CIV/APN/70/2001
IN THE HIGH COURT OF LESOTHO

In the matter between:

BANTU FOOTBALL CLUB APPLICANT

and

LESOTHO FOOTBALL ASSOCIATION 1^st RESPONDENT

POPO MATŠOARA 2^nd
RESPONDENT

MONTOELI RANTLO 3^rd RESPONDENT

MAHLOMOLA MATŠOARA 4^th
RESPONDENT

REFILOE
MEFANE 5^th RESPONDENT

LEHLOHONOLO
MOHALE 6^th RESPONDENT

LEMOHANG
MOKAKE 7^th RESPONDENT

MOITHERI LEPHOI 8^th RESPONDENT

KABELO RAMOLULA 9^th RESPONDENT

MOHANOE MOTELETSANE 10^th RESPONDENT

MOTOLO MAKEPE 11^th RESPONDENT

SECHABA RAMALEFANE 12^th RESPONDENT

CHAKA MONARE 13^th RESPONDENT

TIEHO THEJANE 14™ RESPONDENT

REMI MOHALE 15^th RESPONDENT

ROVERS F.C. 16^th RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. G.N. Mofolo on the 10^th
day of August. 2001.

2

Judgment in this matter was drafted and was ready for
typing. Before typing, it so happened that the court observed certain
documents
in Sesotho had not been translated into English and the
court directed that counsel have these documents translated. In order
to
avoid translators coming across the daft judgment, the secretary
had removed the draft copy for save keeping. Unfortunately, the
draft
can no longer be traced. I am to emphasize, as I have done before,
that documents in Sesotho or any other language but English
have to
be translated into English on the lodging of an application or
issuance of a summons. As it is, in this case, because there
were no
translators, with the intervening events, judgment has been delayed.

From the papers, it would appear the applicant Bantu
Football Club was founding in 1927. I am also to mention that the
application
before me was argued on merits.

I can only mention that Bantu, along with Majantja,
Matlama, Lioli and Linare are foundation members of what was then
called Basutoland
Sports Association (B.S.A.) Predecessor to the
LESOTHO FOOTBALL ASSOCIATION (LEFA) and importantly that the teams or
districts from
which the teams come formed the core of Moshoeshoe 1
military regiments.

3

Therefore, in approaching the question of Bantu Football
Club membership of LEFA, one has to be careful lest tempers lying
dormant
for a long time be ignited.

According to papers before me DIFA, Mafeteng paid M50-00
to Lesotho Football Association (LEFA) per receipt No.5586 dated
28.03.2000
(see annexure "D"). Now according to the
annexure, members of DIFA elected on 6 March, 2000 for the period
2000 - 2001
were:-

Mr. Matlamukele Matete - Chairman

Mr. Falla Seboko - Vice-Chairman

Mrs. 'Mathabo Sesitsi - Secretary

Mr. William Ncheke - Vice-Secretary

Mr. Leferefere Leferefere - Treasurer

Mr. Malise Rammusi - P.R.O.

Members

Mr. Goitsemang Nthethe Mr. Mpholeng Letsapo

It is therefore safe to say that when Bantu Football
Club affiliated to LEFA the above represented the District Football
Association;
and yet, according to the Constitution of Bantu Football
Club, members of the Executive Committee consist of: (i)
President

4

(ii) Chairman

(iii) Secretary-General

(iv) Treasurer

(v) Manager

(vi) Two Ordinary members

The Executive Committee for the year 2000, according to
annexure "B", consisted of:

1. 
   President: Mr. G.G. Nthethe

   
   

2. 
   Chairman: Mr. J.M. Letsapo

   
   

3. 
   General Secretary: Mr. M. Motinyane

   
   

4. 
   Treasurer: Mr. Ncheke

   
   

5. 
   Manager: Mr. M. Ramorebodi

   
   

6. 
   Members: Mr. F. Seboko

   
   

Mr. M. Rammusi

This court has not been told why, but it would appear
from the correspondence friction materialized between Bantu F.C. and
LEFA the
governing body.

