Oshana Regional Football League (ORFL) v Namibia Football Association (“NFA”) and Others (HC-MD-CIV-MOT-GEN-2024/00059) [2025] NAHCMD 19 (28 January 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
JUDGMENT
Case number: HC-MD-CIV-MOT-GEN-2024/00059
In the matter between:
OSHANA REGIONAL FOOTBALL LEAGUE (ORFL)			APPLICANT
and
NAMIBIA FOOTBALL ASSOCIATION (“NFA”)			1st RESPONDENT
STYN HAMWALA			2nd RESPONDENT
MATHEWS NEGUMBO			3rd RESPONDENT
HILYA IMALWA			4th RESPONDENT
TIMOTEUS JOHANNES			5th RESPONDENT
KRONELIUS IYAMBO			6th RESPONDENT
AGUSTUS ANTANGA			7th RESPONDENT
FILLEMON SHIINDI			8th RESPONDENT
Neutral citation:		Oshana Regional Football League (ORFL) v Namibia Football Association (“NFA”) (HC-MD-CIV-MOT-GEN-2024/00059) [2025] NAHCMD 19 (28 January 2025)
Coram:	DE JAGER J
Heard:	1 October 2025
Delivered:	28 January 2025

Flynote: Jurisdiction – Disputes between and within voluntary associations whose statutes, whereby they and their members are bound, prescribe internal processes before recourse to court – If the dispute’s very nature does not require the court’s intervention, just cause must be shown for the court to exercise jurisdiction – Just cause not shown – Court declines to exercise jurisdiction.

Voluntary association – Authority to institute motion proceedings – What evidence required – Founding affidavit deponent relies on the chairperson office of the voluntary association from which he was removed and which removal was not reviewed and set aside – No evidence to conclude institution of proceedings was authorised by the voluntary association – Founding affidavit deponent must personally pay costs but not the costs of opposing first respondent who failed to provide evidence authorising opposition.

Summary: The applicant, cited as the Oshana Regional Football League (ORFL), seeks two declarators, a mandamus and an interdict against the Namibia Football Association (NFA), of whom ORFL is a member, and ORFL’s interim executive committee members (the IEC). ORFL and NFA are universitas personarum, created by agreement, governed and bound by their statutes. The founding affidavit deponent, Fillipus Mayambi Dala, prays to have declared unlawful, null and void and of no force or effect NFA’s 1 December 2023 directive overruling ORFL’s disciplinary committee’s ruling of 17 June 2023 (whereby the eighth respondent was suspended from ORFL’s executive committee and his club, Foxy Senior FC, was relegated from ORFL to the third division), and NFA’s alleged recognition on 9 January 2024 (allegedly) unlawfully accepting the IEC as members of ORFL’s executive committee (after being elected on 4 January 2024 at ORFL’s alleged clandestine extraordinary annual general meeting (allegedly) without a quorum). Dala further prays that the respondents be interdicted and restrained from implementing or acting in the furtherance of or to continue to implement or act in the furtherance of the 1 December 2023 directive and the 9 January 2024 recognition. The mandamus is sought against NFA to re-activate and provide certain administrative login details to the FIFA Connect Programme (FIFA Connect), allegedly unlawfully despoiled on 10 February 2024. The respondents contend, in limine, that the court should decline to exercise jurisdiction over the matter because all internal remedies were not exhausted, and the application should be dismissed or struck from the roll with a cost order against Dala in his personal capacity because it was not authorised by ORFL. The parties are ad idem that the dispute had to be referred to the Court of Arbitration for Sport (CAS), and the matter is decided on that basis. Dala alleges there is just cause for the court to exercise jurisdiction because ORFL cannot afford to arbitrate the dispute at CAS and contends he is ORFL’s executive committee’s duly elected chairperson authorising him to have launched the application. On the merits, the respondents’ position is that NFA’s 1 December 2023 directive was lawful, ORFL is bound to adhere to it, ignoring it would violate NFA’s statutes, the IEC was lawfully elected under ORFL’s statutes, NFA did not recognise the IEC as alleged, and the disconnection from FIFA Connect was correct as the parties removed were non-members.

