Silo v Nompozolo and Gabelana Incorporated and Others (EL 785/2009; ECD 2685/2009) [2020] ZAECELLC 6 (30 April 2020)

IN THE HIGH COURT OF SOUTH AFRICA

EAST LONDON CURCUIT LOCAL DIVISION

Case no. EL 284/2020

NOT REPORTABLE

In the matter between:

GAIL FORCE TRADING T/A

XABA PROMOTION AND EVENTS Applicant

versus

BOXING SA

1st Respondent

YANGA SIGQOBO 2nd Respondent

RUMBLE PROMOTIONS 3rd Respondent

JUDGMENT

HARTLE J

[1] In this urgent application issued late yesterday afternoon (Friday – 6 March 2020) and served on very short notice to the parties, the applicant seeks an order in the following terms:

“1. Condoning the applicant’s non-compliance with the rules relating to time periods, form and service for bringing applications and (directing) that the matter be heard as urgent in terms of rule 6 (12)(a) of the Uniform Rules.

2. Interdicting and/or preventing and/or prohibiting the first respondent from holding an arbitration hearing which it intends to hold either in Pretoria or East London today or on 7 March 2020.

3. Issuing a rule nisi, calling upon the respondents to appear before the above Honourable Court on the 14th of April 2020 at 09h30 am, in order to show cause why an order in the following terms cannot be granted:

3.1 directing the first respondent to:

3.1.1 Firstly, attempt to resolve the dispute by way of conciliation, when properly referred, and only after conciliation has failed may the matter be referred to arbitration; and

3.1.2 to allocate a date, other than 6th or 7th March 2020, for such arbitration hearing an afford party reasonable time to prepare for and attend such arbitration hearing.

3.2 Interdicting and/or preventing and/or prohibiting the:

3.2.1 first respondent from sanctioning and/or approving and/or allowing tournaments and/or fights involving the second respondent, whether national or international, including the fight to be held on 8 March 2020, without the applicant’s consent or until the finalization of the determination of the dispute between the applicant and the second respondent.

3.2.2 second respondent from participating in any fight sanctioned with or under a boxing promotor other than the applicant or without the applicant’s consent thereof, whether national or international, including the fight to be held on 8th March 2020, without the applicant’s consent or until the finalization of the determination of the dispute between the applicant the second respondent; and

3.2.3 third respondent and/or any other person and/or promotor acting on instruction of the third respondent, from sanctioning and/or promoting any fight for and/or on behalf of the second respondent and/or where the second respondent would be participating by boxing, whether national or international, including the fight to be held on 8th March 2020, without the applicant’s consent or until the finalization of the determination of the dispute between the applicant and the second respondent.

4. Directing that the contents of paragraphs 2 and 3 above operate as interim relief, with immediate effect, pending the return date.”

[2] The application was opposed by each of the respondents who also raised preliminary points aimed at non-suiting the applicant. The matter was argued before me this morning (7 March 2020) by which time a full set of papers had been filed by all the parties, including a replying affidavit by the applicant.

[3] The applicant, or at least its director, Mr. Ayanda Mtiti, is a licensed promoter in terms of section 7 (1)(c) of the Boxing Act No. 11 of 2001 trading as Xaba Promotions and Events under the auspices of the close corporation.

[4] The first respondent is Boxing South Africa, a Boxing Commission established in terms of section 4 of the Boxing Act which is responsible for the administration and oversight of boxing in South Africa with the specific powers allocated to it in terms of section 7.

[5] The second respondent is a licensed boxer who the applicant claims to have concluded an extant “boxer/promotor agreement” with on 28 June 2018 (I will hereinafter refer to him as “the boxer”). He was cited only as an interested party in these proceedings.

[6] The third respondent is similarly a licensed promoter who the boxer has purportedly entered into a recent boxer/promoter agreement with. The third respondent is also only cited in the proceedings as an interested party but has fully associated and aligned himself with the boxer in respect of the latter’s opposition to the application.