To start with, the Committee of which G.G. Nthethe was
President submitted thirty-six (36) names representing Bantu F.C.
players for
the year 2000; the names were received by Lefa the l^st
respondent on 30 March, 2000 and yet the same year and on 01
November, 2000 further names were received by the 1^st
respondent. The heading does not say whether they are

5

players of Bantu F.C. but they are different from those
of 30 March, 2000. On 26 April, 2000 a Mr. Ncheke wrote to 1^st
respondent's secretary complaining his committee is being overlooked
by the 1^st respondent in favour of a rival committee; he
urges the 1^st respondent to ratify his decision on account
of the decision to accept the other committee having been reached
without hearing Ncheke's
committee. G.G. Nthethe wrote substantially
the same letter to 1^st respondent. It is not quite clear
but it would appear in reply to G.G. Nthethe's letter above the
General Secretary of the 1^st respondent responded in his
letter of 28 April, 2000 refuting allegations in the said G.G.
Nthethe's letter adding that since the
election of the committee was
unprocedural the properly elected committee was that elected on 11
March, 2000 of whose Chairman was
Thabang Joel. The Secretary-General
cautioned that the fee paid had been erroneously received and was
subject to refund. Again on
28 April, 2000 the Secretary-General of
the 1^st respondent wrote to Mr. Ncheke reiterating that
the lawful committee was that elected on 11 March, 2000 and not on 5
March, 2000.
As a result delegates submitted by the committee of 5
March, 2000 were turned down.

The letter of 5 July, 2000 addressed to the Minister of
Tourism, Sports and Culture requested a Commission of Inquiry and
was signed
by

6

Chairman and Secretary as emanating from the office of
G.G. Nthethe & Co. On 27 December, 2000 another letter was
written to Secretary-General
of the 1^st respondent warning
him there 'are some cohorts who are claiming to be 'members' of Bantu
F.C. and further requesting the General-Secretary
of the 1^st
respondent to 'desist from having any
connection/communication/intrusion' with the said club as it is not
affiliated demanding, in
addition that any further intrusion by the
1^st respondent into the affairs of the said Football Club
will result in 'drastic legal measures' being 'taken against you.'

To the above letter Mr. T. Khomari Secretary-General of
the 1^st respondent had respondent in his letter of 10
January, 2001 saying he wanted to put the record straight. Amongst
other things Mr.
Khomari had said Bantu Football Club is a registered
member of the 1^st respondent per receipt No.5398 dated
11^th January, 2000. The rest is nothing but chiding the
writer and reminding him that Bantu F.C. problems are common
knowledge to be shared
and redressed by all concerned.

It is against this background that a wing of Bantu F.C.
lodged an application with this court seeking an order as follows:-

7

1. 
   Dispensing with the forms and service provided for
   by
   the Rules of Court on account or urgency.

   
   

2. 
   That Rule Nisi issue returnable on the date and time
   to
   be determined by this Honourable Court, calling
   upon the
   Respondents to show cause (if any) why:-

   
   

1. 
   The Respondents herein shall not be
   interdicted
   forthwith from going ahead
   with a football game between
   Rovers
   Football Club, and a club that goes under
   the name of
   Bantu Football Club in
   Mafeteng on the 11^th February,
   2001.

   
   

2. 
   The 1^st Respondent herein shall not
   be
   directed forthwith to suspend any games
   in which a club
   named Bantu Football
   Club or Bantu F.C. is fixtured pending
   the
   outcome hereof;

   
   

3. 
   The 2^nd to 15^th Respondents
   inclusive
   shall not be interdicted from holding
   themselves out
   as players of a team they
   call Bantu Football Club or Bantu
   F.C.
   and which is affiliated to the 1^st
   respondent
   herein;

   
   

4. 
   The Applicant herein shall not be
   declared
   the only team to lawfully use

   
   

8

the name Bantu Football Club and/or Bantu F.C. in the
entire Lesotho;

5. 
   The 1^st Respondent shall not be directed
   to
   remove the name of Bantu Football or
   Bantu F.C. from its fixtures
   games for
   the year 2001.

