Introduction

We’re going to extra time.

On 29 March 2022, the Premier Soccer League (the “League”) confirmed its intentions of reviewing the arbitration award (the “Award”) rendered in the Kaizer Chiefs (“KC”) matter.

The League is dissatisfied with the outcome, believing that KC failed to demonstrate that their COVID-19 outbreak prevented them from fielding a team for two games in December.  Furthermore, and consistent with the ruling of the League’s executive committee, the League firmly believes that KC failed to properly apply the rules applicable to postponements of matches.  Rule 9.7 of the NSL Handbook makes it clear that clubs can apply for a fixture change by making application to the league 10 days prior to the start of any match.  This was not done.  Instead, KC opted to approach the League not two days before their match against Cape Town City (“CTC”) to plead for a postponement of all five of their matches scheduled for December 2021, attempting to use force majeure to justify the apparent failure to apply the procedure for postponements.

Advocate Cassim SC in the SAFA Arbitration Tribunal Award handed down on 18 March 2022, may have awarded in favour of KC ruling that the matches be rescheduled, however, he was quick to lament KC for their failure to properly apply the rules.  In this respect, he awarded the League a significant costs order, which included an order that KC pay the wasted costs of CTC in travelling to the game, not honoured by KC on 4 December 2021. Despite having this costs order granted in their favour, the League will now reportedly ask the High Court of South Africa to review the Award.

Prior to the Award, League prosecutor Zola Majavu had himself stated: “If [the Award] has gone in favour of Chiefs that may be the end of that matter and this case would then be regarded as definitively resolved, as the outcome of the arbitration is final and binding, and not appealable.”

This position stems from the wording of the South African Football Association’s (“SAFA”)  Statutes (Art. 71.1) read with the Disciplinary Code (Art. 81.13): the decision of an arbitrator shall be final and binding.  However, despite this wording, “final and binding” is not as definitive as it may seem.

Capability of Reviewing Soccer Arbitration Awards

Section 33 of South Africa’s Constitution provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.”  To give effect to this provision, the Promotion of Administrative Justice Act (“PAJA”) was passed.  PAJA is a key piece of legislation in considering the sports dispute-resolution mechanism in South Africa.

Section 6(1) states that “Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.”  This provision gives High Courts jurisdiction over instances of administrative action. The jurisdiction applies irrespective of whether a decision-making body has couched their rules as being ‘final and binding.’

In two previous review cases, the High Court found that arbitration awards rendered under the auspices of SAFA’s framework (as the Award was) are capable of being classified as administrative action (see Ndoro [1] and Polokwane City [2]).  PAJA was thus applicable in reviewing the arbitrator’s decisions.

Grounds of Review

Crucially, PAJA allows for a review and not an appeal of the matter.  The distinction is important.  An appeal is concerned with the correctness of a decision based on the merits.  A review considers the lawfulness of the manner in which a decision was arrived at. 

PAJA outlines a list of grounds on which courts can review administrative action. This means that the League is confined only to the grounds mentioned.  The grounds listed are:

i)               Lack of authority and unlawful delegation;

ii)              Bias;

iii)            Failure to comply with a mandatory and material procedure;

iv)            Procedural fairness;

v)             Error of law;

vi)            Review of the decision-making process; and 

vii)           Rationality and reasonableness.

Applicants try to use as many grounds as possible to bolster their chances of success.  However, it seems likely that the League’s best chances will lie in grounds (v) – (vii) mentioned above.

What’s Review Got to Do With It?

It is unclear why the League would want to press on with the review proceedings.  Not only is the likelihood of success not guaranteed, delaying the process only serves to hurt them.  In a World Cup year, the successful conclusion of the current season should be of paramount importance (something the League has publicly expressed).

Should they succeed, the League will still have to complete the disciplinary process against KC.  However, KC may even exercise its right to appeal to the Supreme Court of Appeal.  This is without even delving into the possible defence of KC that the League should be taking the matter to the Court of Arbitration for Sport, and not the High Court.[3] A win would feel like an empty victory, as it would merely vindicate their decision to deny a postponement.

If they lose, the League will then have to arrange for the completion of KC’s rescheduled games against CTC and Golden Arrows (“GA”).  CTC and GA may themselves be fatigued with this protracted process and not even appear to play the matches.  Something which would, ironically, attract disciplinary action like KC’s initial non-show did.

The League’s decision to pursue a review could thus prove to be an own goal.  Whilst litigation may appear to be the best option to take when seeking clarity on certain rulings, given that the end of the season is just two months away, will a decision handed down after the season even be practically effective?  Time will tell and we can only hope that if reviewed, the decision is reached expeditiously to allow fans to enjoy the last bit of the season without any further heartache. 

[1] Ndoro v South African Football Association (16/16836) 2018 (5) SA 630 (GJ) (24 April 2018)

[2] Polokwane City Football Club v South African Football Association; TS Sporting Football Club v South African Football Association (25191/2021; 26189/2021) [2021] ZAGPJHC 64 (15 June 2021)

[3] A future article will consider this possible defence.