Best Boxers Club v Lesotho Amateur Boxing Association (CIV/APN/97/2003)

Case No: 
CIV/APN/97/2003
Media Neutral Citation: 
[2003] LSHC 33
Judgment Date: 
18 March, 2003

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CIV/APN/97/2003

IN THE HIGH COURT OF LESOTHO

In the matter between:

BEST BOXERS CLUB Applicant

and

LESOTHO AMATEUR BOXING ASSOCIATION Respondent


For the Applicant : Mr. Mathaba

For the Respondent : Mr. Phoofolo


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 18th day of March 2003


After giving my decision on the 6th March, 2003 Mr. Phoofolo requested the Court to give a summary (which includes my decision) of why it arrived at a decision to grant prayer 1(a) and refused to grant a prayer that Mr. Mathaba for Applicant sought for under prayer (f) "............further and alternative relief,"

other prayers and on other incidental issues.


As a major premise I would consider that the facts as stated by the Applicant in his founding affidavit were true inasmuch as they were not


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challenged. I noted that Respondents were not able to file their opposing affidavit despite my order of the 3rd March 2003. Mr. Phoofolo had then only filed a notice of intention to oppose. He attended to record that there was no opposition to the prayer 1(a) being granted. He was otherwise most helpful on the question of that the order later sought by Mr. Mathaba as aforesaid.


Applicant who is a boxing club registered with the Respondent association (LABA) sought a rule nisi on the 27th February 2003 which was couched in the following terms:


" 1...............calling upon the Respondent to show cause (if any) why:-


  1. The decision by the Respondent to include and to suspend Applicant from Respondent's activities shall not be declared null and void.


  1. The senior National Championship Tournament organized by the Respondent and schedule for the 1st March 2003 shall not be suspended pending finalization hereof;


  1. The Applicant shall not be allowed at least two (2) weeks for preparation before such tournament is held.


  1. The Rules as two forms and notices shall not be disposed with on account of urgency.


  1. The Respondents shall not pay costs hereof.


  1. The Applicant shall not be granted further and/alternative relief.


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The Applicant said that it had always been an active and participating member of the Respondent until Respondent unlawfully and without hearing excluded and or suspended it from its activities. I agreed with the Applicant that the so called suspension had indeed ended up being unfair, cruel and a ruthless exclusion by the Respondent of the Applicant from all activities of the Respondent.


This so called suspension of the Applicant was first communicated to the Applicant by a letter from the Respondent dated the 13th August 2002. It was alleged that the reason for the action were that:


"............ your management and some boxers have conducted themselves in a matter considered by the Executive Committee to be detrimental to the credit or interest of LABA. Therefore LABA is working on those issues."


No one to date except the Executive of LABA ended up knowing what the Applicant's alleged misconduct was. This action by LABA was followed by a similarly or more rambling letter dated the 13th September 2002. Both letters were annexed to the founding affidavit. The unfortunate thing about the fate of the Applicant was that none of its members /boxers were singled out nor was it even clear what the officers were and most pertinently why it was even necessary to suspend the whole club except for an ulterior motive or downright


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hard-heartedness.


It was beyond doubt that since the suspension of the Applicant has always solicited explanation from Respondent for the exclusion. In response it has always been the arrogance that one sees in the letters of suspension. These responses seem even more arrogant when the only necessary thing to do was to lake steps and issue disciplinary proceedings either against the Applicant or on its boxers/members. This was never to be.


Not only were disciplinary charges not prepared at all against the Applicant nor its members, when the Applicant complains about, it complained in addition that no hearing had been held in line with the audi alterum partem rule before the said decision to exclude or suspend Applicant was taken. It is not in all suspensions that a defaulting party will first be heard. There may sometimes be compelling reasons why it may not be necessary.


The general application of the maxim audi alterum partem to judicial and quasi-judicail proceedings has been affirmed and reaffirmed. See the cases of Publications Central Board v Central News Agency Ltd 1970(3) SA 479(A) at 488H-489D and the case of Magome and Others v Director of Public Prosecutions 1980-84 LAC p 176. Both these cases establish clear exceptions on


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which the maxim may not be applied, such as express intention on the statute

to exclude it Suffice it to say that per Lord Morris in Ridge v Baldwin and Others (1963)2 All ER 66


"The rule is something which is basic to our system: the importance of upholding it for transcends the significance of any particular case.


See also cases of Bongani Tsotsi v Institute of Development and Management 1985-90 LLR 400, Bernard Moselane & Ors v The Manager Bonhomme High School & Ors 1980-84 LAC 132. Since the application was not challenged I dare not say it was not necessary not to have heard the Applicant. The Applicant said that the right to a hearing is an inalienable right inasmuch as it is enshrined in the Constitution of Lesotho and other laws. I agreed subject to the qualification I have just given.


