About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2011
>>
[2011] ZALCD 14
|
|
Lupini and Another v Lamonvile Golden Arrows Football Club and Arbitration (D993/09) [2011] ZALCD 14 (11 May 2011)
Miphy
Lupini and South African Football Players Union v Lamontville
Golden Arrows Football Club and Arbitration
11May
2011
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D993/09
Not Reportable
In the matter between:
MIPHY LUPINI
..................................................................................................
1
st
Applicant
SOUTH AFRICAN FOOTBALL PLAYERS UNION
........................................
2
nd
Applicant
And
LAMONTVILLE GOLDEN ARROWS
FOOTBAAL CLUB AND ARBITRATION
.........................................................
Respondent
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
GUSH, J
:
The applicants in this matter seek an order:
1
.
Declaring that clause 19 of the employment contract entered
into between first applicant and respondent on or about 23 July 2007
is contra
bonis mores
and/or contravened public policy and as
a result void and/or unenforceable
.
2 Declaring that clause 19 of the employment contract entered into
between first applicant and respondent on or about 23 July 2007
infringes on the first applicant's right to access to courts in terms
of section 34 of Chapter 2 of the Constitution of the Republic
of
South Africa of 1996;
3
Declaring that the Labour Court has jurisdiction to
adjudicate over the first applicant's claim for damages suffered by
him as a
result of the termination of his employment contract by the
respondent
The first applicant in this matter is a professional football player
who had entered into a contract of employment with the respondent.
The second applicant is the South African football players union of
which the first applicant is a member.
The respondent is a professional football club which participates in
the national soccer league (NSL) which operates under the
control of
the South African football Association (SAFA) and is subject to the
rules and control of both the NSL and SAFA.
Prior to filing this application, and as a consequence of the
termination of the first applicant's contract by the respondent,
the
applicants launched the application for damages referred to in
prayer 3 of the notice of motion.
The applicants aver in the statement of claim that the 1
st
applicant’s contract was unlawfully cancelled and by virtue of
the provisions of s 77 (3) of the Basic Conditions of Employment
Act
(BCEA),
1
this Court has jurisdiction to determine the first applicant’s
claim.
The respondent in its statement of opposition to the applicants
claim,
in limine
, pleaded that the 1
st
applicant's
claim against the respondent arose from the employment contract
entered into between first applicant and the respondent
in terms of
which all disputes arising from the employment contract are to be
referred to the “Dispute Resolution Chamber
in accordance with
the NSL rules from time to time”.
2
Appropriately, in matters of this nature, the respondent’s
statement of claim in opposition included a prayer that the
determination of the 1
st
applicant’s claim be
stayed pending the referral of the dispute between the parties to
the dispute resolution chamber as
contemplated in the contract.
The parties then concluded a pre-trial minutes on the 20
th
August 2009 in which minutes, it was recorded that the court was
required to decide inter-alia: the exact terms of the contract;
whether the contract contained an arbitration clause and if so
whether the clause was binding on the parties and
whether the
court had jurisdiction to entertain the claim
(my emphasis). The
pre-trial minute inexplicably makes no mention of the respondent
prayer that the applicants claim be stayed
pending a referral to the
dispute resolution procedure.
During September 2009, a directive was issued that the matter should
be enrolled for trial. In October however, the parties requested
that the matter be transferred to the Durban Labour Court. The
matter was transferred, was allocated a Durban case number and
was
enrolled trial in Durban on the 22
nd
and 23
rd
November 2010.
For reasons which were neither explained nor appear from the
pleadings, the matter did not proceed for a determination by the
court as to whether the applicants’ application should be
stayed pending the referral of the dispute to arbitration but
the
applicants elected to file a substantive application under the same
case number for the relief set out in para 1 above.
In the this application seeks three separate but linked declarators:
Firstly: declaring that clause 19 of the applicant’s
employment contract is
Contra bonis mores
and/or contravened
public policy;
Secondly: declaring that clause 19 of the contract infringes on the
1
st
applicant's right of access to the courts in terms
of section 34 of Chapter 2 of the Constitution; and
Thirdly: declaring that the Labour Court has
jurisdiction
to
adjudicate the first applicant’s claim for damages (my
emphasis)
This application was filed on the 3
rd
November 2010 and
the respondent filed a notice of opposition and answering affidavit
on the 16
th
November 2010.
Contemporaneously with the notice of opposition and answering
affidavit the parties filed a document headed “Applicants’
Practice Note: Set Down 22 and 23 November 2010 which records:
Nature of matter:
Jurisdiction – the respondent disputes the jurisdiction of
the above Honourable Court. Kindly see bundle 2.
Statement of Claim – unlawful termination of fixed term
contract of employment. Kindly see bundle 1.
