IN THE HIGH COURT OF LESOTHO
In the Application of :
MABEOANA FOOTBALL CLUB Applicant
ROMA BOYS FOOTBALL CLUB 1st Respondent.
SPORTS COUNCIL 2nd Respondent
J U D G M E N T
Delivered by the Hon. Mr. Justice M.L. Lehohla on
the 8th day of December, 1989.
On 11th November, 1989 the applicant sought and obtained
a Rule Nisi calling upon the respondents to show cause why:
shall not be interdicted from arranging,holding or proceeding
with the match scheduledfor 12th November, 1989 at Mafeteng
betweenthe 1st respondent and either R.L.M.P.Qacha's Nek
F.C. or Liphiri F.C. as part ofthe annual 2nd Division Football
the applicant shall not be the winner of theZone 7
the respondents shall not be directed to pay thecosts
of this application jointly and severally;
the applicant shall not be granted such furtheror
alternative relief as the Court may deem fit.
An order was issued directing that the rule embraced in
paragraph (a) above operate as an interim interdict with immediate
After a single extension of this rule the matter was
ready for hearing and accordingly heard on 4th December, 1989.
The 2nd respondent did neither respond to the
applicant's papers plus the interim order served on it timeously, nor
appear in court
in person or through any agency.
As occasion serves the rule should be confirmed. But
can it be confirmed in the face of the fact that the 1st respondent
joined? Indeed properly joined on the basis that on account
of the interest it has in the matter it should be afforded an
to be heard? Is it a sound approach to adopt an attitude
which seems to suggest that the fate of the 1st respondent is
upon the variable fortunes of the 2nd respondent? If so,
i.e. if the 1st respondent's fate is a fait accompli why need it have
bothered to oppose this application when the 2nd respondent has
virtually thrown in the sponge?
Barring the legal maxim that in things preceding
judgment the plaintiff is favoured I take the view that every party
to a suit pursues
his claim on equal terms with any other. The
outcome of the case would thus depend on the quality of the case
advanced by each respective
However, I defer the answers to the questions posed
above to the determination by what the facts reveal. I accordingly
deal with the facts presently.
The applicant avers in paragraph 4 of its founding
".. on the 4th June, 1989 applicant played a
fixture match against another club namely Manonyane Football Club at
fixtures fall under Zone 7 of the 8 Zones delimited by
the 2nd respondent throughout the country. The said match was
by the referee in terms of Article 5(4) of the Lesotho
Sports Council (Competition) Rules 1988 in terms of which a team
found by the referee to be responsible for any disorder
leading to the discontinuance of a match automatically forfeits
match and two goals or more if the score showed a greater number
of goals for the team declared winner. The referee duly submitted
his report indicating the breach, by
Manonyane, of the said Article. As required applicant
submitted its report to 2nd respondent and claiming the benefits
the said Article 5(4)."
The applicant further averred that Manonyane Football
Club lodged an objection with the Senior Football Executive
Committee, a sub-committee
of the 2nd respondent which is the
tribunal of first instance in matters relating to the game of soccer
falling under the over-all
management of the 2nd respondent.
Manonyane F.C. relied on Article 2 in registering its complaint
against the discontinuance of
the game in question.
It appears that the applicant and Manonyane F.C. duly
appeared before the said sub-committee in order to have the dispute
their match settled. This was on 28th September, 1989.
It turned out that the hearing led to inconclusive
results in that to-date no decision has been made by the
that an undertaking was made by it to
the parties that in due course they would be informed of the results
of the hearing by letter.
In paragraph 6 the applicant sought to justify its
assertion why it should be declared a winner in terms of prayer (b)
which it later
abandoned. This averment is based on the points that
the applicant maintains it has to its credit presently and those it
gain if the decision by the sub-committee were to be given
in the applicant's; favour.
The applicant did not in its replying affidavit nor in
the main argument by its counsel pursue averments in that paragraph
However the 1st respondent devoted much of its attention
to the applicant's averments in that paragraph. The 1st respondent
on Mr Manyeli's answering affidavit revealed that either the
basis on which the applicant sought to be declared the winner was
was a deliberate attempt to mislead the court that
granted the rule nisi.
from its attempt to reveal the true position of the points accruing
and possibly going to accrue to the parties represented
proceedings the 1st respondent revealed that there are more and more
protests pending the decision of the sub-committee
the outcome of
which in my view would appreciably affect the respective positions of
the parties either way. From this what can
be gathered is that the
applicant's averment that the winner was announced prematurely by 2nd
respondent is common cause.