I presumed in favour of the Respondent that the suspension done was what normally called a holding suspension which an Executive Committee or controlling body normally has power to issue against a defaulting member. A holding suspension is meant to be a temporary measure in order to arrest a situation or control participation in an activity or certain affairs. A holding suspension in its nature has to be temporary or it will not be purposeful. It will be prejudicial and unfair because it may amount to virtual punishment of a suspended member, in its effect.


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A holding suspension is issued to enable a taking of a disciplinary measure or a like action against a member. I concluded that the suspension issued by the Applicant had none of the qualities of a genuine and fair holding suspension. As I concluded further it was intended to punish the Applicant and its members. I have already remarked that judging from the time the suspension was issued until the Applicant woke up from sleep to exercise its right or more graphically to make a claim in this Court to protect its right, the suspension had become unfair prejudicial and had become heartless and inconsiderate.


There is something which I also bore in mind. Not only are boxers athletes and sportsmen who follow continuous and rigorous physical training, which is required for maximum fitness, they have to participate in local and international competitions. The Applicant's concern as by its claim in prayer 2(b) is therefore a genuine concern. I agreed with the Applicant's contention that it is through its participation in tournaments of the Respondent that Applicant's members are able to demonstrate their boxing skills and nurture them. It is through these tournaments that they are able to compete nationally and be selected for international games. These activities will lead to good exposure, pleasure and to the more gifted will be a life of professional boxing in the end. This unlawful suspension has contributed to frustrating this purposes and objectives which are real and not mere sentiments. Applicant matter-of-factly stated that it has the


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best boxers that Lesotho has ever produced. They have even brought Lesotho

glory from Manchester 2000 Games. This exclusion became a loss to the country, as they lamented, at the hands of the Respondent. It is truly shameful therefore as I observe.


I agreed further that the Applicant's legitimate expectation that its rights of participation is Respondent's tournaments ought not to have been thwarted arbitrarily and without a hearing and courtesy of an explanation.


Due to what appeared to be an altruistic attitude and the desire to have the matter resolved amicably the Applicant says it followed certain channels. This only, as I concluded, led to its further sleeping on its rights or more precisely not protecting its rights against a people bent on doing as much damage to the Applicant's rights as possible. This the Applicant must have foreseen or should have been astute to the worst case scenario, if it has administrators worth their salt. In any event there could not have been any excuse for Applicant's delay in the circumstances to protect its rights in a court of law.


The grounds upon which a Court can excuse a delay in instituting proceedings are set out in the case of Wolgroeiers Afslaers v Municipaliteit van


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Kaapstad 1978(1) SA 13 AD. This case dealt with reviews. Although on the question of unreasonable delay the Court was divided the majority concurred on the view that it is important to assess the likely prejudice that would be suffered by respondent should the order be granted (see commentary on the case in Annual Survey of South African Law. 1978 Juta & Co. Pp 639-640. See also the case of Maqetoane v Minister of Interior and Others 1985-89 LAC 71 at p.75. I would add that another factor to consider would be the prejudice on other interested parties which would result if the Order was granted.


In the case where the elections of a National University of Lesotho Student Representative Counsel (SRC) were sought to be annulled, the Court regarded it as an acquiescence that the applicant did not act immediately to approach the Student Judicial Commission (S.J.C.) (Domestic remedies), but went on to remark that:


"In addition to that acquiescence, the applicant has allowed so long a period to pass that inevitably such substantial prejudice would be suffered by the incumbent SRC, by the student body and by the University itself; that the applicant must be considered to be estopped from now enforcing its rights.


I agree entirely with above statement, save to emphasise that this question pivots around administration of justice and fairness and that is the area over which this Court has to decide.


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Firstly the Applicant solicited the intervention of the Ministry of Sports, Lesotho Sports Council and Zone VI Amateur Boxing Federation. It was all in vain. Annexure "TR 3" bears testimony to the above attempts. Incidentally some of the institutions referred to are renowned for their importence and their kid-glove treatment of problems such as the one in issue.


The Court believed that while the Applicant remained excluded from the activities of the Respondent, the latter was busy making preparations what the Applicant called the most important tournament in the calender the Senior National Championship Tournament. It is at this tournament where a national selection is made of players for international tournaments. The effect of the suspension of the Applicant was that its members would not have an opportunity to be selected for international tournaments.


