Amazulu Football Club v National Soccer League and Others (28539/2018) [2018] ZAGPJHC 560 (8 August 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NO: 28539/2018

In the matter between:

AMAZULU FOOTBALL CLUB Applicant

And

NATIONAL SOCCER LEAGUE First Respondent

THE SOUTH AFRICAN FOOTBALL ASSOCIATION Second Respondent

MTN GROUP LIMITED Third Respondent

MAMELODI SUNDOWNS FOOTBALL CLUB Fourth Respondent

GOLDEN ARROWS FOOTBALL CLUB Fifth Respondent

KAIZER CHIEFS FOOTBALL CLUB Sixth Respondent

FREE STATE STARS FOOTBALL CLUB Seventh Respondent

ORLANDO PIRATES FOOTBALL CLUB Eighth Respondent

SUPERSPORT UNITED FOOTBALL CLUB Ninth Respondent

MARITZBURG UNITED FOOTBALL CLUB Tenth Respondent

CAPE TOWN CITY FOOTBALL CLUB Eleventh Respondent

AJAX CAPE TOWN FOOTBALL CLUB Twelfth Respondent

MOKHARI, WILLIAM N.O Thirteenth Respondent

JUDGMENT

FISHER J:

Introduction

[1] This application comes before me in the urgent court. It is the next instalment of a series of legal processes involving the PSL league table. The dispute which has been and remains at the center of this litigation is whether Mr. Ndoro was eligible to play in matches in which he was fielded by Ajax in the 2017/2018 season of the PSL. This season came to an end in June 2018. The new season (2018/2019) commenced on 04 August 2018 and is currently underway. The placings on the 2017/2018 league table impact

the fixtures of the new season.

[2] Such placings also affect the Top 8 Competition which generally starts at the beginning of the new season and runs to October 2018. The Top 8 Competition is currently sponsored by MTN and is thus known as the MTM Top 8 Competition. As the name suggests – the top 8 teams in the PSL qualify to participate in a promotional competition. It is this Top 8 Competition which is the focal point in this application.

[3] The applicant, AmaZulu brings these proceedings to interdict all fixtures of the MTN Top 8 Competition from being played and alternatively, the first match of this this competition which match is scheduled to be played between Orlando Pirates and Supersport on 11 August 2018.

Background

[4] This interdict is sought pending a determination of the appeals brought against my judgement in the matter of Ajax and another v Mokhari N.O. and others - under case number 18413/2018.

[5] Various internal processes were convened in relation to the disputes arising from Mr Ndoro’s eligibility. These are outlined in my judgment in the Ajax case. These culminated in an arbitration award being handed down by Mr Mokhari SC in an expedited disciplinary procedure brought against Mr Ndoro and Ajax. Mr Mokhari held that Mr Ndoro was ineligible and imposed a penalty of forfeiture in respect of the games played by Ajax and won or drawn.

[6] The imposition of this penalty took Ajax from fifteenth position to sixteenth position on the league table and AmaZulu from eighth to ninth place. There were other changes in the league configuration but the fifteenth and eighth places are key in the table in that the holding of these positions brings with it the reward of further participation and prizes. The holder of the fifteenth slot is granted the right to a place in the promotion play-off games whereas the holder of the sixteenth slot suffers automatic relegation to the First Division League.

[7] These contentious placings then led to further litigation aimed at obtaining interim relief in a bid to protect the positions on the league table achieved on the field. Ajax brought the application to review the award of Mr Mokhari in a bid to preserve its position as fifteenth on the league table. The NSL opposed the application for review. AmaZulu and Supersport joined in the fray in a bid to vie for the eighth spot. All the clubs opposing the application did so with the aim of curing their own particular predicaments caused by the purported reconfiguration of the league table pursuant to Mr Mokhari’s award.

[8] Importantly, throughout these legal wrangles, play of the League Tournament continued as scheduled by the NLS. This is notwithstanding the bringing of applications to interfere with its progress: An urgent application was brought by Ajax and Mr Ndoro in this court before Sutherland J for an interim order interdicting the NLS from stopping Mr. Ndoro from playing this was dismissed on 03 April 2018.The first play-off game took place on 16 May 2018. On the same day, Ajax and Ndoro launched another urgent application seeking the urgent review of the award of Mr. Mokhari and interim relief, this time to stop the play-off games from proceeding. Keightley J refused the urgent interdictory relief. This had the result that Ajax did not play in the play-off games and that this in turn led to these relegation matches being played between Platinum Stars against, Jomo Cosmos and Black Leopards. The outcome of these relegation matches was that Platinum Stars was relegated and Black Leopards promoted.

[9] It was only possible for the review to be heard after the season had come to a close. The review came before me in the case of Ajax v Mokhari (supra). I set aside the award of Mr Mokhari on 02 July 2018.