I wish therefore to recoil from the quick sands of
speculation in favour of the firmer ground of fact.
It is averred by the applicant that on 9th November,
1989 at about 7.45 p.m. Radio Lesotho announced that the applicant
was the winner
in the Zone 7 competitions.
But the following day an announcement over radio Lesotho
was to the effect that the previous day's announcement was a mistake.
effect of this was that the 1st respondent was the winner in the
Zone 7 competitions.
Thereupon the applicant sent one Pesho Mochesane, the
applicant's coach to approach the 2nd respondent with a view to
what the true position was and also seeking advice from
that sports body. Mochesane was directed by the 2nd respondent's
to the Senior Football Executive Committee's member, to wit
one Mr Masupha. The whole of that day was spent in a fruitless
by Mochesane at locating Masupha. When Mochesane repaired to
the 2nd respondent's office to report about his unsuccessful
he met with another brand of misfortune namely that the 2nd
respondent's office was closed and its staff had left.
The hour was 4 p.m. and the date fixed for the semi
finals i.e. 12th November, 1989 was drawing nearer and
nearer by the minute. The applicant states that the
absence from the office of the 2nd respondents by its staff at 4 p.m.
November 1989, thwarted the applicant's attempts at lodging
its appeal as required by the rules.
Indeed a letter dated 9.11.89 by the subcommittee's
secretary addressed to Liphiri Football Club shows that the semi
final was scheduled
for 12th November 1989 between the 1st respondent
and the winner between Liphiri F.C. and R.L.M.P. Qacha's Nek F.C.
which would have
had their game at Quthing the previous day i.e.
It was argued for the 1st respondent that the applicant
has not exhuasted the domestic remedies in that even though the
the subcommittee lies to the 2nd respondent the
applicant did not avail itself of this remedy. But this Court
to the fact that the applicant set out in its
founding affidavit reasons for its failure to do so. The court's
attitude could possibly
be otherwise if the reasons for failure were
revealed at the replying stage. Regard should also be had to the
fact that the announcement
that the applicant was no longer the
winner only came when there was only one day to go before the date
fixed for the semi finals.
On the back of that the applicant sought
to appeal but its quest was unrequited. Thus the only option left to
the applicant was
to have recourse to this Court for there was
nothing to justify the hope that if the applicant delayed further the
officers of the
2nd respondent would surface after 4 p.m. of 11.11.89
when semi finals were to be held the next day. It would also be
misgivings that the applicant having conceived that it
had been wronged, nevertheless waited until after 24 hours had passed
laying its claim, if the applicant took a chance and waited
till the morning of 12.11.89 before registering its objection.
It cannot therefore be said the applicant by approaching
this Court had recourse to the extraordinary while the ordinary had
failed. The truth remains that the 2nd respondent had abdicated
thus leaving the applicant no
option but to come to this Court. The 1st respondent
has not gainsaid this for it has also acknowledged that there are
still pending before the 2nd respondent; and in fact
has referred to more such than the applicant has drawn attention to.
In para 7(b) of Mr Manyeli's affidavit, it appears that
the 1st respondent acknowledges that Masupha in accordance with his
declared the 1st respondent winner. Yet the 1st
respondent questions the wisdom of the applicant's effort to locate
take him to task about the different announcements
ascribed to him over the radio. Mr Manyeli maintains that this was
individual responsibility but that of his committee. I
agree, but find nothing wrong in Mochesane looking for clarity from
Mr Monaphathi argued that the sub-committee being
a body entrusted with the responsibility of announcing who the winner
is should have its ruling
undisturbed, but Mr Manyeli on behalf of
the 1st respondent averred at para 4.3 that
"I am reliably informed that a replay has been
ordered as between the applicant and Manonyane Football Club"
on the basis of which position he avers that the correct
position is that the applicant has 28 points in its possession.
Regard being had to the fact that since the applicant
did not allude to this alleged replay but stated that it was in
30 points, and thus could have not been aware of the
information that the 1st respondent's deponent has sworn to, could it
be said in saying that it had 30 points the applicant had
betrayed a desire to mislead the court as at the time of moving the
ex parte? I think not. It is not revealed by the 1st
respondent since when the information it relies on obtained. Thus it
be said that when approaching the court the applicant knew as
well as the 1st respondent what the true position was.