Held that, the court declines to exercise jurisdiction over the matter. Determining the matter on the basis that the parties do not contend that the nature of the dispute suggests special circumstances requiring the court to intervene by exercising jurisdiction and that the parties are ad idem that the dispute had to be referred to CAS, the court finds Dala failed to show just cause that the court should exercise jurisdiction.

Held that, Dala must pay the costs in his personal capacity but not NFA’s costs as NFA failed to provide evidence authorising its opposition to the application. Dala took no steps to have his removal from the office of ORFL’s chairperson reviewed and set aside. As matters stand, Dala was removed from that office, and he was not authorised to bring the application on ORFL’s behalf.

_______________________________________________________________

ORDER

_______________________________________________________________

1. The application is struck from the roll.

2. Fillipus Mayambi Dala must pay the second to eighth respondents’ costs.

The matter is finalised and removed from the roll.

_______________________________________________________________

JUDGMENT

_______________________________________________________________

DE JAGER J:

Introduction

1. The applicant, cited as the Oshana Regional Football League, purportedly instituted motion proceedings against the first respondent (the Namibia Football Association) and seven other respondents (Styn Hamwala, Mathews Negumbo, Hilya Imalwa, Timoteus Johannes, Kronelius Iyambo, Agustus Antanga and Fillemon Shiindi, respectively) for certain declarators, a mandamus and an interdict. Fillipus Mayambi Dala deposed to the founding affidavit. His authority to have launched the application on behalf of the Oshana Regional Football League is disputed. In those circumstances and for clarity, the applicant is referred to as Dala, the Oshana Regional Football League as ORFL, and the first respondent as NFA.

2. ORFL and NFA are universitas personarum capable of suing and being sued under their statutes. ORFL, composed of 12 football clubs from the Oshana Region whose membership changes each football season depending on the promotion and relegation of clubs, is a member of NFA. According to Dala, ORFL’s member clubs for the 2023/2024 football season were African United FC, Golden Stars FC, Heicky Land Surveyors FC, Onelago United FC, Ongwediva Fish Consumption FC, Ongwediva United FC, Oshakati City FC, Oshakati United FC, Prescanova FC, Poison Arrows FC, Vietnam Rangers FC and Young Brave FC. NFA denies that Heicky Land Surveyors FC was a member club.

3. It is alleged that on 1 December 2023, NFA’s executive council issued a directive contradicting its stance of 21 June 2023 (that it cannot interfere in a member’s processes), overruling ORFL’s disciplinary committee’s ruling of 17 June 2023 whereby the eighth respondent was suspended from ORFL’s executive committee for three years and his club, Foxy Senior FC, was relegated from ORFL to the third division. It is further alleged that on 9 January 2024, NFA unlawfully accepted the second to eighth respondents as members of ORFL’s executive committee after being elected on 4 January 2024 at ORFL’s clandestine extraordinary annual general meeting (the extraordinary AGM) without a quorum. It is said that the second respondent was elected as ORFL’s chairperson at that meeting. The second to eighth respondents are collectively called the IEC (short for interim executive committee).

4. Dala prays that NFA’s 1 December 2023 directive and its recognition on 9 January 2024 of the second to eighth respondents as members of ORFL’s executive committee be declared unlawful, null and void and of no force or effect and that the respondents be interdicted and restrained from implementing or acting in the furtherance of or to continue to implement or act in the furtherance of the 1 December 2023 directive and the 9 January 2024 recognition. He further seeks a mandamus compelling NFA to re-activate and provide the administrative login details of Ongwediva United FC and Heicky Land Surveyors FC to the FIFA Connect Programme (FIFA Connect), which it unlawfully despoiled them of on 10 February 2024. Lastly, the applicant prays for costs, on an attorney and own client cost scale, against NFA and the second respondent jointly and severally, the one paying the other to be absolved.

5. The respondents raised two points in limine. First, the court should decline to exercise jurisdiction over the matter because all internal remedies were not exhausted. Second, the application should be dismissed or struck from the roll with a cost order against Dala in his personal capacity because he was not authorised to have launched it.

