IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO:146 1/2025
In the matter between:
SINENKANI FOOTBALL CLUB Applicant
and
SOUTH AFRICAN FOOTBALL ASSOCIATION 1st Respondent
ABC MOTSEPE LEAGUE, EASTERN CAPE
PROVINCE 2nd Respondent
THENJANA MBANGATHA 3rd Respondent
SIKELELA MTANGAYI 4th Respondent
ADVOCATE R MKHONTO 5th Respondent
FC RAVENS 6th Respondent
AMAVARARA FC 7th Respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] The sport of football , worldwide , places emphasis on rules and regulations that
govern its various aspects on and off the field of play. Such rules and regulations are
administered through a unique system of institutional structures . In the South African
context of the institutional hierarchy of football structures , the first responde nt, the South
African Football Association (SAFA) is the national administrative body that governs and
controls football .
[2] SAFA’s highest decision maker is the National Executive Committee, and the
Chief Executive Officer oversees its operations. Various officials acting in various
capacities are employed by SAFA. The fifth respondent is one of those officials and he
is SAFA’s legal officer .
[3] ABC Motsepe League, Eastern Cape Province (the second respondent or the
League) , which is a special member of SAFA , administers amateur football in the
Province of the Eastern Cape. The fourth respondent is the Executive Officer of the
second respondent. He is SAFA’s designated official. In the present case, he is the
official of SAFA who receiv ed and determined a complaint that the applicant filed with
SAFA within the scope of SAFA’s dispute resolution processes. The third respondent is
cited in these proceedings as the official of the first and second respondents serving as
a match commissioner and who i s listed in SAFA Referees’ Committee.
[4] Several football clubs are registered with the second respondent, as well as with
the first. The applicant and the sixth respondent are among the football clubs that are
registered with the first and se cond respondents, and they participate in the Men’s
Eastern Cape Province Inland stream of the League competition .
[5] In this application the applicant seeks , in the main, on urgent basis, an order that
the impending SAFA competition playoffs match between the sixth and seventh
respondents be interdicted ; and a review of two decisions that the fourth and fifth
respondents made, respectively, in the exercise of their public powers as SAFA Officials.
The third and fourth respondents made the said decis ions in connection with the
applicant’s complaint filed in terms of the SAFA Competition Rules (the complaint ). The
application is opposed by the second, third, fourth and sixth respondents only.
[6] The complaint was filed by the applicant with the first respondent following a
game it played and lost against the sixth respondent on 25 January 2025 in a
competition fixture of the League. The basis of the complaint was that the third
respondent , whom the first respondent appointed as the match commissioner, had a
direct or indirect connection with the sixth respondent, and this gave the sixth
respondent unfair advantage over it.
[7] SAFA has enacted regulatory instruments which bind its administrators , members
and affiliates alike, at local, provincial and national levels . Those are its Competitions
Uniform Rules (the Competition Rules) , Disciplinary Code and Regulations. The
Competition Rules make provision, inter alia, for the appointment of match officials and
match commissioners from time to time to oversee specific football matches. They also
make provision for dispute resolution in cases of disputes arising in the cou rse of or in
connection with SAFA competitions.
[8] Competition Rule 17 provides for a five -tiered process of dispute resolution,
namely, protests; complaints; dispute resolutions; appeals and arbitrations which are
monitored by officials that SAFA design ates. In terms of Rule 19.1 a team that has not
lodged a protest in respect of a game in which it participated, may lodge a complaint
with the League, in respect of any act of misconduct or offence allegedly committed.
[9] In the complaint, the applicant c ontended that the third respondent’s appointment
offended SAFA Competition Rule 30.1 which reads:
“The Chief Executive Officer or the designated SAFA Official will appoint match
commissioners (who shall not be connected directly or indirectly to any
participating team), from a list to be provided by the relevant referees Committee
from time to time for specific games.”
[10] The competitions of the League are played seasonally in streams that are
determined according to the geographical area and in accordance with various t echni cal
rules. The se rules, in turn, determine the relegation and promotion of football teams
across various echelons of the SAFA Comp etition Leagues. The second respondent is
constituted of the Inland and Coastal streams of football competitions. The winner of the
League is determined in the playoff s between the Inland and Coastal streams of the
league and would qualify to participate i n the SAFA National First Division. SAFA
determines competition fixtures.
[11] In the present case, SAFA has determined that the sixth and seventh
respondents would contest the title of the League winner in the playoffs that would take
place on 11 April 2025.1 Below I set out the factual background to this application.
The factual background
[12] On 25 January 2025 at Mphuthumi Mafumbatha Stadium in Mbizana, the
applicant and the sixth respondent play ed the last football match in the second
respondent’s Inland stream (the match) with the sixth respondent as the host team .
When t he sixth respondent won the match , it earned three points which placed it in the
1 Even though on the applicant’s version the date of the playoffs has been determined as 11 April 2025, at
the hearing of the application the parties made common cause of the fact that the playoff s will be held on
11 or 12 April 2025.
first position o n the League table with a total of 36 points. Second to the sixth
respondent was the applicant with 35 points.
[13] The sixth respondent’s victory rendered it eligible to contest the title of the
League winner in the already mentioned playoffs where it would play against the
seventh respondent which participates in the Coastal stream of the League . The winner
of the playoffs would in turn earn a spot in the National First Division of SAFA for the
season opening in July 2025.
[14] After the match of 25 January 2025 , and at the emergence of allegations that the
third respondent is the biological father to one Mr Ntando Mbangatha, a member of the
sixth respondent who participated in the match, the applicant filed a complaint with the
first respondent in terms of Competition Rule 19 .1, in which it contended that the fir st
respondent violated the provisions of Competition Rule 30.1 .
[15] In a letter to the applicant dated 06 February 2025 titled “dismissal of a complaint
by Sinenkani FC” , the fourth respondent wrote the following:
‘This communication refers to the complaint lodged by Sinenkani FC dated 30
January 2025.
Unfortunately, the complaint has been deemed to be non -compliant due to the
following reasons:
1. Provisions of rules 19.3, 19.4, and 19.5.
Therefore, provision 19.6 ha s been invoked, the complaint fee will be returned in
the earliest convenience (sic).
Please if you feel any form of injustice about the decision, please feel free to
lodge an appeal.
Also be advised that all appeals shall go straight to arbitration.’
[16] Upon receiving this outcome of the complaint, and on 13 February 2025, the
applicant filed an appeal with the fi rst respondent against the dismissal of its complain t
by the fourth respondent . In the appeal it stated the following:
(a) The appointment of the third respondent as match official despite him
being the father of Ntando Mbangatha offended Rule 30.1 of the
Competition Rules.
(b) The complaint in this regard was filed within the period prescribed by
Competition Rule 19.1.
(c) The fo urth respondent’s response to the complaint falls foul of the dispute
resolution process set out by SAFA in its Competition Rules in that there
was no objective, independent disciplinary committee of SAFA who
presided over the complaint.
(d) The fourth re spondent had no capacity to preside over the complaint as he
did, as such, his conduct deprives it of justice rendering the complaint as
good as unattended.
[17] In response, the fifth respondent as SAFA’s designated official wrote to the
applicant on 17 March 2025 as follows:
“Please take note that Article 19.5 of SAFA Competition Rules states that the
complaint must not be made against the referee and/or assistant referee’s
decisions connected with play in any game, except if the complaint contains an
allegation of corruption.
