Court name
High Court Main Division
Case number
APPEAL 202 of 2013
Title

Thornborn NO v Namibia Sports Commission and Others (APPEAL 202 of 2013) [2013] NAHCMD 264 (25 September 2013);

Media neutral citation
[2013] NAHCMD 264
Coram
Smuts J





IN THE HIGH COURT OF NAMIBIA







REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: A 202/2013



In the matter between:








PETRA THORNBURN N.O.








In her capacity as the








OWNER CHAIRPERSON OF CRETE
GYMNASTIC CLUB ..................APPLICANT








and








NAMIBIA SPORTS COMMISSION
...............................................1st
RESPONDENT



NAMIBIA GYMNASTICS FEDERATION (NGF)
.........................2ND
RESPONDENT



Neutral Citation: Thornborn N.O. v
Namibia Sports Commission (A 202/2013) [2013] NAHCMD 264 (25
September 2013)



Coram: SMUTS, J



Heard: 17 September 2013



Delivered: 25 September 2013








Flynote: Application for
mandamus against the first respondent and for an interdict against
the second respondent, a national sports body. Both forms of relief
were premised upon the second respondent’s deregistration as a
national sports body. An appeal against deregistration eventually
succeeded on the day before the hearing. The applicant accepted it
was no longer entitled to the relief but sought the costs of the
application. Although the application was not entitled to the full
extent of the relief sought against the first, it was entitled to
compel it to take action and would thus have been substantially
successful. They also established its entitlement to an interdict
against the second respondent uplifting of deregistration.





ORDER





1) The first respondent is directed to
pay the applicant’s costs in respect of the relief sought
against it in prayer 2 of the notice of motion;



2) The second respondent is directed
to pay the applicant’s costs in respect of the application for
the relief sought against it.










JUDGMENT










SMUTS, J








[1] At issue in this application is
whether the applicant was entitled to a mandamus against the Namibia
Sports Commission, (the Commission) cited as the first respondent,
and whether it had made out a case for an interdict against the
Namibia Gymnastics Federation (NGF), cited as the second respondent.








[2] The applicant, a gymnastic club,
approached this court on an urgent basis on 2 July 2013. In addition
to seeking condonation for bringing the application as one of
urgency, the applicant sought the following further relief against
the respondents:



2.
Ordering the first respondent to immediately but before 30 July 2013
take all such steps to carry out its functions in terms of the
Namibian Sports Act, Act 12 of 2003 aimed at putting into effect its
own decision that the second respondent should not carry out any
activities pertaining to the administration supervision and
organization of gymnastic sports whilst it remain deregistered
particularly, conducting of trials, section of National teams and
participating in International competitions.








3.
Ordering the first respondent to take all such steps to finalize all
pending disciplinary issues between the applicant and the second
respondent and all disputes between it and the second respondent
alternatively to immediately appoint an interim Committee to carry
out the functions that were carried out by the second respondent
before its deregistration.








4.
Interdicting and restraining the second respondent from carrying out
any gymnastic activities it may have been entitled to on account of
its registration then as an umbrella body or such other activities it
has been directed not to carry out by the first respondent until such
time its deregistration has been set aside by a competent body.’








[3] When the matter was initially
called on 2 July 2013, it was postponed by agreement to 7 August 2013
and again to 14 August 2013 to enable the parties to endeavour to
reach an amicable resolution of the matter. When that did not occur
by 14 August 2013, it was postponed for hearing to 17 September 2013.









  1. Much of the factual matter relevant
    to this application is not in dispute. The applicant is the owner of
    the gymnastic club. The applicant was until 16 August 2011 a member
    of the NGF, second respondent. But it was then suspended without a
    disciplinary hearing (on 16 August 2011). After an exchange of
    correspondence a disciplinary hearing was appointed and its
    chairperson, Mr N Tjombe, ruled that the applicant’s
    suspension be uplifted.










  1. The applicant had in the meantime
    raised a complaint against the NGF and in November 2011 the
    Commission deregistered the NGF as a national sports body in terms
    of s28(2)(c) of the Namibia Sports Act, 12 of 2003, (the Act) the
    Commission’s empowering legislation. The Commission made it
    clear that the NGF was to stop all its activities of conducting
    trials and selection of national teams and future international
    participation representing the Republic of Namibia until the dispute
    with the applicant had been resolved.