6. On the merits, the respondents’ position is as follows. NFA’s 1 December 2023 directive was lawful, ORFL is bound to adhere to it, and ignoring it would violate NFA’s statutes. The IEC was lawfully elected in alignment with ORFL’s statutes. According to them, there was a quorum, and if Dala had reservations about the extraordinary AGM, recourse avenues were available through NFA’s internal remedies. NFA did not recognise the IEC as alleged. The letter relied on by Dala for NFA’s alleged recognition, acknowledged the minutes and credentials of the extraordinary AGM, stated NFA has no objection, nor did it receive any objection, to the process that culminated in the IEC’s election, and it provided guidance to convene an elective AGM to elect a substantive executive committee.

Should the court exercise jurisdiction

7. The first issue to be considered is whether the court should exercise jurisdiction over the matter.

8. Considering the relief sought and that ORFL was cited as the applicant and assuming for purposes of determining the first point in limine that Dala was authorised to institute the application on ORFL’s behalf, disputes exist between ORFL and NFA (disputes between the two voluntary associations affecting ORFL as a member of NFA arising from or related to NFA’s statutes, regulations, directives and decisions) and between ORFL and the IEC (disputes within ORFL affecting ORFL’s members or officials).

9. The respondents rely on articles 41 and 42 of ORFL’s statutes and articles 10 to 13, 62 and 63 of NFA’s statutes.

10. Articles 41 to 43 of ORFL’s statutes dealing with disputes and arbitration read as follows:

’41 Disciplinary

The Disciplinary Committee of Oshana Regional Football League shall hear any disputes of a disciplinary nature that may arise at the level of the Oshana Regional Football League.

42 Arbitration

1 Disputes within the Oshana Regional Football League or disputes affecting its Members, Clubs, officials and any other entity bound by the statutes of the Oshana Regional Football League shall not be submitted to Ordinary Courts, unless the regulations of FIFA, CAF, NFA or the Oshana Regional Football League or binding legal provisions specifically provide for or stipulate recourse to Ordinary Courts.

2 Such disputes as specified in par. 1 shall be taken to the Arbitration Tribunal of NFA, or to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.

3 Only as long as no Arbitration Tribunal has been installed and recognised by NFA, any such disputes may only be referred in the last instance to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.

43 Jurisdiction

1 Recourse may only be made to an Arbitration Tribunal in accordance with art 42 once all internal channels of the Oshana Regional Football League have been exhausted.

2 The Oshana Regional Football League shall have jurisdiction on internal national disputes i.e. disputes between parties belonging to the Oshana Regional Football League. NFA shall have jurisdiction on National disputes i.e. disputes between parties belonging to different Members.’

11. Even though the respondents did not rely on article 43, article 42 must be read with it. Article 43(1) qualifies article 42 by stating that recourse may only be made to an arbitration tribunal under article 42 (being ‘the Arbitration Tribunal of NFA’ and CAS) if all ORFL internal channels have been exhausted. Article 43(2) clarifies that ORFL has jurisdiction over internal national disputes (disputes between parties belonging to ORFL), and NFA has jurisdiction over national disputes (disputes between parties belonging to different members).

12. Article 13(2)(f) of NFA’s statutes provides that, when applying for membership, members¹ and/or directors must declare under oath that they will refer in the last instance (after exhaustion of all internal channels within the NFA) any dispute of national dimension arising from or related to the statutes, regulations, directives and decisions of NFA only to an independent and duly constituted arbitration tribunal, which shall definitely settle the dispute to the exclusion of any ordinary courts² unless expressly prohibited by Namibian legislation. Article 13(2)(h) thereof provides that members and/or directors must also declare under oath that they recognise the arbitration tribunal that the NFA has recognised or will establish independently as specified in NFA’s statutes as well as the jurisdiction of CAS as specified in the statutes of FIFA, CAF or COSAFA, and its decisions.

13. Articles 62 and 63 of NFA’s statutes, relied on by the respondents, read as follows:

‘Article 62: Arbitration

1 Disputes within the NFA or disputes affecting Members of the NFA, leagues, members of leagues, clubs, members of clubs, players and officials may only be referred in the last instance (i.e. after exhaustion of all internal channels within the NFA) to the CAS, which shall settle the dispute definitively to the exclusion of any ordinary courts, unless expressly prohibited by legislation in Namibia.

2 Disputes of international dimension arising from or related to the Statutes, regulations, directives and decisions of FIFA, CAF or COSAFA may only be submitted in the last instance to CAS as specified in the Statutes of FIFA, CAF or COSAFA.