[7] The boxer and his new promoter reside and carry on business respectively in East London.

[8] The latter has organized a tournament in which the boxer is scheduled to fight tomorrow, 8 March 2020, at 14h00, in East London.

[9] There are two aspects to the alleged clear right that the applicant asserts in these proceedings for an interdict. In the first instance, and arising from its lawful expectation of Boxing SA to resolve all boxing disputes strictly in accordance with the prescripts of the applicable rules and regulations for such dispute resolution, it claims that Boxing SA is acting contrary to those by subjecting it to an unprocedural urgent arbitration hearing which it seeks to prevent it from holding today and, secondly, it asserts that despite its entitlement to expect that Boxing SA will respect and uphold his extant contract of engagement with the boxer on its terms, Boxing SA has (I read into the context, in breach of its statutory obligation to protect and regulate their

interests inter se (between promoter and boxer)), sanctioned and is allowing the tournament due to be held tomorrow in spite of the applicant’s

contractual right as against the boxer to insist that he not be permitted to fight in the tournament organized by the third respondent without its consent and despite the fact that Boxing SA has not yet finally determined a dispute between them. It seeks to stop tomorrow’s fight and any other tournaments in which the boxer may participate in the future in breach of its contract of engagement with it pro tempore the determination of the dispute.

[10] The parties have different departure points concerning what dispute it is that is at hand.

[11] As far as the applicant is concerned it is the second respondent who wants to be released from his contractual obligations with it. There was a dispute concerning this request and issues of their contract being compliant with Boxing SA’s requirements which was initiated by the boxer. Boxing SA is yet to adjudicate on that dispute by way of arbitration. The applicant believes that until the boxer is freed from his obligations under their contract he cannot fight on Sunday although he is poised

to do so under the mantle of the third respondent who is his purported new promoter.

[12] In order to get to that point, of determining the dispute, there must first be an arbitration. However, the proceedings which were set down urgently for hearing on Thursday and Friday this week, and ultimately in East London this morning at the behest of the boxer, cannot be foisted on it at the last minute. Not only does it require adequate time to prepare for the proposed arbitration, but it asserts that there is a pre-layer conciliation that must precede the arbitration. There must also be a proper dispute referral which the applicant says does not exist.

[13] Contrariwise, the respondents contend that the dispute that is the subject matter of these proceedings is one which emanated from the applicant itself just a few days ago. They say that the applicant initiated this last-minute referral and that it has done so only as a stratagem to create a reason why Boxing SA should interpose itself and preclude the tournament from happening.

[14] The applicant avers that the present process adopted by Boxing SA by expecting the arbitration hearing to be disposed of urgently is irregular and against public interest. The matter is urgent because the combination events of the irregular arbitration proceedings and the participation of the boxer in the tournament are to happen right now. The prejudice to it is that the respondents (second and third) would have benefited at the expense of it if the boxer is permitted to fight tomorrow.

[15] Although the relief sought by the applicant was couched in the format of a rule nisi, it is obvious however that, if granted, this court’s order would be final in effect. (This is especially so regarding the boxer who will permanently lose the opportunity to be able to compete in the tournament tomorrow if I grant the interdict in the terms sought by the applicant.) The perceived threat of the supposed irregular arbitration hearing has however now come and gone and, for the reasons which I indicate below, cannot hold any further terror for the applicant to warrant the interdictory relief sought in this respect.

[16] What stops the boxer from being allowed to fight tomorrow, so says the applicant, is a condition in the contract (clause 3.4) which provides that during its term (it extends to 3 May 2020), the boxer may not without consultation with it or its prior written permission, engage in any boxing contest or exhibition. It has not given the boxer such permission. What Boxing SA’s lawful obligations are to do about that privity of contract between the boxer and the promoter in his official capacity is not clearly spelt out in the founding affidavit. The applicant asserts rather vaguely in my opinion in this respect that “the (boxer) should not even be permitted to participate in a fight” but qualifies that this is so only “pending the determination of the dispute between (the boxer) and itself.”