[10] The setting aside of the award meant that the order of Mr Mokhari had no effect and that thus the forfeiture penalties did not operate. The inexorable movement into the next season had already commenced with all that this entails, including the training, sponsorship, ticket sales, and general expenditure of resources in preparation for the season. The situation was invidious and unprecedented. Teams in key positions on the league table including AmaZulu and Supersport who were vying for eighth position, were left with no choice but to continue with preparations in the knowledge that the league fixtures were not fixed but had been rendered subject to the vagaries of the litigation process which had been embarked upon.

[11] The next logical step in the litigation process was for the NSL and other parties to decide whether to embark on an appeal process. The NSL, after consideration, took the decision to apply for leave to appeal and an application for leave to appeal was filed on 05 July 2018. This changed the state of play to one where the Mokhari award again had operation. This once again, as must have been expected, led to a reconfiguration of the table on the basis of the Mokhari award.

[12] The leave to appeal was heard as soon as was practicably possible. It was generally accepted that the limited resolution that this could bring to of the ever shifting process was of importance to the approach to be taken by the NSL in relation inter alia to the determination of the league table and fixtures.

[13] Leave to appeal was granted. Before the application for leave was heard - and in anticipation of leave possibly being granted - Ajax brought a conditional application in terms of s18 of the Superior Courts Act. Leave to appeal was granted to the Full Court of this division. The parties have sought an urgent hearing of the appeal from the Deputy Judge President who has agreed that such a bench may be convened once the record has been produced. Ajax then withdrew its application in terms of s18. I am advised from the Bar that preparations are advanced in relation to the readying of the record for the purposes of the appeal. It is now accepted however that the season will be well underway by the time that the appeal court delivers its judgement.

Discussion on Urgency

[14] It has thus been clear to AmaZulu since the application for leave to appeal was filed ( on 05 July 2018) that the league fixtures and the fixtures of its accessory tournaments ( of which the Top 8 is one) could conceivably be set in accordance with the prevailing legal position at the time. That the NSL could embark on an appeal process was well within its contemplation at the time. Indeed all indications were to the effect that it was likely to do so.

[15] AmaZulu argued in the Ajax case that it had at that stage already made preparations and had incurred expenses in preparation for the Top 8 Competition in reliance on the Mokhari award. Supersport argued similarly that it had expended resources in this regard. It emerges that AmaZulu has continued to make these preparations. There can be no doubt that Supersport has also been avid in its preparations based on the position which prevails. The first match of the Top 8 is, after all, set to be played in 3 days.

[16] S 18 of the Superior Courts Act provides the remedy that parties who find themselves in a predicament caused by the suspension of an order because of it being brought under appeal must avail themselves of. It reads as follows in relevant part:

“Suspension of decision pending appeal

(1)Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

. . .

(3)A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

(4)If a court orders otherwise, as contemplated in subsection (1) –

(i)the court must immediately record its reasons for doing so;

(ii)the aggrieved party has an automatic right of appeal to the next highest court;

(iii)the court hearing such an appeal must deal with it as a matter of extreme urgency; and

(iv)such order will be automatically suspended, pending the outcome of such appeal.

(5)For the purposes of subsections (1) and (2), a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules.”

[17] The urgent relief sought by AmaZulu is that the court interfere with the suspension of the order which is currently operational. This goes to the very heart of the relief sought. Relief of this nature must be brought under s 18.

[18] In terms of s 18(5) the procedure in s 18 may be brought after the lodging of the application for leave to appeal. The urgent nature of the relief is recognized as inherent within the process. This is so much so that the extraordinary remedy of an automatic and urgent appeal process is statutorily provided for.

[19] AmaZulu could give no cogent explanation for its failure to invoke the urgent remedy available to it in terms of s 18. It contended only that it is justified in bringing the application in the form that it does – i.e. as an application for ordinary interdictory relief - more than a month after the application for leave to appeal was lodged, because its urgency was “triggered” by the announcement of the Top 8 fixtures on 31 July 2018.

[20] This contention loses sight of the fact that the very purpose of the participation of AmaZulu in the urgent review application before me in the Ajax case was that its position in the Top 8 Tournament was threatened. It was aware of the fact that this tournament would take place in accordance with the usual fixtures which occur early in the season.

[21] The fact that AmaZulu has waited to have the Top 8 Tournament or at least the first scheduled fixture thereof interdicted some 3 days before the tournament is to commence, is to my mind, a classic case of self-created urgency. Indeed, it smacks of tactical play. As set out above it has known for more than a month what course is open to it in relation to the protection of its position. The parties are acutely aware that in the life of the National League, a month is a very long time indeed. Accordingly, the matter should be struck from the roll for want of urgency.

