Lesotho Sports Council v Lesotho Football Association (CIV/APN 213 of 91) [1991] LSCA 104 (12 August 1991)

CIV/APN/213/91 IN THE HIGH COURT OF LESOTHO In the m a t t er between:- LESOTHO SPORTS COUNCIL Applicant and LESOTHO FOOTBALL ASSOCIATION Respondent J U D G M E NT Delivered by the Honourable M r. Justice J. L. Kheola on the 12th d ay of August, 1991 On the 26th July, 1991 the respondent obtained an o r d er in an ex parte application f or an interdict in CIV/APN/209/91 and that order w as in the following t e r ms :- 1. That a Rule Nisi be and is hereby granted calling the Respondents to show c a u s e, if any, before t h is Court on Friday the 2nd d ay of August, 1991 at 9.30 a.m. in the forenoon or so soon thereafter as the matter may conveniently be heard why: / 2 . . .. (a) T he Respondent shall not be inter- dicted from interfering in any m a n n er whatsoever, except by d ue p r o c e ss of l a w , w i th the Applicant's administra- tion of the g a me of soccer in Lesotho by A p p l i c a n t 's m e m b e r s. (b) T he Respondent shall not be directed to release forthwith to the Applicant any mail or other items in Respondent's possession addressed to the Applicant. (c) T he Respondent shall not be directed to c a u se to be broadcast forthwith, over Radio Lesotho, an announcement withdrawing the one made by it as alleged in the Founding Affidavit herein. (d) Tha Respondent shall not be granted such further or alternative relief as t h is Court may deem f i t. (e) The Respondent shall not be ordered to pay the c o s ts of t h is Application. 2. That paragraphs 1 ( a ), (b) and (c) of t h is R u le operate as an interim interdict having immediate effect." On the night of the some day i.e. the 25th July, 1991 the applicant launched an ex p a r te counter-application in which it applied f or stay of execution of the interim court order in C I V / A P N / 2 0 9 / 9 1. The applicant asked that the interim order should operate with immediate e f f e ct as an interim relief. /5 - 3- In h is founding affidavit Felix Mapholo Borotho d e p o s es that he is the President of the applicant and is duly authorised to m a ke t h is affidavit by the applicant. He d e p o s es that the applicant suspended the respondent from its activities on the 25th July, 1991. Following that suspension t he applicant issued a statement over Radio Lesotho announcing the suspension of the respondent and the appointment of the Senior Football Executive Committee to take control of all soccer m a t t e rs in the country. On the 25th July, 1991 the respondent terminated its affiliation with the applicant. M r. Borotho a l l e g es that the applicant had already m a de arrangements how the football t e a ms were going to play over the weekend starting on the 26th July, 1991 to the 28th July, 1991. If after its suspension and its termination of affiliation with the applicant t he respondent is allowed to resume its f u n c t i o ns under the prevailing circumstances, the applicant will not only suffer l e ss of credibility and responsibility in the e y es of the public and sporting community in particular, but what is even m o re disturbing is that serious confusion is likely to arise among the football c l u bs affiliated to the applicant which c l u bs have been informed of the suspension of the respondent and its termination of affiliation with the applicant. M r. Borotho alleges that there w as likely to be public violence or c h a os at the football v e n u es where some of the m a t c h es arranged by t he applicant w e re to be played. /4 - 4- M r. S e l l o, attorney f or the respondent, raised three questions of law in t e r ms of Rule 8 (10) (c) of the High Court R u l es 1980. The first question of law is that an application for the suspension of an interim interdict granted ex parte cannot be m a de without notice to the other side as to do so would be to undermine or reverse the very order of the C o u r t. It is g r o ss irregularlly for the Court to reverse, even temporarily, its own order without having heard the party in whose favour the order h as been g i v e n. I do not agree with t h is submission and M r. Sello h as not referred to any authority to support it. In t e r ms of Rule 450 t h is Court h as the power to rescind or vary any order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby provided that notice is given to the affected parties. It is very clear that Rule 45 refers to a rescission or variation of an order or judgment of the Court. In the present case we are dealing with a stay of execution of an order of the Court o r, as M r. Sello suggested, a suspension of the order of the C o u r t. If T h is Court h as the power to vary or to rescind its own final order or judgment granted in the absence of another party, I do not f i n] any reason why it cannot stay the execution of its interim order which w as erroneously granted in the absence of another party. I say it w as erroneously granted because I had another chance to look at the founding affidavit of M r. Bambatha T s i t a. He m a k es an allegation that the m a t t er is extremely urgent but /5 but he d o es not give any reasons why he thinks it is so urgent that he could not give notice to the respondent. Rule 8 (22) (b) provides that 'in any petition or affidavit filed in support of an urgent application, the applicant shall set forth tin detail the circumstances which he a v e rs render the application urgent and also the reasons why he c l a i ms that he could not be afforded substantial relief in a hearing in d ue c o u r se if the periods presented by t h is Rule w e re followed.' T he announcement o v er R a d io L e s o t ho that the soccer competition known as Winter Classic had been postponed, w as m a de for the first time on the 24th July, 1991. The respondent did not do anything until two d a ys later when the application w as launched. No reason h as been given why the m a t t er only became extremely urgent on the 26th July, 1991. What m a de it so urgent that the other party could not be given notice? Even if the applicant could be given only a few hours' notice that would have been in order. T he present application w as brought as an ex p a r te a p p l i- cation. In an ex p a r te application the Court h as the power to hear the applicant in the absence of the other side. It d o es not m a t t er