[17] Reading into the context, the applicant’s main bone of contention is Boxing SA’s alleged breach of its statutory obligation to effectively resolve boxing disputes which is at the source of all the trouble. By not resolving the old existing dispute and yet by allowing the boxer to go about his business with the new promoter it gives the unfortunate impression that “the outcome of the arbitration hearing (has) been pre-determined.” None of this augurs well for Boxing SA’s obligations as administrators under the Boxing Act, the objects of which are, inter alia, to protect and regulate the interests and rights of both boxers and promoters and the attainment of the effective resolution of boxing disputes.

[18] Concerning an earlier dispute between the applicant and the boxer which Boxing SA ostensibly sought to administratively resolve by Boxing SA between them, the respondents appear (mistakenly in my view) to be under the impression that that matter was automatically concluded in the boxer’s favour when the applicant failed to meet a deadline on 27 November 2019 to rectify the contract. In its view the applicant had been advised what was expected of it to do to render its contract of engagement with the boxer compliant with Boxing SA’s requirements, but has not taken any steps to do so.

[19] On 3 March 2020, and evidently out of the blues insofar far as Boxing SA is concerned, the applicant’s attorney had written to it to warn it of this urgent application which it intended to launch unless Boxing SA reversed its decision to sanction the boxer’s fight in tomorrow’s tournament hosted by the third respondent. This prompted it to inform the applicant’s attorneys that a dispute resolution panel would be convened on an urgent basis on 5 March 2020, initially in Pretoria, to hear the dispute.

[20] Not appreciating that Boxing SA was under the mistaken impression that the complaint they had agreed to act on urgently was the applicant’s, rather than the stale one of the boxer’s, the applicant attorneys advised that the notice was too short and that they did not believe in any event that the boxer would be present at the hearing. In response the first respondent offered the alternative dates of either Friday, 6 March 2020 in Pretoria, or today, 7 March 2020 here in East London, neither of which options the applicant was happy to accept.

[21] Regardless of what each of them understood concerning who the initiator was or what the nature of the dispute in fact is Boxing SA presently holds the view, asserted in these proceedings, that the contract in contention is in any event invalid for want of compliance with the regulations promulgated under the Boxing Act. Its attitude is that since it was conceded on the applicant’s behalf at the time of dealing with the boxer’s earlier contractual dispute that the contract was non-compliant with the regulations in certain respects, that this determines the fate of the contract for present purposes as being invalid. The contrary view of the applicant is that the contract remains valid until found otherwise and that this issue of its validity is at the very heart of the arbitration proceedings that Boxing SA was scurrying to hold on an urgent basis before tomorrow’s tournament.

[22] It is helpful to go back in time to consider what happened between the applicant and the boxer in the earlier contract dispute lodged by the boxer with Boxing SA. A dispute feedback report given by Boxing SA to the applicant and the boxer dated 5 November 2019 after the matter ran its course provides that:

“Notwithstanding the above (that is the alleged aspects of non-compliance with the Regulations), both parties are hereby afforded until 27 November 2019 to remedy the contract and contracting process followed and ensure compliance.”

[23] It is apparent that recognition was given by Boxing SA in its investigation into the then complaint of its need to “get both sides of the story”. It was also cognizant of the applicant’s contention that the so-called elements of non-compliance were not its sole responsibility but rather the “collective responsibility” of the boxer and Boxing SA as well.

[24] Whatever the parties understood about who was responsible, it is common cause that neither party followed up on the suggestions of Boxing SA and that the matter last received traction in November 2019.

