HIGH COURT OF LESOTHO
Application of :
UNITED FOOTBALL CLUB Plaintiff
SPORTS COUNCIL AND Defendants
by the Hon. Mr. Acting Justice B. Goldin on the 5th day of February
is an amateur soccer club. First defendant is the Lesotho Sports
Council established under the provisions of the Lesotho
Council Order No. 41 of 1970 as amended. The second defendant, the
Senior Football Executive Committee, is and has been
First defendant to fix and administer soccer fixtures played in
Maseru and in other districts of the country.
4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th and Fourteenth
defendants are amateur soccer clubs in terms of the
Lesotho Order in
second defendant is also responsible for establishing and fixing
various leagues in which clubs are entitled to play. The top
being Division A, there are also B and C Divisions.
establishment of first defendant all clubs affiliated to the Lesotho
Sports Association became members of the Council (Sections
5 and 7 of
Lesotho Sports Council Order), Plaintiff qualified as such a member
subject to the provisions of Lesotho Sports Council
No.10 of 1971.
Lesotho Sports Council Regulations 1971 provides
sections 3, 4 and 7 as follows :
club whose annual subscriptions are overdue shall automatically be
regarded as unregistered until such subscriptions plus 25%
subscriptions shall have been paid to the Council.
Provided that if an annual subscription fee prescribed by the Council
is not paid within two months of that fee becoming due and
the club concerned shall reapply for registration.
The secretary of a registered club shall at the time of registration
and at the end of each year thereafter notify the Council
of the names of all bona fide members of his club and such members
shall be registered in the record of the Council.
in the records of the Council in terms of sub-regulation(a) will
take place free of charge during the period 1st
November of any
particular year to 31st December of that year,
application for registration of a member of any registered club
reaching the Secretary of the Council during the period 1st
to 31st October of any one year shall be accepted upon payment of a
fee of 25 cents.
shall be the responsibility of the registered club to ensure that
an application for registration reaches the Council.
Before the 31st day of December of each year every registered club
shall submit to the Council full particulars of the number
members actively participating in each type of sport and capable of
representing that club in sport competitions, together
other information as the Council may require.
the first two weeks of January of each year the Council shall
compile a sports programme for that year setting out the
title, venue and date of each competition, the rules according to
which each such competition shall be conducted, and
information as the Council may consider necessary.
on the part of any club to participate in a competition programmed
for it shall carry the penalties laid down by the Council
failure, including the imposition of a fine not exceeding R25 if
such failure was wilful.".
proceedings commenced on notice of motion but on 16th April 1981 the
matter was sent to trial. Pleadings have been filed. The
evidence related to the application for registration in respect of
1980 and in particular whether
a list of
bona fide members of plaintiff club was submitted at the time of
payment of the annual subscription or at all. The contents
affidavits filed by the parties constitute the remaining main
evidence in this action.
failed to make payment timeously in respect of 1980. It paid R9 in
February and was issued with a receipt on which was
"Received pending decision of LSC".
exists whether at the time the payment was made a list of the names
of bona fide members of plaintiff club was filed with
Plaintiff contend that it was, and produces MMN2 as a copy of the
required list. Defendants deny that such a list
was ever filed.
Evidence was heard concerning this aspect but in my view it is
irrelevant to the decision of the claim before me.
This was conceded
by Counsel for both parties. The reasons will be explained later.
I will deal briefly with evidence. Defendants' clerk, the only one to
whom payments are made and lists submitted, alleged
that while R9 was
paid no list of pona fide members was given to her. It was the first
time in her long experience that such a
list did not accompany
payment. In my view her evidence was not convincing. There is at
least room for error and faulty recollection.
She firstly said that
she endorsed the receipt because she was puzzled by payment of R9
instead of R5. Later she added the absence
of this as an additional
reason for the endorsement on the receipt. The fact that she never
queried or mentioned such a rare departure
from normal practice
appears surprising in the circumstances. There is no correspondence
from defendants referring to the absence
of such list. Moreover 2
lists are required by the Regulations. One concerns members and one
relates to the proposed players. There
is no suggestion that such a
list was not submitted. Defendants' witness also appeared
unconvincing and unimpressive concerning
her alleged reference to the
committee of the defendants of payment for 1980 before issuing a
receipt and her explanation of her
consultation with and instructions
from her employers. In the circumstances it cannot be held that a
list of bona fide members
was not submitted at time of payment of R9.
was aware of the practice and requirement and had complied with it at
all other times. It was the first such failure as
far as defendants'
clerk and her failure to comment or refer to it justifies an adverse
inference. There is no justification for
holding that MMN2 is a
forgery or a fraudulent document in the sense that it is not what it
is alleged to be.
undisputed that plaintiff did not play or participate in any games
during 1980. Moreover it did not take any measures or make
efforts to participate. Mr. Mthembu, on behalf of plaintiff says that
he was away overseas and when he returned "it was
too late for
me to do anything".
October 1980 plaintiff applied for registration for the football
season for the year 1981 "and submitted along with their
application a list of bona fide club members".
dated 5th February 1981 plaintiff was informed by first defendant
that it "is accepted as a full member of the Council
in the B
contention and claim by the plaintiff is that it had always been a
member of the A Division, it had played successfully
division, that it enjoyed a vested right to belong to the A Division
and that there was no justification in fact or in
law to place it in
the B Division in 1981. It is further alleged that by not being
included in the A Division in 1981 plaintiff
suffered serious loss of
fame and suffered in its reputation.
claims the following relief:
that plaintiff is entitled to play and take part in the A Division
Soccer League in Lesotho as admitted by First and/or
Defendants during the 1981 soccer season.
for so far as may be necessary the League games played in the said A
Soccer League Division during 1981 soccer season
taking part therein, to be illegal and null and void and of no
effect whatsoever.Plaintiff further claims costs,
and further and
alternative relief as the Court may deem fit.
dispute is whether first and second defendants were entitled to place
plaintiff in the B Division in the 1981 soccer season.