  1. Despite this statement by the
    Commission, the applicant complained that the NGF continued its
    activities as a national sports body during October, November,
    December 2012 and January 2013. The applicant complained to the
    Commission about the NGF continuing its activities as a national or
    sports umbrella body.










  1. The applicant then approached the
    Commission to take steps against the NGF as it was, in its view,
    carrying on as if it were not deregistered. The applicant complained
    that its gymnasts, as a consequence of being excluded by the NGF,
    had lost out in respect of two competitions held in South Africa and
    in respect of competitions referred to as Top 6 and Zone 6 games
    held internationally, as well as not being invited to other
    competitions. The applicant contended that these activities on the
    part of the NGF were illegal and that it was incumbent upon the
    Commission to restrain the NGF from running the sports code as if it
    had not been deregistered. The applicant contended that despite
    undertakings given by the Chairperson of the Commission to address
    these issues, it had not done so. The applicant then approached this
    court for the relief set out in the notice of motion.















  1. In the Commission’s answering
    affidavit, the Chairperson contended that this application was not
    properly brought as one of urgency and that the urgency was self
    created. The NGF also took a similar point as well as other
    preliminary points. As a result of the postponements, both
    respondents had a full opportunity to file their answering
    affidavits and did so. Neither has sought more time to file papers.
    Although both raised the point of urgency, neither pressed this
    point with any vigour at the hearing and correctly so, given the
    lack of prejudice sustained by them. As Mr Titus, appearing for the
    NGF, rightly acknowledged, in determining the question of urgency,
    this court would assume that the applicant’s case is a good
    one.1
    The applicant complained of illegal conduct on the part of the NGF
    which it says, the Commission is not addressing. This entails an
    ongoing series of competitions and events from which its members are
    excluded. It is clear that, the applicant would not receive redress
    if the application was brought in the normal course. Whilst both
    respondents may with some justification complain about the short
    notice with which the application was originally brought, the matter
    became postponed and neither has complained of any prejudice in
    being able to place the matter before court and in preparing for the
    application.










  1. In the exercise of my discretion, and
    particularly given the lack of prejudice on the part of the
    respondents in putting their respective cases before me, I am
    prepared to grant the applicant condonotion for bringing the
    application as one of urgency.










  1. The Chairperson of the Commission
    further pointed out in opposition to this application that the NGF
    had appealed its deregistration. An appeal committee comprising
    three persons was eventually appointed in December 2012. The appeal
    committee was to determine the appeal during the period 10-19 July
    2013. The Commission stated that it was thus functus officio
    after making its decision to deregister the NGF and that it would
    await the outcome of the appeal. The Commission further pointed out
    that there was nothing to prevent the applicant from interdicting
    the NGF from engaging in its activities whilst being deregistered –
    as was sought in paragraph 4 of the notice of motion – but
    stated that it was not required under the Act to itself take steps
    and that the application should be dismissed for this reason.










  1. It was also argued on behalf of the
    Commission, by Mr Ncube who appeared for it, that the applicant was
    required to exhaust its internal remedies prior to approaching the
    court and that it should await the outcome of the appeal. Whilst it
    is clear that in appropriate cases this court would require a party
    to exhaust internal remedies in the context of addressing
    administrative action taken against them, this principle
    would not find application in this case. This is because the appeal
    is not the applicant’s remedy but that of the NGF. There is
    thus no requirement for the applicant to await the outcome of the
    appeal. On the contrary, the appeal did not suspend the operation of
    the decision of the Commission to deregister the NGF. If the NGF had
    sought to stay the deregistration pending its appeal, it was
    incumbent upon the NGF to seek interim relief of that nature. But it
    did not do so. It was thus not incumbent upon the applicant to await
    the outcome of the appeal in the circumstances.










  1. On the day before the hearing, the
    outcome of the proceedings before the appeals committee became
    known. It set aside the deregistration of the NGF and reinstated its
    registration. It also granted the NGF three months from the date of
    the ruling to comply with the recommendation set out in the
    arbitration award of Mr N. Tjombe of 28 May 2012. As the NGF was
    thus no longer deregistered, Mr Namandje on behalf of the applicant
    correctly conceded that the applicant could no longer secure the
    relief contained in paragraphs 2, 3 and 4 of the notice of motion,
    all premised upon NGF’s deregistration. He however submitted
    that the applicant was entitled to its costs having brought the
    application. He also sought an order that the applicant could on the
    same papers, duly amplified, approach this court in the event of the
    NGF not complying with the recommendations, set out in the
    arbitration award within the three month period referred to.










