KAMOCHA J: The respondent in this matter
has anticipated the return date of a provisional order granted by this court on
1 April 2010. Its terms were that
pending the finalisation of the matter the respondent be ordered and directed
to take all reasonable steps to forthwith suspend the commencement of the 2010
Division One Southern Region League. The
respondent was to further, forthwith, communicate the suspension of
commencement of the 210 Division One Southern Region League to all
participating teams and to the applicant's legal practitioners.
The circumstances giving rise to the
urgent chamber application were that on 25 January 2010 the Zimbabwe Football
Association Southern Region addressed the following letter to the applicant-
“The Secretary
Khami United Football Club
BULAWAYO
Dear Sir,
Re: Confirmation of Admittance to Division (1)
League.
We write to you on
this instance confirming your admittance to our Division one League, having
finished on second position in Division 2A stream in 2009 season.
We take this
opportunity to congratulate you on your promotion and hope you are going to
cope with the dictates of our league.
Yours in sport
S.B. Ntenezi
“Secretary)”
On 18 February 2010 the respondent for reasons best known to itself only
addressed the following letter to the applicant:-
“Re: Division
Two Play OFFs
ZIFA Southern
Region has indicated that our runners up in Division 2A and B respectively
should be engaged in play offs for promotion to Division One for the 2010
season.
The winner between
your team and Cosmos will qualify for play offs against the winner in
Matebeleland North Province. The date
for the play offs is 27 February 2010 at 1500 hours at a venue yet to be
advised.
You are therefore advised to make suitable preparations
for the tournament.
Yours in Sport
Washington Chimanda
(Secretary General)”
The applicant, despite the above
letter of confirmation of admittance to Division One League, participated in
the play offs as directed by respondent and won all the matches. The applicant then believed that it earned
the right and legitimate expectation to be promoted to Division One League for
the 2010 season.
But alas, that was not to be as the
respondent by a letter dated 22 March 2010 advised applicant that it would not
be promoted to Division One League after all.
This turn of events prompted the
applicant to launch this application on a certificate of urgency and was
granted a provisional order. The final
order which applicant seeks to be confirmed calls on the respondent to show
cause why an order should not be made in the following terms:-
“(1) The decision of the respondent not to
promote the applicant to Division One League for the 2010 season despite
applicant qualifying for such promotion, be and is hereby declared to be
unreasonable and unfair, and a contravention of section 3(1) (a) of the
Administrative Justice Act [Chapter 10:28].
(2) The respondent be and is hereby ordered
and directed to promote and admit the applicant to Division One League for the
2010 season.
(3) The respondent be and is hereby ordered
to pay the costs of suit (including costs of counsel) on an attorney and
client-scale if it opposes confirmation of the Provisional order.”
The applicant contended that the
suggestion by the respondent that it would not be promoted because there was no
slot in Division one League was without merit whatsoever for the simple reason
that Victoria Falls United which lost in the play offs against applicant ought
to have been relegated from the Division one League to Division 2. But, strangely, the respondent had decided to
keep it in Division One League at the expense of the applicant which had won
all its games in the play offs.
That was grossly unfair and
unreasonable. The respondent argued that
its decision to promote the applicant as well as the decision to promote the
team which won its games in play offs was reversed by an assembly of clubs in
Division one League. An assembly of
eleven clubs was alleged to have made the decision to rescind the respondent's
decision on 9 February 2010. The
decision was allegedly ratified on 7 March 2010. Respondent did not file the minutes of the
meeting allegedly held on 9 February 2010.
The minutes of the alleged Annual General Meeting of 7 March 2010 are
not dated. It is therefore not clear when
the alleged Annual General Meeting was held.
The applicant went on to conclude
that no meeting was held on 9 February 2010.
If such a meeting had been held and resolved not to promote the
applicant the respondent would not have directed the applicant on 18 February
to participate in play offs starting on 27 February 2010. The applicant continued with the play offs
until 6 March 2010 which was a day before the alleged Annual General Meeting. The last match was against Victoria Falls
United which failed to attend resulting in the applicant being declared the
winner of that match.
The applicant was invited to attend
a meeting the following day whereat it was advised that it could not be
promoted to the next division league.
Yet the losing team which should have been relegated was allowed to
remain in Division 1 league. I find it
very difficult to imagine anything more unfair and unreasonable than the
actions of the respondent.
Respondent's contention that its
decision was overturned by that of the assembly of eleven clubs clearly reveals
the confusion that exists within the two organisations. The respondent was acting without the mandate
of the supreme body. It failed to
consult the supreme body before confirming that the applicant was admitted to Division
1 league. It also was not mandated by
the supreme body to invite applicant to participate in play offs.
If the court is to accept the
assertion that the decision not to promote the applicant was that of the
assembly of clubs then that assembly of clubs was approbating and reprobating (blowing
hot and cold). This is so because having
allegedly resolved not to promote applicant on 7 March 2010 it invited the
respondent to an extra ordinary meeting on 28 April 2010. There were eleven clubs each being
represented by two representatives. The
representatives of the applicant were requested to sit outside since the
meeting had specifically been called to deal with their issue.
After deliberations the applicant
was informed that the assembly had resolved to accommodate them in Division 1
by extending the league to 18 teams.
The respondent confirmed that the
meeting was indeed held and also agreed that the assembly of eleven clubs was
infact the majority of the teams in the league of sixteen teams. Respondent, however, went on to state that
the meeting was illegal since it was not held in terms of their
constitution. It pointed out that to the
committee that was sent by the assembly which apologised to it. It went on to allege that it was contemplating
charging the clubs concerned with bringing the game of football into disrepute.
It is difficult to understand how
the respondent can charge the majority of the clubs with misconduct when they
form what respondent referred to as the “Supreme body” which infact allegedly
rescinded respondent's decisions.
The respondent complained that the
applicant should have exhausted the domestic remedies provided for in its
constitution and regulations before coming to this court. The complaint is devoid of any merit. The respondent cannot be expected to go back
to the same body which it believes to have unreasonably and unfairly treated
it. It no longer has faith in the
respondent, rightly so, in my view.
There is no guarantee that respondent would not continue giving
illogical decisions. The applicant was
accordingly entirely correct in abandoning the domestic remedies and have
recourse to this court in the light of the urgency of the matter.
While the respondent accepted that
the confused state of affairs was caused by it when it made a decision that was
patently illogical, unreasonable and unfair it still opposed the confirmation
of the provisional order. This, in my
view, is a proper case for awarding punitive costs as prayed for by the
applicant.
In the result I would confirm the
provisional order in terms of the final order sought.
R.
Ndlovu and Company, Applicant's legal practitioners
Messrs Munjanja and
Associates, Respondent's legal practitioners