The dispute is
being heard in February 1982. It is obviously not possible to grant
relief enabling plaintiff to play in the A Division
in 1981 which was
the object of the proceedings when they were launched. Approaching
the question on the basis of a declaration
that plaintiff was
entitled and ahould have been permitted to play in the A Division
raises unforseen difficulties not covered
by the relief originally
sought. Nevertheless I will deal with the application. Firstly great
reliance is placed on the contention
that the plaintiff enjoys a
vested right to play in A Division. The decisions in Dawkers v.
Antrobus 17 CH.D 615; Turner v. Jockey
Club of South Africa 1974(3)
S.A. 633 and Annamunthodo v, Oilfields Workers' Trade Union 1961 All
E.R. 621. It was submitted that
the requirement and application of
natural Justice and the doctrine of audi alteram partem was not
invoked or applied. First and
second defendants placed plaintiff in
the B Division without affording plaintiff an opportunity to be heard
or consider any grounds
for such a decision.
be said that plaintiff enjoyed a vested right to remain in the A
Division. This is not a case involving expulsion, punishment,
relegation to a lower Division. If this had been done capriciously,
mala fide or unlawfully the Court would be entitled to
afford relief in a proper care. It is alleged that defendants acted
"unilaterally" and this raises the
question whether the
task of compiling a sports programme and determining the appropriate
division in which a team will participate
is the type of function or
involves such decision as to require defendants to hold an enquiry or
canvas the views of registered
teams. I do not think so in such
subject of relegation and promotion is expressly mentioned in Lesotho
Sports Council Football Competition Rules. Article 10
"the winner of a C Division will play two matches (home and
away) against the bottom most "B" division team mutatis
mutandis "B" or "A" teams and the results of such
matches shall determine teams qualifying for promotion/relegation
It can be
also said that whether to place an existing
division team in that division in a new soccer season may-depend on
the composition of its players. For example that upon examination
the list of club members capable of representing that club in terms
of section 7 of Legal Notice No. 5 of 1971 the Council would
entitled to compare the calibre of such players with that of other
teams in determining in which division to place a particular
position can be stated as follows. Whether or not plaintiff should
have played in A league and there is no reason why he should
done so in 1980 is irrelevant to the plaintiff's claim that it should
have been placed in A League in 1981. The fact is
that plaintiff did
not play in 1980. Twelve teams were as always selected for that
League and plaintiff was not placed in any League.
By the end of
1980,plaintiff not having played it was necessary to determine in
which League it should be placed in 1981. By not
having played in
1980 the teams which did play in 1980 were the candidates for play in
1981. The only relegation or promotion being
determined by games
between the top team in B League or the bottom team in A League.
cannot, in my view claim that because it should have played in A
League in 1980 it retained its right to play in A League
in 1981. By
not playing in 1980 it cannot rely on past record or notional rights
to claim a place in a League in which it did not
play for the
would have had to demote a team which played in A League in 1980 in
order to create a vacancy for plaintiff. Even if
entitled to do so its failure to do so cannot be interferred with in
the manner claimed or at all. The application
could only succeed on
the alleged vested right which I find to be without substances A team
which does not play in a particular
year in which the required 12
teams did play is not entitled to resume playing in the division in
which it had ordinarily or originally
relief claimed for a declaratory order relates to 1981 and not 1980.
I assume that it would be competent to make such an order
entertain considerable doubt. If it were declared now that in 1981
plaintiff should have been permitted to play in A
League it is
difficult to see of
practical use or value such an order would be.
had not been selected and did not play in 1980. It refused to play in
1981 in B League thereby not rendering itself eligible
to be included
in A League on merit for 1982. In the result it has not played for 2
years. A declaration that it should have played
in A League in 1981
would not have resulted in it playing. Soccer is a game and the
rewards emanate from playing. To declare somebody
an A League player
who never played does not make ham an A League player but establishes
that he should have played. In the circumstances
of this case such a
declaration would not qualify it in selection for A League for 1982.
By now it has not played for 2 years,
it has no right to claim
selection on the basis of pre 1980 and notional rights. Other teams
have played in A League and relegation
and promotion has to be
determined as provided by the Rules. I see no basis on which a team
which played in 1980 and or 1981 in
A League must be demoted to make
place for a former player in this League.
other relief persisted in was the question of costs. In view of my
conclusion it is not necessary to deal with the claim
for nullity. It
was not argued and it would not be helpful to engage upon a subject
which is no longer in issue.
I turn to
the question of costs the general rule is that costs follow the
result unless special and cogent reasons justify a departure
There is no doubt that a great deal of unnecessary matter was
included and canvassed. The real issue related to 1981 and
question whether by failing to play in 1980 plaintiff should have
been included as of right in the A Division for 1981. In
the evidence concerning whether MMNA2 was filed or not was irrelevant
to the issue before the Court. Defendants' counsel
this. Nevertheless It was defendant who asked for such evidence to be
heard and it took up the first day's hearing.
In my view the cost
concerning this evidence should be disallowed. It is relevant that
plaintiff did not oppose the application
to call it.
the circumstances I agree with counsel for first and second
defendants that there should be no order concerning the costs
hearing incurred on the first day of the trial.
as follows :
claims are dismissed.
is liable to pay the costs of the proceedings from the time they
were commenced save and except the costs incurred
by first and
second defendants on the first day of the trial on the 3rd
Plaintiff : Mr. Lombard
Defendants: Mr. Tampi
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law