Please take further notice that Mr Sikelela Mtangayi dismissed it based on the
SAFA Rules and Regulations. We therefore cannot put this matter before the
Arbitration Tribunal.”
[18] This response was followed by a letter from the applicant ’s legal representatives
dated 17 March 2025 and addressed to the Chief executive Officer of the first
respondent in which it challenged the fifth respondent’s response stating that he lacked
the necessary jurisdiction to determine the complaint as he did. The applicant’s legal
representatives persisted with the request that the applicant’s complaint be placed
before the Arbitrat ion Tribunal and demanded a reply to the correspondence by close of
business on 17 March 2015 failing which litigation would ensue in order to protec t the
applicant’s rights.
[19] It was on 25 March 2025 that the first respondent’s Chief Executive Officer wrote
to the applicant requesting it , inter alia, to choose , by close of business on that day , an
Arbitrator in terms of Article 81.4 of the SAFA Disciplinary Code . This letter attracted no
response from the applicant, and on 26 March 2025 at 16h58, the a pplicant served this
application on the respondents per electronic mail (email) and subsequently through the
Sheriff on 26, 27 and 31 March 2025 , respectively .
The application
[20] The application served before me on 01 April 2025 , and on this day , it was
postponed to 02 April 2025 for final determination . This was done in order to allow
further filing of papers by the parties as it appeared on 01 April 2025 that the application
had become opposed.
[21] It is necessary, for reasons that will become cle ar later on in this judgment , that I
reproduce, in part, the notice of motion in which the relief that the applicant seeks is set
out. That relief is set out as follows:
“2. That the match scheduled to play on 11 April 2025 between the sixth and
seventh r espondents is interdicted pending the determination of
paragraphs 3, 4, 5.1, 5.2 and 5.3 below.
3. Declaring the decision of the fourth Respondent dated 06 February 2025
that dismissed the applicant’s complaint to be invalid, unlawful,
unconstitutional and in violation of Rules 19.7; 19.7.1; 19.7.2; and 19.8 of
the SAFA Competition Uniform Rules and section 33(1) of the Constitution
of the Republic of South Africa Act No. 108 of 1996.
4. Declaring the decision of the Fifth Respondent da ted 17 March 2025 that
refused the Applicant’s appeal and arbitration as being invalid, unlawful,
unconstitutional and in violation of Rules 25(1) and (3) of the SAFA
Competition Uniform Rules and section 33(1) of the Constitution of the
Republic of South Africa Act No. 108 of 1996.
5. The above two decisions are reviewed and set aside and replaced with
the following orders:
5.1 The First Respondent is found to be in violation of Rule 30(1) of the SAFA
Competition Uniform Rule s by having appointed the Third Respondent ,
who accepted the appointment for being a match commissioner in a match
the Applicant and the Sixth Respondent played on 25 January 2025, while
the Third Respondent’s son was on the team list for and played for FC
Ravens, is hereby declared voi d ab initio, invalid and unlawful.
5.2 The First Respondent is directed to suspend the Third Respondent for the
period to be determined by the First Respondent in terms of Rule 19.11.5
of the SAFA Competition Uniform Rules; and
5.3 Ordering the Sixth Resp ondent to forfeit the three points which it was
awarded in the match played between the Applicant and Sixth Respondent
on 25 January 2025 in terms of the SAFA Competition Uniform Rules.
6. The First Respondent is directed to update the league standing of the ABC
Motsepe League Eastern Cape Inland Stream within two days after this
order.
7. The first Respondent is directed to announce a date within two days after
having updated the league standing of the ABC Motsepe League Eastern
Cape Inland Stream, for t he decider between the Inland and Coastal
Streams, to be played within 14 days from the date of this order. . .”
[22] In what follows I set out the facts on which the applicant relies in support of this
application.
The applicant’s case
(a) Urgency
[23] In short, the applicant alleges that the matter is urgent as it relates to a crucial
legal interest – its standing in the already closed League. It further states that the first,
second, fourth and fifth respondents have deprived it of its ri ght of recourse to SAFA’s
internal dispute resolution processes. According to the applicant, the sixth respondent ’s
victory came about as a result of an irregularity and unlawfulness that occurred when
the third respondent was appointed as match commission er in the already mentioned
circumstances .
[24] The applicant goes on to state that its attempt on 17 March 2025, to request that
dispute be redirected to arbitration as a way of preventing any injustice to it proved
futile. Furthermore that, the playoffs fixture was determined by the second respondent
on 24 March 2025 . Therefore, it had no other available recourse except the launching of
these proceedings. It rejected the first respondent’s invitation to appoint an arbitrator as
it view ed it as a reaction to the stance it took when it launched this appl ication, and a
mala fide attempt to prevent it from seeking recourse in this Court . The lack of bona
fides on the first and second respondent, says the applicant, is also implicit from their
failure to make an undertaking that the playoffs scheduled for 11 April 2025 will be
suspended pending the determination of the dispute by the Arbitration Tribunal.
[25] The applicant further states that it will not be afforded substantial redress at the
hearing of the application in due course, and it will be prejudiced should the sixth
respondent be permitted to contest the Provincial League title against the seventh
respondent. It will have lost the opportunity to ventilate its complain t; the opportunity to
contest the title of the League winner at the playoffs ; and the opportunity to participate
in SAFA’s First National Division.
(b) The interdictory relief
[26] The app licant states that on the same grounds on which it relies to support the
urgency of the application, it has established the requirements for the granting of the
interdict it seeks. This averment is couched in paragraph 10.1 of the applicant’s
founding affi davit as follows :
“The requirements for interim interdict have been satisfied on the facts set out
and discussion . above. To avoid repetition, each requirement will not be dealt
with under separate topic. The facts and discussion should be considered as a
whole.”
(c) The substitutory relief
[27] The deponent of the applicant’s founding affidavit alleges that subsequent to the
emergence of the allegation that the third respondent is the father to Mr Ntando
Mbangatha, he conducted a ful l investigation which confirmed the relationship. The
grounds on which the applicant relies in seeking the substitutory relief can conveniently
be summarized as follows:
(i) The third respondent, by virtue of being the biological father of Mr Ntando
Mbanga tha who played for the sixth respondent in the match of 25
January 2025, was directly or indirectly connected to the sixth respondent,
and should not have been appointed as the match commissioner.
(ii) The third respondent had an ethical duty to disclose to the first and
second respondents his relationship with the already mentioned player to
avoid a violation of Rule 30.1 of the SAFA Competition Rules. The first and
second respondents’ conduct in appointing the third respondent as match
official contravened the already mentioned Rule 30.1, and consequently, it
invalidated the outcome of match. This is so, the applicant says, because
the sixth respondent obtained unfair advantage due to the relationship
between the third respondent and the team mem ber of the sixth
respondent, Mr Ntando Mbangatha.
(iii) Despite its compliance with the first respondent’s complaint procedure, the
applicant’s complaint was improperly determined. The fourth respondent
had no jurisdiction to dismiss the complaint as no s uch powers are
conferred on him by Rule 19.6 in terms of which he purportedly dismissed
it. He dismissed the complaint on irrelevant grounds.
(iv) The fourth respondent failed to invite the third respondent to respond to
the allegat ions of his relationship with Mr Ntando Mbangatha, and he
failed to refer the matter to the disciplinary hearing.
