IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
Case No:
J4373/02
In the matter between:
FABIAN McCARTHY Applicant
AND
SUNDOWNS FOOTBALL CLUB,
NSL
Respondents
__________________________________________________________________
______
JUDGMENT: LEAVE TO APPEAL
__________________________________________________________________
______
WAGLAY J:
[1] The first respondent (Sundowns) seeks leave to appeal
against the judgment handed down by this Court on 30
October 2002. The grounds upon which it seeks such
leave are the following:
That this Court erred in finding that:
(a) the application was urgent;
(b) there was no contract in existence between the parties; and
(c) the Court had jurisdiction to hear the matter
notwithstanding the fact that the second respondent also
enjoyed jurisdiction in respect of the dispute.
[2] With regard to the issue of urgency the attack on
the judgment is two-fold:
(a)that Sundowns did not have a proper opportunity to put
its case before the Court; and
(b)the urgency was designedly an abuse since Applicant
knew as from 11 October 2002 the position adopted by
Sundowns.
[3] The argument that entertaining the matter on an urgent
basis denied Sundowns the opportunity to properly place
its case before this Court lacks any merit. The issue
before the Court was a simple one: did the parties
conclude an agreement as contemplated by the NSL, or
put differently did the applicant and Sundowns enter into
an agreement in terms of which the applicant could take
the field and play for Sundowns? The finding of this Court
was that there was no agreement as contemplated by the
NSL in that such agreement had to be in writing and
signed by both parties. From the papers filed by
Sundowns it was abundantly clear that there was no such
written agreement. In the circumstances any other
evidence that Sundowns may have sought to place before
this Court would not have taken their case any further.
In any event Sundowns never asked this Court for an
opportunity, by way of requesting a postponement, to file
more papers. There was simply an allegation that an
absent witness may be able to deal with how Sundowns
exercised the option given to it in terms of the written
agreement signed by the parties in September 2000. As
recorded in the judgment, Sundowns admitted that there
was no written agreement and therefore evidence as to
how Sundowns exercised its option was irrelevant, more
especially in the light of their evidence that the Applicant
refused to sign the written agreement prepared by it.
[4] The issue relating to the Applicant having created its own
urgency is dealt with in the judgment. I am satisfied that
it was in the interest of justice that the matter be
entertained as one of urgency.
[5] Furthermore the matter has been dealt with and there is
no further evidence that can have any bearing on the
matter. In the circumstances they exist no good grounds
for this Court to grant leave to appeal in respect of the
issue of urgency.
[6] Sundowns argument in respect of the agreement between
it and the Applicant is as follows: since April 2002 it
entered into negotiations with the Applicant to conclude
an agreement thus exercising its rights in terms of the
option provision in the written agreement of September
2000. On 2 May 2002 it confirmed exercising its right to
renew its contract with the Applicant for a further period
of two years. This was done by letter to the Applicant.
Negotiation thereafter continued until, according to
Sundowns, an oral agreement was concluded in
September 2002. The terms of the said oral agreement
were then reduced to writing at which time the Applicant
refused to sign such agreement.
[7] For purposes of this matter Applicant conceded the above
as representing the agreed facts. On these facts taken
together with Sundowns admission that it is bound to the
NSL rules, it is clear that an agreement as contemplated
by the NSL which requires that an agreement between a
professional footballer and a club has to be in writing to
be valid was not met.
[8] In the circumstances Sundowns argument that oral
agreements are valid and not prohibited by law in quite
meaningless. This Court did not find that oral contracts
are not binding or invalid in law, simply that in terms of
the NSL constitution (to which Sundowns is bound and is
required to comply with) in regard to the relationship
between professional clubs and professional footballers
oral agreements are of no force and affect in terms of a
professional player playing for a professional club.
[9] Sundowns in the arguement now presented argues that it
could have and can still compel the Applicant to sign a
written agreement embodying the agreed oral terms and
conditions. This argument was never presented at the
hearing nor is it addressed in its papers. I do not consider
this a relevant consideration in deciding whether or not to
grant leave to appeal. It is inappropriate when an
argument is not presented in Court and at the hearing
one party concedes to argue on the other party’s facts, to
come at the appeal stage and raise the possible actions
open to a party based on a concession made for purposes
of argument by the other.
[10] Finally Sundowns argues that this Court erred in
entertaining the dispute when the NSL makes provision
for this dispute to be resolved by arbitration. In this
regard I agree with what was said in the matter of
Coetzee v Comitis 2001 (1) SA 1254 (C) at 1266 D-J that
the arbitration clause does not oust the jurisdiction of
this Court. The Court always has the discretion to refuse
to entertain a matter which by agreement between the
parties can be referred to arbitration. In this matter
because of the fact that this Court found the matter to be
urgent; that the letter exercising the option did not
constitute a written agreement; the value of oral
agreements vis-à-vis the rules and regulations that
govern the relationship between clubs and the
professional players within the NSL; and having regard to
the rules of the NSL relating to arbitration it was satisfied
that this was a matter in which it should exercise its
discretion in favor of deciding the issue. This I am
satisfied is not an issue which will be interfered with by
another Court.
[11] In the circumstances I am satisfied that no purpose will be
served in granting Sundowns leave to appeal against the
judgment handed down, accordingly leave to appeal is
refused with costs.
____________
WAGLAY J
Date of judgment: 4 November 2002
For the Applicant: N. Arendse SC instructed by Ntsoane
attorneys
For the Respondent: N. Cassiem SC instructed by Jose
Ferreira attorneys