Football Club Matime Lions NPC v La-Masia Football Club NPC and Another (296/2021) [2021] ZAGPPHC 39 (28 January 2021)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

28-01- 2021

Case Number: 296/2021

In the matter between:

FOOTBALL CLUB MATIME LIONS NPC

APPLICANT

and

LA-MASIA FOOTBALL CLUB NPC

FIRST RESPONDENT

SAFA GAUTENG PROVINCE SECOND RESPONDENT

JUDGMENT

KUBUSHI J,

This judgement is handed down electronically by circulating to the parties’ representatives by email and by uploading on Caselines.

[1] The applicant, Football Club Matime Lions NPC, approached court on urgency seeking an interim order that pending the determination of the relief sought in part “B” of this application the participation of the first respondent, La-Masia Football Club NPC, in the second respondent, SAFA Gauteng Province ABC Motsepe Football League, be suspended. Directing further that second respondent, SAFA Gauteng Province postpone all fixtures of the first respondent, in the ABC Motsepe Football League for the 2021 season pending determination and finalisation of the relief sought in part “B” of this application.

[2] Further, directing that any of the respondents opposing the relief sought in Part “A” of this notice of motion bear the costs of this application and in the event of more than one so opposing, the respondents bear the costs jointly and severally, the one paying the other to be absolved.

[3] The first respondent is opposing the application and in addition to the defence on the merits, has raised a number of technical points.

[4] The second respondent is not taking part in these proceedings and has sent a letter confirming that it is not involved in the dispute between the applicant and the first respondent and will therefore abide by the judgement of the court.

[5] The facts of this matter are common cause and are in no way disputed by the first respondent. What appears to be at issue is what the parties refer to as the interpretation on the breach clause of the agreement.

[6] The facts as gleaned from the parties’ respective papers is that the parties entered into an agreement of sale relating to the purchase of the status of Football Club Matime Lions, SAFA Gauteng. The material terms of the aforesaid agreement of sale are as follows:

"3.1 Football Club Matime Lions hereby franchise the status of SFA Gauteng Motsepe League to the value of R500 000,00.

"3.2 La Masia Football Club NPC hereby agrees to purchase the status of Football Club Matime Lions, SAFA Gauteng. The buyer shall pay a full amount of R500 000,00 into the seller's FNB business account: 627677951744 towards the sale of the status. The sale agreement shall become valid once the full initial amount of R200 000,00 is paid to the seller which is then followed by an amount of R150 000,00 by the 30 September 2019 and the final payment of R150 000,00 by the 30 November 2019.

If the buyer fails to honour the above agreement the agreement will automatically be declared null and void and the status will remain to be the property of Football Club Matime Lions"

[7] At the time of the conclusion of the agreement of sale between the applicant and the first respondent, the 2019/2020 football league season was just about to commence. The first respondent registered and affiliated the status acquired in terms of the agreement under its name for the 2019/2020 football league season, registered players and participated in the 2019/2020 football season. What the applicant seeks in this application is to have the status reverted to it in order that it be registered in its name with the second respondent.

[8] It is not in dispute that the first respondent paid the deposit of R200 000,00 as stated in clause 3 of the agreement of sale. The first respondent, however failed to pay the balance of the purchase price by 30 November 2019 thereby allegedly committing breach of the agreement. As stated in clause 3 of the sale agreement, failure to comply with the terms of the agreement, automatically rendered the agreement of sale null and void and the status remained to be the property of the applicant. Therefore, by failing to honour payment of the full purchase price by 30 November 2019, the respondent breached

the agreement. Such breach rendered the sale agreement null and void.

[9] On 16 October 2020, the applicant instructed its legal representatives to write to the first respondent to confirm that the status is repossessed by the applicant for failure by the first respondent to honour the payments as per the agreement of sale. On the same date and upon receipt of the aforesaid letter, the first respondent made payment of an amount of R60 000,00 into the applicant's business account. The first respondent's representative, Mr Nazier Becker was advised that the status is already repossessed and that all payments made were to be refunded to the first respondent.

[10] What the first respondent fails to appreciate, in opposing this application, is that once the agreement was breached it became null and void and of no force and effect. The none fulfilment of the terms of the agreement, that is failure to pay the full purchase price by 30 November 2019, rendered the agreement void from inception. The fact that the respondent paid some of the outstanding amount after the cut-off time, or that there were discussions between the parties that ensued after the cut-off time of the agreement, did not revive the agreement which by then was already defunct.

[11] The agreement could only be revived by the waiver of the none fulfilment of the said term of the agreement by the seller. In this instance, it is clear that the seller had no intention to revive the agreement or to waive the none fulfilment of the term of the agreement breached by the first respondent. This is clearly indicated by the fact that once the cut-off time passed, a letter confirming that the ownership of the status has reverted to the applicant was sent to the first respondent. Even so, a waiver, if there was any, could have revived the agreement if it was made before the cut-off time provided by the agreement. Once the cut-off time had passed there was no longer any agreement existing between the parties and there could therefore, not be any waiver to talk about.

[12] Consequently, the application ought to be granted.

[13] I make the following order

1. It is directed that the matter be dealt with as one of urgency in terms of Uniform Rule 6 (12) and that the normal Rules relating to applications be dispensed with and that insofar as the applicant has not complied with the Rules of this Court, that its failure to do so be condoned.

2. Pending the determination of the relief sought in part “B” of this application, the participation of the first respondent, La-Masia Football Club NPC, in the second respondent, SAFA Gauteng Province ABC Motsepe Football League, is suspended.

3. Pending the finalisation of the relief sought in part “B” of this application, the second respondent, SAFA Gauteng Province, is ordered to postpone all fixtures of the first respondent, in the ABC Motsepe Football League for the 2021 season.

4. The first respondent is ordered to pay the costs of the application.

E.M KUBUSHI

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

Appearance:

Applicant’s Counsel

: Adv. G M Young

Applicant’s Attorneys

: Botha Massyn & Thobejane Attorneys

First Respondent’s Counsel

: Adv. Nazwem Ferris

First Respondent’s Attorneys

: M F Jassat Dhlamini Incorporated.

Date of hearing

: 27 January 2021

Date of judgment

: 28 January 2021