REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2024-060318
In the matter between:
UPINGTON CITY FOOTBALL CLUB Applicant and MILFORD FC FIRST RESPONDENT
NATIONAL SOCCER LEAGUE SECOND RESPONDENT
ARBITRATOR ADVOCATE NYMAN THIRD RESPONDENT
BAROKA FC FOURTH RESPONDENT
SOUTH AFRICAN FOOTBALL ASSOCIATION FIFTH RESPONDENT
RICHARDS BAY FC SIXTH RESPONDENT
UNIVERSITY OF PRETORIA FC SEVENTH RESPONDENT
REASONS
MANOIM J:
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
…………..…………............. …07/06/2024……
SIGNATURE DATE
Introduction
[1] This is an urgent application in which the applicant Upington City Football Club
(“Upington”) seeks an interim interdict to prevent the second respondent, the
National Soccer League (“NSL”) from holding promotion and relegation playoffs
pending the outcome of a review application. This is set out as Part A of the
relief. In terms of Part B, Upington seeks to have its dispute with another club
Milford FC, (“Milford”) the first respondent, referred to an arbitration panel of the
NSL. Only Part A was urgent and was the one I was required to decide.
[2] I heard the matter on Saturday 1 June 2024, a day before the first of the
matches which Upington sought to interdict, was to be played. Given the
urgency of the situation and that the fate of four teams as well as the NSL and
many other parties depended on the outcome, I gave my order on the 1 June
2024 and indicated that my reasons would follow. I dismissed the application
with costs. In these reasons I explain why.
[3] As will be noted amongst the seven respondents in this matter are three other
soccer teams. All have an interest in the outcome of the application. Upington
and two of the other teams all compete in what is known as the Motsepe
Foundation League. In the football hierarchy this league is the second division.
At the end of the season two of these teams which have finished second and
third respectively in the Motsepe Foundation League qualify for the playoffs to
be promoted to the first division, the Dstv Premiership League. The third team
in the playoffs is Richards Bay. It finished in the second last place in the Dstv
Premiership and hence still qualifies to contest the playoffs against the second
and third finishers from the lower Motsepe Foundation League. The three teams
play each other twice and the successful team qualifies to go, or remain as the
case may be, to the Dstv Premier League. At stake for those seeking promotion
is not only prestige but also a more lucrative future for the successful team.
[4] Upington is not in the playoff. Instead Baroka FC (“Baroka”), the fourth
respondent, and Richards Bay the sixth respondent, and University of Pretoria
the seventh respondent, are. There is no dispute over the eligibility of the latter
two teams. The case would merely serve to identify their third opponent.
However, the implications for Baroka are different. If Upington succeeds it will
displace Baroka as the third side in the qualifying rounds.
Background
[5] The reason for this goes back to a match that Upington played against Milford
FC on 6 April 2024. The outcome of that match was that Milford won 3-0. But
Upington contends that Milford had for some period of the game played without
having two under 23 players on the pitch. If Upington was correct this meant
that the NSL had to sanction Milford by deducting its three points and three
goals for winning the match and awarding the three points and the three goals
to Upington. If this happened then according to the arithmetic of the league
table, Upington would rank high enough in the league table to displace Baroka
and become instead the third team in the qualifying round. Although Milford is
cited as a respondent it is not otherwise effected by whether it must forfeit the
points as it has not qualified for the playoffs even if it can retain the three points.
This may explain why it is Baroka, not Milford, which along with the NSL has
opposed the application.
[6] Of course, there is no guarantee for Upington that if it wins in the court room
and subsequent arbitration that promotion would follow. They would have to
succeed in the playoffs. This case then might seem about the right of Upington
to participate in the playoffs. But as I go on to explain in terms of the relief
sought in Part B it is not even that. It amounts to a right to have a new arbitration
which might consider new evidence and only then which might be sufficient to
lead to Upington being awarded the points and the goals.
[7] On 6 April 2024 Upington played a league game against Milford. In terms of
Rule 35.2 of the NSL handbook, each team must at all times field a minimum
of two players who are under 23. A failure to do so can result in a sanction
against the defaulting team. This in terms of Rule 51.2 which states:
“…ineligibility if a player takes part in a match (he is on the team
sheet, the field of play or on the substitute bench at any time)
despite being ineligible the member club which fielded will be
sanctioned with a forfeit of the match and minimum fine of
R100,000,00. The player may also sanctioned.”
[8] On the day in question in the 65th minute of the game, Milford decided to
substitute three, or possibly four of its players. According to the report of the
match Commissioner, two under 23 players were substituted leaving only one
under 23 player remaining on the field. The match Commissioner stated that
the match continued for about 4 minutes whilst Upington protested. According
to him there was an engagement with the fourth official and only four minutes
later, in the 69th minute, did Milford then introduce another substitute whose
presence then brought Milford into compliance once again.
