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[2014] ZAWCHC 19
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Pedal Power Association v Cycling South Africa and Another (8546/13) [2014] ZAWCHC 19 (14 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
no: 8546/13
DATE:
14 FEBRUARY 2014
In the matter
between:
PEDAL POWER
ASSOCIATION
.................................................
Applicant
And
CYCLING SOUTH
AFRICA
..........................................
First
Respondent
SOUTH AFRICAN
SPORTS CONFEDERATION
AND OLYMPIC
COMMITTEE
...............................
Second
Respondent
Heard: 5 December
2013
JUDGMENT
DELIVERED: 14
FEBRUARY 2014
SAVAGE AJ:
Introduction
[1] The applicant,
Pedal Power South Africa (‘PPA’), a voluntary
association, seeks an order declaring that it does
not require the
prior sanction or approval of the first respondent, Cycling South
Africa (‘CSA’), or members of the
first respondent, in
respect of cycling events organised by the applicant, including fun
rides or league rides. In addition, PPA
seeks an order interdicting
and preventing CSA, its officials or members, from representing to
any person or body, including commercial
sponsors, local authorities,
national, provincial or local traffic and policing authorities, or
cyclists, that PPA requires such
prior sanction, or that such
sanction is a pre-requisite for any other necessary permission or
approval granted by national, provincial
or local authorities.
[2] PPA has been in
existence for 35 years and has more than 18 000 members, with its
main purpose and object, apparent from clause
3 of its constitution,
being to promote cycling and the interests of cyclists. Its
activities are centred in the Western Cape where
it is involved in
five major annual events, including the organisation of the Argus
Pick ‘n Pay Cycle Tour and the Coronation
Double Century cycle
event in conjunction with the Cape Town Cycle Tour Trust.
[3] CSA is a
national federation, defined in s 1 of the National Sports and
Recreation Act 110 of 1998 (‘NSRA’), as
–
‘a national
governing body of a code of sport or recreational activity in the
Republic recognised by the relevant international
controlling body as
the only authority for the administration and control of the relative
code of sport or recreational activity
in the Republic’.
[4] By agreement
between the parties the South African Sports Confederation and
Olympic Committee (‘SASCOC’) was joined
as second
respondent in the matter. SASCOC is the national co-ordinating macro
body for the promotion and development of high performance
sport in
the Republic. High performance sport is defined in s 1 of the NSRA as
–
‘the high
level of participation in major international sporting events
including but not limited to world championships and
other
international multi-sport events such as the Olympic Games,
Commonwealth Games, Paralympic Games and All Africa Games’.
[5] There is no
dispute that the recreational and competitive cycling events
organised by PPA do not fall within the ambit of high
performance
sport contemplated in the NSRA.
Background
[6] In 2004 PPA
became an affiliate of CSA, following an agreement between the two
organisations. Under the CSA’s 2004 constitution
PPA was
permitted to function autonomously in relation to the administration
of recreational and competitive cycling, while required
to conduct
its affairs even-handedly and without unfair discrimination against
competitive cycling in favour of recreational cycling.
The 2004
constitution also recognised PPA’s jurisdiction in respect of
the geographical areas in which it operated before
that constitution
came into effect in the ‘setting and operating of all their
domestic fun ride calendars and all recreational
tours; fun rides and
league races’. In terms of article 13.1 of the 2004
constitution, the amendment of PPA’s autonomy
rights and the
manner in which they were to be exercised required a special
resolution passed by 75% of all CSA affiliates and
the consent of
PPA.
[7] Relations
between PPA and CSA became strained over time with PPA dissatisfied
that it had paid amounts in excess of R1.2 million
to CSA since 2004,
with what it perceived to be little benefit to PPA in return and
while it held less than a quarter of the votes
in governing CSA.
[8] On 18 February
2012 CSA and its members adopted a new constitution at a meeting from
which PPA was intentionally absent. The
2012 constitution, to which
PPA was not party, omitted PPA’s autonomy rights and PPA’s
membership of CSA terminated
with the adoption of this constitution.
PPA accepts the termination of its affiliation to CSA, of which it is
no longer a member.
[9] In the minutes
of the meeting of the CSA Special Constitutional Congress held on 18
February 2012, Mr Raymond Hack, legal representative
for SASCOC was
recorded as having stated that ‘it was a pity that Pedal Power
Association was not attending the Congress
as effectively this means
that the Cape Argus Cycle Tour will not take place without the
approval and sanctioning of Western Cape
and CyclingSA’. The
minutes further reflect his view that PPA was obliged to register as
a club, failing which none of its
events ‘will be able to take
place as they will not have Provincial or National approval’.