The parties have agreed that the application for a declaratory
order in respect of the jurisdiction of the Labour court should be
heard prior to the carrying of the statement of claim. Depending on
whether the court reserves judgement will not on the application
for
a declaratory order the matter may or may not proceed on the other
issues listed above
At the outset however the applicants however sought more than simply
a declarator as to the court’s jurisdiction. It is
apparent
from their application that the applicants were relying on prayers 1
and 2 of the notice of motion as a means to establish
jurisdiction
and in addition as a means to exclude any reliance the respondent
may wish to place on the said clause 19 in persuading
the court not
to determine the dispute.
It must be emphasised that the applicants’ prayers 1 and 2 of
the notice of motion only seek orders declaring the dispute
resolution clause (clause 19) to be
contra bonis mores
and
unconstitutional, neither of which are prerequisites to determining
jurisdiction.
In opposition to the declaratory orders sought by the applicants in
prayers 1 and 2 of their notice of motion, the respondent
argued
that the applicants’ application was defective as they had
failed to join both the NSL and SAFA, who are the bodies
under whose
jurisdiction the dispute resolution process falls.
As a consequence, but without conceding the need to join the NSL and
SAFA, the applicants asked that the application in respect
of
prayers 1 and 2 be adjourned (to the trial roll to be considered at
the same time as the claim for damages), irrespective
of the outcome
of application for the declarator sought in prayer 3. Not only did
the applicants wish to consider a possible
joinder but argued that a
finding that the court did not have jurisdiction to hear the
contractual damages claim did not preclude
the court from
considering prayers 1 and 2 albeit at a later stage.
Whilst correctly pointing out that this was not the basis of the
applicants’ original application and emphasising that
if the
applicants wish to pursue prayers 1 and 2 it would require a
significantly different case, Mr Murphy, on behalf of the
respondent, did not oppose the applicants’ application for the
adjournment of prayers 1 and 2.
Although the parties agreed that I was not required to deal with
prayers 1 and 2, and that they are to be adjourned, I am of
the view
that in order for the court to consider the relief sought in prayers
1 and 2, the applicants would be required to join
both the NSL and
SAFA.
Having elected not to pursue prayers 1 and 2 at this time, the only
relief that the applicants now seek is a declarator that
the “Labour
court has jurisdiction to adjudicate over the first applicant's
claim for damages suffered by him as a result
of the termination of
his employment contract with the respondent”.
There is no doubt that the 1
st
applicant’s claim
for damages is a dispute which arises from the contract of
employment and that the contract includes
an agreement to refer such
dispute to a dispute resolution “in accordance with the NSL
rules and in the Dispute Resolution
Tribunal's of the NSL rather
than before any court or other tribunal insofar as it is a
requirement of FIFA and other footballing
rules that the internal
dispute resolution mechanisms available in football should be
utilised by participants in the game save
where the football rules
do not provide an appropriate tribunal to determine the dispute”.
Clause 19 of the applicants contract of employment in its entirety
records under the heading “Dispute Resolution”:
19.1 all disputes arising out of or relating to this contract,
including disputes as to the meaning or interpretation of any
provision
of this contract or as to the carrying into effect of any
such provision or as to the termination or consequences of
termination
shall be referred to dispute resolution in accordance
with the NSL rules from time to time.
19.2 The parties warrant that, in accordance with the football
rules, any and all disputes whatsoever shall be determined in
accordance
with the NSL rules and in the Dispute Resolution
Tribunal's of the NSL rather than before any court or other tribunal
insofar as
it is a requirement of FIFA and other footballing rules
that the internal dispute resolution mechanisms available in football
should
be utilised by participants in the game save where the
football rules do not provide an appropriate tribunal to determine
the dispute.
The contract provides further that:
1.1
The employer employs the footballer a professional
footballer ... subject to the NSL rules ... as amended from time to
time;
1.2 This document (including annexures documents, policies and
rules incorporated by reference) constitutes the contract of
employment
between the club and the footballer;
1.3 The club and the footballer have perused and considered the
terms of this contract of employment and each warrants to the other
that it is a true reflection of the full meetings of their minds at
the time of execution thereof;
...
2.2.8 ‘Football rules’ shall mean the Constitution,
Statutes and Rules and Regulations of the NSL; SAFA; CAF and/or FIFA
as amended from time to time;
2.2.9 ‘NSL rules’ shall mean the Constitution and
Rules and Regulations of the National Soccer League as amended from
time to time;
...
3.3 It shall be the responsibility of the footballer to understand
and comply with the provisions of the football rules in general
and
the NSL rules in particular as issued and/or amended from time to
time including those relating to agents in respect of contracts
and
transfer fees, training and development, compensation, prohibited
substances and dispute resolution.
