Judgment No. 47/2003

                                                                                                Case No. HB 424/2003

 

HIGHLANDERS FOOTBALL CLUB

 

Versus

 

ZIMBABWE FOOTBALL ASSOCIATION

 

And

 

PREMIER SOCCER LEAGUE

 

And

 

SPORTING LIONS FOOTBALL CLUB

 

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

BULAWAYO 17 MARCH 2003

 

N Mathonsifor the applicant

J P Mutizwafor 1^st and 3^rd respondents

 

Urgent Chamber Application

 

 

            CHEDA J:     This is an urgent chamber application filed by applicant on 27

 

February 2003 seeking the following relief.

 

(A)       “Terms of Final Order Sought

 

First, second and third respondents show cause to this honourable court why a final order should not be made in the following terms:-

 

1. That the registration of football players Dezidelio Kapenya, Thabani Masawi and Blessing Gumiso to play football for third respondent be and is hereby suspended pending the resolution by an appropriate tribunal which should be set up by first respondent of the ownership dispute between the applicant and third respondent.
2. That in the event that such registration has already taken place then it is hereby cancelled to allow for determination of the matter in terms of paragraph 1 above.
3. That the declaration by the first respondent that the said players are free to joint any club of their choice is hereby set aside.
4. That the costs of this application shall be borne by the first and third respondents jointly and severally the one paying the other to be absolved on an attorney and client scale.

 

HB 47/03

 

(B)       Interim Relief Granted

 

Pending the finalisation of this matter the applicant is granted the following relief:-

 

1. That the first, second and third respondents are interdicted from registering Dezidelio Kapenya, Thabani Masawi and Blessing Gumiso to play for third respondent until the dispute between the applicant and third respondent involving ownership of the players has been determined.
2. That in the event that such registration has taken place, it is hereby suspended until the matter has been determined and finalised.
3. That the third respondent is interdicted from using the said football players in any of its football matches until the dispute has been settled.”

 

The brief facts are that applicant is a football club, a universitas or voluntary

 

association duly constituted in terms of a constitution and carrying on business at

 

50 R. Mugabe Way, Bulawayo.  First respondent is Zimbabwe Football Association

 

also duly constituted in terms of a constitution and is responsible for running the

 

national football and carrying on business from inter alia 3^rd Ave and Fife Street,

 

Bulawayo.  Second respondent is the Premier Soccer League, a universitas or

 

voluntary association responsible for the management of the premier soccer league

 

and is constituted in terms of a constitution and carried on business at 2 Basil Place,

 

10^th Ave, Bulawayo.  Third respondent is Sporting Lions Football Club a universitas

 

or voluntary association constituted in terns of a constitution and is contactable

 

through one Xavier Abel Dziwa at Trust Merchant Bank, Harare.

 

            Applicant has three players namely Dezidelio Kapenya, Thabani Masawi and

 

Blessing Gumiso who for years have been contracted and had been playing for it.  It is

 

common cause that some weeks back negotiations commenced between applicant and

 

3^rd respondent regarding the possible transfer of Thabani Masawi and Blessing

 

Gumiso.  Regarding Dezidelio Kapenya 3^rd respondent refused to negotiate his release

 

                                                                                                                        HB 47/03

 

on the understanding that he was a “free agent” whose services can be acquired

 

without reference or approval of applicant.  A dispute then developed which resulted

 

in this application.

 

            On 28 February 2003 I granted the provisional order the confirmation of

 

which was opposed by 1^st and 3^rd respondent.  First respondent through its Chief

 

Executive Officer, one E Rogers wrote three letters regarding the three players as

 

follows:

 

            “On  ZIMBABWE FOOTBAL ASSOCIATION letterhead

 

 

 

            To: Whom It May Concern

 

            Re: PLAYER THABANI MASAWI

 

This serves to inform you that the player Thabani Masawi’s contract with his previous club Highlanders expired on January 31 2002.

 

            This means the player is free to engage in talks with a club of his choice.

 

            We wish the player well in his future endeavours.

 

            Yours in sport

 

 

 

            (Signed)

            E ROGERS

Chief Executive Officer

 

            Cc: PSL”

 

            The three letters were not addressed to anyone in particular and were undated. 

 

It is on the basis of the said letters that 3^rd respondent concluded that they can

 

negotiate with the players directly without reference to applicant.  However,

 

according to?*TSð[1]TÜW8BNMSWDÿÿÿÿ½FKò¾dbÿÿ×HB083-03DOCOpenFolderListDF

*TSð[1]TÜFOLDMACS@[1]¾dklÿÿµ!OPENFOLDERTSðé?TEXTdosa[1]??ÿÿDOCTSð*TSð[1]TÜW8BNMSWDÿÿÿÿ½FK껨ÞD^ÿÿÙHB079-03DOC
HB080-03.DOCTSð*TSð[1]TÜW8BNMSWDÿÿÿÿ½FKz¤ÿÿØHB080-03DOCfailure

IBMBIO  COMIBMDOS  COMUªse is couched as follows:-

 

            “Title: FIFA Regulations for the status and transfer of players

 

            Preamble

 

1. These regulations deal with the status and disability of players as well as with the rules applicable when players move between clubs belonging to different national associations.
2. …
3. Each national association is obliged to provide a system for transfers that are effected within its own association and to draw up appropriate regulations which shall be approved by FIFA.  Such regulations shall observe the general principles stipulated in the following articles and contain provisions for any dispute that may arise in connection with a national transfer (i.e. a transfer within the same national association).

