CIV/APN/287/87
IN THE HIGH COURT OF LESOTHO
In the Application of :
BANTU FOOTBALL CLUB Applicant
VS
LESOTHO SPORTS COUNCIL 1st Respondent
R.L.M.P. FOOTBALL CLUB 2nd Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 22nd day of September, 1987
This is an application for an order in the following terms:
Directing and calling upon the Respondents to show cause (if any) why the proceedings and decision of the First Respondent in the matter of appeal between the Second Respondent and the Applicant dated the 26th June, 1987 shall not be reviewed and corrected and set aside;
Directing or calling upon the First Respondent to despatch within 3 days of the receipt of the Notice to the Registrar of this Honourable Court, the record of the proceedings and the reasons for the decision aforesaid, regard being had to urgency of the matter, and to notify the Applicant in writing that it has done so;
Dispensing with the forms and service provided for in the Rules of Court, regard being had to the urgency of the matter;
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Declaring that the First Respondent flouted the audi alteram partem Rule in not according the applicant a hearing before it made the decision of the 26th June, 1987;
Declaring that the First Respondent erred in fettering with and altering decision of the Senior Football Executive Committee of the 19th May, 1987, regard being had that it is the SENIOR Football Executive Committee which heard the evidence;
Restoring the decision of the Senior Football Executive Committee of the 19th May, 1987 and awarding the two points to the Applicant.
In the event of their opposition, the Respondents be directed to pay costs hereof;
Such further and or alternative relief."
On the 18th April, 1987 there was a soccer match between the Applicant and the Second Respondent played at Mafeteng. The match was an official one because it was organised by the First Respondent and as such it was governed by the Lesotho Sports Council (Competition) Rules 1983 and the Lesotho Sports Council Regulations 1971.
During the match a protest was lodged by the Applicant in terms of Article 2 (2) of the aforesaid Rules. The protest related to a defaulter player one Motlatsi Tampoki who was at the material time wrongfully and unlawfully playing for the Second Respondent. The applicant specifically complained that the fielding of the said Motlatsi Tampoki by the Second Respondent was in breach of the aforesaid Rules as the said player had been duly disqualified from participating in official matches organised by the First Respondent.
On the 19th May, 1987 the Senior Football Executive Committee heard evidence relating to the aforesaid protest. After hearing the
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evidence the S.F.E.C. came to the conclusion that the player complained of was Motlatsi Tampoki and not Elias Monoane as appeared in the league form and that the said player had been fielded in breach of the aforesaid Rules particularly Article 16 (3). It turned out during argument before me that it was Article 18 and not Article 16 (3).
At the hearing of the protest the applicant led the evidence of three witnesses who knew Motlatsi Tampoki very well and were quite sure that the player who wore jersey No.6 was Motlatsi Tampoki and not Elias Monoane as stated in the league form. The Second Respondent
called one witness who purported to contradict the evidence adduced by the applicant. In a very well reasoned judgment the S.F.E.C. came to the conclusion that the player wearing jersey No.6 was Motlatsi Tampoki.
The Second Respondentlodged an appeal to the First Respondent. The upholding of the appeal led to the present application.
On the 18th September, 1987 the Respondents decided to raise certain points of law in limine. The first point was that the Applicant had failed to file a certificate of urgency in terms of Rule 8 (22) (c) of the High Court Rules 1980. The second point of law was that because the applicant had decided to bring the application under Rule 50 normal. rules should be followed. I agreed with the points raised in limine but came to the conclusion that because the Second Respondent had already filed its opposing papers the question of whether or not the application, was treated as urgent was no longer material. Moreover, the application could not be regarded as an urgent one in the absence of a certificate ' of urgency.
The normal procedure is that when a party is applying for a
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review of the proceedings of any tribunal, he must attach those proceedings to the application because there is no how this Court can determine the alleged irregularities of such proceedings if they are not supplied. In the instant proceedings the applicant supplied the Court with a copy of a letter by which the First Respondent communicated the result of the appeal to the parties. It reads as follows:
''Lesotho National Stadium.
P.O. Box 138, MASERU 100
Lesotho.
26th June, 1987.
The Secretary,
R.L.M.P. F.C.,
P.O. Box 13,
MASERU .
Dear Sir,
re: Your administrative Appeal against S.F.E.C. Decision
Council met on the 22nd June, 1987 to consider your appeal against S.F.E.C. decision on your match against Bantu F.C. After lengthy discussions Council reversed S.F.E.C. decision and upheld your appeal on the following grounds.
That there was no referee's appeal attached.
That article 16 (3) under which R.L.M.P. was found guilty was irrelevant to the case.
R.L.M.P. F.C. was consequently given the benefit of doubt. Council was not able to decide as to whether or not the said player was Motlatsi Tampoki.
The results of the match in question (points and goals)will remain as they were at the end of that match.
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Yours faithfully,
P.M. PULE
SECRETARY GENERAL
c.c. S.F.E.C.