The applicants’ original statement of claim is for a claim for
damages arising from an alleged breach of the 1
st
applicant’s contract of employment with the respondent.
When opposing the applicants original claim the respondent raised,
in limine
, the provisions of clause 19 of the contract and
sought to have the applicants claim stayed pending the referral of
the dispute
to the dispute resolution processes stipulated in the
contract. This is not a matter of jurisdiction. What the court is
required
to determine in these circumstances is whether it will
exercise its discretion to stay the proceedings or “tackle the
dispute
itself”.
Inexplicably this is not the issue the parties have placed before
the court.
The effect of an arbitration clause on the court’s
jurisdiction is dealt with in the Arbitration Act
3
in section 6:
Stay of legal proceedings where there is an arbitration agreement
(1) If any party to an arbitration agreement commences any legal
proceedings in any court (including any inferior court) against
any
other party to the agreement in respect of any matter agreed to be
referred to arbitration, any party to such legal proceedings
may at
any time after entering appearance but before delivering any
pleadings or taking any other steps in the proceedings, apply
to that
court for a stay of such proceedings.
(2) If on any such application the court is satisfied that there
is no sufficient reason why the dispute should not be referred to
arbitration in accordance with the agreement, the court may make an
order staying such proceedings subject to such terms and conditions
as it may consider just.
The issue of the court’s jurisdiction was considered in the
matter of
Parekh V Shah Jehan Cinemas
(Pty) Ltd and
Others
4
where the court held:
An arbitration agreement does not deprive the Court of its
ordinary jurisdiction over the disputes which it encompasses. All it
does is to oblige the parties to refer such disputes in the first
instance to arbitration, and to make it a prerequisite to an approach
to the Court for a final judgment that this should have happened.
While the arbitration is in progress, the Court is there whenever
needed to give appropriate directions and to exercise due
supervision... Arbitration itself is far from an absolute
requirement,
despite the contractual provision for it. If either
party takes the arbitrable disputes straight to Court, and the other
does not
protest, the litigation follows its normal course, without a
pause. To check it, the objector must actively request a stay of the
proceedings. Not even that interruption is decisive. The Court has a
discretion whether to call a halt for arbitration or to tackle
the
disputes itself. When it chooses the latter, the case is resumed,
continued and completed before it, like any other. Throughout,
its
jurisdiction, though sometimes latent, thus remains intact.
5
Given that the matter before the court is not whether the referral
of the applicant’s claim for damages should be stayed
pending
the outcome of the arbitration or whether there are special
circumstances which would justify the court exercising its
discretion “
to tackle the dispute
[s]
itself”
but that the applicants have seen fit to file a substantive
application for a declarator that the court has jurisdiction, the
question must be asked if it is necessary for the court to take
matter any further than to consider only the relief which the
applicants seek.
Neither party has offered any explanation why the applicants have
elected to proceed with this application or why the respondent
has
actively participated, albeit in opposition, in this application for
the declarators and has not raised the issue of its
application for
the applicants’ claim for damages to be stayed pending the
referral thereof to arbitration.
The specific nature of the applicants’ application for the
declarators cannot by any stretch of the imagination be deemed
to be
an application for the stay of the proceedings by the respondent
particularly in the light of the agreement between the
parties
recorded in the “practice note”. The respondent did not
challenge the court’s jurisdiction in its statement
of claim
in opposition. The first reference to jurisdiction is set out in the
pre-trial minute.
The fact that the applicants elected to file a separate and
substantive application for the declarators and that the relief
sought in prayer 3 appears at least at the outset to have been
relief consequential upon prayers 1 and 2 being granted, it is
abundantly clear that the parties were not engaged in an application
to stay the process as originally and correctly pleaded
by the
respondent.
Given the circumstances of this matter and the parties agreement to
approach the court on the question of jurisdiction it would
be
inappropriate to make an order of costs.
In the circumstances I make the following order:
The applicants’ application for the relief set out in prayers
1 and 2 of the notice of motion is postponed
sine die
;
The relief sought in prayer 3 of the applicants’ notice is
granted;
There is no order as to costs.
_______________
GUSH
J
Date of Hearing : 22 November 2010
Date of Judgment : 11 May 2011
6
Appearances
For the Applicant : Adv C Goosen
Instructed by : Van Gaalen Attorneys
For the Respondent: M Murphy: Edward Nathan Sonnenberg Inc
1
Act
97 of 1995.
2
Clause
19 of the applicant’s contract.
3
Act
42 of 1965
4
1980
(1) SA 301
(D).
5
At
page 305 E-H.
6
The
record of the hearing was requested soon after the hearing but for
technical reasons due in part to the noise caused by the
construction work being undertaken in the court building was only
transcribed on the 6
th
March 2011
9