(v) The fifth respondent also incorrectly dismissed the complaint on irrelevant
grounds when he relied on Rule 19.5. By refus ing to refer the complaint to
the Arbitr ation Tribuna l, he wrongly constituted himself the appeal and
arbitration tribunals concurrently, whereas the Competitions Rules make
provision for the hearing of appeal by an appeals committee and a further
by the Arbitration Tribunal. When he did so, he deprived the applicant of
the right to have the complaint ventilated before at the disciplinary hearing.
The case for the second to fourth respondents
[28] In opposing the application, the second to fourth respondents raised three point s
in limine, namely, that this Court has no jurisdiction to hear this application as the
applicant has not exhausted the SAFA internal remedies available to it ; lack of urgency ;
and failure to establish the requirements for the granting of an interdict.
[29] Regarding the point in limine of lack of jurisdiction, the second to fourth
respondents contend that the decision of the fourth respondent was ‘corrected’ by the
first resp ondent in the letter in which the applicant was invited to appoint an arbitrator of
its choice who would determine the complaint in the Arbitration Tribunal.
[30] In refuting the urgency contended for by the applicant, the second to fourth
respondents sta te that the applicant ought to have brought the application on 17 March
2025 upon receipt of the decision of the fifth respondent, and to the extent that it
delayed in launching these proceedings, the urgency it now asserts is self -created.
[31] As regard s the applicant’s failure to satisfy the requirements for the grant of an
interdict, the second to fourth respondents contend that the applicant has not proved
that it will suffer irreparable harm if the interdict it seeks is not granted. In this regard,
they further state that beyond the result of the match of 25 January 2025 , the applicant
has no entitlement to any further recourse as it did not play the match under protest.
This means that there is no irreparable harm facing the applicant. According to the
second to fourth respondents, had the applicant played the match under protest, it
would be entitled to a reversal of the match result upon due process being followed.
[32] In support of the contention that the applicant has other satisfactory remedy
available to it, the second to fourth respondents state the first respondent opened the
avenue of arbitration by inviting the applicant to appoint an arbitrator of its choice .
Therefore, the applicant has no entitlement to the interdictory relief it seeks as there still
remains the avenue of arbitration as an alternative remedy .
[33] On the merits of the review application, and without specifically denying that
there is a father -and-son-relationship between the third respondent and Mr Ntando
Mbangath a, the second to fourth respondent s state that the applicant has failed to
establish how the alleged relationship influenced the outcome of the match; and how it
gave the sixth respon dent unfair advantage. In this regard, they further contend that the
third respondent’s role was , in any event , a preparatory one having no influence on the
play in the game between the applicant and the sixth respondent.
[34] Further, according to the second to fourth respondents, the applicant has failed to
establish the dispensation in terms of which it claims that the sixth respondent ought to
forfeit the three points it earned upon winning the match. On this score, they con tend
that the match between the two teams was played in a fair manner, and the alleged
relationship between the third respondent and Mr Ntando Mbangatha had no influence
on the sixth respondent’s victory.
The case for the sixth respondent
[35] Similar to the second to fourth respondent, the sixth respondent raised the
already mentioned points in limine.
[36] According to the sixth respondent, the urgency with which this application has
been brought is self -created. This is so, it says , because the applicant had an option,
upon the redirection of the complaint to the Arbitration Tribunal by the first respondent in
the lette r dated 25 March 2025, to request that the playoffs be suspended pending the
determination of their complaint by the Arbitration Tribunal. The applicant elected to
ignore the first respondent’s invitation to appoint an arbitrator.
[37] The sixth responden t further states that the applicant has failed to establish that it
will not attain substantial redress at the hearing of the application in due course for the
same reason that it had an option to request that the first and second respondent s
suspend the p layoffs.
[38] As regards the interdictory relief, the sixth respondent states that the applicant
has failed to prove that it will suffer irreparable harm if the interdict is not granted. In
making this assertion, the sixth respondent relies on the fact th at the applicant has an
available satisfactory remedy in the form of the arbitration avenue that the first
respondent opened by its letter dated 25 March 2025.
[39] On the merits of the review relief, the sixth respondent contends that the first
responden t revoked the fifth respondent’s decision dated 17 March 2025 , and it was
entitled to do so since the fifth respondent did not have the competence to decide the
appeal as he did. The sixth respondent states that t here is, therefore, no decision to be
revie wed, and in any event, the applicant’s complaint was correctly determined .
[40] Regarding the fifth respondent’s letter dated 17 March 2025, the sixth respondent
states that it did not convey a dismissal of the applicant’s appeal but merely made
reference to the fact that the complaint was dismissed by the fourth respondent due to
its non -compliance with the relevant Competition R ules.
[41] The chairman of the sixth respondent and deponent of its answering affidavit
denies knowledge of the alleged relatio nship between Mr Ntando Mbangatha and the
third respondent. He further states that there is, in any event, no direct or indirect
connection between the third respondent and the sixth respondent, a nd no unfair
advantage was gained by the sixth respondent from the third respondent’s appointment
as match commissioner. According to the sixth respondent, Competition Rule 30.1
refers to a connection with the football team and not its individual members. In tandem
with this contention, the sixth respondent states that Mr Ntando Mbangatha ought to
have been joined in these proceedings in order to refute or confirm the allegations that
he is the third respondent’s biological son.
The applicant’s reply to the opposition
[42] In reply to the second to fourth respondents’ answering affidavit, the applicant
states, in the first instance, that the deponent of their answering affidavit has no
authority to depose to the answering affidavit on behalf of the first re spondent. Relying
on article 35.1 of the SAFA Statutes,2 which deals with authority to litigate on behalf of
SAFA, the applicant contends that the deponent of the second to fourth respondents’
answering affidavit has no authority to litigate on behalf of SAFA.
[43] I must interpose to mention that attorneys representing the second to fourth
respond ents delivered a notice of filing by which they filed the answering affidavit of the
said respondents. That being so, the title of the answering affidavit indicated that it was
the first to fourth respondents’ affidavit. At the hearing of the application, I invited Mr
Baceni who appeared for the second to fourth respondents to cl arify the position. He
submitted that the answering affidavit was erroneously titled that way. That this must be
so, was also accepted by Mr Vobi who represented the applicant, and Mr Skoti who
represented the sixth respondent. In order to avoid any further delay in the hearing of
the application, no supplementary affidavit was deemed necessary to cure the defect.
With this said, it is instructive to re -state the legal position rega rding the issue that the
applicant raised. I do so below in brief terms.
[44] A party who wishes to challenge another party’s authority to institute proceedings
or oppose them must do so in terms of Rule 7(1) of the Uniform Rules of Court which
provides:
‘Subject to the provisions of sub rules (2) and (3) a power of attorney to act need
not be filed, but the authority of anyone acting on behalf of a party may, within 10
2 SAFA Statues – Last amended by SAFA Ordinary Congress on 26 March 2022.
days after it has come to the notice of a party that such person is so acting, or
with the leave of the court on good cause shown at any time before judgment, be
disputed, where after such person may no longer act unless he satisfied the court
that he is authori zed so to act, and to enable him to do so the court may
postpone the hearing of the action or application.’