  1. In order to determine whether the
    applicant is entitled to its costs would necessitate a determination
    as to whether the applicant was entitled to the relief set out in
    the notice of motion prior to the lifting of the deregistration. As
    I have already pointed it out, there are two forms of reliefs sought
    in this application. In the first instance there is the mandamus
    sought against the Commission. Secondly there is the interdict
    sought against the NGF. These are dealt with in that sequence.









Mandamus
against the commission









  1. It is well settled that the failure
    on the part of a functionary to perform an administrative act is as
    irregular and unlawful as an administrative decision not properly
    taken. An aggrieved person may under the common law succeed in
    compelling a functionary to perform an administrative of act where
    that functionary is under a statutory duty to do so. This common law
    remedy flows from the common law remedy of review, thus described
    Innes CJ in Johannesburg Consolidated Investment Co v
    Johannesburg Town Council
    2
    in the following terms:




Whenever
a public body has a duty imposed on it by statute, and disregards
important provisions of the statute, or is guilty of gross
irregularity or clear illegality in the performance of the duty, this
court may be asked to review the proceedings complained of and set
aside or correct them. This is no special machinery created by the
Legislature: it is a right inherent in the Court, which has
jurisdiction to entertain all civil causes and proceedings arising .
. . in such a cause as falls within the ordinary jurisdiction of the
Court.’
3



It is also clear under the common law
that where functionary failed to perform that administrative act
within a reasonable period of time, an applicant would be entitled to
approach the court by way of the mandamus to compel the
performance of that act.4









  1. In order to succeed with this remedy,
    the applicant would need to establish that the Commission is under a
    statutory duty to perform the acts set out in paragraph 2 and 3 of
    the notice of motion and is failing to do so.5










  1. I specifically asked Mr Namandje to
    refer to the statutory provisions which the applicant relies upon
    and to point out which steps envisaged under the Act the Commission
    is obliged to take and had failed to do so. I specifically asked
    this question with regard to the relief sought in paragraph 2 where
    the applicant seeks to compel the Commission in very wide terms to
    ‘take all steps to carry out its functions’ under the
    Act aimed at putting into effect its decision to prevent the NGF
    from engaging in activities pertaining to administration,
    supervision and organisation of gymnastics whilst it remained
    deregistered and in particular conducting trials and selection of
    national teams and participating in international competitions.










  1. Mr Namandje referred me to the
    structure of the Act and in particular the functions of the
    Commission under s3 which include:




(b)
to co-ordinate, control, develop and foster sports activities;



(c)
to ensure the proper administration of national sports bodies and
national umbrellas sports bodies;



(d)
to ensure that national sports bodies and national umbrellas sports
bodies are complying with this Act and their constitutions and rules
especially on discipline.’









  1. Mr Namandje also referred to the
    Commission’s powers and functions to authorise national and
    international sports activities or events. He further referred to
    the provisions of s28 of the Act dealing with discipline of national
    sports bodies and national umbrellas sports bodies by the
    Commission. It was after all under this section that the NGF had
    been deregistered. It provides:




(1)
The Commission must ensure that every national sports body and
national umbrella sports body complies with this Act, its
constitution and rules and any applicable international legal
instruments.








(2)
Subject to subsection (3), the Commission may strike off the register
the name of a national sports body or national umbrella sports body,
if the Commission is satisfied that-



(a)
the body ceases to operate as a national sports body or national
umbrella sports body in terms of this Act and its constitution;



(b)
the body fails to comply with this Act, the body's constitution or
rules or any international legal instrument applicable to it; or



(c)
the body conducts its affairs in a manner which is contrary to the
public interest.








(3)
The Commission-



(a)
may not take any action in terms of subsection (2) before the body
referred to in that subsection is given an opportunity to make
representations in the matter to the Commission, after which the
Commission may give any warning or directive;



(b)
may only take any action in terms of subsection (2) if the national
sports body or national umbrella sports body after having been given
a warning or directive under paragraph (a) continues with its
non-compliance with this Act, its constitution or rules.’









