NDOU J: The
applicant seeks a provisional order suspending the playing of the BANC ABC
Super 8 Cup final game between the 1st respondent and CAPS United
pending the application for review filed in this court under HC 1800/10.
The salient facts of the case are
the following. The applicant
(“Highlanders”) and the respondent (“Dynamos”) are football teams playing in
the 2nd respondent, Premier Soccer League (“PSL”). Highlanders and Dynamos engaged each other in
a semi-final fixture. The game was
characterized by anarchy leading to its eventual abandonment when the referee
deemed it too dark to continue. In
short, Highlanders is unhappy with the determination of the Ad Hoc Arbitration
Committee chaired by 5th respondent.
Highlanders filed the above-mentioned application for review and they
now seek to stay the final game of the competition pending the outcome of the
review application. The application is
opposed by all respondents save for 3rd respondent. The 6th respondent raised
preliminary points which I propose to consider in turn before dealing with the
application on merits.
Locus standi: The 6th deponent
The applicant did not file a written
proof that he had authority to institute proceedings on behalf of
Highlanders. Highlanders in answer
states that he has authority but this was reflected in the minutes. He, however, stated that Highlanders minutes
are confidential. I am satisfied that
the deponent has authority to depose the affidavit on behalf of the
applicant. Frankly, I do not understand
why that 2nd and 6th respondents should make this an bona
fide issue. The deponent Andrew Tapela
is known to these respondents as secretary general of Highlanders. He represented Highlanders at the Ad Hoc
Committee chaired by the 5th respondent i.e. he deposed to and filed
the Highlanders match report on behalf of the applicant. In its ruling, the Ad hoc Committee stated:-
“We feel we have to single out and
comment the Highlanders Chairman Mr T. Ndhlela, the team manager D. Mloyi and
secretary A. Tapela for the manner they conducted themselves in the ongoing
melee. They are true ambassadors of
football” (emphasis added). Having
previously dealt with Andrew Tapela extensively the 2nd and 6th
respondents cannot be heard to challenge his authority to represent the
applicant. This issue was raised in bad
faith – Wang and Ors v Ranchod NO & Ors 2005 (1) ZLR 415 (H) and Mudzengi
& Ors v Hungwe & Anor 2001 (2) ZLR 179 (H).
Irreparable
damage
The issue raised here is that the
applicant merely averred that the applicant will suffer irreparable damage
without disclosing the nature of such damage.
The articulation by the applicant may be lacking in clarity but the damage
can easily be inferred from the applicant's papers i.e. the applicant will be
prevented from further participating in the competition. This point in limine is without merit.
Appeal or
review
The issue raised here is really one
that can be determined when the application for review under HC 1800/10, supra,
is heard.
Exhausting
domestic remedies
The reason why the applicant brought
its application for review is because of the BANC ABC Super 8 KNOCK OUT CUP
(2010) Edition) provides -
“13.
ARBITRATION
13.1 In order to expedite the resolution of
protests so as not to disrupt the smooth flow of the competition, an ad-hoc
Arbitration Committee shall be set.
13.2 The decision of the ad-hoc Arbitration
Committee shall be final.” (emphasis added)
This effectively closes all avenues
to appeal the decision of the |Ad Hoc Arbitration Committee internally. This provision is clause 13.2, supra,
extinguishes any recourse to domestic remedies, including appeal pursuant to
the Zimbabwe Football Association (“ZIFA”) Constitution and Rules. This distinction between the decision and
penalty raised by the 6th respondent is without merit. Such distinction would have the effect of
defeating the objective set out in clause 13.1.
Exclusion
of ordinary courts:
This point is premised on Article 62
of FIFS Statutes which provides:
“1. The
Confederations, Members and Leagues shall agree to recognize CAS as an
independent judicial authority and to ensure that their members, affiliated
players and officials comply with the decisions passed by CAS. The same obligation shall apply to licensed
match and player's agents.
