CIV//APN/307/87 IN THE HIGH COURT OF
In the Application of
SWALLOWS FOOTBALL CLUB Applicant V
LESOTHO SPORTS COUNCIL 1at Respondent
MAJANTJA FOOTBALL CLUB 2nd RespondentSENIOR FOOTBALL
COMMITTEE 3rd Respondent
Delivered by the Hon. Acting Mr. Justice M. Lehohle on
the 1st day of October, 1987.
In this judgment each of the parties will be referred
to in the singular number as Swallows, the Council, Mejantja end
On 28th September 1987 Mr. Monyako for Swallows appeared
in Chambers seeking on urgent basis an ex parte order appearing in
of Motion as follows
1- Directing and calling upon the respondents to
show casuse (if any) why the proceedings and decision of the First
in the matter of appeal between the second respondent and
the applicant dated 24/9/87 as well as the (sic) members of the SFEC
the relevant documents shall not be reviewed and corrected and
Directing or calling upon the first Respondent to
despatch by 4.15 p.m. on 29th September 1987 to the Registrar of this
Court, the record of the proceedings and the reasons for
the decision aforesaid, regard being had to the urgency of the
to notify the applicant in writing that it has done so,
Dispensing, with the forms and service provided for in
the Rules of Court, regard being had to the urgency of the matter,
Declaring that the Senior Football Executive Committee
flouted the audi alteram partem Rule in not according to the
epplicant a hearing before it (sic) made the decision
of the 13th August, 1987.
5. Declaring that the 1st Respondent misdirected
itself in upholding the decision of the Senior Football Executive
and making the orders therefore, fully aware that the
applicant was never given any hearing before the said S.F.E.C.
6. Reversing the order of forfeiture of the points
by the applicant, and awarding the applicant 2 points and 2 goals.
Alternatively ordering a replay of the said match .
7. In the went of their opposition, the
respondents be directed to pay costs hereof.
Such further and or alternative relief. (sic)
In an ensuring order a rule nisi was granted in terms
of prayers 1 and 2 labelled 1(a) and (b) respectively along with two
that Respondents show cause, if any, onor before
the 30th September, 1987 whythe Rule shall not be confirmed,
That prayers 1(a) and (b) do operate withimmediate
Mr. Monaphathi for Majantja submitted that
respondents maintain that there is no dispute as to facts and prayed
that his client be absolved from
filing any nnswering papers for as
he saw it all that is involved in these proceedings is a matter of
law which he was prepared to
argue. Mr, Mdhluli for the
Coucil and SFEC confirmed this proposition and submitted that he
associated himself with Mr. Monaphathi 'a remarks..
Mr. Monyako for Swallows expressed doubts whether
the foregoing were intended as points raised in limine and complained
that SFEC had not complied
with the interim order in that it had not
placed before court the record of proceedings which it presided over
in the matter between
Swallows and Majantja contrary to the
provisions of the aforesaid order. See prayer 1 along with 1(a)
Reference to these paragraphs however revealed that
there was no specific prayer or order as the case may be, that SFEC
any documents and place
them before court. Through either some inelegance or
mistake it appeared that Swallows did itself disservice in this
regard by placing
the word "members" instead of "record
of" in the said paragraphs. Consequently the reading of the
it unintelligible to consider what was required of SFEC in
these proceedings. The council complied with the order in that it
before court the record of proceedings and reasons for its
Relying on its Captain's affidavit Swallows contended
that on 25th July 1987 a football game was played at Mohale'a Hoek
and Mejantja-The deponent whose name or full names
were not disclosed was its Captain. The deponent merely referred to
The averments reveal that the game was played without a
hitch in the first half. At that stage Majantja had scored one goal.
early during the second half of the game a Swallows player
Reentseng Monkhe rough tackled a Majantja player who retaliated by
Monkhe's leg with the result that both player3 fell to the
ground. The referee blew the whistle and ordered Mankhe off the
by flashing a red card before him.,
In response Monkhe engaged in an exchange of fisty cuffs
with the referee. Thereafter Monkhe left the field. Than the referee
his linesmen. While this was going on Majantja's
supporters rushed into the field of play and attacked Swallows'
one of Swallows1 players wearing a
number 13 jersey was stabbed by Majantja's player. This player was
later disarmed by police.
