HIGH COURT OP LESOTHO
Application of :
FOOTBALL CLUB Applicant
SPORTS COUNCIL 1st Respondent
FOOTBALL CLUB 2nd Respondent
the Hon. Mr. Justice M,L, Lehohla on the 4th day of February, 1994
26-8-92 the Court dismissed the above application but awarded coats
against the successful respondents.
following are the reasons for the decision just mentioned above
April 1992 the applicant obtained a rule nisi before Molai J
returnable on 18th May 1992 couched as follows :
the Lesotho Sports Council immediately prepare a full and certified
record of proceedings of the matter heard on appeal affecting
Division Finale for 1991 and between Roma Boys F,C,
such record be presented for review to the Registrar before or on
Monday 8th June, 1992 at 9,30 a.m. or soon thereafter as
to the parties and the Court,
copy of such record be served upon the parties herein with due speed
regard being had to the urgency of the matter,
the Respondents show cause if any, on Monday the 8th June, 1992
before the Motion Court why the Applicant should not be granted
relief sought in the main application".
its urgency this matter was postponed several times and the rule
accordingly extended each time till 26th August when I
was seized of
it in the absence of the Judge to whom it was originally assigned,
to state when the application was filed and the order obtained only
one match had been played following the conduct of
the 1st and 2nd
respondents and concerning which the applicant resorted to Court to
question forming the subject matter of the dispute herein concerns
the elevation of the 2nd respondent from the "B"
division to the "A" division of the 1st respondent, in
accordance with the rules and regulations of the Lesotho
common cause that the end of year finals of the "B"
division produce the winning team which qualifies and becomes
elevated into the "A" division.
also common cause reading from the papers that the position relating
to the conduct of soccer games and the question of elevation
including relegation of the participant soccer teams which are
members of the Lesotho Sports Council is governed by the Lesotho
Sports Council (Competition Rules of 1990).
that the source of the dispute centres around the use of two
particular players by the 2nd respondent during the finals.
parties by consent found it unnecessary to name these players.
it was maintained by the applicant that use of these two players
constituted a breach of the regulations under which
the finals were
conducted. The particular rule said to have been breached is found in
Article is headed "Transfer of Club Membership".
It leads in (1)
"Once a player has been registered and has accepted his club
membership of that registering club by playing for it he shall
play for another club in that season unless he has applied for and
obtained a transfer in accordance with the provisions of
Section 6 of
Notice No,5 of the 1971 Lesotho Sports Council Regulations".
Sub Article 2, says -
"Any player who engages in any sporting activity in
contravention of the Provisions of the forgoing section shall be
of misconduct and shall be liable to a fine of M500 and
suspension for the remaining period of that season, subject to
decision of the Senior Football Executive Committee to
Any club fielding such a player shall be guilty of misconduct and
therefore liable to a fine of Ml 000 and to the forfeiture of
match\matches in which such a player\s was\were fielded".
submission bringing attention to the breach by these two players was
that they were registered but played for teams other than
respondent during the season ending around the end of 1991.
was lodged with the relevant arm of the 1st respondent i,e, the
Senior Football Executive Committee against the apprehended
It is on
the basis of the fact that the 2nd respondent fielded what applicant
regards as defaulters who participated in the aeries
of games for
teams other than the 2nd respondent before the expiry of the sporting
season that the applicant claims that it is
entitled to a position in
the "A" division.
the applicant did not file any replying
even though its version has been opposed in material respects by the
1st and 2nd respondents.
been denied by the 2nd respondent that the two players branded as
defaulters by the applicant were in fact defaulters.
regarded by applicant as common cause have been put in issue by the
respondents. The contention that respondents admit that
players complained of played for the respective teams i.e. Bantu F.C.
and Rovers F.C. has been denied yet applicant has
not replied to
position in law is that where at the end of the day the Court finds
difficulty in determining which of the parties is telling
because the applicant has not responded in evidence to a version
which contradicts its own version then the Court is
at large to
accept averments by the respondents.
