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:
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.
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.
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.
The arbitration will be held in Johannesburg on a date to be agreed to by the parties.
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.