  1. Mr Namandje submitted that once the
    Commission had deregistered the NGF and required that it must stop
    its activities of conducting trials and selection of national team
    and future international participants representing Namibia, it was
    under an obligation to take steps against the NGF once it had been
    informed that sports body was continuing to organise and co-ordinate
    gymnastics in Namibia as if it had not been deregistered.










  1. I asked Mr Namandje to refer me to
    the provisions of the Act which provided the statutory machinery for
    the Commission to act against the second respondent and what steps
    the Commission should have taken as opposed to the very broad
    formulation in the notice of motion.










  1. Apart from referring to s26(5) which
    would disentitle a national sports body from receiving funding from
    the Sports Development Fund (the fund) created under the Act, he was
    not able to refer to any specific machinery created in the Act for
    the Commission to take steps against a non-compliant or delinquent
    national sports body other than referring to the Commission’s
    functions and general powers under s3. The Commission would also
    have the power to withhold approval for the award of national sports
    colours to a sports person or team participating in an event
    organised by the deregistered NGF. The Commission may also decline
    its approval for the hosting of international sports event by the
    NGF or importantly decline to approve participation in an
    international sports event as a representative of Namibia under s33.
    If wanting the Commission to invoke that power, the applicant should
    ideally have referred to that section and provided the Commission
    with full details of participation by the NGF in international
    sports events as a representative of Namibia in order to ensure that
    the Commission would not provide its approval the NGF and to ensure
    that it would then prohibit it from participating in the sports
    event in question.










  1. Mr Namandje also submitted that the
    Commission had a duty to ensure compliance by sports bodies with the
    Act and was under a duty to interdict the NGF from engaging in
    activities it was not authorised to do, such as conducting trials
    and selection of national teams and the participation in
    international events representing the Republic of Namibia. He
    submitted that the Commission was under a statutory duty to apply
    for such a common law interdict against the NGF.










  1. Mr Ncube on behalf of the Commission
    submitted that the Commission was not authorised to take any further
    action once the NGF had appealed against its deregistration. As I
    have already pointed out, this is not correct. An appeal would not
    suspend the operation of the deregistration. He further submitted
    that once the appeal process was under way and until it was
    finalised, the Commission could take no further action. This
    submission must likewise fail for the same reason.










  1. It would seem to me that before the
    Commission would be required to bring a common law interdict against
    an alleged delinquent sports body like the NGF to desist from the
    activities referred to, the applicant would need to specify the
    statutory provisions which the Commission refuses to or fails to
    invoke against the NGF and specify what the Commission is required
    to do under the Act. In my view, an applicant in proceedings of this
    nature would thus need to specify the statutory provisions in
    question and the manner in which the administrative body is refusing
    or failing to taking steps required by that statutory provision, and
    preferably but not necessarily after having been put on terms to do
    so. The applicant could for instance seek to compel the Commission
    to desist from providing any funding from the fund to the NGF after
    deregistration, given the specific statutory duty on the part of the
    Commission to confine funding to registered national sports bodies,
    if that were to have been the case.










  1. In the founding affidavit the
    applicant complained that it became aware of correspondence being
    sent out by the NGF to other clubs which it contended it was
    unlawful and in violation of the Commission’s directive when
    deregistering the NGF.










  1. The applicant further states that it
    then called for and held a meeting with the Chairperson of the
    Commission to point out that the NGF was continuing to unlawfully
    run gymnastic affairs in Namibia as if it were not deregistered with
    reference to activities organised by the NGF. This approach is
    admitted by the Chairperson. The applicant also points out that
    communications were sent to the Chairperson of the Commission in
    which there was reference to ‘incidents where the (NGF) was
    still proceeding to conduct its businesses as if it was not
    deregistered to the exclusion of the applicant’. As a
    consequence of the NGF conduct, the applicant complains that its
    gymnasts lost out in respect of two games conducted in South Africa
    and to Top Six and Zone Six games which appear from the
    documentation attached to the application to constitute
    international events held at international venues. There was also
    reference in the founding papers to a calendar of activities
    compiled from the NGF’s programme. These included several
    international events at venues at Belarus, Israel, Scotland, the
    Ukraine, Egypt, South Africa and Zimbabwe. The complaint raised in
    the application was that the members of the applicant were precluded
    from participating in those international competitions where
    Namibian participation was arranged and co-ordinated by the NGF.
    This specific complaint is raised that NGF continues ‘running,
    arranging and supervising competitions in contravention of the
    directive’ of the Commission. The complaint thus is that the
    members of the applicant are excluded from activities arranged by
    the NGF.










