When
the matter was called before Judge Gamble, the Judge indicated that
having read the papers, he still had concerns regarding the urgency
of the application and the appropriateness of setting it down during
recess. Counsel was accordingly asked to deal with the issue of
urgency first, as well as the question of jurisdiction.
Counsel
for both KSA and SASCOC made submissions on urgency. Counsel for KSA
suggested to the Judge that a practical solution would be for the
court to make an order directing SASCOC to refer the dispute declared
by KSA to arbitration in terms of clause 29 of the SASCOC
constitution. The court indicated that it was apparent that there is
a serious problem regarding KSA’s membership and the effect that
this has on its standing with its continental and international
affiliated bodies i.e. UFAK and the WKF. The Judge indicated that it
was manifest that SASCOC could not object to the dispute being dealt
with in arbitration.
Counsel
for SASCOC was asked to take an instruction on whether, leaving aside
the question of costs of the High Court application, SASCOC would
agree to an order referring the matter to arbitration. After an
adjournment counsel for SASCOC advised the court that his
instructions were not to agree to such an order as SASCOC regarded it
as superfluous in that it claims that the arbitration has already
"commenced" by virtue of KSA having declared a dispute. The
Judge indicated that he was not impressed with the general conduct of
the CEO of SASCOC, in not responding to letters and refusing to open
obviously important e-mails. He specifically pointed out that it
appeared as if SASCOC was simply stonewalling KSA.
When
asked by the Judge what steps his client had taken to further
prosecute the arbitration, counsel for SASCOC was unable advise the
court or to point to anything set out in SASCOC’s answering
affidavits regarding any steps taken. Further submissions were then
made by both parties in relation to whether a dispute, although
declared, had already been referred to arbitration.
The
Judge then indicated that he was inclined to exercise his inherent
discretion and grant "further and alternative relief" (as
included in the prayers in the notice of motion) and make an order
which would ensure that the real dispute between KSA and SASCOC was
dealt with in their proper forum, namely the arbitration which has,
on SASCOC’s version, commenced with the declaration of a dispute by
KSA. He then indicated the terms of the order that he proposed making
and whether the parties had any objection to such an order.
Counsel
for KSA indicated that it would not have any objection. Counsel for
SASCOC again asked for an adjournment to take an instruction, after
which he advised the court that SASCOC accepted the views of the
court and he couldn't make no further submissions of the proposed
order.
The
Judge accordingly made an order to the following effect:
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No order is made on the application which is postponed sine die with either party being entitled to set it down again on 10 days' notice to the other party.
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The arbitration demanded and initiated by KSA in its attorneys’ letter dated 8 September 2016 and in particular the demands set out on the last page of that letter, is to proceed forthwith.
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SASCOC is to furnish KSA with a list of arbitrators by no later than 21 October 2016. The parties are thereafter directed to agree to an arbitrator in accordance with the provisions of clause 29.3 of the SASCOC constitution.
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The arbitration will be held in Johannesburg on a date to be agreed to by the parties.
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The arbitration would be conducted in accordance with the rules of the Arbitration Foundation of Southern Africa (AFSA), read with clause 29 of the SASCOC constitution and the National Sport and Recreation Act 110 of 1998.
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