Bantu F.C."
On the 18th September, 1987 and after the counsel had made their submissions I postponed the matter to the 22nd September, 1987 and ordered the First Respondent to supply the Court and the other parties with copies of its proceedings when it heard the appeal. The First Respondent failed to do so and its counsel failed to appear before the Court at 2.30 p.m. on the 22nd September. I had no alternative but to proceed and to rely on the letter mentioned above. It had by then become clear to me that the First Respondent was showing a lack of interest in the whole matter and was prepared to frustrate the applicant. It had not only refused to comply with my order but had also filed no answering affidavit. It came to me as a great surprise why the First -Respondent which is the highest tribunal or body under the Minister of Education,Sports and Culture, was very reluctant that its proceedings should be seen by the High Court.
The main complaint by the Applicant is that when the First Respondent heard the appeal it flouted the audi alteram partem rule in not according the Applicant a hearing before it made the decision of the 26th June. 1987. It is quite clear from the letter referred to above that all what the First Respondent did before it upheld the appeal was to have a "lengthy discussion." There is absolutely no doubt that the Applicant was not given the chance to be heard, in other words the
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applicant was not given a fair hearing. In general the notion of fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and the right to argue (Administrative Law, 4th edition by Wade page 421). The Second Respondent filed its grounds of appeal and indicated why it felt that the decision of the S.F.E.C. was wrong. The Applicant ought to have been given the chance to reply to those grounds of appeal either orally by arguing the case before the First Respondent or by allowing it to file written submissions because hearings need not always be oral hearings. On this ground alone the proceedings before the First Respondent in the hearing of the appeal ought to be set aside because a cardinal rule of natural justice was not observed.
It was argued by Mr. Mpopo. counsel for the Second Respondent that according to the Rules and Regulations of the First Respondent there is nothing to show that at the appeal stage parties should be heard by the members of First Respondent. I agree with this submission and in fact Article 2 (13) of the Lesotho Sports Council (Competition) Rules 1983 specifically prohibits the adducing of fresh evidence before the Council. However, the Rules and Regulations are silent as regards the hearing of argument before the Council. I was referred by Mr. Phafane, counsel for the Applicant, to the case of Publications Control , Board v. Central News Agency Ltd. 1970 (3) S.A. 479 at p. 488 where Rumpff, J.A. had this to say:
"It is, of course, firmly established in our law that when a statute gives judicial or quasi-judicial powers to affect prejudicially the rights of persons or property, there is a presumption, in the absence of an express provision or of a clear intention to the contrary, that the power so given is to be exercised in accordance with the fundamental principles of justice. One of these principles is that the person affected should be given an opportunity to defend himself or of being heard. If, however, on a proper construction of the statute, it appear, that the Legislature did not intend the person affected to have the right of being heard, the implied right will be held to be excluded."
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I entirely agree with the learned judge and confirm that the presumption must apply to the Rules and Regulations of the First Respondent.
According to the letter of the First Respondent the first ground upon which the appeal was upheld was "that there was no referee's appeal (sic) attached" to the record of proceedings from S.F.E.C. It was agreed that what they meant was a referee's report. It seems to me that if the First Respondent felt that the record was incomplete they ought to have ordered the S.F.E.C. to send them the report. They were wrong to rely on the absence of a report and punish the Applicant who had nothing to do with the preparation and the sending of the record to the First Responden. In their decision the S.F.E.C. had indicated that there was nothing in the referee's report except to state that a protest was made. If the First Respondent needed the referee's report in order to reach a fair or correct decision then they were bound to ask for it.
The second,ground why the appeal was upheld is that the Second Respondent was found guilty under the wrong section. I agree but the allegations where that the Second Respondent fielded a player who had been found guilty of a misconduct and who was suspended from partici- pating in any matches organised by the First Respondent. It was common cause that the player in question was still under suspension at the relevant time. I am of the opinion that this was an error that could easily have been amended on appeal because it did hot prejudice anybody.
The thrid ground was that the Second Respondent had to be given the benefit of doubt because the First Respondent was "not able to decide as to whether or not the said player was Motlatsi Tampoki. The findings of fact are usually the work of the trial tribunal which not only hears
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evidence and sees witnesses but it is in a better position to assess the credibility of the witnesses. I do not mean that where the lower court is obviously wrong or has misdirected itself, their decision cannot be overturned on appeal. In the instant case the First Respondent has made no attempt to show that the S.F.E.C. was wrong in the assessment or consideration of the evidence that was led before them.
For the reasons stated above the application was granted in terms of prayers 1,4,5,6 and 7. The costs shall not include those incurred on the 18th September, 1987 because the Applicant had a duty to see to it that on that day the record of proceedings of the First Respondent were available.
J.L KHEOLA
JUDGE.
24th September, 1987.
For the Applicant – Mr. Phafane
For first Respondent - Mr. Lenono
For Second Respondent - Mr. Mpopo.
