Where factual disputes abound, motion proceedings not to be used

Black Africa Sports Club v Adams (HC-MD-CIV-MOTGEN-2023/00589) [2024] NAHCMD 158 (5 April 2024)

Facts

The applicant (Black Africa Sports Club) is a sports club with a written constitution and is a voluntary association distinct from its members. Due to a restructuring of the applicant’s football affairs from October 2019 onward and the applicant’s expulsion by the national football authorities, an Interim Committee was tasked to arrange applicants’ affairs.

During 2020 the Namibian Football Association (the NFA”) established the Namibia Premier Football League (the NPFL”). The NFA invited the football clubs (including the applicant) to affiliate with the new Namibia Premier Football League (NPFL”). One faction of Black Africa Sport Club was not in favour of affiliation with NFPL and the other faction (inter alia the present 2nd to 4th respondents) was.

On 24 October 2019 the previous owner of Black Africa Football Club transferred the ownership in Black Africa Football Club back to the community and signed a separation agreement with one Boni Paulino (on behalf of Black Africa Sport Club).

During October/November 2020 the applicant came into existence as a legal entity distinct from its members with a constitution and subsequent affiliation to the NFPL and relegation thereafter to the Southern Stream First Division.

During May, June, and July 2023 the present leadership of the applicant organised, arranged, and adopted a new constitution for the applicant without following the provisions of the November 2020 constitution, which existence they now deny.

The parties are at loggerheads in respect of which constitution should be the valid constitution. On 14 December 2023, the applicant brought an urgent application, on notice of motion, for:

1. Condoning the applicant’s non-compliance with rules of the High Court of Namibia relating to forms and service as contemplated in Rule 73(3) of the aforesaid rules and ordering that the application be heard as a matter of urgency.

2 Interdicting and restraining the respondents from interfering in the affairs of the applicant, and using the assets, name, logo and brand of the applicant.

3 Ordering the respondents to hand over to the applicant the following assets: 1 x Nissan Sentra (registration number: N139-177W), 1 x Trailmaster trailer (registration number: N188-055W), 1 x laptop, and 1 x printer.

4 Ordering the first to sixth respondents pay the costs of the application, jointly and severally, the one paying the other to be absolved, together with such further respondents electing to oppose any relief sought herein.

5 Further and alternative relief.

Okeri Mbingeneeko, allegedly appointed as the Chairperson of the Executive Committee of the applicant by an alleged newly elected Board of Directors of the applicant deposed to an affidavit in support of the application. The first respondent, Adam Thomas, an adult male claimed to be the acting chairman of the applicant.

Conduct of proceedings

‘[13] From July 2023 it should have been clear to the leadership of supporters and members of both factions of the applicant that any attempt to resolve the issues between the parties would most likely be plagued with factual and legal issues.

From 12 January 2024

[14] When the newly elected leadership of the applicant brought the matter to court by way of notice of motion procedure (application) and alleged urgency, the first to the fourth respondents concurred with the applicant that the disputes need urgent resolution.

[15] The court at the time (12 January 2024) shared the view of the parties and accepted to adjudicate the issues on an expedited basis. Applicant was afforded the opportunity to reply, and the matter was postponed to 16 January 2024.’

The matter appeared on 16, 17, and 18 January 2024 whereat the court adopted the parties’ joint case management report filed in terms of rule 71 of the High Court Rules and issued a case management order.

Issues for determination

Intermsofthecasemanagement order, the parties could not agree on the following matters:

‘(a) Whether or not the Deponents to the Application and Founding Affidavit had locus standi to launch such application in the name of the Applicant before this Honourable Court;

(b) Whether or not the Applicant’s Constitution (annexure “B” to the founding affidavit), adopted at an annual general meeting of 8 July 2023 at Windhoek, is the valid constitution for the Applicant;

(c) Whether or not the constitution (annexure “A” to the answering affidavit), adopted at a meeting of 7 November 2020 at Rehoboth, is the valid constitution for the Applicant;

(d) Whether or not the meeting of 8 July 2023 at Windhoek was a meeting that could validly transact on behalf of the Applicant;

(e) Whether or not the meeting of 7 November 2020 at Rehoboth was a meeting that could validly transact on behalf of the Applicant.’

The court had to determine the validity of the competing constitutions and resultantly which faction of members/ supporters validly controlled and managed the affairs and assets of the applicant.

Determination ‘Applicable Law

[21] Unless motion proceedings (application) are concerned with interim relief, motion proceedings are about the resolution of legal issues on facts common to the parties. Motion proceedings cannot normally be used to resolve factual issues because they are not designed to determine probabilities (National Director of Public Prosecutions v Zuma 2009 (1) SACR 361 (SCA) at para 26).

[22] When disputes of fact arise in the affidavits in motion proceedings, relief may be granted if those facts averred in the applicant’s affidavit(s) which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order (Plascon Evans Paints Ltd v Van Riebeck Paints Ltd 1984(3) SA 623 (A) at 634; confirmed and applied by the Namibian Supreme Court in Koopman v Acting Chief Executive Officer NSFAF, (SA 63/2021) [2023] NASC (7 December 2023), para 62)).

[23] It is trite law that an applicant must make his/its case in the founding affidavit and that in motion proceedings only three sets of affidavits are allowed (founding, answering and replying) unless the court allow more sets of affidavits. It is also trite that in order to be granted final interdictory relief the applicant must prove a clear right.

Discussion

[24] Applicant elected to pursue its requested relief by way of notice of motion proceedings and on grounds of urgency.

[25] Despite this the applicant came to court on 12 January 2024 without a replying affidavit; then file a replying affidavit; partake in case management proceedings; fail to file note on argument as undertaken and ordered on 19 January 2024; fail to index the e-justice file within 3 days of the date being allocated for the hearing of the application as undertaken by its legal practitioner in paragraph 8 of the case management report; the applicant file two additional affidavits together with its notes on argument late, without consent or condonation of on 28 January 2024.

[26] On 8 March 2024, the following court order was given in court:

‘ 1. Judgment not completed. No Index on e-justice. No compliance with Rule 131(7) and (8). Two affidavits by applicant filed out of time and subsequent to the case management order following the joint case management report of the parties. Represented respondents will be afforded opportunity to respond. 2. The Respondents shall file their supplementary affidavits, if any, on or before 12 March 2024.

3. The case is postponed to 28/03/2024 at 10:00 for Delivery of Judgment hearing (Reason: Documents Additional Filing).’’

[27] First respondent objected against the admissibility of the two additional affidavits of the applicant.

[28] I shall disallow the additional affidavits and its contents as well as the contents of the supplementary affidavit of Mr Adams save for his objections.

Conclusion and order

[29] On the evidence before me after applying Plascon Evans I find that neither Mssrs Mbingeneeko nor Paulino had locus standi to launch the current application in the name of the applicant.

[30] Likewise the valid and current constitution of the applicant is the November 2020 constitution.

[31] The purported July 2023 constitution of the applicant is invalid and no executive committee or committee member, neither the elected Board of Directors could validly transact on behalf of the applicant.’

Findings

The court applied the Plascon Evans rule and find that the facts alleged by the applicants and admitted by respondents together with the facts alleged by the first respondent, shall form the basis upon which the court decide the validity of the competing constitutions and resultantly which faction of members/ supporters validly control and manage the affairs and assets of the applicant.

Held that: the October/November 2020 constitution of the applicant is the current and valid constitution.

Court order

The application was dismissed, and the applicant was ordered to pay the costs of the first four respondents.

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