Article 63: Jurisdiction

1 The NFA shall have jurisdiction on internal national disputes, i.e. disputes between parties belonging to or affiliated to the NFA.

2 FIFA, CAF or COSAFA shall have jurisdiction on international disputes, i.e. disputes between parties belonging to different associations and/or confederations, in accordance with the relevant regulations.

3 NFA shall ensure its full compliance and that of all those subject to its jurisdiction with any final decision passed by a FIFA body, a CAF or COSAFA body, the Arbitration Tribunal recognised by the NFA or CAS.’

14. When the court enquired about internal channels, Dala’s counsel referred to article 42 (the Arbitration Tribunal of NFA) and argued that since the dispute is with NFA, article 42 cannot apply. Dala’s counsel did not recognise that all disputes brought to court are not with NFA and that some are with the IEC. The interdict is sought against NFA and the IEC. If the dispute is one between parties belonging to ORFL, it must first be resolved by ORFL internal channels, and if that fails, since there is no ‘Arbitration Tribunal of NFA’, it must be referred to CAS, not an ordinary court³ like the High Court of Namibia. If the dispute is one between parties belonging to different ORFL members, it must first be resolved by NFA internal channels, and if that fails, since there is no ‘Arbitration Tribunal of NFA’, it must be referred to CAS, not an ordinary court like the High Court of Namibia.

15. It was submitted on Dala’s behalf that article 63(1) of NFA’s statutes is confined to disputes between parties belonging to or affiliated with the NFA, and since the dispute is between ORFL and NFA and not between NFA members, article 63(1) does not apply. However, article 62(1) is not limited to disputes between NFA members. It applies to disputes within NFA or disputes affecting NFA members, leagues, members of leagues, clubs, members of clubs, players and officials. The dispute between ORFL and NFA affects ORFL, a NFA member, falling under article 62(1). Since there is no ‘Arbitration Tribunal of NFA’, those disputes must be referred to CAS, not an ordinary court like the High Court of Namibia.

16. While silent on the dispute between ORFL and the IEC, Dala accepts that the dispute with NFA must be arbitrated at CAS, but alleges the following to show just cause that CAS is an inadequate remedy and that the court should exercise jurisdiction over the matter:

1. CAS is inaccessible due to the exorbitant prohibitive administrative and arbitration costs.

2. For CAS to hear the matter in Lausanne, Switzerland, ORFL must comply with article R64 of the Code of Sports-related Arbitration, under which CAS fixes court office fees and administrative costs in Swiss Francs. In a comparable dispute about five years ago between NFA and an erstwhile member, the fees and costs were fixed at CHF1000 or N$18 118,91, while the High Court of Namibia’s court fees are N$100.

3. ORFL relies on NFA to fund its annual activities. ORFL’s annual budget shows its annual income from subscription fees and players’ registration is N$37 200, its annual expenses are N$408 084, and NFA funds its entire budget deficit of N$370 884. ORFL has no surplus funds to pay for arbitration proceedings before CAS and cannot raise such money.

4. R64.2 provides that, to determine the required advance payment, CAS shall fix an estimate of the arbitration costs to be borne by the parties, the advance shall be paid in equal shares by the claimants/appellants and the respondents, if a party fails to pay, another may substitute for it, in case of non-payment within the time fixed by CAS, the request/appeal shall be deemed withdrawn, and CAS shall terminate the arbitration. In the comparable case, CAS fixed the first advance costs at CHF40 000. If NFA fails to pay its half, ORFL will have to pay it or risk the dispute never being heard.

5. It is impossible to have the dispute decided by CAS.

17. Dala further relies on article 80(2) of the Namibian Constitution and section 2 of the High Court Act 16 of 1990. Dala contended that ORFL would be unlawfully denied its right to a fair and public hearing under article 12 of the Namibian Constitution if the court declines to exercise jurisdiction.

18. Before determining whether to exercise jurisdiction, the nature of the dispute must be considered. The events leading to the application are as follows:

1. On 17 June 2023, following a disciplinary hearing by ORFL, the eighth respondent was suspended from ORFL’s executive committee for three years, and his club, Foxy Senior FC, was relegated from ORFL to the third division

2. On 19 June 2023, the eighth respondent emailed NFA seeking its intervention to overrule ORFL’s disciplinary committee’s ruling of 17 June 2023.