[10] On 8 March
2012, Mr Tubby Reddy, the Chief Executive Officer of SASCOC wrote to
CSA informing it that arising out of a meeting
with SASCOC’s
Transformation, Ethics and Dispute Resolution Commission -
‘…it
was decided that CSA were required to amend their Constitution to
bring same in line with the directives of SASCOC
in regard to the
development of Sport in all 9 geopolitical regions of the country,
and in all disciplines, as well as to ensure
transformation.
As a result thereof,
a new Constitution was duly prepared between our respresentatives and
those of your Federation and thereafter
a duly constituted Special
General Meeting was convened to adopt the Constitution to enable you
to comply with the provisions of
same…’.
[11] This letter
sought that CSA inform PPA that SASCOC has jurisdiction over its
members, being national sports federations, as
well as its officials
and athletes, all being subordinate to SASCOC in terms of SASCOC’s
Memorandum and Articles of Association;
that constitutions must not
conflict with that of SASCOC, with reference made to the entrenched
provisions in favour of PPA contained
in CSA’s 2004
constitution; and that SASCOC may regulate member’s
constitutions.
[12] Various
unsuccessful attempts were made to resolve the differences between
PPA and CSA thereafter. An interim arrangement was
agreed between the
parties in September 2013, pending the outcome of the current
application.
Current
application
[13] PPA claims in
the current application that CSA is not empowered, by statute or
otherwise, to oblige PPA to obtain the prior
sanction of CSA to
organise cycling events; and that any requirement that prior sanction
be obtained from CSA would encroach upon
PPA’s right to
organise cycling events as a voluntary association.
[14] CSA opposes the
application on the basis that it is recognised as the national
federation for cycling by the international
controlling body, ‘as
the only authority for the administration and control of the relative
code of sport or recreational
activity in the Republic’; that
it cannot perform its task as national federation if it cannot
administer and control the
code of cycling and if it does not
sanction events; that it is required by s 2(5) of the NSRA to
‘develop its sports or recreational
activity at club level…’;
that the purpose of the NSRA as expressed in its preamble is to
provide for the promotion
and development of sport and recreation and
the coordination of the relationships among the national Department
of Sport and Recreation,
SASCOC, national federations and other
agencies; and that PPA is not entitled to operate autonomously but
must do so within the
statutory framework. Furthermore, in terms of s
6 (1) of the NSRA as a national federation CSA contends that it
cannot ‘assume
full respon
sibility for the
safety issues’ or risk incurring liability, a provision echoed
by s 16 of the Safety at Sports and Recreation
Events Act 2 of 2010,
if it may exercise no power over the event itself.
[15] SASCOC opposes
PPA’s application on the basis that the international cycling
federation, UCI, will not sanction cycling
events if CSA as the
national federation has not sanctioned such events; and that CSA
holds the power to control the sport of cycling
nationally as the
national federation which has nine affiliates in terms of an
instruction of the Ministry of Sport and Recreation,
with all members
subordinate to SASCOC’s constitution. SASCOC contends that this
control is not limited to high performance
sport only, although it is
conceded that such power may not be expressly granted by statute; and
that the provisions of the SASCOC
constitution obliged CSA to adopt
its 2012 constitution in order to give effect to the provincial and
national structure of the
sporting code which did not allow for
autonomous operation by organisations such as PPA.
[16] There is no
dispute between the parties that PPA’s activities do not fall
within the ambit of high performance sport
contemplated in the NSRA.
Evaluation
[17] CSA is a
national federation as defined in s 1 of the NSRA. This is so by
virtue of its recognition ‘by the relevant
international
controlling body as the only authority for the administration and
control of the relative code of sport or recreational
activity in the
Republic’. It is recognition by the international controlling
body that defines CSA as a national federation
and neither the NSRA,
nor any other statute, determines CSA to be the national federation
for the sport of cycling.
[18] CSA’s
recognition by the international controlling body ‘as the only
authority for the administration and control’
of cycling does
not confer upon CSA the power to administer and control cycling. Any
such power of administration and control would
arise consequent
either to it being conferred by statute, or by way of a contractual
relationship in existence between the parties.
[19] There exists no
binding contractual relationship between CSA and PPA, with PPA
neither a member of CSA, nor subject to the
terms of CSA’s
constitution. Furthermore, the structure of governance for sport
contemplated in SASCOC’s constitution,
does not bind voluntary
associations such as PPA who elect not to seek or retain membership
of or affiliation to the applicable
national sporting federation.
Accordingly, neither SASCOC nor the CSA holds any contractual
entitlement to administer or control
PPA, or to sanction its events.
No power
conferred by law
[20] Fundamental to
our constitutional order is the principle of legality: that the
exercise of public power is legitimate only
where it is lawful and
that no public power or function may be exercised beyond that
conferred by law. Fedsure Life Assurance Ltd
and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA
374
(CC) at paras 56 and 58.
