Lioli Football Club v Lesotho Sports Council and Others (CIV/APN 221 of 89) [1990] LSCA 30 (2 February 1990)

C I V / A P N / 2 2 1 / 89 IN THE H I GH C O U RT OF LESOTHO In the m a t t er b e t w e e n :- LIOLI FOOTBALL CLUB A p p l i c a nt and LESOTHO S P O R TS COUNCIL SENIOR FOOTBALL EXECUTIVE C O M M I T T EE S C H O O L B O YS FOOTBALL CLUB R . L . M . P. FOOTBALL CLUB 1st R e s p o n d e nt 2nd Respondent 3rd Respondent 4th Respondent J U D G M E NT Delivered by the H o n o u r a b le M r. Justice J. L. Kheola on the 2nd day of F e b r u a r y, 1990 In this application the a p p l i c a nt is applying for an o r d er in the following t e r m s :- (a) Requiring 1st Respondent to hear and d i s p o se of the appeal of Lioli Football C l ub against t he unlawful and w r o n g f ul d e c i s i on of 2nd R e s p o n d e nt purporting to d e ny Lioli F. C, its lawful right to play homematches a g a i n st 3rd and 4th Respondents at Tejatejaneng on the 17th and 18th June 1989 or on suitable later d a t e s. (b) Fixing a d e f i n i te date by which (a) hereof is to be d o ne bearing in mind t h at the league is nearly c o m p l e t e d. /2 -2- (c) Requiring 1st and 2nd Respondents to do all t h at is administratively necessary to the e x e c u t i on of paragraph (a) h e r e o f. (d) Failing realization of p a r a g r a p h ( a) hereof authorizing t he presentation of the e n t i re appeal to the c o u rt itself f or hearing and d i s p o s a l. (e) Ordering costs a g a i n st 1st and 2nd Respondents to be on the attorney and client scale should they o p p o se this a p p l i c a t i o n. (f) C O S TS a g a i n st 3rd and 4th Respondents o n ly if t h ey o p p o se in t he m a t t e r. (g) Granting a l t e r n a t i ve or f u r t h er r e l i e f ." The founding affidavit w as deposed to by one Philip Pholo w ho is the secretary of the a p p l i c a n t. He avers that according to the first league-programme for the first division (A D i v i s i o n) c l u bs published by the second respondent f or 1989 the two m a t c h es f or the 17th and 18th J u n e, 1989 w e re to be the p l a i n t i f f 's h o me - m a t c h e s. A little w h i le before those d a t es t he applicant received a letter or c i r c u l ar from t he second respondent to the e f f e ct t h at a p p l i c a n t 's home - pitch w as suspended on t h o se d a t es and t h at the m a t c h es c o n- cerned would be played by the applicant on t he pitch of the fourth r e s p o n d e n t. The reason for this d e c i s i on w as t h at the applicant's supporters had tormented the referees of the second r e s p o n d e nt on t he 25th M a y, 1989 when the applicant played with Swallows Football Club at T e y a t e y a n e n g. - 3- The applicant filed an appeal against t h at d e c i s i o n. When t he second respondent w r o te to say t h at t he d e c i s i on still stood d e s p i te t he a p p e a l, t he applicant asked t he second respondent to pass t h e ir appeal to t he first r e s p o n d e n t. On the 2 1 st J u n e, 1989 the second respondent wrote fa letter to t he a p p l i c a nt demanding t h at they furnish reasons why they ( a p p l i c a n t s) should not f o r f e it points of t he t wo m a t c h e s. The a p p l i c a nt finally w r o te to t he first respondent d e m a n d i ng t h e ir right to be heard on appeal by it. T h e ir appeal w as ignored by t he first r e s p o n d e n t. T he a p p l i c a nt has f u r t h er averred that t he second respondent has no right under t he legislation governing football in Lesotho to impose any penalty upon the a p p l i c a nt b e c a u se that function belongs to t he Disciplinary C o m m i t t ee of t he first r e s p o n d e n t. Furthermore they w e re not given t he c h a n ce to be h e a r d. The o p p o s i ng a f f i d a v it on behalf of t he first respondent was deposed to by George Sennane w ho is its P r e s i d e n t. He has deposed t h at t he first respondent has no o p p o s i t i on to t he h e a r i ng of t he a p p l i c a n t 's appeal a g a i n st the d e c i s i on of the second respondent tosuspend a p p l i c a n t 's h o m e - p i t ch for t he games against t he 3rd and 4th respondents on t he 17th and 18th J u n e, 1989, provided t he a p p l i c a nt follows t he proper c h a n n e ls of lodging an appeal as provided for in A r t i c le 3 of t he Rules;. /4 - 4- The first respondent acknowledges receipt of Annexure "H" which is a letter and not an appeal because it was not in conformity with the provisions of Article 3 of the Rules. The opposing affidavit on behalf of the second