3. On 21 June 2023, NFA informed the eighth respondent it cannot interfere in a member’s internal processes.

4. NFA agrees it may not interfere in its members’ internal processes and contends it did not interfere in ORFL’s internal processes. NFA explained as follows. ORFL lacked authority to suspend the eighth respondent and to expel his club from the league. ORFL’s actions in that regard were ultra vires. ORFL should have sought consultation with NFA, which would have appointed a prosecutor to manage the dispute. Deviating from the laws governing NFA members, ORFL unilaterally appointed a prosecutor. The eighth respondent and ORFL members sought NFA’s intervention in a communication from Foxy Senior Football Club dated 13 July 2023. In a letter dated 7 August 2023, NFA, having perused relevant documentation, informed ORFL about its observations and requested ORFL for clarity on various discrepancies detected. Not having received a response, NFA, in a letter dated 31 October 2023, advised ORFL that it could lead to sanctions and requested it to prioritise the matter and provide a prompt response.

5. In a letter dated 27 October 2023, the eighth respondent and other ORFL members requested ORFL’s then-executive committee to convene an extraordinary AGM under articles 30(2) and (3) of ORFL’s statutes. The letter, signed by seven members, was delivered to Dala. Dala denies it was delivered to him. Articles 30(2) and (3) of ORFL’s statutes provide that:

‘(2) The Executive Committee shall convene an Extraordinary AGM of the delegates representing the Members of the Oshana Regional Football League make such a request in writing. The request shall specify the items for the agenda. An Extraordinary AGM shall be held within twenty-five days of receipt of the request if an Extraordinary Annual General Meeting is not convened, the delegates representing the Members who requested it may convene the AGM themselves. In doing so, they shall inform all the Members of the Oshana Regional Football League and the Executive Committee of the Oshana Regional Football League of the date and location of the Extraordinary AGM along with the items to be included on the agenda in accordance with par. 3 below.

(3) The Member shall be notified of the place, date and agenda at 14 days before the date of an Extraordinary.’ [sic]

6. Having received no response, the seven ORFL members, constituting more than 50 per cent of its membership, informed Dala they were invoking article 30, which grants them the right to convene an extraordinary AGM. The agenda was provided to Dala and all ORFL members.

7. In reply, Dala said Foxy Senior FC and Brave Lions FS were not ORFL members at the time the extraordinary AGM was convened, they could not qualify to make the meeting quorate nor to call it, the eighth respondent had no right to call it because he was suspended, and the prescribed notice for the meeting was not given.

8. On 17 November 2023, NFA held its elective congress and elected a new executive council, supported by the eighth respondent.

9. On 1 December 2023, NFA’s (new) executive council issued a directive concluding that the prosecutor, the disciplinary committee and the executive committee acted ultra vires, Foxy Senior FC is still a ORFL members, and the eighth respondent is still a member of ORFL’s executive committee. It was stated that failure to comply with the directive will constitute a violation of article 16(1)(a) of NFA’s statutes and shall incur sanctions under article 16(2).

10. On 15 December 2023, Dala informed NFA that article 43(2) reserved authority to deal with disputes between parties belonging to ORFL exclusively to ORFL, and ORFL would, therefore, ignore NFA’s unlawful directive. NFA denies it was unlawful. It said ORFL is bound to adhere to any directives issued by it, and ignoring a directive would violate NFA’s statutes.

11. On 22 December 2023, a notice was delivered to Dala seeking the convocation of an extraordinary AGM to be held on 4 January 2024 for a no-confidence motion in ORFL’s executive committee and the election of a new albeit interim executive committee. The motion was by ORFL’s members under its statutes.

12. On 24 December 203, Dala informed the person leading the no-confidence vote that ORFL members distanced themselves from the notice, Foxy Senior FC, having been relegated, was no longer an ORFL member and could not convene meetings, and the notice was null and void.

13. On 2 January 2024, ORFL members provided sworn statements disavowing the calling of the extraordinary AGM and the no-confidence vote. IEC disputes that ORFL members distanced themselves from the notice. They said when Dala was invited to the extraordinary AGM, he contacted individuals who lacked authority to represent the clubs, prompting them to write disassociation letters.