 

In addition, article 29(i) and (ii) read:-

 

1. Any rules or regulations of the association must comply with the rules and regulations of  FIFA.  Where any of the association’s rules and regulations are at variance with those of FIFA, the rules and regulations of FIFA, present and future, shall prevail.
2. No affiliate of the association or members of affiliates or clubs or members of clubs, shall be permitted to bring before the courts of law disputes with the association or other associations, clubs, or members of clubs.  They must agree to submit any such disputes to a Disciplinary Committee duly appointed by the association or a committee to which they are affiliated or a special committee or an arbitration tribunal appointed by the association.  Any affiliate member of the association is also not permitted to bring before the courts of law disputes with the association, but shall submit their disputes to the Special Committee or an arbitration tribunal appointed by the association by common consent.”

 

It was also their contention that 1^st respondent has not put in place a system for

 

transfer and their failure to do so is therefore the cause of the administrative problems

 

in this matter.

                                                                                                                        HB 47/03

 

Mr Mutizwafor 1^st and 3^rd respondents argued that this matter should not have

 

been brought before the courts as an application but should have been brought on

 

review.   I do not agree with his argument because the declaration of the players as

 

free agents was not properly made.  The decision to declare them free agents was not

 

made by any body as there is non in existence. E Rogers’ letters are not addressed to

 

any one in particular and are undated.  This, to me is an indication of a  sinister

 

motive by him for and on behalf of ZIFA.  The urgent application clearly meets all the

 

requirements of an urgent application as stipulated by the rules of the court.  The said

 

declaration was in my view, no declaration at all as it was based on non-existent facts

 

in particular Thabani Masawi’s contract is said to have expired in December 2002 yet

 

it was in fact still operational as it only expires on 31 December 2003 whichever one

 

looks at it the decision was based on either total disregard of ZIFA rules or sheer

 

ignorance.  I should like to add that this beautiful game of soccer is clearly spoiled by

 

maladministration at the national body (ZIFA). 

 

            At the hearing Mr Mathonsi advised that Mr Mhurushomana had been making

 

frantic efforts to have this matter removed from the courts by directly telephoning Mr

 

Mathonsiwithout Mr Mutizwa’s (their legal practitioner) knowledge.  This was

 

confirmed by a letter to applicant’s secretary of 13 March 2003 which reads:-

 

“ZIMBABWE FOOTBALL ASSOCIATION

 

 

13 March, 2003

 

 

The Secretary

Highlanders Football Club

BULAWAYO

 

Dear Sir

 

                                                                                                            HB 47/03

 

Re: PLAYERS DEZIDELIO KAPENYA, THABANI MASAWI AND BLESSING GUMISO – CHAMBER APPLICATION – BULAWAYO HIGH COURT

 

This letter serves to inform you that at a meeting of the ZIFA Board on Friday 7 March 2003 it was resolved that the above matter be withdrawn from the courts and be referred to an appropriate tribunal as instructed by the High Court.

 

ZIFA has gone ahead and requested Mr Muchadeyi Masunda of the Commercial Arbitration Centre to assist in setting up this tribunal.  We are therefore pleased to announce that retired Justices Adam, Mick McNally and Mr Muchadeyi Masunda have both agreed to serve on this tribunal.

 

The matter will be set down for arbitration on Friday 14 March 2003 at the Arbitration Centre, Old Mutual House, Third Street Harare at 1100 hours.

 

Please contact Mr Masunda on telephone No. 706262/790669/70 and fax No. 790970 Harare to confirm participation.

 

            We thank you for your kind co-operation in this matter.

 

            Yours in sport

 

 

 

            (Signed)

            L Mhurushomana

            SENIOR ADMIN AND TRAINING MANAGER

 

1. Mr Masunda

Ms Coghlan & Welsh – Mr Mathonsi

Ms Chihambakwe, Mutizwa and partners – Mr Mutizwa

PSL

ZIFA Chief Executive”

 

            The input of the letter is a clear indication that 1^st respondent have now re-

 

visited their previous position and would like to deal with the matter internally as per

 

FIFA’s regulations referred to above.  This stance has taken Mr Mutizwa by surprise. 

 

The about turn by Mr Mhurushomana confirms my observation of confusion reigning

 

at ZIFA.  It is clear that “a free for all” situation obtains, as evidenced by the total

 

independent and contradictory actions of Messrs Rogers and Mhurushomana. 

 

                                                                                                                        HB 47/03

 

Mr Mhurushomana’s latest action is in total agreement with the prayer sort by

 

applicant namely that this matter should be referred to a tribunal which tribunal 1^st

 

respondent has already put in place.  This, therefore puts paid the dispute of whether

 

or not this court should hear this application or not as 1^st respondent are now in

 

agreement with applicant that the matter be referred to a tribunal set up by ZIFA in

 

accordance with FIFA regulations.

 

            In light of the above the provisional order is confirmed with costs.

 

 

 

 

 

Messrs Coghlan & Welshapplicant’s legal practitioners

Messrs Chihambakwe, Mutizwa & Partners1^st and 3^rd respondent’s legal practitioners