   
   

6. 
   The 1^st to 15^th Respondents
   inclusive
   shall not be directed to pay costs hereof;

   
   

3. That prayers 1,2 (a) and (b) operate with
immediate effect as Interim Order of Court.

It would seem on 19 February, 2001 my brother Monapathi
J. allowed prayers 1 and 2 (a) and (b) of the Notice of Motion to run
with
immediate effect as interim interdict orders. The application
was opposed.

In his opposing affidavit FALLA SEBOKO has deposed at
paragraph 14:

'upon noticing that there was no reciprocal desire on
the part of the relevant sporting authorities to settle the question
of the
elections that held contrary to the 1^st
respondent's constitution, the applicant's Executive Committee duly
resolved not to give any legitimacy to respondent's de facto

9

Executive Committee by participating in any activities
including competitions arranged by the said committee, pending the
satisfactory
resolution of the question of the unconstitutional
election of the 1^st respondent's executive committee. In
the meantime another democratic football association named the
football Association of Lesotho
(F.A) came into being and the
applicant herein affiliated with it in the football season of 2001.
(I have underlined).

para.
15

In pursuance of that resolution, the applicant herein
wrote the first respondent notifying him that there were some people
who masqueraded
as members and or players of the applicant herein who
had no mandate from the club to have dealings with the 1^st
respondent herein ----.

para.
17

It has come to the notice of the applicant's executive
committee that despite clear and unambiguous message of annexure "G"
the first respondent has purported to fixture some teams under the
names of the applicant herein.

para.
18

It is the applicant's contention that there cannot be
two Bantu Football Clubs in this country. The only lawful Football
Club is the
one whose executive committee I am a member, and that

10

Club has resolved through its lawful executive
committee, not to participate in the first respondent's affairs.

para.20

I aver further that the second to the 16^th
respondents inclusive have wrongfully and unlawfully been holding
themselves out as players of Bantu Football Club whereas the only
legitimate Bantu Football Club has resolved not to participate in
games organised by the first respondent herein because to do so
would
clothe the first respondent's de facto committee with some legitimacy
when they are guilty of manipulating the proceedings
of the general
conference at which they were 'elected' as set out at paragraphs 10
and 11 above.

It would seem, while the applicant has established own
Football Association with another body which runs football along the
same lines
as LEFA and uses Bantu players, the applicant would have
this court hold that a rival organisation to LEFA be allowed to walk
away
from LEFA not only with the players but also with the team's
name. Reasons advanced for this appear in the applicant's paragraphs
14, 15, 17 - 20 and can be summarised as:-

(1) applicant has not given legitimacy to
respondent's de facto Executive Committee nor is the said committee

allowed to participate in any activities including

competitions arranged by it pending the satisfactory

11

resolution of the unconstitutional election of the 1^st
respondents executive committee.

In the same breath applicant says another 'democratic
football association named Football Association (FA.) has come into
being and
the applicant is affiliated to it for the year 2001.

As I have said above, the question is whether
applicant's establishment of FA does not amount to walking away from
LEFA and whether
by so walking away and forming a rival association
the applicant can be allowed by this court to also walk away with the
name Bantu
Football Association. As I see things, the applicant Bantu
Football Association is a breakaway group from LESOTHO Football
Association
otherwise known as LEFA Question is, can a breakaway
group with its own association competing with the original group in
all respects
be allowed to stop other aspirant groups affiliated to
the parent group from associating themselves with the parent group
under a
name affiliated to the parent group?