14. The extraordinary AGM took place on 4 January 2024. The no-confidence vote was passed. According to the IEC, ORFL members attended the extraordinary AGM, there was a quorum (relying on an attendance register), but no election occurred. They said they were only appointed to oversee ORFL’s affairs until an elective congress was held. According to Dala, the meeting was null and void and of no force as its convention fell outside the prerequisite requirements set by ORFL’s statutes, and there was no quorum.

15. On 9 January 2024, NFA, allegedly in breach of articles 20(2) and (3) of its statutes, recognised the second to eighth respondents as ORFL’s interim executive committee members while having no such authority. NFA denies it recognised the IEC. This was dealt with above with reference to the letter Dala relies on.

16. NFA is a member of FIFA, an international football regulatory authority. FIFA launched an international program, the FIFA Connect Programme (FIFA Connect), to assist in digitalising players’ registration and competition worldwide. FIFA Connect provides a free service enabling clubs to register their players to track the transfer of players between clubs and allows clubs to be remunerated for developing young players through training programs if transferred to other clubs. Registration enables FIFA to issue players with identities and electronic player passports. NFA, its members, and Namibian registered players use FIFA Connect. When attempting to log in on 11 February 2024, Dala received an automated message that he and Ongwediva United Football Club were disconnected from the platform. He alleges the disconnection injures and harms them and ORFL’s integrity in executing its affairs. It permanently deprives ORFL of enjoying and exercising its rights provided under its statutes. Dala has no recourse to an effective alternative remedy, so he said.

17. NFA clarified that access to FIFA Connect is restricted to NFA members, and the prerogative remains in NFA’s exclusive authority to allow who has access and who does not. Dala and his club are not NFA members. According to the respondents, the IEC informed NFA that a non-member, Ongwediva United Football Club, had access to the platform and requested its removal. Removing a non-member did not require prior consent by NFA. According to the respondents, the Brave Lions FC's status, name and standing were loaned to Dala, and he subsequently changed the name to Ongwediva United Football Club without authorisation. The name and status of the Brave Lions FC were returned.

19. The first set of disputes, as set out in prayers 1, 2, 3 and 4 (insofar as it relates to NFA) of the notice of motion (the two declarators, the mandamus and the interdict), is between ORFL and NFA and not between members of NFA. It is, however, a dispute affecting ORFL, a NFA member, and it arises from or is related to NFA’s statutes, regulations, directives and decisions. Article 13(2)(f) of NFA’s statutes provides that as an aspirant member, ORFL had to declare under oath that it will refer in the last instance (after exhausting all internal channels within NFA) such dispute only to an independent and duly constituted arbitration tribunal’ which shall definitely settle the dispute to the exclusion of any ordinary court, unless expressly prohibited by Namibian legislation.

20. In Namibia Premier League v Namibia Football Association & Others,⁴ the Supreme Court cautioned against transposing administrative law relating to the exercise of public duties to the law in respect of voluntary associations based on consensus but said similar principles may apply in both private and public law. For example, it referred to courts being loath to exercise jurisdiction before agreed internal remedies are exhausted. The Supreme Court didn't have to categorise the issue as a public or private law matter because the courts' approach is the same regarding the duty to exhaust internal remedies.

21. Where parties have agreed to internal dispute processes, the court will decline to exercise jurisdiction over such disputes unless there are special circumstances. Special circumstances which may lead the court to intervene and exercise jurisdiction over such disputes will include cases where an internal appeal tribunal does not have the power to set aside the irregularity, where the internal process has broken down, or where the appropriate remedy cannot be obtained through the internal process. The parties did not contend that the nature of the dispute suggests that it would fall into such categories. None of the parties submitted such circumstances exist. On the contrary, Dala contended the dispute must be arbitrated by CAS but continued to show just cause why the court should exercise jurisdiction. The matter is decided on that basis.

22. The only circumstance advanced by Dala is CAS’s alleged inaccessibility due to ORFL’s inability to afford it. The court was not provided with authority that an inability to afford the agreed internal process would amount to just cause for the court to exercise jurisdiction. In the court's view, showing just cause for the court to exercise jurisdiction would require more than proving an inability to afford the agreed internal process. An explanation of why the internal process was agreed to would be required. If not, agreements to exhaust agreed internal processes before recourse to courts may be rendered nugatory.