[25] The feedback report is however unequivocal regarding the way forward for the parties and who was supposed to take the further initiative if this was required:

“For that reason, the issues raised by Yanga Sigqibo and his direct appeal to be “released from the mentioned contract so that he can pursue his career in peace” can best be handled by the dispute resolution process of Boxing South Africa and it is therefore the CEO’s determination that if so willing, Sigqibo should refer this matter to Dispute Resolution Process as per the applicable policy.” (Emphasis added)

[26] Finally Boxing SA concluded in its report that:

“As per paragraph 13, fourteen working days have been allocated to afford all parties to adequately evaluate options, apply mind and decide on the best way forward in own interest and that of the broader professional boxing in our country. It is our hope that this consideration will characterize the spirit that will guide us all henceforth.”

[27] The applicant’s understanding of how the process had been concluded is evident from the letter of its legal representative addressed to Boxing SA on 18 November 2019. In the fourth paragraph of the letter the attorneys write regarding paragraph 16 that:

“we are satisfied with the aforesaid. Indeed the matter must be referred to the dispute resolution process in the event of the boxer not taking up our offer, as suggested by yourselves in paragraph 13 of your letter.”

[28] The summation of all of this is that the applicant and Boxing SA were both waiting on the boxer to take the next step if he so desired.

[29] Boxing SA presently submit however, opportunistically in my view, that insofar as it is concerned the applicant’s director had indicated that he was “satisfied” with the feedback report, which by implication means that he accepted that the contract was non-compliant and that it was he, rather than the boxer, who should be referring a dispute for arbitration if he did not agree that the contract was defective.

[30] It appears that neither the applicant nor the boxer referred a dispute to arbitration after 18 November 2019 arising from the contractual dispute.

[31] Boxing SA explains that its recent decision to get an arbitration hearing going, indeed on the basis of urgency, is not its initiative (or the boxer’s), but rather the applicant’s and that as far as it is concerned the expectation in November 2019 was that the applicant would do what was necessary to regularize the contentious contract or refer a dispute. Interestingly, whilst recognizing the applicant’s right to urgently have “its” present dispute determined, Boxing SA yet maintains that the defective contract cannot form a legal basis to institute action because it is purportedly invalid. This argument in my view falls to be rejected as non-sensical and self-defeating. To the contrary, Boxing SA has an obligation to effectively resolve boxing disputes and to do so impartially, rather than forming a preconceived view about the validity of the contract.

[32] The gist of the boxer’s version is that he has no present contractual obligation to the applicant and that Boxing SA gave him the “green light” to sign with the third respondent. He too claims that it was up to the applicant to act in terms of the feedback report but that it did nothing to resolve the issue. He also avers (and this is not contradicted by the applicant) that the applicant was well aware of his contractual engagement with the third respondent since December 2019 and even boasted on social media at the time that it would take legal action against him because the boxer had sought refuge with the third respondent, yet took no steps to do so.

[33] He claims that the applicant had also been copied in on correspondence he wrote to the first respondent on 25 November 2019 to be released from the applicant’s “promotional outfit”, but the annexure put up by him in this respect rather purports to constitute a request to Boxing SA to obtain a copy of the contentious contract entered into with the applicant. This in itself

confirms in my view that he understood the contract to be alive and its existence a matter concern for him at the time.

[34] The third respondent aligns himself with the boxer’s version.

[35] Despite the contrary perception of the parties of where the administrative enquiry was left in November 2019, one cannot escape the inference that the matter was left up in the air and not formally pressed on with by either of them. There is simply no evidence that a dispute by either was referred for arbitration.

[36] If there was a dispute there would in my view exist a formal record of it. Section 31 of the Boxing Act provides in respect of disputes that:

“(1) If there is a dispute concerning any matter regulated by or under this Act, any party to the dispute may, in writing, refer the dispute to Boxing SA.

(2) The party who refers the dispute to Boxing SA must satisfy Boxing SA that a copy of the referral has been served on all the other parties to the dispute.

(3) Boxing SA must attempt to resolve the dispute and must give its ruling in this regard and may make such order as to costs as it deems fit.