Deponent further avers that as a result of this
incident, the match did not play to a finish. He submits that
Majantja was solely
responsible for the failure of the match to play
to a finish. He is of the view that Majantja being the host team
failed to exercise
4/ over its
over its supporters and therefore should have been
penalisedinstead of his own team. Finally, deponent submits
thatthis is an urgent application and points out that cupfinals
are due to start on 3rd October, 1987, (barely2 days from today)
and that his team has in fact qualifiedfar the finals an goals
but far the points it has beenunlawfully deprived without just
cause. He accordinglyshows that it is imperative that this
matter be resolvedbefore the time table for teams to play the cup
In a supporting affidavit Phillip Mapetld reiterates
the Captain's averments and goes further to indicate that he made a
on the conduct of the gome. He has attached a copy thereof
marked "B". The deponent has expressed his satisfaction
the fact that SFEC failed to consider the matter within a
reasonable time and also with the fact that SFEC concerned itself
discussing with Swallows the general behaviour of supporters
without specific reference to the match between the clubs in
The wording in paragraph 11 of deponent's affidavit makes
his meaning rather obscure save to imply that he complains that
was penalised and deprived of the points in that game
without having been afforded a proper hearing. However, the deponent
annexuture "C" i.e. a letter written by SFEC
on 5th August, 1987 addressed to Swallows summoning its committee
to appear before SFEC on 7th August, 1987 at 5 pm. In this
letter SFEC has expressed its regrets at the reports by clubs
referees concerning matches in which Swallows participated in
both at its home ground and elsewhere. Annexure "D" is a
letter dated 12th August, 1987 written by SFEC to Swallows pointing
out to it that it was decided on 11th August, 1987 by SFEC to
Swallows of two points of the match played between it and Majantja
rand award to Majantja two goals in terms of Article 5
Clause 4 of
the L .S.C.(comp)Rulsn 1983, following the fact that the match in
question could not be played to a finish due to the
manner in which
5/ Swallows .........
Mr. Mapetla further coroplaina that the inordinete delay
incurred by SFEC in dealing with the matter between the clubs was
prejudicial to Swallows more so because his team was
made to forfeit the points even before it was charged before the
Disciplinary Committee. Reference was made to Annexuture "E"
which unfortunately was not placed among papers filed before me.
Neither has annexure "F" copy of the appeal to the Council
been placed before me. However, I have "G" which I am made
to understand is a reminder to Swallows' appeal. There is also
which is a letter containing the decision of the Council reached on
25th September, 1987. It is dated 25th September,
1987, addressed to
Swallows and reads as follows:
"You were summoned to appear before the
Council on 24th September, 1987 at
5pm at the Lesotho Sports Council office
to present your grounds of appeal against
Senior Football Executive Committee's decision
on the above match.
Council having heard submissions from representatives
of both teams decided
(1) To uphold the decision reached by
the Senior Football Executive Committee on the 11th
(2)That Swallows F.C. player/players were solely
responsible for the disruption of the said match.
(3) Consequent to the above the provision of the Lesotho
Sports Council Competition Rules 1983 as amended Article 5, 4
and Article 18 be applied.
(4) Therefore, Majantja F.C. is declared the winner and
is awarded two points and two goals. "Copied to Majantja F.C.
Football Executive Committee.
Justifying Swallows' decision to approach this court for
a suitable remedy the deponent charges that the council."purposely
inordinately delayed hearing the appeal to our prejudice as I
verily believe they
6/ were aware.........
were aware the Cup finals were close at hand and by so
doing intent on frustrating our challenge on their belated
Swallows has attached to its papers Annexure "B"
a report dated 28th July, 1987, It refers to the match held on 25th
1987 and is signed by Mr, Mapetla She Secretary for Swallows.
The last two paragraphs of this letter read as follows -
"In the process one Swallows F.C. player No. 13 was
stabbed by one Majantja F.C. player who was later disarmed by the
The ground was then turned into a battle field for a period
of ten to fifteen minutes or so.
As a result, the game did not play to a finish though
Majantja F.C. was
ahead by one goal."
It is contended by Swallows that the game was stopped
because of the general melee that was caused by Majantja supporters
referee had been to consult his linesmen. But in a
referee's report handed in by consent, the referee has this to say
''At this juncture, I called upon my Linesmen ..........