Some Further Observations

[22] In any event, the failure to adhere to the process laid down in s 18 would render the application defective. This process, takes account of the principle that the bringing of an appeal will suspend the order save if there are exceptional circumstances which allow for the order to remain in force pending the outcome of the appeal. Apart from this, section 18(3) requires the applicant to prove on a balance of probabilities that he or she “will” suffer irreparable harm if the order is not made, and that the other party “will not” suffer irreparable harm if the order is made.

[23] In Incubeta Holdings (Pty) Ltd and another v Ellis and another 2014 (3) SA 189 at paragraph [24] Sutherland J succinctly described these provisions as creating “A hierarchy of entitlement” where “…two distinct findings of fact must be made”. This encapsulation of the nature and purpose of the enquiry in s 18(1) was approved in University of the Free State v Afriforum and another [2017] 1 All SA 79 (SCA) at paragraph [11].

[24] Whether or not “exceptional circumstances” for the purposes of section 18(1) are present, must necessarily depend on the peculiar facts of each case. Again, Sutherland J’s approach was invoked in University of the Free State v Afriforum (at [13]) In this regard the learned Judge said at [22]:

“Necessarily, in my view, exceptionality must be fact-specific. The circumstances which are or may be ‘exceptional’ must be derived from the actual predicaments in which the given litigants find themselves.”

[25] Mr Ndoro’s eligibility has been in dispute from the outset and remains in dispute. This notwithstanding, the position has been that the league programme has unfolded. Thus within this context the circumstances cannot be said to be exceptional. Indeed it has been the norm that the league has continued notwithstanding the prevailing uncertainty.

[26] The prospects of success in the appeal are relevant to the enquiry (see University of Free State Case supra at [14] and [15]). In The Minister of Social Development Western Cape and others v Justice Alliance of South Africa and another [2016] ZAWCHC 34 Binns- Ward J put this aspect of the enquiry thus:

“. . . the less sanguine a court seized of an application in terms of s 18(3) is about the prospects of the judgment at first instance being upheld on appeal, the less inclined it will be to grant the exceptional remedy of execution of that judgment pending the appeal. The same quite obviously applies in respect of a court dealing with an appeal against an order granted in terms of s 18(3).”

[27] There is however a further and more important consideration in this matter is the prospect of it being ultimately found that Mr Ndoro was eligible to play. To my mind the prospects of Mr Ndoro ultimately being found to have been eligible in all the circumstances are poor.

[28] To the extent that this this was not abundantly evident before, it has in the last months of this intractable process been shown that the litigation process is not ideal for the purposes of seeking to halt or change the league’s course. The internal remedies available to the members of the league should prevail, as all the statutes of the various structures are a pains to emphasize.

[29] The NSL is primarily responsible for administering professional club football in South Africa. It must act responsibly and in the interests of it’s members and the League and in accordance with the prescripts of the apex

structure, FIFA. The Board of Governors is the supreme decision making organ of the League and comprises the chairpersons of the member clubs or duly appointed member club officials. The Board of Governors has the power and authority to do any act or thing as may be required to give effect to the objects, and exercise the powers of the League as set out in this NSL Handbook.

[30] The League has taken a decision to follow the judicial process with all that this entails. It would certainly be prejudiced in the carrying out of its function, should it be prevented from availing itself of legitimate processes at its disposal. AmaZulu would not in my view have been able to demonstrate that the NSL would not suffer irreparable harm if it were interdicted as prayed, even if the matter had been entertained urgently. AmaZulu has put some emphasis on the contractual nature of the relationship between the NSL and its members and the fact that it thus owes all members a duty to act in the interests of the League. To my mind,

whilst Ajax and AmaZulu have suggested that the Board of Governors should be more creative in its approach to dealing with the

intractable position which has arisen as a result of the dispute about Mr Ndoro’s eligibility, the pursuit of the ongoing legal processes at its disposal is not an unreasonable course for it to follow and, to my mind, cannot be said to be a breach of its obligations to its members, including Amazulu.

Costs

[31] The NSL seeks that it be given the costs of the application and that such costs should include two counsel where employed. I agree that this is a proper order in light of the result and in light of the nature and relative complexity of the matter. AmaZulu was itself represented by two counsel.

Order

I make the following order:

(1) The application is struck from the roll for want of urgency.

(2) The applicant is to pay the costs of the application which costs are to include the costs of senior and junior counsel where employed.

________________________________

FISHER J

HIGH COURT JUDGE

GAUTENG LOCAL DIVISION

Date of Hearing: 7 August 2018.

Judgment Delivered: 8 August 2018.

APPEARANCES:

For the Applicants: Adv J Wasserman SC with Adv A Ayayee.

Instructed by: Murphy’s Attorneys.

For the First Respondent: Adv M Kriegler SC with Adv M Chauke.

Instructed by: DMS Attorneys.