CIV/APN/26/91 IN THE HIGH COURT OF LESOTHO
In the Application of :
SWALLOWS FOOTBALL CLUB Applicant vs
LESOTHO SPORTS COUNCIL 1st Respondent
MASERU BROTHERS FOOTBALL CLUB 2nd RespondentROYAL
LESOTHO MOUNTED POLICE
FOOTBALL CLUB 3rd Respondent
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
15th day of February, 1991
The applicant and the 3rd respondent are engaged in the
present legal contest mainly, it seems, because the loser stands to
from the A - division to the B - division of Cup
Competitions organised by the 1st
respondent and created and governed by the Lesotho
Sports Council (Competition) Rules 1990 which came into force on 13th
It appears that during a game played pursuant to the
above rules, and falling within a series of games preceding the Cup
the applicant noted that a player Bernard Motsamai
who was then officially registered with the applicant was fielded by
the 2nd respondent
in a game played between the applicant and the 2nd
respondent Maseru Brothers Football Club. This occurred on 31st
August 1990 at
a game played at Setsoto Stadium in Maseru.
The applicant lodged its protest with the refree who was
conducting the match. This was in accordance with
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the Rules of the Competition.
The Court was referred to Lesotho Sports Council
Regulations 1971 Regulation 6 which provides that
(a) "A member of the Council may not transfer his
club membership from one club to another without the consent of the
(b) "The Council may consent to the transfer of a
member if -
(i) the consent of the club of which he is amember
has been obtained "
It is common cause that the applicant's consent was not
obtained before the 2nd respondent fielded a member who was at the
registered with the applicant.
It is true that the 1st respondent's sub-committee, to
wit, the Senior Football Executive Committee, sought to justify the
by the 2nd respondent on the ground that the 2nd
respondent acted in error in all it did against the interests and to
of the applicant.
According to a transfer form no doubt created to
accommodate provisions of Regulation 6 above three provisions are
left for signatures
(a) of the secretary of the club from which the
transfer is sought, (h) the signature of that club and (c) the
signature of the club
to which the transfer is sought.
In the instant matter (a) was filled by the secretary
or member of the club to which the transfer was sought. Provision
was not filled yet it clearly spells out that the signature
should he appended of the club with which the player is "presently"
registered. Provision (c) was signed by the club to which the player
sought the transfer.
Article 11 of the Lesotho Sports Council(Competition)
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Rules 1990 clearly indicates in sub-article 2 that
"Any club fielding such a player shall he guilty
of misconduct and therefore liable to
the forfeiture of the match or matches in which such a
player or players was or were fielded."
It would seem to me to be immaterial whether the 2nd
respondent was mistaken in acting to the prejudice of the applicant.
1st respondent erred in endorsing its sub-committee's
decision to order a replay in the teeth of the plain meaning and
made by the provision of the rules in the event of a
defaulter being fielded in circumstances outlined above.
It would seem that the 1st respondent or its
subcommittee would he precluded from relying on Article 18 which
"The Senior Football Executive Committee shall have
the right to take whatever appropriate administrative action it may
necessary in any case not directly covered under the Lesotho
Sports Council Rules and Regulations and all related circulars"
because the matter under consideration is covered under
Article 11 jointly read with Regulation 6 of the Lesotho Sports
Mr.Mafisa for the 3rd respondent argued that
because the applicant sought administrative intervention as against
judicial intervention when
the applicant appealed to the Minister of
Sports who warned the applicant that it is preferable to go on with
the game after protesting,
the applicant should he regarded as having
accepted and been content with the Minister's ruling in the matter.
I need not dwell much on whether the Minister acted
judicially or administratively because the truth of the matter is
to the Minister's intervention was based on a law that no
longer existed in terms of which appeals from the 1st respondent used
lie to the Minister.
It would seem therefore wrong to penalise the applicant
for mistakenly having sought relief in a wrong forum before
Court, because had the appeal in fact laid to the
Minister then a legitimate criticism would fittingly operate against
on the grounds that it approached this Court without
having exhausted all domestic remedies or followed proper procedures.
In Golube vs Oosthuizen and Another 1955(3) SA
page 1 at 3 reference is made to Shames vs South African Railways
and Harbours 1922 AD 228 where Solomon J.A. at 235 said :
"But the question still remains at what stage of
the proceedings is it competent for an aggrieved servant to have
a court of law. Is he entitled to do so at the initial
stage, so soon as a penalty has been inflicted upon him, or only at
stage when he has exhausted all the remedies which under
the Act are or on to him? This is the question which has not been
with in any of the decided cases, so far as I am aware, hut I
am clearly of opinion that it is only if the irregularity or
has been persisted in up to the final stage that it is
competent to the servant to take legal proceedings. For non
constat that,if he had appealed to the various tribunals which
under the Act arc open to him, the irregularity complained of may not
been set right, and justice done to him".
It is significant that the applicant appealed to the 1st
respondent on 25th September - a day after the 1st respondent's
had given the decision at which the applicant felt
aggrieved. The decision of the 1st respondent was given on 2nd
October 1990 whereupon
the applicant appealed to the Minister who
made his remarks on 15th November 1990.
I am not convinced therefore that the applicant was
marking time and watching a wager to sec which way the wind blows.
It appears however that the 3rd respondent being
apprehensive of the fate likely to befall it or any other
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team which had not performed sufficiently well during
fixture matches to escape relegation to lower grade division did
terms of CIV/APN/301/90 wherein the applicant was also
joined among respondents who were called upon to condone the
perpetrated by the 1st respondent and its
Shooting itself in the foot the applicant let
application CIV/APN/301/90 go by default. Thus the applicant was
from upsetting the position to which the 3rd
respondent pinned its faith after being led by the applicant's
manifest conduct to believe
that the applicant had abandoned its
claim to the two points which it was entitled to following the 2nd
respondent's fielding Mr.
Motsamai in a match played between the
applicant and the 2nd respondent. I am not aware that any appeal was
lodged by the applicant
against the decision given by default in
CIV/APN/301/90 nor have I been made aware that an application for
rescision thereof has
either been made or is being contemplated. If
the effect of what the applicant is seeking today would necessarily
involve this Court
giving it in one hand what it denied it in the
other, truly such a state of affairs would he untenable. Clearly
that would he tantamount
to appealing from Philip drunk to Philip
It was for the above reasons that this Court dismissed
the application hut awarded costs against the 1st respondent.
JUDGE 15th February, 1991
For Applicant : Mr. Mohau For 3rd Respondent: Mr.
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