(4) If the dispute remains unresolved or the parties do not agree with the finding of Boxing SA, any party may refer the matter for arbitration.”

(Emphasis added)

[37] Paragraph 3.2.2 of the rules of the Arbitration Tribunal of Boxing SA are also instructive:

“3.2 DISPUTES OTHER THAN APPEALS

3.2.1 A referral of a non-disciplinary dispute (any dispute other than an appeal against a decision of Boxing SA or the Disciplinary Committee) must be made within six (6) calendar months from the date on which the dispute arose, provided that the Arbitration Tribunal may condone a late referral on good cause shown.

3.2.2 The party referring the dispute (“the requestor”) must serve upon all affected parties (“the respondent/s”) and file with Boxing SA a referral in writing (“the referral document”) together with proof of payment of a dispute referral fee setting out fully the nature of the dispute and including the following information and documentation:

3.2.2.1 The name, address and contact details of the requestor including a street address, telephone number, facsimile number and an electronic mail address;

3.2.2.2 The name, address and contact details of the respondent/s including a street address, telephone number, facsimile number and an electronic mail address;

3.2.2.3 A summary of the relevant factual, legal, and regulatory

considerations;

3.2.2.4 Details of remedy sought; and

3.2.2.5 Any documents on which the claim is based or which are relevant to the dispute and in the possession or under the control of the requestor.

3.2.3 The referral document filed with Boxing SA must be accompanied by proof of service of the referral document and the annexures upon the respondent/s and proof of payment of the dispute referral fee.

3.2.4 The referral fee payable in respect of any dispute (including counterclaims) referred to Arbitration Tribunal shall from time to time be fixed and published in a Schedule of Fees by Boxing SA.

3.2.5 A respondent intending to oppose the referral must serve and file a written opposing document which must include the information and documents referred to in 3.2.2 with such changes as may be required within fifteen (15) days of receipt of the referral document.

3.2.6 The Arbitration Tribunal to hear the dispute will be constituted in accordance with 2.4 to 2.6 above and the identity of the members of the Arbitration Tribunal will be communicated to the parties in writing by Boxing SA.

3.2.7 The Arbitration Tribunal will be entitled, but not obliged, to attempt to conciliate the dispute, to convene a pre-arbitration hearing to narrow the issues or deal with any documentary matters, to require the parties to pay or make appropriate arrangements to pay or secure the costs of the arbitration, or to convey the date, time and place of the arbitration hearing.

3.2.8 Notice of the arbitration hearing will be provided by the Arbitration Tribunal to the parties, through the offices of Boxing SA, and the parties will be required to attend the arbitration hearing on the date, and at the time and place so provided.

3.2.9 The hearing will be conducted in a summary fashion without the need for strict compliance with the rules of evidence but with due regard for the parties right to natural justice to having their disputes determined fairly and by application of law.

3.2.10 The Arbitrational Tribunal will hand down a reasoned Arbitration Award upon conclusion of the matter which will be final and binding upon the parties and not subject to appeal or review.”

[38] Such an involved and detailed procedure, and indeed the passing of money as a referral fee, could hardly pass under the radar unnoticed as it were if a dispute proper had been referred.

[39] This application was heralded by the following demand made by the applicant’s attorneys which appears to have been the premise instead upon which Boxing SA verily believed there to have been a dispute referral by the applicant:

“RE : CONTRACT DISPUTE : YANGA SIGQIBA / XABA PROMOTIONS AND EVENTS

We refer to the above and to previous correspondence herein, regarding the contract dispute that has been an issue since September 2019

We also refer you to the numerous letters between your office and ours and in particular your letter dated the 5th November 2019 (paragraph 16 thereof) stating that the matter should be referred to the “… Dispute Resolution Process…”

Further emails requested same to be put in place, but despite same, this has not taken place.

We enclose herewith, a copy of a flyer from Rumble Africa Promotions, from which you will note that the main bout is the boxer concerned,

Yanga Sigqibo v Paulino. This fight is scheduled for Sunday the 8th March 2020.