I told them that I am abandoning the match due to the fact that (my
is not safe)"
However, Mr. Monyako submitted that the referee's safety
could not at this stage have been in danger because the player who
him by delivering fist blows at him had left the play
field. But regard being had to the fact that a man is entitled to
only from actual physical violence to his person but also
from apprehension of mere threats which are immediate and seriously
it stands to reason that lingering fears he may have after
being actually assaulted entitle him to abandon whatever earned him
assault and seek refuge elsewhere. It is also doubtful whether
after suffering the blows that he received the referee would be able
to carry out his duties with a clear mind in a
7/ game which ........
game which requires his undivided attention at all times
during its progress .
Mr. Monyako's arguments were centred squarely on the
averments made by the deponents on behalf of Swallows. There is no
need to repeat
them in detail.
He submitted that in so much as it is trite law
that when a case goes from a lower court to a higher one proceedings
from the former form an integral part
of the record hence SFEC erred
in not having its record incorporated in the record forwarded to the
High Court by the Council in
compliance with the order made by this
Court. The submission is valid except that where, as in this case, a
party specifically indicates
what parti cular proceedings he
requires, namely those of the -Council it would be untenable to aigue
that proceedings of SFEC should
have been included. In the absence
of an order making it plain that proceedings of SFEC were to be
included there can be no sound
argument to sustain the view that any
party erred by excluding therm See CIV/APN/296/86 Nopo Majara vs
Disclolinary Committe& 2 Others (unreported) at
9 where this court said in a similar situation
".............no one is bound to arm his adversary
Swallows contended that the referee made his report
which in the view of the Council in para 5.5(iv) "is silent on
actually hrought the game to an end". Reference to
the Council's records clearly shows, and Mr. Monyako conceded that
5.5.(iv) contains nothing else but Swallows' views. It cannot
therefore be regarded as a view endorsed by the Council. In the same
paragraph Swallown comprerised its stance by going further to say "It
can Dn]y be inferred that he abandoned the match because
assault". In this regard Swallows inference is in keeping with
the reason given by the referee himself and the decision
SFEC and the Council, therefore, it is not out of place. The
8/ cannot hold ......
cannot hold that on the Council's own admission any
silence referred to in the Council's record was prejudicial to
Mr. Monyako advanced the foregoing argument basing
himself on the provisions of the FIFA Hand Bonk 1979-80 at 106 where
is required to give a detailed report after he has stopped
a match. It is noteworthy that nowhere in its papers has Swallows
any foundation as to the relevance of FIFA in these proceedings.
It has not been shown that Swallows or any of the parties is subject
to the rules and regulations of FIFA nor indeed that the Council is a
registered body in charge of all sporting activities in Lesotho
that the parties in these proceedings are its affiliates.
It is not the function of this Court to interpret or
even enforce FIFA rules. Enough exists in FIFA's Hand Book to show
sporting bodies properly ran -stituted in its constituent
members and national bodies are empowered to do as. Art. 48 on page
of the 19G1-02 edition abundantly shows that FIFA shuns bringing
of disputes arising in sports to courts of law. In para (1) it
"Notional Association, clubs or members of clubs
shall not be permitted to bring before a Court of Justice disputes
Federation or Other Association, clubs or membere of clubs
and they must agree to submit any such disputes to an Arbitration
appointed by common consent".
It is doubtful whether it can sincerely be contended by
Swallows that before coming to this court it had exhausted the local
which FIFA has indicated. As a rule the Courts of law do
not intervene in any dispute before local remedies have been
Interpretation of FIFA laws is the business of sporting
bodies. In any event I fail to see what the relevance of a detailed
by the referee would be given the fact that he gave the reason
for abandoning the match i.e. safety of his life.
In argument, Mr. Mdhluli for the Council and SFEC
pointed to the lack of clarity as to what Swallows
wants. It was questioned whether Swallows wants the
Court to set aside the Council's decision. If so, it seemed Swallows
reckon with the fact that this would have a bearing on the
conduct of the whole competi tion. It was submitted that if this
is set aside, the court, is not empowered to assume the
duties of the Council. With regard to the alternative prayer for a
in para 6 it was submitted that the Drily competent body to do
such would be a body charged with the administration of sports and
its constituent organs and not this court.
Applicant was criticized far failure to discharge-its
duty. It was submitted that it failed to place all relevant and
before this court, and it has not placed before
court all the documents it relies on .The applicant has not referred
to the 1983
Competition Rules, which are relevant in this
application. There has been no indication that any of the rules
relating to the co-mpetition
has been violated. This failure, it was
submitted by Mr. Mdhludi, consitutes a fatal defect.