23. The court is furthermore not satisfied that the agreed internal process is inaccessible. Dala compared the agreed internal process costs to the N$100 court fee to initiate motion proceedings while being silent on legal fees occasioned by High Court litigation and him having employed a senior instructing and instructed (not silk) legal practitioner. It is also unknown what the costs occasioned by the agreed internal process would be for Dala’s disputes. Dala did not attempt to follow the agreed internal process to provide the court with concrete facts on costs. The circumstance advanced by Dala is based on speculation compared to another case and that NFA will, in Dala’s case, not waive payment of its share of the advance CAS costs. Even though that case may have been comparable because it related to the same statutory provisions, there would, for obvious reasons, be other considerations impacting costs. At this stage, the court does not know whether Dala would be denied his right to a fair and public hearing under article 12 of the Namibian Constitution, as he contended. Dala must first exhaust the agreed internal process.

24. In this case, ORFL’s alleged (which is all it is at this stage) inability to afford the agreed internal process is not a special circumstance sufficient for the court to exercise jurisdiction over the matter. ORFL agreed to the internal processes, including the CAS process. There was no explanation for why those processes were agreed upon, and Dala failed to establish that CAS is inaccessible due to costs.

25. The proper order is for the application to be struck from the roll.

Legal costs and Dala’s authority

26. The application’s costs must still be determined.

27. The respondents’ case is that Dala had no authority to institute the application on ORFL’s behalf, and they pray that Dala pays their costs in his personal capacity. It must, therefore, be determined whether Dala was authorised by ORFL to launch the application.

28. Artificial persons, like voluntary associations, function through their agents and can only make decisions by passing resolutions compliant with their statutes. In motion proceedings, some evidence should be placed before court to show that an applicant duly resolved to institute the proceedings, and they are instituted at its instance. The best evidence would be provided by an affidavit deposed to by an official of the voluntary association annexing a copy of the resolution, but that form of proof would not always be necessary in every case. Each case must be considered on its own merits, and the court decides whether enough was placed before it to conclude it is the applicant litigating and not some unauthorised person on its behalf.⁵

29. Dala stated he is the duly elected chairperson of ORFL’s executive committee and duly authorised to institute the application on its behalf under article 39 of ORFL’s statutes and an executive committee resolution. The resolution states at the meeting of ORFL’s executive committee held on 15 January 2024, it was resolved that Dala, in his capacity as ORFL’s chairperson, is authorised ‘to institute and depose to affidavit in the application against Namibia Football Association and 7 others and to sign all necessary affidavits on behalf of’ ORFL and that the law firm Dr Weder, Kauta & Hoveka Inc. be appointed to act on its behalf. The resolution is dated 31 January 2024, certified a ‘true extract’ and signed by Dala.

30. Article 39 of ORFL’s statutes provides that:

‘The Chairperson represents the Oshana Regional Football league generally. The Executive Committee shall adopt special provisions regarding the joint signature of office bearers.’

31. According to the respondents, Dala purports to act as nominee officio but has no right to act in the official capacity representing ORFL as he does not hold the position he purports to hold (ORFL’s chairperson), and he was not authorised to bring the application. They contend Dala was ousted as ORFL’s chairperson through a no-confidence vote taken by ORFL’s members on 4 January 2024. They pointed out that the resolution Dala relies on bears only his signature.

32. NFA said Dala is not ORFL’s authorised representative, and he lacks the mandate to act on its behalf.

33. The second respondent said he is the chairperson of ORFL’s IEC and its authorised representative. He relies on an extract of the minutes of ORFL’s meeting held on 29 February 2024, reflecting a resolution that ORFL defends the proceedings against the IEC by Dala (the former chairperson), ORFL did not authorise Dala to act on its behalf to institute the proceedings and that the second respondent is authorised to act on ORFL’s behalf and depose to the answering affidavit on behalf of himself and the third to eighth respondents. The IEC (the second to eighth respondents) signed the extract of the minutes relied on.