[45] No such notice in terms of Uniform Rule 7(1) was delivered. I emphasize that i t is
not with the authority to depose to an affidavit that Rule 7 (1) relates . A deponent to an
affidavit does not require authority to depose to an affidavit in motion proceedings .3
[46] The applicant further states that since the second to fourth respondents did not
specifically admit or confirm the existence of a father -and-son-relationship between the
third respondent and Mr Ntando Mbangatha, the allegation it makes in that regard must
be taken as being admitted. It further states that the incompetence of the fourth
respondent in dealing with its complaint, and his failure to appreciate the spirit and
purport of the Competition Rules is the reason why this Court should intervene and
grant the relief that it seeks.
[47] Other than the foregoing, the applicant persisted in its replying affidavit with the
contentions it made in the founding affidavit in support of the relief it seeks. It denies
that it precipitately approached this Court a nd that there existed an avenue to determine
the complaint.
[48] The applicant makes the following principal contentions in reply to the sixth
respondent’s answering affidavit: it is incorrect that the first respondent was entitled to
revoke the decision of the fifth respondent. In law, an administrative decision stands
until it is set aside by way of judicial review. The letter dated 17 March 2025 that it wrote
to the first respondent requesting that the complaint be redirected to arbitration did not
3 Ganes and Another v Telecom Namibia Ltd. (608/2002) [2003] ZASCA 123; [2004] 2 All SA 609 (SCA)
(25 November 2003), at 615, para 19.
alter this legal position. The decisions of the fourth and fifth respon dents stand, and
therefore, no internal remedy existed for the applicant to explore.
[49] The first hurdle that the applicant must surmount is that of satisfying this Court
that this application warrants being heard on urgent basis. It is to this issue th at I now
turn.
Urgency
[50] A determination of urgency in application proceedings entails the question
whether the applicant will be afforded substantial redress at the hearing of the matter in
due course.4 Uniform Rule 6(12) provides:
“(a) In urgent applications the court or a judge may dispense with the forms and
service provided for in these Rules and may dispose of such matter at such time
and place and in such manner and in accordance with such procedu re (which
shall as far as practicable be in terms of these Rules) as to it seems meet.
(b) In every affidavit or petition filed in support of any application under paragraph
(a) of this subrule, the applicant shall set forth explicitly the circumstances wh ich
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.”
[51] The facts of each case determine whether the applicant will be afforded
substantial redress at the heari ng in due course. In the present case, on 06 February
2025, it was still open to the applicant to explore the next internal remedy of an appeal
against the decision of the fourth respondent. A litigant cannot be penalized for
attempting to resolve the disp ute before instituting court proceedings.5 Even though the
4Luna Meubels Vevaarrdigers (Edms) BPK v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135
(W); East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011).
5 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at 94C -D.
applicant filed its appeal on 13 February 2025, it was only on 17 March 2025 that the
fifth respondent made a decision on the appeal. The first respondent’s letter inviting the
applicant to choose an arbitrator came about on 25 March 2025. The contention t hat
there was a delay in the launching of this application and that urgency that the applicant
contends for is self -created cannot be sustained .
[52] The applicant has established that it will not obtain substantial redress at the
hearing of this application in due course – the playoffs scheduled to take place on 11 or
12 April 2025 would have come to pass, and it would have lost the o pportunity to
contest the title of the League winner and be eligible to participate in the SAFA’s First
National Division. In any event, this Court is clothed with the discretion to resolve a
dispute speedily where the circumstances of the case demand. Th is is one such matter.
Form must not be allowed to trump substance. I am therefore satisfied that the matter
is sufficiently urgent.
The points in limine
[53] The point in limine regarding the availability of a suitable alternative remedy in
relation to the interdictory relief that the applicant seeks is inextricably linked to the point
in limine regarding the applicant’s failure to exhaust internal remedies bef ore seeking
the review , and the question whether the letter of the first respondent dated 25 March
2025 constituted a valid act of revocation of an administrative decision. It is convenient
to deal with these three issues simultaneously when it will be mea ningful for me to do so
later on in this judgment . First to be discussed is the point in limine that the applicant
has failed to establish that it will suffer irreparable harm if the interdict is not granted.
Irreparable harm
[54] In this regard, the appl icant must establish a reasonable apprehension of injury in
that a reasonable person faced with the same facts would entertain such apprehension
of injury. While the applicant is not required to prove that on a balance of probabilities of
undisputed facts he will suffer harm, he must show that objectively his fear of harm is
well grounded in the sense that it is reasonable to apprehend that injury will result.6 It is
not in dispute that the date determined for the playoffs has not been reversed by the
first and second respondent s. The applicant’s assertion that it will lose an opportunity to
contest the provincial title which is a precursor to a spot in SAFA’s N ational First Division
must prevail. This point in limine is accordingly dismissed .
The non -joinder of Ntando Mbangatha
[55] Even though the non -joinder of Mr Ntando Mbangatha was not pertinently raised
in the sixth respondent’s papers as a point in limine, it is necessary that I deal with it at
this point. A party should be joined in legal proceedings if an order of the court cannot
be sustained or carried into effect without prejudicing that party, unless the court is
satisfied that the party has wa ived its right to be joined.7 In Absa Bank Ltd v Naude NO8
it was held:
‘[10] The test whether there has been non -joinder is whether a party has a direct
and substantial interest in the subject matter of the litigation which may prejudice
the party that has not been joined. In Gordon v Department of Health, Kwazulu -
Natal it wa s held that if an order or judgment cannot be sustained without
necessarily prejudicing the interest of third parties that had not been joined, then
those third parties have a legal interest in the matter and must be joined.’ (foot
notes omitted)
6 Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining Co Ltd 1961 (2) SA 505 (W)
at 515; Minister of Law and Order and Others v Nordien and Another 1987 (2) 894 (AD) at 896F -I and all
authorities cited therein; National Council of Societies for the Prevention of Cruelty to Animals v
Openshaw (462/07) [2008] ZASCA 7 8; [2008] 4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) (30 May 2008),
para 21.
7 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 659; BoE Trust Ltd NO
and Another (in their capacities as co -trustees of the Jean Pierre De Villiers Tru st 5208/2006) (846/11)
[2012] ZASCA 147; 2013 (3) SA 236 (SCA) (28 September 2012), para 20; Road Accident Fund v The
Legal Practice Council and Others (58145/2020) [2021] ZAGPPHC173; [2021] 2 All SA 886 (GP); 2021
(6) SA (GP) (9 April 2021); para 9.
8 Absa Bank Ltd v Naude NO (20264/2014) [2015] ZASCA; 2016 (6) SA 540 (SCA) 97 (1 June 2015).
[56] And, in Judicial Service Commission and Another v Cape Bar Council and
Another9, the court held:
‘It has now become settled law that the joinder of a party is only required as a
matter of necessity - as opposed to a matter of convenience - if that party has a
direct and substantial interest which may be affected prejudicially by the
judgment of court in the proceedings concerned. The mere fact that a party may
have an interest in the outcome of the litigation does not warrant a plea of non -
joinder...’10
[57] No substantial relief is sought against Mr Ntando Mbangatha as an individual.
The football club for which he played on 25 January 2025 , and which will be adversely
affected by the relief that the applicant seeks is a party to these proceedings cited as
the sixth respondent. It was not necessary to join Mr Ntando Mbangatha in these
proceedings. The point of law of non -joinder cannot be sustained. I turn to deal with the
merits of the review.