Much as the criticism by Mr. Mdhluli was valid as
to applicant's failure to furnish the Court with competition Rules
1983 which I am in no doubt were essential for
moving this application, Mr. Monaphathi gave a satisfactory outline
of the functions and constituent bodies of the
Council as well
as procedures designed in respect of each to follow. Some of the
aspects he highlighted are contained in CIW/APN/352/86 Royal
Lesotho Mounted Police F.C. vs Lesotho Sports Council &
Anor (unreported)at 3.
Counsel for the Council and SFEC pointed out that indeed
Swallows was entitled to a fair hearing in conformity with rules
to fairness and openess. He thus submitted that short of
proof that the proceedings conducted by respondents were in breach
impartially fairness and openess it cannot be said that the audi
alteram partem rule was not observed as there is no magic in it.
10/ He charged ........
He charged that there libs no suggestion that the
Council's decision was vitiated by failure to observe principles of
He also pointed out that with a view to obtaining
satisfaction from a hearing by anothers tribunal Swallows appealed
from SFEC to
the Council. This implied that Swallows would abide by
the derision of the Council especially as the Council invited
go into the merits. The Council did not confine itself
to the record that may have emanated from SFEC. J. actually went out
its way to virtually hear the case de novo thus
covering the issues which had not been laised at a hearing before
STEC. The record of proceeedings
before the Council amply substantiates Mr. Mdhluli's
submissions in this regard. It is clear therefore, that the Council
just a passive body because as shown on page 3 of its record
a number of issues were canvassed by it. Questions were put which
properly recorded answers.
He submitted that the Council considered the appeal it
had been asked to adjusdicate upon and gave its verdict including
With regard to proceedings conducted
beforeadministrative tribunals the determinant factor toconsider
on review is not whether the reviewing courtagrees with the
tribunal's decision or not but, whetherit can be said to justify
an overrule of such decision;that the decision was so
unreasonable that no tribunalproperly directed could have reached
This is in keeping with the quotation made by Mr.
Monaphathi from CIV/APN/352/8G Royal Lesotho Maunted
Police F.C. vs Lesotho Sports Council and Anor (un-reported)
at 8 where it was observed that
"........ where the tribunal directs
its mind to legal issues which it is entitled to and
bound to decide, such as the interpretation of regulations or other
wrong decision in law cannot be said to prevent it from ful-
filling its statutotry functions or duties, and the
court will not interfere with the decision on review unless it was
one to which
no reasonable person could have come".
I was referred to the case of TURNER vs JOCKEY
CLUB OF SOUTH AFRICA 1974(3) A.D. at 659 a case which was
referred to by Rooney J. in CIV/APN/92/79 QOALING
HIGHLANDERS vs LESOTHO SPORTS COUNCIL & ANOR
(unreparted) in support of the view that
"Where the rules of a voluntary association provide
that certain disputes and complaints should come bebore domestic
the law Courts will not interfere. .......The same
principle applies where the domestic tribunals are provided by
In the same judgment at page 5 Rooney J. said
"This court will not in general, grant an interdict
when the applicant can obtain adquate redress by way of damages."
In the instant matter applicant has not prayed in the
alternative for any damages.
Mr. Mdhlull submitted that in Turner
supra the principle anunciated was that denial
of natural justice in a tribunal of 1st instance cannot be cured by
an appellste tribunal. He submitted however,
decisions indicate that this is not a rigid
Principle. That may be so, but in a decision given on
21st July, 1978 (that is four years later) by the Lesotho Court of
Appeal C. of A. (CIV) No.6 of 1977 Chief N.S. 'Maseribane &
4 Ors v/s Kotaokoane & Anor the word3, of
Schreiner J.A. at p. 188 were re-affirmed by Ogilvier Thompson J.A.
"The principle audi alteram partem should
accordingly be applied unless by express provision or necessary
implication it is not applicable or unless there are exceptional
circumstances justifying the court in not giving effect to it."
13/ It seems -........
It seems to me that even today in our jurisdiction
this principle is regarded as so important that even if the decision
at by a tribunal is a correct one, if it is violated
proceedings are incurably fatal. It is important to have regard to
that even though in the court of first instance the audi
alteram partem rule had not been canvassed by the party affected ones
was raised on behalf of the Appellant in 'Masfcribane supra, the
appeal was upheld.