[21] Public power is
inevitably associated with a duty to act in the public interest
rather than for private purposes. When deciding
whether it is a
public power that is exercised, the source of the power and the
extent of state control over the function are relevant,
although not
decisive considerations. Hoexter, 2007 at 3-4. Parliament is not
prevented from delegating subordinate regulatory
authority to other
bodies, however the exercise of a public power or the performance of
a public function must be in terms of an
empowering provision.
Executive Council, Western Cape Legislature v President of the
Republic of South Africa 1995(4) SA 877 (C).
[22] In Dawood,
Shalabi and Thomas v Minister of Home Affairs
[2000] ZACC 8
;
2000 (3) SA 936
(CC) at
para 47 O’Regan J stated that –
‘It is an
important principle of the rule of law that rules be stated in a
clear and accessible manner. It is because of this
principle that
section 36 requires that limitations of rights may be justifiable
only if they are authorised by a law of general
application.
Moreover, if broad discretionary powers contain no express
constraints, those who are affected by the exercise of
the broad
discretionary powers will not know what is relevant to the exercise
of those powers or in what circumstances they are
entitled to seek
relief from an adverse decision. In the absence of any clear
statement to that effect in the legislation, it would
not be obvious
to a potential applicant that the exercise of the discretion
conferred upon the immigration officials and the DG
by sections 26(3)
and (6) is constrained by the provisions of the Bill of Rights, and
in particular, what factors are relevant
to the decision to refuse to
grant or extend a temporary permit. If rights are to be infringed
without redress, the very purpos
es of the
Constitution are defeated.’ (footnotes omitted)
[23] The NSRA
confers specific powers and functions upon a national federation. In
terms of s 2(5) a national federation -
‘…must
develop its sport and recreational activity at club level in
accordance with –
(a) the service
level agreement referred to in section 3A;
(b) the development
programmes referred to in section 10(3); and
(c) the guidelines
issued by the Minister in terms of section 13A
and submit the
progress on such development to Sport and Recreation South Africa and
parliament on an annual basis’.
[24] Section 3A
requires a national federation to enter into a service level
agreement, in the prescribed manner, with Sport and
Recreation South
Africa in respect of any function assigned to it by the NSRA; and in
terms of s 6(1) a national federation ‘must
assume full
responsibility for the safety issues’ within its sport or
recreational discipline. S6(2) and (3) concern the
participation and
support of national federations in high performance sport programmes
and services and in the recruitment of foreign
sportspersons. A
national federation must in terms of s 10(2)(b) annually indicate in
writing to Sport and Recreation South Africa
‘the names of the
specific clubs under its respective control’, as well as the
proportion of funding such clubs have
received annually for
development purposes from the national federation.
[25] Save for these
specified powers and functions, the NSRA is silent on any further
administration and control power to be exercised
by a national
federation. Consequently, the provisions of the NSRA neither
directly, nor by regulation, confer any power on CSA
to administer or
control cycling as a code of sport or recreational activity, beyond
those powers expressly provided in the statute.
Power cannot be
implied
[26] There exists a
presumption in favour of construing legislation in such a manner as
that rights are not interfered with (Pretorius
v Transnet Bpk
[1994] ZASCA 178
;
1995
(2) SA 309
(A) at 318C). Furthermore, courts are cautious of unduly
extending provisions so as to alter existing law, or to impose
burdens
that previously did not exist or to allow statutes to be
interpreted in a manner that permits surmise or conjecture. Where an
extensive
interpretation to a statute is given this must occur within
the context of the scheme of the statute and where there are
compelling
reasons for it. LAWSA 360.
[27] Corbett JA in
Rennie NO v Gordon and another NNO
1988 (1) SA 1
(A) at 22E-G stated
that –
‘Over the
years our Courts have consistently adopted the view that words cannot
be read into statute by implication unless
the implication is a
necessary one in the sense that without it effect cannot be given to
the statute as it stands (footnotes omitted).’
[28] In addition,
there exists a presumption that the legislature has dealt
exhaustively with the subject matter of an enactment.
It is therefore
not for courts to supply omissions in the provisions of a statute. In
Stafford v Special Investigating Unit
[1998] 4 All SA 543
(E) at
553b–c Leach J made it clear that -
‘A court
cannot act upon mere conjecture and speculate as to whether or not
the legislature might have overlooked something,
it cannot supplement
a statute by providing what it surmises the legislature omitted. The
court therefore must give effect to what
the act says and not what it
thinks it ought to have said . . .’
[29] Effect is
capable of being given to the NSRA without an implication that by
virtue of its recognition by the international
controlling body, its
role in developing sport at club level in accordance with specific
agreements, programmes or guidelines,
or its obligations with regards
to safety, it is necessary that a power to administer and control
cycling be read into the statute
in favour of national federations.