The parties’ submissions
[58] Regarding the interdictory relief , Mr Vobi submitted that from the fact that the
applicant stands to lose an opportunity to contest the title of the League winner and of
participating in the First National Division of SAFA; together with the fact that the door to
the ventilation of its co mplain at arbitration was closed by the fifth respondent, the
applicant has established the requirements for the granting of an interim interdict.
[59] As regards the review relief, Mr Vobi submitted that from the abundance of case
law,11 the decisions of the fourth and fifth respondents are administrative action which is
susceptible to review. In this regard, he submitted that the applicant brings this review
9 2013(1) SA 170 (SCA) at para 12; Bowring NO v Vredersdorp Properties CC 2007 (5) SA 391 (SCA).
10 Op cit, para 12.
11 Ndoro and Another v South African Football Associ ation and Others (16/16836) [2018] ZAGPJHC 74;
[2018] 3 All SA 277 (GJ); 2018 (5) SA 630 (GJ) (24 April 2018) (Ndoro ); Ajax Cape Town Football Club
and Another v Mokhari NO and Others (18413/2018) [2018] ZAGPJHC 435 (2 July 2018) (Ajax), para 29.
on urgent basis in terms of the Promotion of Just Administrative Justice Act 3 o f 2000
(PAJA ). The reviewability of the two decisions, so the submission went, arises from the
fact that the applicant was not afforded a hearing as the complain t was not adjudicated
in accordance with the mandatory provisions of Competition Rule 19. Furth ermore, the
fourth respondent did not have the powers to dismiss the complaint, he failed to follow
the process set out in Competition Rule 19 .7 and 19.8.
[60] Further according to Mr Vobi, if regard is had to the need to maintain the integrity
of the game of football, Rule 30.1 of the Competition Rules required that a match
commissioner be some one in respect of whom there would be no perception of bias,
and since in this case the third respondent is the father of a team player of the sixth
respondent, he h ad an indirect or direct connection with the sixth respondent.
[61] Dealing with the purported revocation of the fifth respondent’s decision by the
first respondent, Mr Vobi submitted that in terms of the law as it stands that revocation is
invalid , and the decision ha s a binding effect by reason of factual existence until a court
of law sets them aside.
[62] Mr Skoti who represented the sixth respondent, submitted that nowhere in its
founding papers has the applicant made a case for the interdict ory relief it seeks. He
refuted the notion that the interdictory relief that the applicant seeks is consequential
upon the urgent review relief sought. He further submitted that the declaratory relief that
the applicant seeks stands as the main relief on its own and must therefore be
determined in accordance with the provisions of the law regarding the court’s powers to
grant a declarator.12
[63] According to Mr Skoti , the review application must be treated as being brought
under the principle of legality. It was his view in this regard that no grounds of review
12 Reference was made in the sixth respondent’s heads of argument to JT Publishing (Pty) Ltd v Minister
of Safety and Security [1996] ZACC 23; 1977(3) SA 514 (CC at 525, para 15; Reinecke v G eneral
Insurance Ltd 1974 (2) SA 84 (AD) at 95; Adbro Investment Company Ltd v Minister of the Interior 1961
(3) SA 283 (T) at 285B -D.
under PAJA have been set out in the applicant’s founding papers. Mr Skoti further
submitted that the first res pondent acted correctly in revoking the decision of the fifth
respondent , and this finds support in the applicant’s own request dated 17 March 2025,
that the complain t be redirected to arbitration. He further submitted on this score, that
the applicant’s r esort to these proceedings is disingenuous , and it is an act of abuse of
the process of this Court.
[64] Mr Baceni who represented the second to fourth respondents, indicated that he
joined hands with Mr Skoti in the submissions he made on behalf of the sixth
respondents. It was his submission , on the other hand, that in law, the applicant’s
request dated 17 March 2025 for the redirection of the complai nt had no effect and was
in fact legally incorrect. As for the act of revocation of the fifth respondent’s decision by
the first respondent, Mr Baceni submitted that the purported revocation is inconsistent
with the law.
The law
[65] An applicant for an interim interdict must establish three requisites, all of which
must be proven, namely, a prima facie right which it seeks to protect by means of the
interdict; actual injury or a well -grounded apprehension of injury if the interdict sought is
not granted; and tha t there is no other alternative appropriate relief available to it. The
court will also consider whether the balance of convenience favours the grant of the
interdict. This is settled law.13
[66] In determining what an appropriate alternative remedy is, th e circumstances of
each case must be considered. In Hotz and Others v University of Cape Town14, the
following was said of the requisite of absence of an alternative remedy:
13 Setlogelo v Setlogelo 1914 AD 221 at 227.
14 Hotz and Others v University of Cape Town (730/2016) [2016] ZASCA 159; [2016] 4 All SA 723 (SCA);
2017 (2) SA 485 (SCA) (20 October 2016).
‘[T]he existence of another remedy will only preclude the grant of an interdict
where the proposed alternative will afford the injured party a remedy that gives it
similar protection to an interdict against the injury that is occurring or is
apprehended. . . The fact that one of the parties, or even the judge, may think
that the problem would be better resolved, or can ultimately only be resolved, by
extra -curial means, is not a justification for refusing to grant an interdict.’15
[67] A party who is aggrieved by i mproper performance of an administrative function
is entitled to ap propriate relief. Section 8 of PAJA sets out a wide range of just and
equitable remedies that may be granted to a party. These include declaratory orders,
orders setting aside the administrative action, orders directing the administrator to act in
an appro priate manner and orders prohibiting him or her from acting in a particular
manner. An order substituting or varying the administrative action or correcting a defect
resulting from the administrative action is among the list of the said just and equitable
remedies but it will be granted in exceptional circumstances.
Discussion
[68] Before I deal with the merits of the application, it bears mentioning that the relief
that the applicant seeks has not been set out with the required precision and clarity. On
a cursory reading of the notice of motion, the applicant purports that the interdictory
relief is sough t pending the determination , at a later stage, of the review relief. Yet, there
is no indication in the notice of motion of the time when the review relief is to be
determined. This point was correctly raised by Mr Skoti . Mr Vobi submitted that the
interim relief was sought only in the event that the review relief would not be adjudicated
upon instantaneously.
[69] Suffice it to state that if the applicant was minded to have the review application
determined in due course, the appropriate course would have been to bring the
application in two parts, the first being the interdictory relief pending the determination of
15 Op cit , para 36.
the second part , the review relief ,16 on a date that the Registrar would arrange.
Alternatively, the applicant could have sought the interdict ory relief as an order
consequent upon review.17 That being so, on the date of hearing, the parties argued the
entire application as set out in the notice of motion. I must therefore make an
appropriate order on the issue s delineated as they arise from the entirety of the
application.
PAJA or legality r eview?
[70] Whether the review sought by the applicant was founded on legality or was
brought in terms of PAJA was strenuously contested between the applicant and the
sixth respondent. Mr Vobi persisted with the contention that the urgent review was
brough t in terms of PAJA.
Mr Skoti took the view that absent specific mention in the applicant’s founding papers of
the provision s of PAJA in terms of which the review is brought, it cannot be said that the
review was brought under PAJA.
[71] It is so that a review, whether founded on the right to just administrative action
enshrined in section 33 of the Constitution, or the common law , must be brought in
terms of PAJA and the Uniform Rules of Court. In Minister of Health and Another NO v
New Clicks So uth Africa (Pty) Ltd and Others (Treatment Action Campaign and Another
as Amici Curiae) ,18 Chaskalson CJ (as he then was) put it this way:
‘[95] PAJA is the national legislation that was passed to give effect to the rights
contained in section 33. It was clearly intended to be, and in substance is, a
codification of these rights. It was required to cover the field and purports to do
so.
