccessful
litigants who approach the
court, in good faith, to assert constitutional rights, should not be
discouraged to do so for fear of
having costs awarded against them.
[4]
It is also trite that
a conclusion by the court that the institution of proceedings was
frivolous or vexatious or manifestly
inappropriate, justifies a
departure from
Biowatch.
[5]
[43]
The respondents' counsel has not made out a case that the proceedings
are frivolous or vexatious but contends for an order for costs on an
attorney and client scale including costs of two counsel on
the basis
that Ms Gardiner chose to approach court without first requesting
SASCOC to provide her with the reasons for its decision
not to select
her. Counsel further argued that Ms Gardiner chose to run to the
urgent court and also escalate the urgency of the
matter without any
valid reasons.
[44]
As is trite the award of costs is in the discretion of the court.
Much
as I have to find that the institution of these proceedings was
not frivolous or vexatious, I am of the view that it was
inappropriate
of Ms Gardiner to approach court on a heightened
urgency when in fact it was not necessary to do so. By simply having
requested
reasons for SASCOC's decision and properly read the
documents at her disposal, she could have approached the court
appropriately.
She should as a result be mulcted with costs. I,
however, do not think that the circumstances calls for a cost order
on a punitive
scale. An order of costs on a party and party scale
inclusive of costs of two counsel will, in my view, suffice.
[45]
In the premises, the application is dismissed with costs including
costs
of two counsel.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCES
HEARD
ON THE
: 16 MARCH 2018
DATE
OF JUDGMENT
: 26 M ARCH 2018
APPLICANT'S
COUNSEL
ADV. K HOFFMEYER
ADV.
F HOBDEN
APPLICANT'S
ATTORNEY KEITH
SUTCLIFFE&ASSOCIATES INC.
RESPONDENT'S
COUNSEL ADV. M. FEINSTEIN
:
ADV. I DE VOS
RESPONDENT'S
ATTORNEY : TWB ATTORNEYS
[1]
See Affordable Medicines Trust and Others v Minister of Health and
Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) paras 48 -49.
[2]
See Pharmaceutical Manufacturers Association of SA and Another: In
re Ex Parte President of the Republic of South Africa and
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 85
[3]
Biowatch Trust v Registrar, Genetic Resources & Others 2009 (6)
SA 232 (CC).
[4]
See
Biowatch
para
21.
[5]
See Mandela v The Executors, Estate Late Nelson Rolihlahla Mandela &
others (131/17) (2017] ZASCA02 (19 January 2018)