It appears as if the aforesaid must have been sanctioned by yourselves, despite the dispute that prevails at present. The aforesaid is not acceptable.

We wish to remind you that in terms of Section 31 (4) of the Act, our client has the right to refer the matter to Arbitration. We are of the opinion that the fight cannot be proceeded with while the dispute remains unresolved.

The instructions that we have received from client, is to advise yourselves that we require notification from yourselves that the

Dispute Resolution is to be attended to with immediate effect, before Sunday’s bout, failing which we will seek a High Court

Interdict to prevent the bout from proceeding and to ensure that the Arbitration process is put in place so as to clarify and resolve the outstanding issues regarding the boxer.

Whilst the issues remain outstanding, our client continues to be severely prejudiced.

We wish to place on record further that we have already briefed Council to proceed with the Application on Thursday the 5th March 2020 should we not receive a positive response from yourselves and/or the boxer by no later than 12h00 on the 4th March 2020.”

[40] It is unfortunate that this galvanized Boxing SA into action to schedule a hearing of the dispute resolution panel without having any clear referral at its disposal as is required by section 31 of the Act, or as provided for in the Rules of the Arbitration Tribunal. Further, what the correspondence above also highlights is that the applicant’s reference to a dispute is to the old one. The present complaint being raised in the correspondence is that Boxing SA should not have sanctioned the tournament in the meantime and that it should act urgently to address the long-standing issue between it and the boxer over the

contract.

[41] Although Boxing SA might have been confused by the assertion in the letter that the applicant “has the right to refer the matter to arbitration”, it self-evidently misread the situation as appears from their response to the applicant’s attorneys on 4 March 2020 advising them of the steps taken by them to schedule “an” (not “the”) arbitration hearing, prompted by them having “received (the applicant’s) letter of dispute dated the 3rd March 2020”. (Emphasis added.)

[42] Inasmuch as Boxing SA purported to “break with protocol” by prevailing on the independent Arbitration Tribunal to hear the “dispute” on an urgent basis, it had no authority to act as it did without any written dispute initiating a formal dispute resolution process as provided for in section 31. The inference is also inescapable that it did so to render neutral

the criticism of it that it was ostensibly failing to protect the interests of the applicant by having sanctioned tomorrow’s

tournament whereas the issue of the contract still continues to bedevil the parties.

[43] Even after the applicant sought to wrangle out of the proposed hearing, which on Boxing SA’s version the applicant had itself requested, Boxing SA revealed its true motivation for pushing the envelope by holding an urgent arbitration hearing, namely that:

“this is an urgent matter and the tournament in question is scheduled to take place on Sunday, 8 March 2020.”

[44] I am fortified in my finding that it was acting in its own interests to stave off this negative perception of itself by the unfortunate

preliminary arguments raised at the hearing of this application, most notably its insistence in asserting that the contentious contract is invalid as a matter of fact whereas the parties have clearly never advanced the issue to a conclusion one way or the other (of what it is or is not) beyond the suggestions that emanated from the Feedback Report. A sober look at the report indicates clearly instead that the ball had been left in the boxer’s court to escalate it to the next level if he still felt aggrieved, with no formal decision having been taken to the effect that the contract was considered by Boxing SA to be invalid. Indeed if that were the case, one would have expected such a critical decision to have been communicated to him clearly, in writing, together with reasons. Further Boxing SA would have applied the rules of natural justice in coming to such an adverse decision.[1]

[45] Whatever concessions the applicant may have made in the dispute administrative enquiry does not conclude the issue of the validity of the contract nor the boxer’s right to be released from the contract on the bases contended for by him in the earlier dispute proceedings. It is evidently disingenuous for SA Boxing to take this stance in the light of the history of the matter and the criticism of it by the applicant that it is prejudging the outcome of a dispute that is yet to be properly referred and determined by the independent Arbitration Tribunal.[2]

[46] To conclude in respect of this aspect, I cannot find that a formal dispute has been referred.