Secondly, the applicant alleges it resolved as above and
pursuant to the resolution it wrote to first respondent notifying it
some
people masqueraded as members and players of the applicant.
Concerning the alleged resolution by the applicant as aforesaid, I
have
gone though the file and nowhere have

12

I found that the applicant through its executive
committee resolved as alleged. According to the applicant's
constitution (and it
is to be observed that the constitution is the
supreme law of the applicant and that the executive committee derives
its powers and
functions from the Constitution) powers and functions
of the Executive Committee under sec. 15 the Executive Committees
duties are,
inter alia:

sub-section

(ii) .... suspend and/or expel members from the club
and/or the Executive Committee....

(viii) act in all internal and external matters of the
club;

The only resolution of the applicant is annexure "A"
of 9^th February, 2001 which I intend reproducing in full
reading:

EXTRACTS OF MINUTES OF BANTU Football Club.

Held at Mafeteng on 9^th February, 2001.
Present Quorum:

Resolved:

1. To institute an urgent application interdicting
a game to be played in Mafeteng on 11^th February,

13

2001 between Rovers Football Club and a group of
individuals who unlawfully call themselves Bantu Football Club or
Bantu F.C.

2. 
   To institute an application restraining both LEFA
   and
   those individuals from fixturing any team under
   the name of Bantu
   Football Club or Bantu F.C.

   
   

3. 
   To interdict those individuals from using the name
   of
   Bantu Football Club or Bantu F.C.

   
   

4. 
   To seek an order declaring Bantu Football or Bantu
   F.C.
   represented by the Committee elected in 2000
   to be the only Club
   to lawfully use the name of
   Bantu Football Club or Bantu F.C.

   
   

5. 
   To authorise Mr. Falla Seboko to sign all documents
   on
   behalf of Bantu Football Club or Bantu F.C. in
   pursuit of above
   decisions.

   
   

6. 
   To instruct Messrs G.G. Nthethe & Co. to lodge
   such
   application.

   
   

Certified Correct Extract of Minutes. Sgt J.M. Letsapo

CHAIRMAN

14

I do not take this resolution as authority or resolution
by Bantu Football Club 'not to give legitimacy to 1^st
respondent de facto executive committee' or resolution to stop the
said de facto executive committee recognised by 1^st
respondent from participating in any activities and competitions of
the 1^st respondent. When the applicant wrote to the 1^st
respondent notifying it that 'there were some people
masquerading as members and/or players of the applicant' and that
these had no
mandate from the applicant, the applicant had not
resolved as claimed for the resolution before me is nothing but
authority to institute
proceedings before this court. I do not know
how this declaration of independence by applicant from LEFA was
mooted. But even if
a certain section of Bantu F.C. decided to walk
away from the parent body and form own Football Federation or
Association as the
applicant has done, this could only be done by
resolution of Bantu F.C. and as I have said there is no such
resolution. Not only
this. According to the applicant's constitution
section 22:

(a) Should any member, sub-committee or club members be
guilty of improper, dishonest or unsportslike behaviour which is
related to
the club or otherwise commit a wilful breach of this
Constitution and/or regulations of the club, the Executive Committee
shall have
power to:-

15

(b) No member, sub-committee or club member, suspended
may take part in any sports or games or any activities organised by
the club
or organised by major organisations.

Substantively speaking, applicant's complaints to this
court are part and parcel of sec. (a) and (b) above of the
applicant's constitution.
And yet, despite the clear directions of
the constitution, applicant has not expelled and/or suspended the
erring club members and
the so-called Executive Committee
masquerading as Bantu F.C. Also, by resolution of the applicant's
executive committee, club members
and Executive Committee complained
of should have been suspended and/or barred from taking 'part in any
sports or games or any activities
organised by the club or organised
by major organisations.' The applicant has done nothing of the sort.