2. Recourse
to ordinary courts of law is prohibited unless specifically provided for in the
FIFA regulations.” (emphasis added)
This court cannot decline to
exercise jurisdiction in football matters on account of FIFA statutes. FIFA statutes do not outs the inherent
jurisdiction of the court. The statutes
are binding on its affiliates and not this court. FIFA statutes create a disciplinary
dispensation for its members. I
associate myself with KAMOCHA J in Khami United Football Club v Zimbabwe
Footbal Association HB-22-10 (HC 589/10) on this point. This point is devoid of merit.
On the merits, it is clear that this
is an application for an interdict. For
the applicant to succeed it must satisfy the following requirements –
(a)
A
clear or prima facie right;
(b)
A
well grounded apprehension of irreparable harm if the interim relief is not
granted and the ultimate relief is eventually granted;
(c)
That
the balance of convenience favours the granting of an interdict, and
(d)
That
the applicant has no other satisfactory remedy – Phillips Electrical (Pvt) Ltd
v Gwanzura 1988 (2) ZLR 117 (HC); Nienaber v Stuckey 1946 AD 1049 at 1054;
Flame Lily Investments (Pty) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980
ZLR 388 and Rowland Electro Engineering (Pvt) Ltd v ZIMBANK 2003 (1) ZLR 223
(H).
It is beyond dispute that as a participant in the
competition, Highlanders have a clear right to protest flaws in the
competition. The basis of the protest is
detailed in the applicant's papers. The
applicant has a well granted apprehension that should be the final game to be
played before the application under HC 1800/10 is determined, the latter
outcome will be of academic nature.
The balance of convenience favours
the granting of the interim relief. In
the application under HC 1800/10 is ruled in favour of the applicant after the
final game it would mean that the game between the applicant and 1st
respondent will be replayed. If the
other team CAPS FC has won the final game, the may not accept the turn of
events resulting in further legal contestation.
This is not good for all the parties involved including the 1st
and 2nd respondents. This
will, in any even defeat the objective of clause 13.1 of the competition as the
cup tournament will be characterized by unnecessary litigation. It does not make sense that a cup final game
is played when there are pending issues which may affect the outcome outside
the football pitch. The balance of
convenience favour the determination of all outstanding protests before the
final game.
Finally, the applicant has no other
satisfactory remedy as alluded to above in view of the provisions of clause
13.2 of the competition rules, supra.
It does seem to me that the parties
in their papers delved unnecessarily on emotive aspects of the abandoned game
and personalities involved. In the
process they tended to lose focus on the main issue. The main issue seem to be whether the game
was abandoned on account of behavior of Highlanders, supports (the basis for Ad
Hoc Committees finding against applicant) or whether it was on account of poor
visibility as reflected in the match referees report. If it is the former, then the Ad Hoc
Committees findings would be understandable.
But if it is the latter, then a replay of the game would most likely
outcome would have been a replay. It is for this reason that I had encouraged
the parties to see if they cannot find common ground but it seems they
failed. This issue will be dealt with by
the court on review under HC 1800/10.
The applicant has conceded that it
wrongly cited the 4th, 5th and 6th
respondents. The applicant's founding
affidavit does not deal with these respondents.
The application against then should be dismissed with costs.
The 3rd respondent, as
alluded to above, does not oppose the application. With such an attitude by the sponsor of the
competition one would have expected the issue to have been resolved much
earlier. The 2nd respondent
submitted that they are opposing this application because they have been
battling to attract sponsors. If they
are to succeed in this endeavour, they have to develop and enhance their
dispute resolution mechanisms. This case
is not a good advertisement to attract sponsorship.
Accordingly, I grant the provisional
order in terms of the amended draft order against the 1st and 2nd
respondents only and I dismiss the application with costs on the ordinary scale
against the 3rd, 4th , 5th and 6th
respondents.
Phulu and Ncube, applicant's legal practitioners
Moyo and Nyoni, 2nd,
4th 5th and 6th respondents' legal
practitioners