  1. Mr Ncube’s submission that the
    Commission had done what it could under the Act and needed to await
    the appeal, would not in my view absolve the Commission from its
    inaction established on the papers. The specific complaint raised by
    the applicant was the exclusion of its members from events arranged
    by NGF as a sports body. Some of those events are international
    events. It is clear from the papers that it was that very complaint
    which resulted in the deregistration of NGF – on the basis of
    discriminating against members of the applicant by the excluding
    them from its activities. That would seem to have given rise to the
    action to be taken by the Commission. Plainly a national sports body
    organising a sports code should not wrongfully exclude clubs or
    persons from fully participating in that sport, such as determining
    eligibility and participation in international events and training
    (and its events generally). Conduct of that kind is in principle
    contrary to the public interest as the Commission correctly found in
    deregistering the NGF for that reason. The Act expressly proscribes
    national sports bodies from acting contrary the public interest.










  1. The Commission is tasked to ensure
    compliance with the Act and has a statutory duty to do so. This is
    emphatically spelt out in s28(1) quoted above. Where bodies fail to
    do so, the Commission may strike them off the register. This duty is
    consistent with the overall structure and intention of the Act –
    with the legislature establishing the Commission to regulate
    national sports and umbrella bodies through registration and the
    statutory machinery contained in the Act.










  1. Once it had deregistered the NGF, the
    Commission had the duty to see to it that the NGF complied with its
    order to that effect, as long as its directives were authorised by
    the Act. There was no debate on that score. The NGF did not dispute
    that the order made by the Commission was authorised by the Act. It
    did however dispute that it should have been deregistered and was
    ultimately upheld by the appeals committee. But once it was struck
    off the register, the NGF was required to desist from activities
    dependent upon registration and specified by the Commission. The
    Commission was in my view under a duty to ensure compliance with the
    Act on the part of the NGF, including after its deregistration. It
    was duty bound to invoke its statutory machinery to ensure
    compliance with the Act and its directives in the deregistration
    order. If it failed to do so within a reasonable time, the applicant
    would be entitled to compel the Commission to do so.










  1. The applicant was in my view entitled
    to approach this court on the basis of the Commission having
    reasonable grounds to believe that the NGF was participating in
    international events which it should not approve (given its
    deregistered status) and to compel the Commission to give the NGF
    notice under s33(4) of the Act for the purpose of taking the further
    steps contemplated by that section. In order to compel the
    Commission to take specific steps set out in the statute, an
    applicant should in my view specify the specific provisions and its
    entitlement to compel the functionary to take those steps as spelt
    out in statute. This the applicant has not done so with reference to
    this section or to any other action specifically authorised and
    required of the Commission by any other provision of the Act.
    Instead Mr Namandje contended that the Commission was required to
    seek a common law interdict against the NGF to comply with the Act.
    The applicant was in my view required to specify the sections and to
    establish that it had failed to exercise that duty.










  1. It was not the applicant’s case
    that the Commission had failed to take steps under s33 of the Act.
    This section was not even referred to in the applicant founding
    papers or in any correspondence putting the Commission on terms to
    take action. It would seem to me to be this section which could have
    been invoked against the NGF.