[47] The upshot of all of this is that there is nothing to go forward to arbitration. The parties (applicant and Boxing SA) are confused, each from their own perspective regarding the premise of a live dispute that the independent Arbitration Tribunal is expected to determine.

[48] The applicant should have realized before it launched this application on an urgent basis that Boxing SA was confused and responding to its request for a dispute to be urgently disposed of, in other words bending the rules to come to its assistance before the bout.

[49] The applicant was confused by understanding that the dispute that Boxing SA wanted the tribunal to dispose of urgently was the boxer’s dispute arising from his prior complaint about the shortcomings in the contract and his request to be released from his contractual obligations.

[50] Each of them could have engaged the other a little bit more in my view before their ill-considered resort to the putative urgent arbitration and these urgent proceedings.

[51] It was immediately apparent to me when the parties commenced their arguments that the applicant and Boxing SA were barking up different trees, and that what the court was dealing with instead was nothing but a putative dispute referral.

[52] The applicant was however correct to assert an irregularity in the proceedings that were scheduled to take place this morning in the absence of any dispute referred as per the Rules of the Arbitration Tribunal. The absence of any real dispute also means though, looking at it from Boxing SA’s side, that there was no compunction on it to call off the tournament pending the resolution of such a dispute. Neither is there any call for Boxing SA to be interdicted from sanctioning or approving tournaments concerning the boxer in the future. I find no clear legal obligation on Boxing SA to interpose itself in this respect unless and until a formal dispute or formal complaint of unfair competition is lodged with it (by either the applicant or the boxer) to regulate

the rights of the applicant and the boxer inter se arising under the existing contract of engagement between them. The only provision in the Boxing Regulations that suggests any imperative on anyone to respect an existing contract of engagement is on the promoter who engages the services of a boxer for a tournament. Section 15 (3) of the Regulations provides that such a person must take all reasonable steps to satisfy himself or herself that the boxer will not, by participating in the tournament, be committing any breach of the Act, Regulations or any existing contract of employment. If I have overlooked any legal obligation in this respect my attention was not drawn to it and in the result I find no breach establishing the clear right contended for by the applicant. As for the situation between the applicant and the second and third respondents respectively, they were joined for their interest only and I see no basis for interdicting them as prayed for.

[53] The requirements for a final interdict are a clear right on the part of the applicant; an injury actually committed or reasonably apprehended, and the absence of any satisfactory remedy. Although the applicant may have satisfied these requirements and have been justified initially in approaching this court to interdict the supposed arbitration hearing today (prayers 2 and 3.2 refer), that moment has however now passed. An interdict is not a remedy for a past invasion of rights.

[54] It ought to be abundantly clear to the parties that there is in fact no dispute that has been referred. It does not exist. The situation goes back to square one, with the ball remaining in the boxer’s court to refer a dispute should he so wish. The applicant is also at liberty to refer a dispute itself. There is simply no further injury that can be occasioned to the applicant by the putative arbitration proceedings. They have no sting any longer and I therefore decline to grant an interdict.

[55] As for the special arguments raised, I am not inclined to non-suit the applicant. In arguing the in limine point that the applicant had no locus standi to initiate these proceedings, counsel referred me to the provisions of section 5 of the Regulations which provide simply that in order to be registered as a promotor for the first time an applicant must undertake and pass a written or oral examination set by Boxing SA for the purpose of testing his knowledge of the Act, Regulations and the Code and the generally accepted rules of boxing and his general knowledge of boxing promotion as the case may be, meaning that he must therefore be a natural person.

[56] It is plain that Mr. Ayanda Mtiti (the director of the applicant) is a licensed promoter but that he operates under the aegis of a juristic person trading as Xaba Promotions & Events.

