Cape Town Tygerberg Football Association and Others v SA Football Association Western Province and Another (2663/06) [2006] ZAWCHC 20 (22 May 2006)

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[2006] ZAWCHC 20
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Cape Town Tygerberg Football Association and Others v SA Football Association Western Province and Another (2663/06) [2006] ZAWCHC 20 (22 May 2006)

IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
Case No: 2663/06
CAPE
TOWN TYGERBERG FOOTBALL ASSOCIATION
First Applicant
MITCHELL’S
PLAIN FOOTBALL DISTRICT
Second
Applicant
NORTHERN
SUBURBS FOOTBALL ASSOCIATION
Third Applicant
METROPOLITAN
FOOTBALL ASSOCIATION
Fourth Applicant
v
SA
FOOTBALL ASSOCIATION WESTERN PROVINCE
First Respondent
SOUTH
AFRICAN FOOTBALL ASSOCIATION
Second
Respondent
REASONS: 22 May 2006
LE
GRANGE AJ
In this matter, the Applicants launched an urgent application seeking
final relief against the Respondents, in particular against
the
President and General Secretary of First Respondent, to be committed
to a term of imprisonment alternatively to be fined, because
Applicants aver they contravened an order of court granted by the
Honourable Mr Acting Justice Zondi on 16 March 2006 (
the Order
).
The matter was argued on 23 March instant, after normal court hours.
After hearing arguments, I made the following order the next
day.
“The Application is dismissed with costs.” Without giving any
reasons therefore.
The reasons now follow:
Zondi AJ granted an interim interdict preventing the First respondent
(
SAFA WP
) from
inter alia
;
Taking any further steps (whether in its own name or that of SAFA
Cape Town) to create new “local football associations” (LFA's)
to replace existing district associations (including the
Applicants); and
Commencing any competition pursuant to the proposed new LFA
structure, other than in accordance with SAFA WP’s Constitution,
read together with the Constitution and Rules of the Second
Respondent.
The Chairperson of First Applicant, Mr Tulleken, filed the affidavit
on behalf of Applicants wherein he avers that the First Respondent
together with its elected officials, including the President, General
Secretary and other named officials, deliberately and intentionally
breached the Court Order by permitting a competition known as the
Champions League to be played in the Cape Town Unicity region at
Mitchell’s Plain, pursuant to the proposed LFA structure, which is
other than in accordance with the First Respondent’s constitution.
The Respondents did not file any papers. It was contended on behalf
of First Respondent that the present application should be dismissed
on three grounds. First, that the Applicants failed to satisfy the
requirements for urgency. Secondly, that the Applicants failed
to
make the necessary averments that prove that the First Respondent, or
its officials are guilty of contempt of court. Thirdly,
there is
nothing before this Court to indicate that Mr Tulleken, the deponent
to the founding affidavit of Applicants, was authorised
to institute
the present application on behalf of Applicants.
The requirements for urgency in applications have been dealt with
numerous times by the courts. Rule 6(12)(b) of the Uniform Rules
of
Court provides:
“
In every affidavit or petition filed in support of any
application under para (a) of this subrule, the applicant
shall
set forth
explicitly
the circumstance which he avers render
the matter urgent
and
the reasons why he claims that he could
not be afforded substantial redress at a hearing in due course”.
There are thus two requirements that must be set forth in the
founding affidavit in order to satisfy the requirements of the rule.
(
Salt and Another v Smith
1991(2) SA 186 (NM), at 187 A.)
Whether an applicant has succeeded in satisfying the requirements for
urgency must be determined
by the contents of the founding affidavit.
(
IL&B Marcow Caterers v Greatermans
SA 1981(4) SA 108(C)
at 111A)
In the present matter the Applicants deal with urgency in one
paragraph. Mr Tulleken states the following with regard
to
urgency, in paragraph 19 of the Founding Affidavit;
‘
I respectfully submit that this matter is inherently urgent,
that applicants having obtained a Court Order on
16 March
2006
on an urgent basis, in order to prevent football from
being played on
18 March 2006
. Fixtures are
again scheduled to take place on this weekend,
26 March
2006
, and it is accordingly of critical importance to the
applicants and other soccer lovers throughout the Western Cape
region, that
the first respondent and its officials be held to
account’.
Rule 6(12)(b) entail two requirements, namely the circumstances
relating to urgency which has to be explicitly set out and, secondly
the reasons why the applicants in this matter could not be afforded
substantial redress at a hearing in due course.
In
Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a
Makin’s Furniture Manufacturers) 1977(4) SA 135(W) at 137F,
Coetzee
J held with reference to Rule 6(12)(b), the following;
‘
Mere lip service to the requirements of Rule 6(12)(b) will not
do and an applicant must make out a case in the founding affidavit
to
justify the particular extent of the departure from the norm, which
is involved in the time and day for which the matter be set
down.’
The Applicants make no averment of any kind as to why they cannot be
afforded substantial redress at a hearing in due course. Reference
is, however, made to fixtures that were again scheduled to take place
on the weekend of 26
March 2006
and that it is accordingly of
critical importance to the Applicants and other soccer lovers
throughout the Western Cape region, that
the first respondent and its
officials be held accountable. An analysis of the circumstances
averred by Mr Tulleken in paragraph
19 clearly indicates that the
matter is not urgent. The circumstances Applicants aver render the
matter urgent simply do not stand
scrutiny. This failure is a fatal
defect. For this reason alone the application must fail with costs.