  1. It would follow in my view that the
    applicant was not entitled to the broad relief set out in paragraph
    2 of the notice of motion but would only have been entitled to
    certain elements of the more specific relief referred to as if the
    Commission had been placed on terms to act under s33 against the NGF
    which it had failed to do. It would follow in my view that the
    applicant was not entitled to an order in terms of paragraph 2 of
    the notice of motion its current formulation but rather more
    confined relief with reference to s33 such as the conducting of
    trials, selection of national teams and participation or arranging
    or co-ordinating Namibia’s participation in international
    events. It is clear to me that the Commission should have taken
    action under s33 after being placed in possession of sufficient
    factual material as is evidenced from the founding affidavit and not
    placed in dispute in the Commission’s answering affidavit to
    prohibit the NGF from participation in international events as a
    representative of Namibia after being so informed by the applicant.
    In my view it was incumbent upon the Commission to take steps under
    s33 (4) in those circumstances. If however the machinery in the Act
    were not to result in the Commission securing compliance with the
    Act, then it may have a duty to bring an interdict to compel
    compliance as argued by Mr Namandje. Even though this was not the
    case which it had to meet, the Commission did not tender to take
    such steps or even suggest them but rather persisted with inaction
    and seeking to justify it in the face of the NGF’s defiance.
    But even though the applicant was not entitled to the extent of the
    relief set out in paragraph 2 as broadly and vaguely formulated, it
    would seem to me that it could have been entitled to certain of the
    relief adverted to paragraph 2 even though s33 had not been
    expressly invoked. Given the stance adopted by the Commission (of
    inaction pending the appeal), this would in my view have amounted to
    substantial success against it in this application.










  1. As for the relief sought in paragraph
    3 of the notice of motion, this was not pressed by Mr Namandje in
    argument and rightly so. It is clear to me from the answering
    affidavit of the Commission’s Chairperson that the Commission
    had taken all reasonable steps to ensure that the disciplinary
    course should follow by the matter proceeding on appeal. In this
    context, it was functus officio. This is evident from the
    position of the appeals committee which made its ruling and
    specifically compelled the NGF to comply with the recommendations
    made by the arbitrator, Mr Tjombe within three months. It would
    follow that the applicant was not in my view entitled to this
    relief.










  1. I turn to the relief sough against
    the second respondent.









Second respondent’s (NGF)
defence









  1. Apart from taking the point of
    urgency, the NGF also contested the authority of the deponent to the
    founding affidavit and the authority of the applicant to bring the
    application. These points were understandably not pursued after
    applicant filed a replying affidavit.










  1. In the answering affidavit, the
    second respondent did not dispute that it is a sports body
    representing gymnastic clubs in Namibia. Its registration was thus
    as a national sports body. But Mr Titus argued that registration is
    voluntary and being deregistered would not bar the NGF from carrying
    its activities except where those activities may attract the
    application of certain provisions of the Act. As a general
    proposition this submission is sound. The difficulty which this
    argument encounters is that a national sports body is defined in the
    Act as one which is registered and that one of the legislative
    purposes of the Act is for the Commission to regulate sports bodies
    which run sports codes in Namibia and ensure that they comply with
    the Act when they do so.6










  1. Mr Titus argued that it was open to
    the NGF to represent clubs affiliated with it, with the exception of
    the applicant, as the applicant had not paid fees and was thus not
    registered with it. He argued that club affiliation was thus not
    dependent upon registration. He submitted that s26 (1) emphasises
    the voluntary nature of the registration. It provides:




A sports
body which wishes to register as a national sports body or national
umbrella body must apply to the Commission for registration in the
form and manner as prescribed.’



He further referred to the regulations
promulgated under the Act which state that sports bodies wishing to
apply for registration ‘may apply to the Commission in the form
or form 1 contained in the schedule’. He correctly submitted
that there was no obligation on a sports body to register and that it
could conduct activities without being registered as the Act did not
contain a prohibition of sports bodies conducting affairs unless
registered.









  1. It is well established that a
    voluntary association, like any natural person, can conduct any
    activity unless proscribed by law. Mr Titus submitted that the only
    benefit for a sports bodies upon registration would be eligibility
    for funding as contemplated under s26 (5) of the Act. He submitted
    that whether registered or not, a sports body would not be able to
    host an international event in Namibia except with approval of the
    Commission. Nor could it participate in international sports events
    as a representative of Namibia except with the approval of the
    Commission. Save for these provisions, Mr Titus submitted that there
    was no prohibition on the NGF from carrying out activities which did
    not fall within these categories. He further submitted that the
    applicant had not established a basis for the interdictory relief
    sought. He pointed out that it was not contended that the NGF hosted
    international sports events or participated in international sports
    events as a representative of Namibia. He submitted that the high
    watermark of the applicant’s case is the assertion that the
    NGF was ‘unlawfully running gymnastic affairs as if it was not
    deregistered’ without any unlawful act being referred to in
    the founding papers.