[9] The match Commissioner indicated that one of those under 23 players who was
substituted in the 65th minute, was a player called Olwethu Cele wearing jersey
number 22. Milford went on to win the match 3-0.
The protest
[10] Upington lodged a protest with the NSL, and it was referred to the NSL’s
Disciplinary Committee (“the DC”). Milford denied it had been in contravention
of the rule. Upington relied on the report of the match Commissioner and
another official. However, during the hearing, the DC found these officials
reports unreliable. One’s recollection was found to be faulty while another
official sought to rely on notes that had got wet in the rain. At issue for the DC
was whether Cele was substituted, or as Milford contended, had remained
playing after the 65th minute.
[11] The DC wisely, instead of relying on recollections of officials, decided to call for
the video of the match. Matches at this level of the game are broadcast on Dstv.
The video showed that at the end of the game Cele was still on the field as a
player. He was distinctive not only by his jersey number but also because he
was bald and wore an armband. Upington sought to first challenge the
authenticity of the video. This challenge failed. Then it sought to argue that the
video only showed Cele congratulating the other players after a goal had been
scored when he was seen in the company of the reserve goalkeeper. This was
to suggest he had only run on the field to celebrate with his teammates and not
as proof that he was still playing. This interpretation of the video was also
rejected by the panel.
[12] Cele did not testify. It was suggested in argument by Mr Thobejane that his
failure to testify should have resulted in an adverse inference. But Mr Majavu
who appeared for the NSL pointed out that Cele had attended the hearing and
there was no need to have called him as the DC was satisfied from the video
that he had been playing until the end of the game. In short, the conclusion was
that Milford was not in breach of rule 35.2. This meant the result stood.
[13] Unhappy with the outcome Upington sought to appeal. In the normal course the
hierarchy of appeals in the NSL system is that the appeal against the DC’s
decision first goes to an appeal panel. Then there is a further appeal to an
arbitrator who can hear additional evidence. On this occasion the CEO decided
in terms of the rules to refer the matter straight to an arbitrator a power the CEO
has in terms of the Rules. The parties agreed to have the matter heard by
Advocate Nyman who is the third respondent.
[14] There is a dispute of fact as to whether Upington agreed to this expedited
procedure. The NSL maintains it did while Upington contends otherwise. In any
event the NSL argues that the rules permitted the CEO to do so even absent
an agreement.
[15] When the matter came before the arbitrator the first issue, she had to decide
was whether the matter should be approached as an appeal or start de novo
as requested by Upington. She decided that she would only hear the matter as
an appeal and that therefore she was confined the record that had served
before the disciplinary committee.
[16] The powers of the arbitrator are determined by article 81 of the SAFA
disciplinary code which states:
“Notwithstanding anything contained in these Rules, the powers
of the arbitrator shall be wide and shall be determined by the
arbitrator at his sole discretion.”
[17] Having made that determination despite the objections of Upington the next
issue was to decide whether Baroka should be allowed to be a party to the
appeal. The arbitrator allowed it to be a party. Baroka addressed legal argument
but led no new evidence since like the other parties it was confined to the record
of the DC.
[18] The arbitrator conducted the hearing and gave her award which was to uphold
the decision of the DC. It is this decision that Upington seeks to review on Part
B of its relief. Upington seeks to ground its review on the provisions of PAJA
although in its founding affidavit it does not indicate which provisions of PAJA it
seeks to rely on.
[19] In broad terms this is a review based on audi alterem partem. Upington
contends that the arbitrator erred by not allowing it to lead new evidence that
had not been presented to the DC. This new evidence it argued would establish
its central premise that Milford had for four minutes played with only one under
23 on the field. However, the case now was not premised on Cele but on an
entry on Milford’s Facebook page, through which Upington seeks to establish
that despite the presence of Cele, there was only one under 23 on the field for
four minutes. This was not the argument made to the disciplinary committee
which was premised on Cele. I quote from the disciplinary committee’s record.
“The protest related to the contravention /violation of the
provisions of Rule 35.2 of the NSL handbook by Milford FC in that
it substituted two under 23 players (Cele Olwethu jersey 22 card
number 6651 and Nzama Siyabonga jersey 25 card 7341) ......in
the 65th minute with two over aged players( Somabhele Unathi
jersey 7 card 7336 and Siyaya Skhumbuzo jersey 20 card
7337),.......,thereby remaining with only one under 23 player
(Zikakayo Mvelo jersey 40 card 7551) in the field of play.”
[20] The arbitrator distilled the issue down to whether Cele was substituted or not.