However, assuming I am wrong as to the question of urgency, the facts
presented in this application do not satisfy the necessary
requirements for the Court to find the Respondents or any of its
officials guilty of contempt of court.
The Applicants aver from the Founding Affidavit that the First
Respondent has breached paragraphs 2.1.2 and 2.2 of the Court Order.
In paragraphs 13 and 14 of the founding affidavit, Mr Tulleken states
the following;
‘
[13] I respectfully submit that the matches played on Saturday,
18 March 2006 at Mitchell’s Plain sports field, albeit under the
auspices of SAFA Cape Town, was (sic) in breach of paragraph 2.1.2 of
the Court Order of 16 March 2006, and was in any event in breach
of
paragraph 2.2 which declares that the first respondent administers
and controls amateur football in the Cape Town Unicity (Cape
Town)
region, and that consequently the body known as SAFA Cape Town has no
jurisdiction to administer and control amateur football
in the Cape
Town Unicity (Cape Town) region.
[14] I respectfully submit that at the very least those fixtures
and/or matches played at Mitchell’s Plain on 18 March 2006 ought
to
be declared null and void, and of no force or effect, as they had no
official match status.
The averments that Respondents are in breach of paragraph 2.1.2 needs
closer scrutiny as paragraph 2.2 in the main relates to a declaratory
order.
In paragraphs [6] and [16] the following is averred;
‘
[6] This application concerns the fact that the first
respondent together with its elected officials, including the
President, General
Secretary, and other named officials, deliberately
and intentionally breached the Court Order of 16 March 2006 by
permitting a competition
known as the “Champions League” to be
played in the Cape Town Unicity (Cape Town) region in Mitchell’s
Plain, pursuant to the
proposed LFA structure, which is other than in
accordance with the first respondent’s Constitution.
[16] I respectfully submit that the conduct of the first
respondent, and in particular the officials in the name of the
President,
the General Secretary, and Messrs Alexander, Williams, and
Bailey were fully aware of the Court Order of 16 March 2006, and in
blatant
disregard of the said Order, nevertheless permitted or
allowed the fixtures to take place at Mitchell’s Plain on 18 March
2006,
alternatively acted recklessly by not preventing or prohibiting
the matches from taking place knowing that the matches would be in
contravention of the court Order on 16 March 2006.
The factual averments made by the Applicants, insofar as it relates
to paragraph [2.1.2], are not satisfactory to prove that the
Respondents are in contempt. It can hardly be suggested that the act
of
permitting
as averred by the Applicant’s constitutes a
breach of the proscription against the conduct of
commencing
contained in the court order. The word ‘
commence’
is
defined in the Paperback Oxford English Dictionary as ‘
begin’
whereas the definition of permitting is ‘
give permission
to’
.
The Applicants reliance on the words ‘
permitting
and
allowing’
is indicative that they failed to prove that the
First Respondent together with its elected officials, including the
President, General
Secretary and other named officials, deliberately
and intentionally breached the Court Order by
commencing
a
competition known as the Champions League to be played in the Cape
Town Unicity region at Mitchell’s Plain, pursuant to the proposed
LFA structure, which is other than in accordance with the First
Respondent’s constitution.
It follows that I am not satisfied that the Applicants made out a
case for contempt of court.
The Applicants being artificial or corporate entities (
juristic
persons)
may not litigate unless their constitution permits such
conduct and if they do so permit, then only if the required
formalities have
been satisfied. See (
Mall (Cape) (Pty) Ltd v
Merino Ko-operasie BPK
1957(2) SA 347 (C) at 351 H ); (
Congress
of Traditional Leaders of South Africa v Minister of Local
Government, Eastern Cape, and Others
1996(2) SA 898) ; Erasmus,
Superior Court Practice at B1-38
Mr Tulleken, in the Founding Affidavit at Paragraph [1] states the
following;
‘
I am the Chairman of the first applicant, and duly authorised
to represent it in these proceedings and to depose to this affidavit.
I am also authorised by the second, third and fourth applicants to
represent those applicants, and to depose to this affidavit on
their
behalf.’
Unlike an individual, an artificial person like Applicants in this
instance, can only function through its agents and can only take
decisions by the passing of resolutions in the manner provided by its
constitution.
On the papers before me there is no indication by First, Second,
Third and Fourth Applicant that they have given Tulleken due
authority
to institute these proceedings on their behalf. See
Mall
(Cape) (Pty) Ltd v Merino Ko-operasie, supra
). Nor is there a
resolution to that effect attached to the papers.
It follows that on the papers before me the deponent of the founding
affidavit failed to prove due authorisation by the other Applicants
and the application must thus fail due to lack of procedural
formalities on the side of the Applicants.
Football is one of the major sports code in our Country and has a
unifying element to it that is so desperately needed in our
communities.
It is evident from the founding affidavit of Mr Tulleken
that there are serious issues and problems in SAFA – Western
Province
that need urgent attention from all role-players to remedy
some of the problems and mistrust that exists. It is therefore
incumbent
on all role-players in SAFA-Western Cape to find urgent
solutions to the present impasse so that all football lovers,
children and
adults alike, may enjoy the sport millions around the
world adore.
However for the reasons stated the relief sought cannot be granted.
______________
LE GRANGE AJ