16 See for example Pikoli v President of the R epublic of South Africa 2010 (1) SA 400 (GNP); Corium Ltd
v Myburgh Langebaan (Pty) Ltd 1993( 1) SA 853 (C).
17 Section 8 (1) and (2) of PAJA.
18 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) [2005]
ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) (30 September 2005) (“New Clicks”).
[96] A litigant cannot avoid the provisions of PAJA by going behind it, and
seeking to rely on section 33(1) of the Constitution or the common law. That
would defeat the purpose of the Constitution in requiring the rights contained in
section 33 to be given effect by means of national legislation. ’
[72] Sight must not be lost of the fact that urgent proceedings are bound to be less
than perfect owing to the haste with which they are invariably brought . It is for this
reason that the court should eschew a formalistic approach which sets great store in
form rather than substance. The notice of motion an d founding papers do not make
reference to a specific provision of PAJA in terms of which the applicant brings the
review. However, a proper reading of the notice of motion as reproduced elsewhere in
this judgment, and the founding papers , suggests , withou t any room for doubt , that the
applicant brought the review in terms of PAJA. This brings me to the merits of
application , and for convenience I start with the review .
The merits of the review application
[73] There is no controversy between the parties regarding the fact that the fourth and
fifth respondents were performing a public function when they determined the
applicant’s complaint at the respective stages.19 A contention was made on behalf of the
sixth r espondent that the fifth respondent did not dismiss the applicant’s appeal . This
contention is belied by the assertion that the sixth respondent makes in its answering
affidavit that the first respondent subsequently revoked the decision of the fifth
respo ndent by opening the avenue of arbitration in the letter dated 25 March 2025 .
[74] Much was made of the first respondent’s revocation of the fifth respondent’s
decision dated 17 March 2025 . While I accept that under common law revocation of an
administrat ive decision is permissible in instances such as when the administrator
19 Ndoro; Ajax, footnote 11 supra.
lacked jurisdiction to make the decision, this position seems to clash with the position
under the Constitution.
[75] It is by now trite that administrative decisions, until set aside by a court, exist in
fact and have legal consequences. Hence, there is a need to have recourse to a
procedure that may expeditiously set aside unlawful administrative action.20 The
reasons are not far to seek – revocation powers would breed arbitrariness. Khampepe J
who wrote for the majority in Department of Transport v Tasima,21 held as follows:
‘Our Constitution confers on the court the role of the arbiter of legality. Therefore,
until a court is appropriately approached and an allegedly unlawful exercise of
public power is adjudicated upon, it has binding effect merely because of its
factual existence.’
[76] Therefore, the revocation contention cannot be sustained. Mr Baceni conceded
on behalf of the second to fourth respondents that the re could not have been room for
such revocation , and the fact that the applicant itself requested a redirection of its
complaint to arbitration does not alter this position. This concession was well made. The
decision of the fifth respondent remains extant . From this finding, it ought to follow that
the applicant exhausted the internal remedies that were available to it in terms of the
SAFA Competition Rules .
[77] The corollary is that there was no other alternative suitable remedy available to
the applica nt when he brought this application. Therefore, the contention that the
applicant is not entitled to the interdictory relief it seeks must also fail. This then
address es the two points in limine that the applicant has not exhausted internal
remedies and has available to him a suitable alternative remedy.
20 Oudekraal Estates (Pty) Ltd v City of Cape Town [2004] ZASCA 48; 2004 (6) SA 222 (SCA) at para 26.
21 2017 (2) SA 622 (CC), para 147.
[78] The question that follows is whether as contended by second to fourth
respondents and the sixth respondent, the fo urth and fifth respondents acted lawfully in
making the decisions that they made. The starting point is a proper characterization of
the applicant’s complaint.
[79] The essence of the complaint is that the decision to appoint the third respondent
as match commissioner fell afoul of the already quoted Competition Rule 30.1. For ease
of comprehension of this aspect, this is the content of the complaint that the applicant
filed with the f irst respondent on 25 January 2025:
‘1. Subject bears reference.
2. This communique serves to Appeal the decision taken by SAFA EC on a
complaint we lodged against SAFA Official/Match commissioner for a
game between FC Ravens and Sinenkani FC on the following grounds: -
2 .1 The Match Commi ssioner that was ap pointed by SAFA designated official
Mr Thenjana Mbangatha is the father of one of the home team’s (FC
Ravens) players, Mr Ntando Mbangatha.
2 .2 The presence of SAFA Official/Match commissioner offended Rule 30.1 of
the SAFA Competition Uniform Rules.
2 .3 The complainant met the requirements of rule 19 and was lodged within
the prescribed time limit.
3. The response dated 06 February 2025 entitled “Dumisani of a complaint
by Sinenkani FC” raises a sense of shock in that, there is no independent
committee of SAFA in the form of disciplinary committee that presided
over our complaint but instead the same person who deployed the
impugned deployment of an official decided the complaint. This is a clear
violation of the rules.
4. The EC PEO has no capacity to preside over the complaint he has
committed. This conduct does not bring justice any closer to the affected
party, Sinenkani SC. Our complaint remains unattended.
5. We believe that this is a very serious matter as it had a bearing on the
status of the match official in question and should have been received and
attended with the urgency and seriousness on the part of (SAFA EC),
having appointed suitable individuals to deal with the complaint
objectively.
6. We are hoping for your prompt consideration of this appeal and befitting
appeals process be undertaken.’
[80] Quite apart from the meaning that one may ascribe to the wording of this Rule,
the paramount question is what the fourth respondent was expected to do up on
receiving that complaint. The answer is to be found in Competition Rule 19.7 and 19.8.
These Rules read as follows:
‘19.7 Upon receipt of a complaint, the Designated SAFA Official shall:
19.7.1 Call for any further written information and documentation from the
complainant, and
19.7.2 Forward to the alleged offending party the documentation received from
the complainant and advises (sic) the alleged offending party of the nature of the
complaint and asks (sic) such party for a written explanation, but w arning such
party, that such explanation may be later used in evidence against the said party.
19.8 Upon receipt of the replies asked for, or if no replied be received within 5
(five) days of the Designated SAFA Official making the requests in terms of Rul e
19.3 above, the matter shall be referred to the Disciplinary Committee in
accordance with the SAFA Constitution and these Rules and Regulations.’
There can conceivably be no controversy regarding the fact that the provisions of
Rules 19.7 and 19.8 are peremptory.
[81] The fourth respondent’s letter dated 06 February 2025 makes i t clear that his
decision to return the complaint fee was based on the fact that in his view, the complaint
was non -compliant with Competition Rules 19.3, 19.4 and 19.5. It is expedient that I
reproduce these Rules , and I do so below :
‘19.3 The written complaint must set out the the full facts on which the complaint
was base d and to refer to the Articles and/or Rule and Regulation
allegedly contravened by the offending party .
19.4 The complaint must not be in respect of a protest based on the facts
similar to a grievance that has been complained of and has been
entertained b y SAFA and/or SAFA Disciplinary Committee .
19.5 The complaint must not be made against the referee’s decision connected
with play in any game, except if the complaint contains an allegation of
corruption.