34. The IEC said the following. Dala is not ORFL’s chairperson. His position ended on 4 January 2024, when a no-confidence vote was enacted against him. Neither the IEC nor ORFL’s chairperson authorised the application, and Dala had no locus standi to initiate it on ORFL’s behalf.

35. The respondents pointed out that Dala primarily attacks ORFL’s processes and NFA’s processes are attacked as a secondary issue, but the relief sought is only directed at NFA’s secondary actions and not ORFL’s primary actions.⁶ Dala was removed on 4 January 2024 through ORFL processes, and he does not attack that.

36. In Dala’s heads of argument, it is submitted that members of ORFL’s executive committee have tenure for four years after their election unless lawfully removed, ORFL’s executive committee was not lawfully removed and remains in office for four years since the election on 10 June 2022.

37. Dala’s counsel argued that administrative law principles, such as the Oudekraal principle, do not apply, this is a contractual matter, and the contractual principle to apply is that one cannot benefit from one’s wrongdoing. Without relying on the Oudekraal principle, the respondents’ counsel argued that once Dala was voted out, the presumption of regularity, which contemplates upholding official, judicial or other acts rather than rendering them inoperative, took effect.⁷ He argued Dala should have come to court himself instead of coming to court on ORFL’s behalf. Dala’s counsel contended that the public law presumption did not apply to the private law matter at hand.

38. Dala’s authority to launch the application is based on the chairperson’s office of ORFL from which office he was removed. In National Union of Namibian Workers v Kasuto⁸, the court agreed that an expelled member of a voluntary association who says the expulsion was unlawful and wishes to enforce his membership rights must take steps to have it reviewed and set aside. The court, again, agrees with that position.

39. Dala took no steps to have the vote of no-confidence decision that led to his removal from office reviewed and set aside. Instead, he decided to defy it. As matters stand, he was removed from office, and ORFL, acting through the IEC, did not authorise him to launch the application on ORFL’s behalf. Even if the court had exercised jurisdiction over the matter, the application would not have succeeded because Dala brought it on ORFL’s behalf without authority.

40. NFA’s deponent failed to state he was authorised to oppose the application on NFA’s behalf. He only stated that he was authorised to depose to the answering affidavit on NFA’s behalf by ‘authorisation’ attached to the affidavit. The attached ‘authorisation’ is a NFA power of attorney signed by the members of the NFA emergency committee resolving to authorise the deponent to act on behalf of NFA in the matter. The deponent was one of the signatories in his capacity as NFA’s vice president. Dala challenged NFA’s deponent’s authority because, according to him, the NFA emergency committee was not properly constituted, could not lawfully mandate the deponent, and it was insufficient to allege authorisation to depose to the affidavit as authority to oppose the relief sought had to be alleged. There is no evidence that NFA authorised the deponent to oppose the application on its behalf. Neither the affidavit, nor the authorisation relied on provides such evidence. The authorisation only states that the deponent may act on NFA’s behalf in the matter, whatever that may mean. In those circumstances, NFA cannot be awarded costs.

41. The second respondent deposed to an answering affidavit in his personal capacity and on behalf of the third to eighth respondents and ORFL. He stated he was authorised to oppose the application on behalf of the third to eighth respondents and to depose to the affidavit on their behalf and ORFL. He relies on confirmatory affidavits by the third, fourth, sixth, seventh and eighth respondents and the ORFL resolution dated 29 February 2024, referred to above, signed by the IEC. Dala challenged the second respondent’s authority because, according to him, ORFL’s statutes does not provide for an interim executive committee. The second to eighth respondents were not cited in their capacities as members of ORFL’s interim executive committee. They were cited in their personal capacities.

42. Applying the general cost rule, costs follow the event, and Dala must pay the second to eighth respondents’ costs in his personal capacity.

43. In conclusion, it is ordered that:

1. The application is struck from the roll.

2. Fillipus Mayambi Dala must pay the second to eighth respondents’ costs.

The matter is finalised and removed from the roll.

__________________

B DE JAGER

Judge

APPEARANCES
APPLICANT:	G Narib Instructed by Dr Weder, Kauta & Hoveka Inc. Windhoek
RESPONDENTS:	S Namandje (with him M Kazondana) Of Sisa Namandje & Co. Inc. Windhoek