Back to the attempts by Applicant to let others intervene in the dispute between itself and the Respondent. Indeed it seems to have been persisted in and must have given Applicant false hopes. Included in this was a letter of about the 25th July 2002 from the Ministry of Sports informing the Applicant that the dispute has been referred to the Lesotho Sports Council. And that the Respondent had undertaken, as it was reported, to deal with the matter expeditiously and before holding the tournament of the 1st March 2003.


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Applicant had then observed that this undertaking by the Respondent was evidently a way of stalling. The said Ministry recorded this overture in a letter (TR 4) dated 28th January 2003.


Applicant must have by then sensed that the ice under its feet was becoming thin. In its contemplation must normally have been preparation of its boxers for the coming tournament. About that time it must have seriously thought of resorting to the courts of law. If not one must begin to have serious doubts about the acumen of Applicant as administrators. I thought it should have realized its plight much earlier, considering that the suspension must have then already existed for over three (3) months.


The letter TR "4" in which, as contained in the letter LABA undertook to "deal with the matter expeditiously before that date"should not have given the Applicant a further hope that there was a genuine desire to resolve the problem on the part of the Respondent. Surprisingly as I observe it became clear by the 27th February 2003 that the Applicants would be excluded from participating in the 1st March 2003 competition. Miserere Domini!! It should have in fact been clearer much earlier except for Applicant's naivete.


Applicant says it delayed because it had first to exhaust local remedies. If


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this succour by the Applicant in so called exhaustion of local remedies is excusable in the Applicant's estimation it is certainly not so in a Court of law such as the present one. On the contrary it appears more to have been an abandonment of Applicant's rights and not that Applicant was bound to exhaust its own domestic remedies. Not every resort to any institution with similar interests or objectives, in this case the Lesotho Sports, Ministry of Sports and so forth, is exhaustion of domestic remedies. Domestic remedies mean, for a club or association, such procedures and channels as provided, for its members, in its own Constitution.


Indeed parties must exhaust all available local remedies before approaching the Court. In the case of Malefu Francina Letsielo v Ministry of Home Affairs and Others 1991-96 Vol.1 LLR 400 the following remark is found in the footnote:


"In a case in which Applicant had been interdicted by Acting Principal Secretary pending disciplinary proceedings before the P.S.C. The Court felt local remedies had not been exhausted before approaching the Court."


Kheola J (as he then was) has remarked in a matter involving a dispute over University results that:


"The available domestic remedies must first be exhausted lest the courts of law are accused of usurping the powers of the University.


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See Mohale v NUL 1982-84 LLR 302 at 308."


The same sentiments were expressed by Allen J in the case of Matjhego v NUL 1985-90 LLR 296 at 300-301. I endorse fully the view of the courts in the above mentioned cases. But what really are domestic remedies and why is exhaustion thereof a prerequisite to approaching the Courts?


The remedies are only referred to as domestic because they are within powers of the organ from which the complaint comes J. Erasmus et al in The Civil Practice of the Supreme Court of South Africa reaffirm this definition by referring to exhaustion of domestic remedies as;


"..............available to him in terms of the governing legislation or, in the case of a private organisation, in terms of the agreement between him and the organisation concerned. Erasmus et.al. 1999 Superior Court Practice Juta & Co at 31-381. See also Van Wynsen et.al. The Civil Practice of the Supreme Court of South Africa 1997 at p.41, vide foot note 58; Lenz Township Co. Pty (Ltd) v Lorentz No. 1961(2) SA 450 A".


The aforegoing authorities do not in any way suggest that an aggrieved party will not go to Court unless and until it has exhausted local remedies in the absence of an express provision in the governing legislation excluding recourse to the courts of law without exhaustion of domestic remedies.


The enquiry, according to Erasmus et.al (supra) is two-fold; the first is


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whether the domestic remedies were capable of effective redress; and secondly whether the alleged wrongful act complained of undermined the domestic remedies themselves. The former question is most pertinent considering that the 'domestic remedies' that the Applicant had sought to exhaust for redress could not have been effective in the circumstances.


In a number of cases, the Courts in South Africa have held that it was not incumbent upon the Applicant to take a course of exhausting domestic remedies if the same were not capable of effecting redress.


For the Applicant to have realized that by the 28th February 2003 the matter would not have been resolved was realistic but not excusable. Indeed the Applicant would not have then been unable to prepare for the tournament because it needed at least two (2) weeks to do so. If there was any prejudice it had then become of its own making. Why would Applicant benefit from its own lackadaisical attitude? This explains why this Court declined to grant the order sought for interdicting the games scheduled for the 1st March 2003. The Respondents, for all their faults, must have involved time, effort and labour into preparation of this games. This the Court could not ignore. That is why, furthermore the Court became unsympathetic to Applicant's moving for an order in terms of "further and alternative relief" as will presently unfold.