As this court sees things, it is the duty of
associations and clubs to carry out the law. Where an association has
made a decision
and resolved to carry out the letter of the law and
thus played its part and an individual or collection of individuals
defy such
a direction by an association or club, in such a case the
association or as it were club is entitled to approach this court to
have
its direction enforced. In like manner, where an organ acts
against the subject, it leaves the latter to seek redress in higher
tribunals
or

16

courts of law. As I have said, the applicant should have
exercised its power under the constitution instead of expecting the
court
to do for the applicant what the applicant should have done for
itself.

It is understandable if the applicant's case is: or have
expelled them and barred them from participation with sporting bodies
and
we seek leave of court to have our action against them enforced.
This, as I understand, is the content and requirement of a
declaratory
order.

Account has also to be taken of exhaustion of domestic
remedies for the idea behind this is to give the other side an
opportunity
to challenge the decision for where a decision has not
been made domestically giving others an opportunity to challenge it,
it can
not be said that rules of natural justice and fairplay have
been complied with. In any event, since the matter is before this
court,
there is no reason why the court cannot deal with it as it
stands to its finality.

Returning to the requisites of a declaratory order, it
is unlikely that a court well instructed will grant a declaratory
order where
parties are in dispute over the nature of their relative
rights or where the infringement of the rights is merely feared or
anticipated;
it would appear a declaratory order

17

can only be granted where rights have already been
infringed - see Innes, C.J. in Geldenhuys v. Neethling v. Beuthin,
1918 AD. 426,
440 - 1. Although the requirement that an order could
only be granted if there was concrete infringement of rights has more
or less
been relaxed - (see Ex Parte Ginsberg, 1936 T.P.D. 155, 157 -
8), the courts have remained cautions refusing to interpret the
legislation
so as to allow declarations that were purely abstract or
hypothetical.

Speaking for myself, I have always viewed a declaratory
order as superceding a review order so that where an applicant would
be expected
to proceed by way of review he instead approaches the
court for a declaratory order. This has happened in several cases
where a party
has established rights. Thus in Kepa v, Anglican Church
and Another, LLR 1995-96 (CofA) 163, the appellant (for what appeared
to
the Appeal Court to be spurious reasons) was transferred from one
school to another. In this case the management had made a decision
to
transfer the appellant and the appellant instead of approaching the
court by way of review had applied for a declaratory order
to set
aside the purported decision to transfer her and the appeal court had
granted the appeal.

In my view, though perhaps not now always, a declaratory
order can

18

only be resorted to to set aside a factual, existing
situation for a court cannot set aside something non-existent. Indeed
even without
the requirement, there has to be some basis for the
grant of a declaratory order. There is a basis for the grant of the
order where,
for example, certain rights having been conferred on an
applicant and these are frustrated or denied; in such a case an
applicant
can approach the court for a declaratory order. These are
the sort of cases that land in our courts from time to time and one
agrees
with the reasoning behind them.

As for an interdict, it is generally accepted that the
right to claim an interdict is dependent on three (3) requisites
namely; a
clear right, an injury actually committed or reasonably
apprehended and thirdly, the absence of similar protection by
ordinary remedy
(see Setlogelo v. Seilogelo, 1914 A.D. 21 at 227). I
do not find that the applicant has established a clear right to Bantu
Footblall
Club; a clear right having not been established it cannot
be said that there is an injury committed or reasonably apprehended
and
consequently there is nothing to protect.

I do not find that 2nd to 15^th respondents
association with the 1^st respondent is in any way
improper, dishonest or unsportsmanlike or that this is in breach of
applicant's constitution; nor indeed
do I take the so-

19

called Executive Committee of the 2^nd to 15^th
respondents to be unconstitutional. Moreover, I do not find that
applicant's view to treat 2^nd to 15^th
respondents along with their executive committee as outcasts has any
basis in law. In addition, I have not been persuaded that the
applicant has exclusive rights to Bantu Football Club.

For the foregoing reasons, this court has not hesitated
to dismiss this application and accordingly the rule is discharged
with costs
to the respondents.

JUDGE
7^th August, 2001.

For
the Applicant: Mr. Mohau

For
the Respondents: Mr. Ntlhoki