There is nothing in the statute to suggest that the legislature
intended to grant such power
to national federations. A different
conclusion would be one of conjecture and speculation as to what was
intended by the legislature.
[30] From the
preamble of the NSRA it is apparent that the statute’s purpose
is to promote, develop and co-ordinate relationships
between sporting
bodies, including national federations such as CSA and other
agencies, which would include PPA. The language and
construction of
the statute is not one that seeks to enforce administration and
control. It follows that to read such a power into
the statute would
strain at its construction and undermine the principle of legality.
Safety
obligations may be performed
[31] CSA relies on
its obligation to ‘assume full responsibility for the safety
issues’ within its sport or recreational
discipline, to support
its claim that the power to administer and control has been conferred
on it. The responsibility for safety
issues is expressly conferred on
a national federation in terms of s 6(1). This provision is echoed in
s 16 of the Safety and Sports
and Recreational Events Act 2010, which
requires the involvement of the national federation in the provision
of safety and security
at a sporting event.
[32] CSA’s
duty to assume responsibility for safety issues does not warrant as a
necessary implication the conclusion that
national federations are as
a consequence of their safety obligations conferred unfettered powers
of administration and control
over their sport, recreational activity
or even particular sporting events. This is given that a national
federation such as CSA
may assume responsibility for safety issues,
and effect may be given to the applicable statutes in this regard,
even in the absence
of a general administration and control power, or
indeed the national federation’s consent having been granted
for an event.
Relief
[33] This Court has
jurisdiction in terms of
s 21(1)(c)
of the
Superior Courts Act 10 of
2013
–
‘in its
discretion, and at the instance of any interested person, to enquire
into and determine any existing, future or contingent
right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination.’
[34] Although
neither an existing dispute, nor the fact that a person may claim any
consequential relief, are prerequisites for
the grant of a
declaration, the Court must be satisfied that the case is a proper
one for the exercise of the discretion conferred
on it and that there
are interested parties upon whom the order would be binding. LAWSA at
561; Durban City Council v Association
of Building Societies
1942 AD
27
at 32.
[35] A declaration
of rights will not ordinarily be granted where the question raised is
academic, abstract or hypothetical. By
its nature declaratory relief
is essentially remedial and corrective and is most appropriate where
‘it would serve a useful
purpose in clarifying and settling the
legal relations in issue’. JT Publishing (Pty) Ltd v Minister
of Safety & Security
supra; North Central Local Council &
South Central Local Council v Roundabout Outdoor (Pty) Ltd
2002 (2)
SA 625
(D).
[36] In the current
matter, PPA constitutes an interested person as contemplated in
s
21(1)(c)
of the
Superior Courts Act. A
dispute exists between the
parties, upon whom an order of this Court would be binding, and
useful purpose will be served in clarifying
and settling the legal
relations regarding the issue by a judicial determination of the
matter. It follows that declaratory relief
is competent and useful
purpose will be served by granting such relief.
[37] PPA, in
addition to declaratory relief, seeks an order interdicting and
preventing CSA from representing to any person or body,
including
commercial sponsors, local authorities, national, provincial or local
traffic and policing authorities, or cyclists,
that PPA requires the
prior sanction of CSA to organise or convene a cycling event, or that
such sanction is a pre-requisite for
any other necessary permission
or approval granted by national, provincial or local authorities.
[38] For the reasons
stated above, I am satisfied that PPA holds a clear right to the
interdictory relief sought, that CSA through
its conduct has made
representations which do not reflect the true legal position and
there exists to PPA the absence of an alternative
remedy available.
Setlogolo v Setlogolo
(1914) AD 221
at 227. It follows that such
interdictory relief stands to be granted.
[39] This being the
case, there is no reason as to why costs should not follow the
result, including the costs of two counsel.
Order
[40] In the result,
the following order is made:
1. It is declared
that the applicant, the Pedal Power Association, does not require the
prior sanction or approval of the first
respondent, Cycling South
Africa, or members of the first respondent, in respect of cycling
events organised by the applicant,
including fun rides or league
rides.
2. The first
respondent, its officials or members, are interdicted and prevented
from representing to any person or body, including
commercial
sponsors, local authorities, national, provincial or local traffic
and policing authorities, or cyclists, that PPA requires
such prior
sanction, or that such sanction is a pre-requisite for any other
necessary permission or approval granted by national,
provincial or
local authorities.
3. The respondents
are to pay the applicant’s costs, including the costs of two
counsel.
KM SAVAGE
ACTING JUDGE OF
THE HIGH COURT
Appearances:
Applicant: L
Rose-Innes and D Borgström instructed by Fairbridges
First respondent:
P Myburgh instructed by Tinkler Inc
Second
respondent: M Feinstein instructed by Rapeport Inc