  1. In reply, Mr Namandje referred to the
    statement in the founding papers that the second respondent had a
    programme in respect of which it co-ordinates and arranges
    (Namibia’s) participation in international events as a
    representative body of gymnasts or gymnastic clubs in Namibia. That
    much is also clear from the annexure which was attached which, as I
    have pointed out, referred to international competitions including
    zone championships and training and a Commonwealth training camp
    held in various venues internationally. By co-ordinating
    participation of Namibian clubs in those events, the NGF was in my
    view representing Namibia and acting as a national sports body in
    doing so. These allegations were not placed in issue in the
    answering affidavit on behalf of the NGF. Indeed, it contended that
    deregistration would not bar (it) from running (gymnastics as a)
    sport code in Namibia. I beg to differ with that approach. The Act
    in my view clearly require registration to conduct these activities.
    It does so for good reason. This is because national sports bodies
    or umbrella bodies would be representing Namibia in their
    co-ordination and participation at events of that nature, even if
    national colours were not specifically awarded when participating.
    The legislature understandably saw fit to require registration with
    the Commission so that the Commission could exercise the functions
    and powers of supervision and regulation over such bodies in their
    representation of Namibia. Registration is plainly not merely for
    such bodies to qualify for funding from the Fund, as I have already
    said.










  1. As I understand the allegations in
    the founding affidavit which were not placed in issue in the NGF’s
    answering affidavit, it would seem that the NGF was, as a national
    sports body participating in international sports events and doing
    so as a representative of Namibia. This is expressly proscribed in
    s33(7) which expressly requires:




A sports
person, sports club or sports body other than a sports person, sports
club or sports body associated with the uniformed services, who or
which is not registered with the Commission may not participate in
any international sports event as a representative of Namibia.’



As I understand the allegations which
are not put in issue, the NGF was co-ordinating participation on
behalf of that sports code in Namibia at international gymnastic
sporting events. Registration would in my view be required to do
that.









  1. As the applicant was excluded by the
    NGF from its co-ordinating of Namibian representation at those
    events, the applicant would in my view have standing to interdict
    the NGF from engaging in those activities, in conflict with the Act
    in the event of the Commission not taking action under s33 against
    the NGF which in this instance, the Commission had not done so.










  1. It would follow in my view that the
    applicant would be entitled to approach this court for an interdict
    against the NGF in respect of the activities referred to in the
    founding affidavit and not essentially placed in issue in the
    answering affidavit. The applicant made out a case for such an
    interdict.










  1. It would further follow in my view
    that the NGF would be required to pay the costs of the applicant in
    respect of the interdictory application sought against it. For the
    purpose of the taxing master, I would estimate that the time spent
    with regard to the interdictory relief against the second respondent
    at the hearing took up two thirds of the time spent in argument.










  1. I accordingly make the following
    order.










  1. The first respondent is directed to
    pay the applicant’s costs in respect of the relief sought
    against it in prayer 2 of the notice of motion;



  2. The second respondent is directed to
    pay the applicant’s costs in respect of the application for
    the relief sought against it.



















____________



D SMUTS



Judge


















APPEARANCES








APPLICANT: S. Namandje



Instructed by: Sisa Namandje & Co.
Inc.








FIRST RESPONDENT: J. Ncube



Instructed by: Government Attorney








SECOND RESPONDENT: I. Titus



Instructed by: Koep & Partners









1Twentieth
Century Fox Film Corporation v Antony Black Films (Pty) Ltd
1982
(3) SA 582 (w) frequently followed by this court. See Bergmann v
Commercial Bank of Namibia and Another
2001 NR 48 (HC), Old
Mutual Life Assurance Co. V Old Mutual Namibia Staff Pension Fund
and Another
2006 (1) NR 211 (HC).





21903
TS 111 at 115.





3Repeatedly
followed by the courts. See
Mahambhelela
v MEC for Welfare, Eastern Cape and Another
2002
(1) SA 342 (SE) at 353.





4See
Generally De Ville
Judicial review of
administrative action in South Africa
(revised
first edition, 2003) at 369 – 372. See also
Tumas
Granite v Minister of Mines and Energy
2013
(2) NR 383 (HC) at 385, par [6].





5Thusi
v Minister of Home Affairs
2011 (20 SA
561 (N) at 578, par [43] and the authorities usefully collected by
Wallis J, as he then was.





6S1
of the Act.