19.6 The onus is on the complainant to ensure that the provisions of Rules
19.2, 19.3, 19.4 and 19.5 above are complied with. Should the
complainant not comply with the said provision (sic), the complaint fee
shall be returned to the complainant.
[82] No doubt, the fourth respondent was entitled to return the complaint fee only if
the complaint was non-compliant with the already mentioned rules . In my view, this is
akin to disqualifying the complaint on formal grounds as opposed to dismissing it on
substantive gr ounds. In any event, s uch a disqualification is a decision on its own .
[83] But o n any interpretation of the content of the complaint, its essence had nothing
to do with play in the match of 25 January 2025 between the applicant and the sixth
respondent. It had everything to do with a violation of Rule 30.1 which the applicant
explicitly quoted. Furthermore, the facts forming the bas is of the complaint appear on
the face of it. Lastly, the applicability of Rule 19.4 is manifestly misplaced – it does not
find support from the history of the complaint that the applicant provided.
[84] I come to the conclusion that i n making the impugned decision, the fourth
respondent took into account irrelevant considerations and ignored what was relevant,
namely, the con tent and purport of the Rule 30.1 quoted by the applicant as the basis
for its complaint. Section 6(2)(e)(iii) of PAJA provides for this ground of review .
[85] As regards the decision of the fifth respondent, any suggestion that it did not
amount to a dismissal of the appeal and/or a refusal to place the complaint cannot be
sustained. These are the reasons for this view. The plain text of the fifth respondent’s
decision dated 17 March 2025 suggests that he upheld the decision of the fourth
respondent on the limited ground that it did not comply with Rule 19.5.
[86] Put differently, according to the fifth respondent, the complaint ‘was made against
the referee’s d ecision connected with play in the match in circumstances where the was
no allegation of corruption. ’ For this reason, his decision was that ‘the complaint could
not be placed before the Arbitration Tribunal.’ Similarly, the fifth respondent moved from
an incorrect premise having mischaracterized the complaint and disregarded the
relevant Rule 30.1 which was its basis . I have already found that the first respondent
could not validly revoke this decision. The fourth and fifth respondents acted unlawfully
in making their respective decisions.
Whether this Court can grant the substitutory relief that the applicant seeks is the
question I deal with next.
The substitu tory relief
[87] The approach that the courts have always followed in the exercise of their
discretion in dealing with an administrator’s decision under common law was set out in
Johannesburg City Council v The Administrator Transvaal22 as follows :
‘1. The ordinary course is to refer back because the Court is slow to assume
a discretion wh ich has by statute been entrusted to another tribunal or
functionary.
2. The Court will depart from the ordinary course in these circumstances:
(i) Where the end result is in any event a foregone conclusion and it would
merely be a waste of time to order th e tribunal or functionary to reconsider
the matter. This applies more particularly where much time has already
unjustifiably been lost by an applicant to whom time is in the
circumstances valuable, and the further delay which would be caused by
reference b ack is significant in the context.
(ii) Where the tribunal or functionary had exhibited bias or incompetence to
such a degree that it would be unfair to require the applicant to submit to
the same jurisd iction again.’
[88] With the advent of PAJA, the applicable principles were set out in Bato Start
Fishing (Pty) Ltd v Minister of Environmental Affairs and Others23, O’ Regan J said of
substitutory relief:
22 1969 (2) SA 72 (T) at 76 D -E.
‘[A] court should be careful not to attribute to itself superior wisdom in relation to
matters entrusted to other branches of government. A court should thus give due
weight to findings of fact and policy decisions made by those with special
expertise and experience in the field. The extent to which a court should give
weight to these considerations will depend upon the character of the decision
itself, as well as on the identity of the decision -maker. A decision that requires an
equilibrium to be struck between a range of competing interests or considerations
and which is to be taken by a person or institution with specific expertise in that
area must be shown respect by the courts. Often a power will identify a goal to
be achieved, but will not dictate which route should be followed to achieve that
goal. In such circumstances a court should pay due respect to the route selected
by the decision -maker. This does not mean however that where the decision is
one which will not reasonably result in the achievement of the goal, or which is
not reasonably supported on the facts or not re asonable in the light of the
reasons given for it, a court may not review that decision. A court should not
rubber -stamp an unreasonable decision simply becaus e of the complexity of the
decision or the identity of the decision -maker.’24
[89] The dictum of the Khampepe J in Trencon Construction (Pty) Limited v Industrial
Development Corporation of South Africa Limited and Another,25 is instructive , with
respect, regarding how a court must evaluate the factors set out in Johannesburg City
Counci l. The Learned Judge wrote as follows :
‘[47] To my mind, given the doctrine of separation of powers, in conducting this
enquiry there are certain factors that should inevitably hold greater weight. The
first is whether a court is in as good a position as the administrator to make the
decision. The se cond is whether the decision of an administrator is a foregone
23 (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004).
24 Op cit, para 48.
25 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and
Another (CCT198/14) [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) (26 June 2015)
; see also Livestock and Meat Industries Control Board v Garda 1961 (1) SA 342 (A).
conclusion. These two factors must be considered cumulatively. Thereafter, a
court should still consider other relevant factors. These may include delay, bias
or the incompetence of an administ rator. The ultimate consideration is whether a
substitution order is just and equitable. This will involve a consideration of
fairness to all implicated parties. It is prudent to emphasize that the exceptional
circumstances enquiry requires an examination of each matter on a case -by-
case basis that accounts for all relevant facts and circumstances.’
[48] A court will not be in as good a position as the administrator where the
application of the administrator’s expertise is still required and a court does not
have all the pertinent information before it. This would depend on the facts of
each case. Generally, a court ought to evaluate the stage at which the
administrator’s process was situated when the impugned administrative action
was taken. For example, the further along in the process, the greater the
likelihood of the administrator having already exercised its specialized
knowledge. In these circumstances, a court may very well be in the same
position as the administrator to make a decision. In other in stances, some
matters may concern decisions that are judicial in nature; in those instances – if
the court has all the relevant information before it – it may very well be in as good
a position as the administrator to make the decision.
[49] Once a court has established that it is in as good a position as the
administrator, it is competent to enquire into whether the decision of the
administrator is a foregone conclusion. A foregone conclusion exists where there
is only one proper outcome of t he exercise of an administrator’s discretion and “it
would merely be a waste of time to order the [administrator] to reconsider the
matter”. Indubitably, where the administrator has not adequately applied its
unique expertise and experience to the matter, it may be difficult for a court to
find that an administrator would have reached a particular decision and that the
decision is a foregone conclusion. However, in instances where the decision of
an administrator is not polycentric and is guided by particul ar rules or by
legislation, it may still be possible for a court to conclude that the decision is a
foregone conclusion.
[90] As held in Gauteng Gambling Board v Silverstar Development Ltd,26 remittal is
almost always the prudent and proper course since t he administrator is generally best
equipped by the variety of its composition, by experience, and its access to sources of
relevant information and expertise to make the right decision. The court typically has
none of these advantages and is required to re cognize its own limitations.
[91] In the context of the present case, the fourth and fifth respondent’s failure
resulted from their mischaracterization of the applicant’s complaint. Significantly, the fifth
respondent arbitrarily deprived the applicant of an opportunity to ventilate its complaint
before the Arbitration Tribunal. This effectively means that no due process was followed.
This is the process that Rule 19.7 and 19.8 quoted above required of the fourth
respondent (had he properly characterized th e complaint).