The arbitrator on this point upheld the decision of the DC finding no merit in the
appeal. The arbitrator in her award also refers to the fact that Mr Thobejane had
changed his position on appeal. She noted:
“In light of these written submissions, it was with surprise that in
his Heads of Argument and during his oral submissions, Mr
Thobajane no longer placed reliance on the aforementioned
grounds of appeal. Instead, he introduced an entirely new ground
of appeal. In a nutshell, Mr Thobajane conceded that Mr Cele
remained on the field for the duration of the match but he raised
a new submission from the bar, unsupported by the evidence. He
also failed to share the new submissions with the legal
representative of the First to Third Respondents, even though he
was requested to do so.
In consequence, the new submissions are not considered herein
and stand to be rejected.”
[21] Although before me Mr Thobejane argues that this decision consists of multiple
review grounds it amounts to two grounds of review. That the arbitrator should
have considered the case de novo and that if she had she would have had to
consider the evidence of the new submissions he sought to put forward.
Analysis
[22] I now with this background turn to whether Upington has made out a case for
an interim interdict that:
“The 2nd respondent, the National Soccer League, is interdicted
from proceeding with the promotion/relegation playoffs fixtured to
commence on the 02nd June 2024, pending the outcome of the
review application brought by the applicant in Part B of the notice
of motion.”
[23] There is no dispute that the decision of the arbitrator is subject to the Promotion
of Administrative Justice Act 3 of 2000 (“PAJA”) because it meets the definition
of administrative action in terms of section 1(b) of PAJA, namely the exercise
by a juristic person, other than an organ of state, of a public power or the
discharge of a public function.
[24] Indeed, as Unterhalter J observed in Ndoro v SAFA 1 there are circumstances
where private entities (i.e. the NSL) may discharge public functions even if they
do not emanate from a statutory source. In that case he found that “
“…. while there are broad criteria for making an evaluation as to
whether a competence enjoyed by a private entity is a public
power or public function, there is no warrant to conclude that,
simply because a private entity is powerful and may do things that
are of great interest to the public, it discharges a public power or
function. Rather, it is the assumption of exclusive, compulsory,
coercive regulatory competence to secure public goods that
reach beyond mere private advancement that attracts the
supervisory disciplines of public law.”2
[25] A decision by the NSL or one of its entities to determine whether a team
qualifies for promotion playoffs or not falls into the latter category identified by
Unterhalter J, and thus involves the exercise of a public power or public function
hence constitutes administrative action and thus is reviewable under PAJA.
[26] That being said I now consider if a case has been made out for an interim
interdict. It is trite law that for an interim interdict the applicant needs to
establish:
a. A prima facie right to the relief sought.
b. A well-grounded apprehension of irreparable harm if the
1 2018 (5) SA 630 (GJ)
2 Ibid, paragraph 23.
10
interim relief is not granted.
c. The balance of convenience favours the granting of interim
relief.
d. The applicant has no alternative remedy.
[27] Both the NSL and Baroka challenge the application on grounds of urgency.
They also argue that even if it is urgent Upington has not made out a prima
facie case nor that the balance of convenience favours granting the relief.
[28] I consider that the case is urgent, and the urgency is not self-created as the
decision of the arbitrator was only handed down on 31 May and the application
was launched on the same day. Given that the match was to take place on 2
June there is not much else Upington could have done to act more expeditiously
other than not to bring the case at all
[29] I now turn to whether it has made out a prima facie case. The right as I
mentioned earlier is the right to interdict the match pending a new arbitration
that is to be established in terms of Part B. It is thus a prima facie right to have
an arbitration not a right to contest the playoffs. The latter is a possible but by
no means probable outcome of the arbitration if its case, premised on the new
evidence, prevails.
[30] But to prevail Upington would have to persuade the arbitrator that its new
evidence, based it seems on what Milford has stated on its Facebook page
about who it substituted at what time, is conclusive evidence that it had played
for four minutes without two players under 23. It is by no means clear that this
is the correct inference to be drawn from the Facebook entries.
[31] In any event it seems from the DC record that there was considerable confusion
about the substitutions timing as the fourth official only had place on his board
to signal three substitutions. But from the record Milford contends that it had
wanted to at that same time substitute four players and hence be compliant with
the two players under 23 age rule requirement. Before this additional
substitution could be made it seems that an Upington player had of his own
accord resumed the match and hence the fourth substitution which may have
been the under 23 player had only been possible four minutes later.
[32] If this is correct and I am in no position to comment on this, it may well mean
that this explanation will not invite any points loss sanction against Milford. Nor
it is clear to me that a point loss sanction is mandatory in terms of the rules.