that the application is f or the stay of execution or the suspension of its own order. It is therefore not correct that the Court cannot reverse its order without having heard t he party in w h o se favour the order h as been g i v e n. The order w as not reversed but merely suspended because the applicant convinced the Court that it had been erroneuously granted. The applicant /6 -6- further showed that if the order w as not suspended there w as likely to be public violence and c h a os especially at football venues where some of the m a t c h es to be played had been arranged by the Senior Football Executive Committee. The second question of law raised on behalf of t he respondent is that the effect of the interim interdict in CIV/APN/209/91 h as been simply to restore t he status quo ante the writing of Annexure " B" and consequently c a u s es t he applicant no prejudice whatsoever. Annexure " 8" is patently high handed and contrary to r u l es of natural justice inasmuch as not only d o es it d e p r i ve t he respondent, w i t h o ut giving it an opportunity to be heard, of f u n c t i o ns w h i c h, ex facie the same annexure, the respondent lawfully exercises, but g i v es neither reason for nor the p o w e rs in law on which it is grounded. I do not understand what the respondent m e a ns when it says it,was not given an opportunity to be heard. On t he 24th t he applicant called the Executive Committee of the respondent to a meeting and a full explanation w as given why the respondent w as to be d i s b a n d e d. The reason w as that the constitution of the respondent w as being reviewed by the Law O f f i c e. T he letter which suspended the applicant w as written on the 25th July, 1991 by the applicant which is a statutory body established by Order No. 41 of 1970. The o b j e c ts of the applicant appear in section 3 of t he Order an] include to promote all amateur sporting activities in Lesotho. /7 - 7- Section 16 of the Order p r o v i d es that 'a c l u b, union, organisation or sports body which w as at the time of the coming into operation of t h is Order a member of or affiliated to the Lesotho S p o r ts Association shall be registered by the Council under section 11 and subject to i ts control without formal application, but shall not on that account be exempt from any registration f ee which may be prescribed by the Council.' (my underlining) It is common c a u se that before the termination of affiliation of the respondent to the applicant, the respondent's c l u bs were under the control of the applicant but the actual running of the g a m es w as in the h a n ds of the respondent. T h is led to a state of confusion in the administration of football activities in this country leading to the aforesaid suspension of the respondent. The respondent w as given a chance to be heard on the 24th July, 1991 but did not accept the d e c i s i on of the applicant. I am of t he view that the applicant w as authorised by law to suspend the respondent because the latter w as under the control of t he f o r m e r. The third question of law is that it w as irregular f or the applicant, instead of anticipating the return d a te of the Rule Nisi in C1V/APN/209/91, as it is entitled to d o, to launch a new application in which it raises issues of f a ct touching t he very application before C o u rt which application Invites an answer from the respondent t h us causing not only a multiplicity of applications but confusing and compounding the issues unnecessarily. /8 - 8- The anticipation of the return d a te of the Rule Nisi would have forced this Court to sit at midnight because the respondent deliberately brought its ex parte application at the last m i n u t e. I have said that there is no reason why the respondent did not launch t h is application on the 25th July, 1 9 9 1. On that d ay they already had in their possession Annexure " B" and the announcement over Radio Lesotho had already been m a d e. The respondent deliberately refrained from annexing the letter of suspension - Annexure "FMBI". The non-disclosure of t h is important d o c u m e nt amounts to failure to d i s c l o se a material fact which, in ex parte application, m i g ht have influenced t he decision of the Court (Wilkies Continental C i r c us v. De R a e d ts C i r c us 1958 (2) S. A. 5 9 8 ). The Court w as misled into believing that the only letter purporting to disband the respondent w as Annexure "B" which w as attacked on the ground that it had n o- legal b a s i s. In the view that I take the respondent ought to have disclosed that in addition to Annexure " B" there w as a letter of suspension m a de by the applicant which according to law seems to be the proper authority to do a thing like that. The respondent is guilty of f a i l u re to show utmost good faith which is one of the m o st important requirements in ex parte applications. The applicant w as accused of bringing a very unusual appli- cation which is not supported by the R u l es of the Court. I tend to agree with that submission b ut I regard t h is application as a counter-application which w as m a de ex parte. Be that as it m a y, t h is C o u rt h as a discretion in t e r ms of Rule 59 which - 9- provides that 'notwithstanding anything contained in these Rules the court shall always have discretion, if it considers it to be in the interests of justice, to condone any proceedings in which the provisions of these Rules are not followed.' It was in the interests of justice that an ex parte application in which an interim order was erroneously or irregularly obtained should be suspended. It was submitted that the announcement over Radio Lesotho w as an act of spoliation. There is no substance in that submission inasmuch as the applicant is a statutory body in which certain powers are vested by law. The applicant apparently allowed the respondent to run the administration of football matters from April, 1991 but when the new members of the applicant were appointed by the Minister they reconsi- dered their position and decided to suspend the respondent. I do not think that there was any spoliation or self-help because the respondent was created by the applicant and it has the power to disband it. In the result the Rule Nisi is confirmed with costs. J. L. KHEOLA JUDGE 12th August, 1991. For Applicant - Mr. Mohapi For Respondent - Mr. Sello,