Mbabane – The High Court of Eswatini has dismissed former Mbabane Highlanders F.C. director Bheki ‘Rubber’ Simelane’s revised application to remain as a governor of the Eswatini Premier League (PLE).
In his case Simelane challenged the South African businesswoman Shawn ‘MaMkhize’ Mkhize’s takeover at the team, though he later abandoned most sought orders. He contested that Mkhize’s being a sole director could be the reason for his removal as one of the governors sitting on the PLE Board of Governors.
On Thursday, Justice Titus Mlangeni came to the conclusion of the matter since he last heard it on October 8, stating that Simelane’s being director of Mbabane Highlanders was his ticket to the Board of Governors seat.
Simelane brought to court the chairperson of the patrons of Mbabane Highlanders, Mkhize, Mbabane Highlanders F.C., the PLE and the Eswatini Football Association (EFA) as the five respondents, respectively.
He had initially sought the review of decisions allegedly taken within football structures, arguing that he was not given a fair hearing of the then status of Mkhize’s takeover as sole director and was not afforded an opportunity to state his case and a restraining order against anyone purporting to be the club’s director, among other orders.
The repurposed application focused on the PLE and the EFA, instead, where he sought a review and set aside order of their ‘illicit decision and act’ of his removal from the board without being afforded the opportunity to make the necessary representations, was dismissed by the court.
He argued that the PLE approved Mkhize’s Mbabane Highlanders announcement of a sole director by accepting her as a new governor in his stead.
While it might appear that he missed the memo, he stood on the ground of not being consulted or heard. He had submitted that this issue “completely infringed on my rights to be heard by failing to allow me to make representations on any issue that could potentially lead to the termination of the Management Agreement and the letter appointing (sic) the applicant as governor to the 4th respondent.”
The judge had some consideration for Simelane. The judge said in determining his decision, he needed to deal with the dispute of whether or not any decision taken by the respondents in the change in PLE governor structures was discretionary or not.
But Mlangeni also highlighted noting drastic changes in Simelane’s application. Among these, the application abandoned most prayers, only for costs and the board of governors seat to be considered. Simelane also substituted his initial attorney, but the court said it was asked to make a decision for the review and set aside order without being furnished with the necessary court documents on the part of discretion.
“It was apparent that this drastic revision of the applicant’s case took the respondents’ attorneys by surprise,” the jjudgementpartly reads. “Where the decision-maker has no discretion, review on common law grounds cannot apply.”
What followed in the case was Simelane’s vehement opposition. There, respondents argued numerous points of law, including a non-joinder, lack of jurisdiction, and incompetence of the relief sought raised by the respondents.
They also raised pertinent questions: Did the PLE and /orFA take any decision which adversely affected and/or determined Simelane’s tenure as sole director and manager of Mbabane Highlanders Football Club;? Ifsuch a decision was indeed taken by them, did they have a discretion in the matter;? Ifthey did have a discretion, did they exercise it properly?
They submitted that the PLE and the EFA had no cause warranting the joinder, as it is not their decision to remove or place a member of the Board of Governors, but teams forward those names to them.
Judge Mlangeni, in agreement, dismissed Simelane.
He said it follows that the PLE has no discretion as to whom to accept and whom not to accept as governor.
Citing the case of Melusi Simelane and 6 others v. Minister of Commerce, Industry and Trade and two others, the Supreme Court, quoting an eminent writer on administrative law, noted that the “freedom to judge is what makes up the organ’s discretion.”
“The absence of discretion means that there is no judgment to exercise,” Judge Mlangeni said.
Mlangeni said the right to give a fair hearing originates from common law wherein, in legal practice, it is often expressed as the ‘audi alteram partem’ rule. The judge said he must, considering all the facts and the dispute, allow Simelane access to justice, even if Simelane has not fully met the High Court rules.
“On the facts in casu,the change which saw the applicant being replaced as Governor of the P.L.E. was a fait accompli occasioned by changes within Mbabane Highlanders Football Club,” he said.
But the judge said that Simelane’s application on the basis of his contestation of removal from the governor’s board without being heard was doubtful.
“The underlined portion of the above quotation is clearly so wide that it is, in my view, doubtful that it can be a basis for a firm obligation to give a hearing to the applicant. The latter part of the quotation is almost cryptic,” Mlangeni said.
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