[57] It is also apparent from the contract in contention that despite him being the licensee in his personal capacity that the obligations therein arise between the applicant (the close corporation) and the boxer and that this contract must have been registered with Boxing SA without any complaint being raised that the promotor being a juristic person was problematic. Indeed the template application for registration by a promoter (Annexures “A” to the Regulations) provides as follows in respect of such a contingency:

“NOTE : in the event of a juristic person applying to be registered as a promoter, full written particulars of all its shareholders, members and directors must accompany this application.”

[58] It appears to me to be rich for the respondents to argue that there is no nexus between the close corporation and Boxing SA. No doubt if the benefit of time had been afforded to the parties the locus standi of the applicant would have been clarified and verified. This court also has jurisdiction over the persons who are the subject matter of this application and the arbitration hearing and tournament respectively were and are poised to happen right here. However, if I am wrong in this respect it is not of any moment given the reasons outlined above for refusing the interdict.

[59] The applicant did not pray for costs in the application (Mr. Nzuzo submitted that it prayed for costs to be reserved but this is not reflected in the Notice of Motion). On this issue, however, and despite the applicant perhaps having been justified in vindicating its rights that were under threat in respect of the set down of the putative proceedings, a threat that still existed at the time of the issue of the application but which had passed by the time the matter was argued before me, I consider that the applicant should have been more astute in applying its mind to the clear misapprehension on the part of Boxing SA regarding what the dispute was about and who it considered was the initiator. Clearly however the real objective in bringing the present

application, so it had warned in its demand, was to stop the boxer from fighting in the tournament whereas it had known of this upcoming fright since December 2019 already. The applicant however failed to establish its entitlement to the benefit and protection of an interdict in the latter respect

[60] The first respondent also contributed in great measure to the present confusion and should not stand to benefit by any costs award in its favour. It should know better and act decisively to resolve boxing disputes. They have in fact allowed a situation to develop where two promoter/boxer agreements exist side by side.

[61] I am further singularly unimpressed by the technical points taken by it which do not behove an independent Commission called upon to account for its laissez-faire handling of a matter that has been simmering for a while now. It is lamentable that in doing so (that is in adopting a technical approach), they do not instill confidence that they will not take sides ultimately.

[62] As for the second and third respondents, they were cited only for their interest in the matter. No costs order was sought against them yet they joined Boxing SA in vigorously asserting that the applicant should be non-suited and in arguing that the contentious contract is no longer valid. This in my view warrants the censure of the court by ordering them to bear their own costs of opposing the application.

[63] The order which I issue is as follows:

1. The application is dismissed.

2. Each party is liable for their own costs of the application.

________________

B HARTLE

JUDGE OF THE HIGH COURT

DATE OF HEARING: 7 March 2020

DATE OF JUDGMENT: 7 March 2020*

*The order was handed down on 7 March 2020, but the typed judgment only made available to the parties on 11 March 2020.

APPEARANCES:

For the applicants: Advocate S Nzuzo instructed by Godongwana Ngonyama Pakade Attorneys, East London.

For the first respondent: Advocate K Seabi instructed by Gordon McCune Attorneys, King William’s Town

For the second and third respondents: Mr Jikwana instructed by (Unknown).

[1] See the provisions of section 7 (2) of the Boxing Act. A reading of section 15 of the regulations also implies that contracts between promoters and boxers are registered with Boxing SA once they have been approved (section 15 (15)) and that the only automatic lapsing happens upon effluxion of the time periods for the life of each contract, two years from the date of approval in respect of a long term engagement, and 60 days for a short term engagement specific to a tournament once approved, a process that happens by the parties appearing together before Boxing SA for the signing by them and the approval by the Commission of the contract (section 15 (17). I would except that rights vest in the parties at this juncture for the duration of the contract. In this instance I am convinced that the parties had definitely moved beyond this stage of signature and approval.

[2] See footnote 1 above. It is far too late in the day to be claiming that the contract is invalid once it has been registered and accepted by Boxing SA.