It was, however, in the instant application argued that
because there seemed to have been a retrial before the Council then
could be no room for a claim that natural justice was denied
the applicant. I was referred to CALVIN vs CARR (1979) 2 ALL E.R. at
448 which clearly indicates that a defect in a decision of a lower
court may be cured at the appeal stage.
Lawrence Baster in his invaluable book Administrative
Law refers to what he terms curing by Appeal at p. 588 and says
" it is by no means a general rule
that where a primary decision has been reached in
violation of the principles of natural justice the remedy of appeal
be employed, nor is it always possible for the appellate
tribunal to correct the defective decision."
At page 723 the learned author says however
" it is only where the domestic
would have the opportunity of thoroughly reinvestigating
the matter, thereby expunging the taint of illegality, that the
be considered sufficiently adequate as a precusor to
In Administrative Law, Marinus Wilchers says at 227
"This principle is presently so firmly entrenched
in our case law that even where a superior or reviewing body has
tried to cure
the initial defect by hearing the appellant, the
appellate division has held that such subsequent observance of the
partem rule will not do."
Mr. Monaphathi referred me to the Civil Practice
of the Superior Courts in South Africa 3rd edition by Van Winsen,
Eksteen and Cilliers where the learned authors have quoted Bristowe
J. in African Realty Trust vs Johannesburg
Manlcipality 1906 TH 179 at 182 as follows
"If a public body or an individual exceeds its
powers the court will exercise a restraining influence, and if, while
confining itself within the scope of its powers, it
nevertheless acts mala tide or on ulterior reasons which ought not to
its judgment, or with unreasonableness so gross as to be
inexplicable, except on the assumption of mala fides or ulterior
then again the court will interfere. But once a decision has
been honestly and fairly arrived at a point which lies within the
of the body or person who has decided, it, then the court
has no functions whatever. It has no more power than a private
would have to interfere with the decision merely
because it is not one at which it would itself have arrived,,"
It would seem therefore that as far as the principle is
concerned authorities are waging a running battle.
However at the beginning of these proceedings the court
inquired whether it would not have served requirements of fairness if
had joined any of the parties likely to have its interests
adversely affected by the upholding or this application. Applicant
that his dispute as far as the points awarded by STEC and
the Council are concerned is confined to Majantja Therefore what
may follow from that should not be the concern of this
court-It seems to me that ,this view is baaed on a misconception of
Although as correctly pointed out by Mr. Monaphathi
that applicant was aware of its position in the log and of the fact
that other parties are involved and have an interest in participating
in the finals, it failed to supply the court with the relevant
information. It is not fanciful or improper to consider to what
other clubs or members will be
affected if any changes are effected fallowing the
Applicant is not unaware of the stage reached in the
progress towards finals and of the incidental consequences brought
about by such
progress. Being an interested party applicant must be
aware of the number of Clubs required by laws and regulations
conduct of the finals to participate in those finals.
By necessary implication, inclusion of applicant in the finals
of one of the clubs which holds itself as
qualified in terms of the rules to participate in the finals. How
then can such a club
be dislodged from its position without having
been joined in proceedings that are likely to lead to such end?
In a similar case decided by the Court of Appeal C of A
(CIV) No. 12 of 1983 David. Masupha vs Paseka 'Mota
(Unreported) Van Wentsel J.A. as he then was said at p.2...
"At the request of the President of this
Court the Registrar wrote to Mrs Seabane Masupha (born
'Mota), the daughter, to advise her of the appeal and to enquire as
attitude to the proceedings. The letter was written but there
was no proof of its receipt. She did not appear at the appeal.
At he commencement of the appeal the court mero motu
raised the question whether Mrs Masupha ought not to have been
joined as a party by the Respondent. It is her marriage which is
issue and any order as to its validity is one which she has a direct
and substantial interest.
In the absence of that joinder which Respondent
neglected in his application, the proceedings are defective and the
order, accordingly must be set
The same principle applied in Amalgamated Engineering
Union vs Minister of Labour 1949(3) SA. 637 (A.D.).
I come to the conclusion therefore that the proceedings
brought before me are fatally defective in
that a party which has a direct and substantial interest
in the outcome of this matter has not been joined.
The rule is discharged.
Counsel for 1st and 3rd Respondents declined an eward of
coats. The second Respondent is awarded costs on party and
party scale only.
ACTING JUDGE. 1st October, 1987,
For Applicant Mr. Monyako
For 1st & 3rd Respondents Mr. MdhluliFor 2nd
Respondent Mr. Monaphathi.
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