question of onus raised on behalf of the applicant would properly
relate to an appeal and not review. The nature of the proceeding
brought before this Court is a review and not an appeal. It should
therefore be observed that because of the narrow application
review has, this Court cannot go beyond inquiring whether the rules
of natural justice have been observed by the subordinate
and further that there was fairness
absence of bias even if the result reached would differ from one
which the reviewing Court would have preferred.
avail the applicant to just state that the Senior Football Executive
Committee was on its own entitled to find that the
two players to
have been "defaulters" when they engaged in a game for the
benefit of 2nd respondent.
easiest thing to have been done by the applicant would have been to
call for witnesses from the two teams for whom these players
alleged to have played or to bring forth league forms to prove that
such players did in fact play.
so, there would still have been another hurdle for the applicant to
go over, namely that when so playing for the 2nd respondent
in fact defaulting. Proof was necessary to show that those players
were registered as lawfully belonging to Bantu F.C.
and Rovers F.C.
This would have called for presentation of lists submitted to the
Sports Council or copies retained by Bantu F.C.
and Rovers F.C.
would be the evidence required of the applicant to furnish, The
significance of this is that in the absence of such evidence
cannot be taken for granted that these two players played for those
teams as registered members and not as defaulters because
be considered in the applicant's
that it was within the peculiar knowledge of the respondents that
such is the case. This contention is buttressed by the
fact that it
is not impossible for players to play as defaulters. Regulation 5(1)
envisages such a possibility. It would thus be
idle to regard the
existence of Regulation 5(1) as vain.
substantial has been brought forward by the applicant to show that at
the time these players were used by the 2nd respondent
still registered members of Bantu F.C. and Rovers F.C.
4(b) and (c) envisages that the Sporting season ends on 31st October
of any given year. The S E F C acknowledges this
point at page 11 of
its judgment in the typed script.
significance of this period is that as in the instant matter these
players were used by the 2nd respondent after 31st October
important for the applicant to prove that they had been re-registered
in their previous teams regard being had to the fact
that even if
during the 1991 playing season they had been registered with Bantu F
Rovers F C their membership of those clubs would have lapsed on 31st
October 1991 in terms of Regulation 4(b) of the Lesotho
would still be need to furnish proof that after 31st
these two players had registered with the teams in
for this would call for the question of transfer upon which the
applicant's case is based,
reading of the proceedings before S E F C shows that no evidence was
placed before that body to the effect that the two players
registered with either Bantu F C or Rovers F C.
have been necessary to furnish evidence relating to dates when these
issues took place. But as shown it does not appear
anywhere that the
applicant took trouble to show when the two players played for either
of the two clubs in question.
ground alone the application stands to fail.
to stress that the findings of the 1st respondent on all aspects that
the applicant bore onus of proof cannot be challenged
on basis of
bias, irregularity or any of the known grounds on which the remedy
sought on review normally consists in. I see no
misdirection in the
judgment by 1st respondent especially at page 2 which is more
relevant to the issues raised in this proceeding,
Court is unable to substitute its decision for that of the 1st
respondent. This is to say that even if this Court felt
it would not be proper to disturb the
a lower tribunal as long as no bias, irregularity or breach of
natural justice has been committed.
terms of Article 11 as contended on behalf of the applicant that S F
E C was entitled on its own to have acted against
even if there was no complaint, failure by S F E C to do that however
does not entitle the applicant who is apprehensive
of suffering loss
thereby to sit back and lament at the inactivity of S F E C.
cannot however ignore the plausible conduct of the applicant in that
it preferred not to disturb the programme prepared
by the S F E C for
the games for the year, and holds in question the fact that the games
were held much later than 31-10-91 thus
showing that the applicant's
contention in that regard cannot be said to be baseless. For this it
is deemed that an award of coats
to applicant despite its failure on
merits cannot be out of place or unreasonable.
Applicant Mr Seotsanying
Respondent Mr. Moliapi
Respondent Mr. Mohau
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