[92] I am invited to cause the suspension of the third respondent in circumstances
where the fourth respondent failed to apply himself properly to the matter which resulted
in the correct process not being followed. It would be through the process set out in
Rule 19.7 and 19.8 that the matter would be fully and appropriately ventilated. This
Court does not have the institutional advantage that the first respondent has , through its
designated official s, to make a decision regarding the third respondent’s suspension .
The same considerations apply regarding the applicant’s request that the sixth
respondent forfeits the three points it earned after winning the match of 25 January
2025 and the relief ancilla ry that the applicant seeks in regard thereto. This is where the
enquiry regarding the substitutory relief that the applicant seeks must end. For these
reasons I hold the view that this Court is not in as good a position to grant the
substitutory relief th at the applicant seeks.
The interdictory relief
26 2005 (4) SA 67 (SCA), para 29.
[93] It is not disputed that this application was brought by the applicant in order to
protect its status and standing in the League . This is a crucial right that i t seeks to
protect. What is also incontrovertible is that the playoffs are upon the parties in these
proceedings. In other words, they are imminent. No decision has been taken by the first
and second respondents to suspend them in the face of these proceedings. And e ven
though no such req uest was made by the applicant to the first respondent , the
respondents who oppose this application have, in their opposing papers , propounded
the possibility that existed, of the suspension of the playoffs pending the resolution of
the applicant’s complai nt within the rungs of SAFA dispute resolution processes. That
proposition must, however, also be considered in the light of the fact that it came about
after the applicant had resorted to these proceedings for recourse.
[94] I hold the view that if the in terdictory relief is not granted, the investigation and
determination of the complaint by the first respondent in due course would be a cademic
and irreparable harm will ensue on the part of the applicant. The order I set out below is
what I consider to be just and equitable in the circumstances of the present case. But
before that order, I must deal in some detail with the issue of costs.
Costs
[95] This matter concerns the exercise of public power by the officials of the first
respondent. In Trencon the Court endorsed Bato Star27 and held that matters relating to
the interpretation and application of PAJA will of course be constitutional matters.28 The
principles that the court enunciated in Biowatch29 find application in the instant matter. In
that case the Court said:
27 Bato Star , footnote 23 supra , at para 25.
28 Trencon footnote 25 supra, at para 31.
29 Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6) SA
232 (CC); 2009 (10) BCLR 1014 (CC) (3 June 2009) ( Biowatch ).
‘In the first place it diminishes the chilling effect that adverse costs orders would
have on parties seeking to assert constitution al rights. Constitutional litigation
frequently goes through many courts and the costs involved can be high.
Meritorious claims might not be proceeded with because of a fear that failure
could lead to financially ruinous consequences. Similarly, people mig ht be
deterred from pursuing constitutional claims because of a concern that even if
they succeed, they will be deprived of their costs because of some inadvertent
procedural or technical lapse. Secondly, constitutional litigation, whatever the
outcome, mi ght ordinarily bear not only on the interests of the particular litigants
involved, but on the rights of all those in similar situations. Indeed, each
constitutional case that is heard enriches the general body of constitutional
jurisprudence and adds text ure to what it means to be living in a constitutional
democracy. Thirdly, it is the state that bears primary responsibility for ensuring
that both the law and state conduct are consistent with the Constitution. If there
should be a genuine, non -frivolous c hallenge to the constitutionality of a law or of
state conduct, it is appropriate that the state should bear the costs if the
challenge is good, but if it is not, then the losing non -state litigant should be
shielded from the costs consequences of failure. In this way responsibility for
ensuring that the law and state conduct is constitutional is placed at the correct
door.30
[96] The applicant has been substantially successful in these proceedings to the
extent that I set out in the order below. Mr Skoti submitted on behalf of the sixth
respondent that it must also benefit from the protection of Biowatch . I disagree . It is not
from the Biowatch principle that the sixth applicant’s exemption from an adverse cost
order would emanate. The position of the sixth respondent is no different from that of
the applicant as none of them are in the position of exercise of public power as it is with
the first and second respondents and their officials.
30 Biowatch , at para 23.
[97] With that said, t he sixth respondent, similar to the second to fourth respondents,
opted to oppose the relief that the applicant seeks on the grounds already set out. It
was its procedural ri ght to do so. Apart from this, an adverse order was sought by the
applicant against the sixth respondent. It cannot be said that the opposition by the sixth
respondent was without merit . This Court is enjoined to exercise its discretion as to
costs in accordance with what i s fair between the parties. It seems to me that the
applicant and the sixth respondent found themselves at loggerheads in this application ,
so to speak, as a result of the already mentioned impr oper exercise of public power by
the officials of the first and second respondents , namely, the fourth and fifth
respondents .
[98] In so far as the third respondent is concerned, the position is different in that the
decision to appoint him as match com missioner was at the centre of the complaint by
the applicant. As far as I could have ascertained from the papers filed of record,
nowhere does the third respondent deny the allegation that he is the biological father to
Mr Ntando Mbangatha. The crux of hi s opposition is that the applicant has not proven
any unfair advantage that accrued to the sixth respondent as a result of his
appointment.
[99] The rules of the beautiful game, as it is often called (both the ethical and
technical rules) are known to the third respondent, among other persons to whom they
apply. The third respondent took the risk of joining the fray in these proceedings in
circumstances where he knew or ought to have known that no due process was
followed where the cogency of his defence a s against the cogency of the applicant’s
complaint was ventilated. I find no reason to exempt him from paying the applicant’s
costs.
[100] What is fair between the two non -public function ary parties (the applicant and the
sixth respondent) is that the sixt h respondent b e exempted from paying the applicant’s
costs despite its failure to successfully oppose this application.
Order
[101] In the result, I make the following order:
1. The decision of the fourth respondent dated 06 February 2025 dismissing
applicant’s complaint is hereby declared invalid, unlawful, unconstitutional for
violating Rules 19.7; 19.7.1; 19.7.2; and 19.8 of the SAFA Competition Uniform
Rules and section 33(1) of the Constitution of the R epublic of South Africa Act
No. 108 of 1996 , and it is hereby reviewed and set aside.
2. The decision of the fifth respondent dated 17 March 2025 refusing to place the
applicant’s appeal before the Arbitration Tribunal is declared invalid, unlawful,
unconsti tutional for violating Rules 25(1) and (3) of the SAFA Competition
Uniform Rules and section 33(1) of the Constitution of the Republic of South
Africa Act No. 108 of 1996, and it is hereby reviewed and set aside.
3. The matter is remitted to the first respon dent for proper investigation and
determination of the applicant’s complaint in accordance with the relevant and
applicable provisions of the first respondent ’s Uniform Competition Rules.
4. Pending the investigation and determination of the applicant’s compl aint in the
manner set out in paragraph 3 of this order, the match scheduled to play on 11
April 2025 between the sixth and seventh respondents is hereby interdicted.
5. The first, second , third, fourth and fifth respondents shall pay the costs of this
application , and such costs shall include the cost of two counsel where
employed.
__________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the applicant: Adv. S Vobi
Adv. Z Makangela
Instructed by: Makangela Mtungani Inc.
For the 2nd to 4th respondents : Adv. Z Baceni
Instructed by: Ndzo Attorneys
For the sixth respondent : Adv. D Skoti
Instructed by: M. Hlazo Inc.
Date heard: 02 April 2025
Date delivered: 09 April 2025