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Mr. Phoofolo contended that if he had resisted the application he would have succeeded in proving that the whole application would have to be dismissed on account of lack of urgency. I would not have entirely agreed. In viewing the prayers 1(a) and 1(b) one need not forget that what are being applied for are discretionary remedies.


I would have viewed the basis of the prayer 1(a) as being that a continuing wrong was taking place to the detriment of the Applicant's interests. Despite the lardiness of the Applicant a case of continuing prejudice and extremely unreasonable conduct on the part of the Respondent always cried out for urgent treatment and relief by the Courts. This was very compelling and overwhelming. It could even explain the reason why the Respondent itself decided not to oppose the whole application.


I have already stated the similarly persuasive reason why I thought prayer 1 (b) was untenable in the circumstances of the facts of this application. One of them was the righteousness of the Applicant on the one hand as against prejudice and irreparable damage that would result to the Respondent, who has the powers and duty to regulate the boxing sport and organize in the country, on the other hand. In my discretion I decided to opt in favour of the Respondent however morally bad the Respondent may look in the eyes of the Applicant. I


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emphasized that it is not always in the interest of justice to lap up every moral consideration and then decide on its basis in favour of an aggrieved party . I was referring to the not trifling sentiment that Respondent's conduct had indeed become a callous disregard of Applicant's rights to participate in a sport loved by its members.


The background of the additional order sought by the Applicant under "further and/or alternative relief" was as follows: Having refused to accede to prayer 1(b) those disputed competition games commenced and proceeded regularly. It was in at pre-qualification/selection tournament. The effect of the competition was that a list of eight (8) boxers was selected which group or squad would compete in an Olympic Competition. The effect of this selection was that none of Applicant's boxers have participated because they had been excluded. This perception or fact is well founded. Applicant wanted something to be done and that the Court should come to its rescue.


Now, the suspension of Applicant has been adjudged to have been wrongful. The Applicant feels that some kind of justice should be done to its players. That this should be done by looking at ways to make them compete and participate in a selection procedure that will make them part of the eight (8) boxers squad that has been selected. One of the ways suggested by Mr. Mathaba


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was that the Applicant's boxers be pitted against the eight (8) selected or others in a certain fixture formula. While this and everything else is possible there is always a real fear and it should be warning to any Court and parties that the Court should not be seen to be interfering, meddling or substituting its powers for those of administrators of clubs or associations, for which the latter are empowered by their Constitutions and rules.


In this regard I quote with approval what Plewman JA with concurrence of Schutz P and Trengove JA said in a matter of appeal over a decision by the High Court to review the action of a Minister as ultra vires. He said:


"In my view the learned judge fell into error here in substituting his view of the evidence for that of the committee. Provided that the committee formed an honest view it is not for the court to direct what its finding should have been.(Minister of the Interior and Others v Bereng 1985-89 LAC 267. See also Koatsa v National University of Lesotho 1980-84 LAC 163/1985-89 LAC 335.


One has to be reminded that the Court had in the same vein not allowed prayers prayer 1(c) and (d). If it has not been explained earlier it is still opportune to state that this is the policy reason for not allowing the prayers. The Court should not direct how administrators should go about their business unless it is practical and absolutely necessary in the interest of justice.


This Court invited Mr. Mathaba for the Applicant to suggest a draft order


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for further and alternative relief by way of guidance to the court. It looked like

this:


"That Respondent be and is hereby ordered to facilitate and consider the inclusion of members of the Applicant's team accordingly to — accepted rules governing Olympic bodies/competition..... by March 2003 ....... to (enable) them to participate in national and international games On.........by 15th March 2003."


The difficulties about this prayer are clear. Its vagueness. Secondly, it seeks to enlarge on prayer 1(a) (already granted) by seeking to spell out involvement by Applicant in matters concerning international competitions. It does this in an indirect way. It is untenable if the Court is to order for this in the light of the disallowance of prayer 1(b) and 1(c). Any indirect attempt to go behind this would augur for disaster, unreasonable and unnecessary contempt proceedings which would have been facilitated by inelegance of the suggested order. I rejected the application for the amended prayer.


The Court disagreed with Mr. Phoofolo's contention that Applicant should not be granted full costs of the application. In the first place the Applicant had succeeded in the application which was in reality no longer opposed. The principle is that costs follow the result. Applicant substantially succeeded in the application despite that prayers 1(b) and (c) and including the


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suggested amended prayers were disallowed. Indeed much debate was concerned with the latter (rejected) prayer. To me this ought not change the order for costs on the ordinary scale which is what had been applied for.


The application was allowed with costs to the Applicant.


T. Monapathi

Judge

18th March 2003