The correct decision maker on this should have been the DC. Upington even
with the benefit of the video did not raise this point at the DC hearing, as it was
fixated on the presence or absence of Cele. It would have been manifestly
unfair to have regard to this in later proceedings when it was not raised when it
should have been. Unfairness here would not only be to Milford but also to
Baroka whose presence in the playoffs would be at stake. This again weakens
the claim of the prima facie right.
[33] Nor have I been convinced that the arbitrator exercised her discretion in any
manner that is reviewable. She considered the arguments and made a rational
and with respect fair decision. Upington had based its case on incorrect facts
concerning Cele and coming to the end of the road on that before the DC, in
the proceedings before the arbitrator had tried to put up an entirely new case.
The arbitrator in my view correctly rejected this. Nor can the arbitrator be
criticized for allowing Baroka to present its arguments. Baroka was a party with
a legal interest in the outcome of those proceedings because it potentially faced
exclusion from the playoffs if Upington had prevailed. If this was an issue of
joinder it was a party entitled to be joined. 3
[34] Thus, the prima facie right contended for is not only of a tenuous nature - the
right to have a new arbitration – but also based on slender facts. It is then a
prima facie case which is open to much doubt, not merely some doubt.
[35] I turn then to the balance of convenience. The NSL makes a powerful argument
about the inconvenience of cancelling the first playoff game which is to feature
Baroka on the afternoon before the game. Since I find these arguments
convincing, I quote them in full:
“While the Upington deal in a cursory fashion with the balance of
convenience, focussing only on consequences to Upington, it is in
truth impossible to now call off the Play-Off matches and in particular
the first two matches…...
In respect of these matches all manner of arrangements have
already been made and in compliance with various internal and
statutory prescripts, and most importantly, at tremendous cost.
These include: -
29.1 Risk categorization and safety arrangements under the Safety:
and Recreational Events Act, 2010;
3 “See Timasani (Pty) Ltd & another v Afrimat Iron Ore (Pty) Ltd [2021] 3 All SA 843 (SC A) paragraph
15, where the court held: “The test is whether a party has a direct and substantial interest in the subject
matter of the proceedings, i.e. a legal interest in the subject matter of the litigation which may be
prejudicially affected by the judgment of the court.
29.2.1 Match official arrangements;
29.2.2 Broadcast arrangements and in line contractual obligations
the League owes to its broadcast sponsors with huge penalty
provisions for non- compliance;
29.4 Ticketing arrangements — for supporters who will attend the
match tomorrow;
29.5 Stadium and safety and security staff have been arranged to
deal with matters as they arise;
29.6 The teams (University of Pretoria FC and Baroka FC) have been
notified, made their arrangements and will attend the match and
play).”
[36] The only balance of convenience argument advanced by Upington is that if the
games are delayed there is no prejudice to the other teams as the playoffs can
resume once the arbitration is concluded. This means that three other teams
who have had nothing to do with the Milford game must wait for some indefinite
date to find out when they may play and whom they may play against. Note that
the three teams all play each other twice on a home and away basis.
[37] In interim interdicts our courts adopt a sliding scale when looking at the strength
or weakness of an applicant’s case in establishing the requisites. As Erasmus
puts it so succinctly “….: the stronger the prospects of success (i.e. the strength
of the applicant’s case), the less need for the balance of convenience to favour
the applicant; the weaker the prospects of success, the greater the need for the
balance of convenience to favour him.”4
[38] Upington has brought a case based on a weak prima facie right. It has not been
4 Erasmus, Superior Court Practice Volume 2, 2023, D 6-16D. Relying on Olympic Passenger Service
v Ramlagan 1957 (2) SA 382(D) and Eriksen Motors (Welkom) Ltd v Protea Motors (Warrenton) 1973
(3) SA 685 (A).
able to put up a strong case on the balance of convenience. On the contrary
the respondents have shown why the balance of convenience strongly favours
them. For this reason, I found the application was unsuccessful and I dismissed
it on 1 June.
[39] I attach below the order I gave on 1 June.
ORDER:-
[40] IT IS ORDERED THAT:
1. The application is dismissed;
2. Costs are awarded to the second respondent including the costs of two legal
representatives;
3. Costs are awarded to the fourth respondent including costs of one legal
representative.
_____________________________
N. MANOIM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHNANNESBURG
Date of hearing: 01 June 2024
Date of Reasons: 07 June 2024
Appearances:
Counsel for the Applicant: L E Thobejane
Instructed by. Botha Massyn & Thobejane
Associated Attorneys
Counsel for the Second Respondent: K Hopkins SC
Z Majavu
Instructed by: Majavu Incorporated
Representative for the Fourth Respondent: L Mpahlele
Instructed by: Fairbridges Wertheim Becker