The 1st respondent took strong objection to the
applicant's abandonment of its prayer that it be declared the winner.
was all the more forceful because the abandonment
appeared to have been adopted as a result of the revelations of what
the 1st respondent
referred to as the correct position of the points
possessed by the respective parties. If an analogy can serve as
seems to me that the view adopted by the 1st
respondent towards the applicant is as follows: fancy indeed an
a man raises the storm at sea, when it gathers
about his ears, instead of weathering it he turns round and
des-parately seeks a harbour:
But as illustrated by the applicant's counsel another
analogy was highlighted as justifying the abandonment referred to
It was submitted that if A hears that the Master of the
High Court is about to make a ruling that A's father's deceased
administered in terms of the Administration of
Deceased Estates Proclamation on the grounds that A's father
custom; such being the representations made to the
Master by A's siblings in A's absence, A is entitled to approach the
on an urgent basis and ask for an interdict restraining
the Master from making such ruling having regard to the fact that he
never given A an opportunity to make representations to him.
Basing himself on judgments such as Thomas Mokorosivs Mokorosi & 4 Others 1967-70 LL.R. 1 and Lefa
Hoohlo vs Hoohlo 1967-70 LL.R. 318 which held that the High Court
need not refer such cases back to the Master for his decision before
the High Court
exercises its jurisdiction A would be entitled in
addition to ask for a further order declaring him his father's heir
on the grounds
that his father had not abandoned tribal. law and
custom. If A's siblings then oppose the granting of the additional
A finds that it would impose an unnecessary burden on the
court due to disputes
emerging when he insists on this prayer, it was
illustrated that A would be perfectly entitled to say to the
Court that he would
be satisfied with the granting of his main prayer
as it would be enough to prevent the mischief apprehended and abandon
prayer thus leaving it to the Master himself to
conduct a factual inquiry and make a finding which, if A is still not
he then can bring the matter on review to the High
Indeed on 16th February this year in CIV/T/345/84Liliehoek Motors (Pty) Ltd. vs Y.Mahomed (unreported) this
Court had this to say:-
"When the disparity was pointed out as to the
subject matter of its claim in paragraph 3 of the plaintiff's
Particulars of Claim
its counsel decided to abandon contents of
paragraph 1 of the summons and pursue the plaintiff's claim in
terms of paragraphs
thereof. This was a wise move because the
defendant had in any case pleaded to the particulars of the
To take up the thread of the argument advanced by the
1st respondent with regard to the indifference of the 2nd respondent
these proceedings it was urged that the Court should decide
on inferences in favour of the 1st respondent. The inferences
the 2nd respondent had no more interest in
theseproceedings because it had declared the 1strespondent a
winner so why should the 2ndrespondent be called to repeat just
the 2nd respondent is content with abiding thedecision
of this Court.
what 1st respondent says is correct.
assertions in (a) and (b) outweigh the assertion
But it seems to me that it could very well be said the
2nd respondent decided not to get involved because it felt that what
says is correct.
Morover it seems the 1st respondent labours under a
serious misconception of the rule applying to the drawing of adverse
against wrongdoers; as shown in Rex vs Blom 1939 A
202-3 namely that:-
"(i) The inference sought to be drawn must be
consistent with all proved facts; and
(ii) the proved facts should be such as to exclude every
reasonable inference from them save the one sought to be drawn."
I am aware that the standard in the above quotation may
not be quite appropriate as, it relates to criminal matters where the
of proof is higher than in civil. But in civil cases also
the:rule says that duplication of possibilities is not permissible.
there is a general rule in civil proceedings that
failure to oppose imports nothing else but consent. Thus the
conclusion to reach
is that the averments which are not opposed even
though affecting the other party adversely are admitted by it as
true. What is
not denied is admitted.
It was called into question that the applicant having
abandoned the prayer to which the 1st respondent Addressed itself,
seek to have the rule confirmed in respect of the
first prayer saying the semi finals be stopped till the decision is
a matter pending between the applicant and Manonyane F.C.
But it seems that nothing can prevent a party opting for
the lesser in a claim where it had originally asked for the greater.
This Court feels that it would be inappropriate for it
to usurp the functions of the 2nd respondent by treating the matter
before it as if on appeal. That aspect of the matter is
reserved to the 2nd respondent. The prayer that the rule be
The applicant's prayer that the rule be confirmed is
granted. But because the applicant abandoned the prayers
upon which the 1st respondent's case was anchored the
applicant is ordered to bear 65% of the 1st respondent's
J U D G E. 8th December, 1989.
For Applicant : Mr. Sello
1st Respondent: Mr. Monaphathi
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