respondent was deposed to by Morapeli Motaung who is its secretary. He denies that Annexure " E" is an appeal in terms of Article 3 of the Lesotho Sports Council (Competition) Rules 1988. He further denies the applicant was not given a chance to be heard as reports and/or representations by all the parties involved in the game between Swallos F. C. and the applicant of the 25th May, 1989, were considered in arriving at the decision to suspend applicant's home - pitch. He deposed further that under Article 18 of the Rules the second respondent had powers to suspend applicant's home - pitch. I shall find it difficult to decide the issue of whether the applicant was given a chance to be heard or not, because the applicant has not filed a repaying affidavit to deny or to admit that reports from all parties were received by the second respondent before it decided to suspend the applicant's home - pitch. If it is true that reports or representations were made by all the p a r t i: concerned, then the applicant cannot be heard to say it was not given the chance to be heard because written reports or written submissions are part of hearing what the other side has to say before a decision is reached. I have no reason to disbelieve the allegation made on /5 -5- behalf of t he second respondent t h at reports a n d / or representations from all parties were received by it b e f o re the decision w as m a de because the applicant has not denied the a l l e g a t i o n. It may be that the applicant was u n d er t he wrong impression t h at being heard m e a nt appearing before t he tribunal and m a k i ng oral s u b m i s s i o n s. A r t i c le 3 of the Lesotho Sports Council ( C o m p e t i t i o n) Rules 1988 reads as f o l l o w s: " A p p e a l s: (1) Ten copies e m b o d y i ng reasons of appeal duly signed by the Secretary of the a p p e a l i ng team shall be sent to the Lesotho Sports Council through the Senior Football Executive C o m m i t t ee w i t h in 7 days a f t er the d e c i s i on of the Senior Football Executive C o m m i t t ee has been m a d e. (2) Ten copies of t he appeal m u st be accompanied by an appeal fee of M 5 0 - 00 w h e t h er the appeal is upheld or n o t, the appeal fee shall not be r e f u n d a b l e. There is nothing to show t h at A n n e x u re " E" w as accompanied by an appeal fee of M 5 0 0 - 00 in terms of the R u l e. There is also no proof that ten copies of A n n e x u re " E" w e re sent to the second r e s p o n d e n t. The Rule provide6 t h at the g r o u n ds of appeal should be sent to the first respondent through the second r e s p o n d e n t. /6 -6- M r. S e o t s a n y a n a, counsel f or t he a p p l i c a n t, submitted t h at t he a p p l i c a n t 's appeal d o es n ot fall under A r t i c le 3 and t h at no demand w as m a de f or t he appeal f e e. He did n ot show t he C o u rt any o t h er A r t i c le w h i ch d e a ls with a p p e a l s. I have c h e c k ed t he Rules and I h a ve found no A r t i c le w h i ch deals w i th a p p e a ls o t h er t h an A r t i c le 3. I am satisfied t h at t he appeal did not comply with t he p r o v i s i o ns of A r t i c le 3 of t he L e s o t ho Sports Council ( C o m p e t i t i o n) Rules 1 9 8 8. I do not think t h at t he second r e s p o n d e nt was under any o b l i g a t i on to demand t he appeal f e e. It is t he d u ty of t he appealing c l ub to m a ke sure t h at its appeal c o m p l i es with t he R u l e s. In any c a se h ow and why could t he s e c r e t a ry of t he second respondent demand t he f ee w h en t he language used by t he a p p l i c a nt in t he letter of appeal w as so i n s u l t i n g. He e v en warned the a p p l i c a nt n ot to use such l a n g u a g e. As if t h at w a r n i ng w as n ot e n o u gh t he language s u b s e q u e n t ly used in t he s u p p o r t i ng a f f i d a v it w as f ar w o r se t h an t he o ne used in t he letter of a p p e a l. I warned M r. S e o t s a n y a na that w h e n e v er he gets a brief from some of the inexperienced a t t o r n e y s , he m u st m a ke sure t h at t he language used in t he papers is such t h at will be accepted by t he C o u r t. The language was t o t a l ly u n a c c e p t a b le and d i s g u s t i n g. It is t he duty of an a t t o r n e y, as an o f f i c er of this C o u r t, to use p o l i te l a n g u a g e. /7 -7- For the reasons stated above the application is dismissed with costs to the first and second respondents. J. L. KHEOLA JUDGE 2nd February, 1990. For the Applicant For the 1st and 2nd Respondents - Mr. Malebanye. - Mr. Seotsanyana