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Royal AM to appeal against the decision that saw rivals Sekhukhune win promotion

13 June 2021 - 17:21 By mninawa ntloko
Royal AM chairman and player Andile Mpisane and club owner and mom Shauwn Mkhize celebrate.
Royal AM chairman and player Andile Mpisane and club owner and mom Shauwn Mkhize celebrate.
Image: Samuel Shivambu/BackpagePix

The protracted controversy over the winner of the automatic promotion spot to the Premiership is far from over after Durban side Royal AM indicated that they would appeal against the decision to award the plum position to rivals Sekhukhune United.

Royal AM have brought an urgent application for leave to appeal against the decision that saw Sekhukhune declared as GladAfrica Championship winners‚ along with the automatic promotion spot‚ citing “various gross misdirections of fact and/or errors of law” as the reason for the action.

Sunday's events came a day after Polokwane City’s application to the Johannesburg high court to have an arbitration overturned that deducted three points from the side and awarded them to Sekhukhune was dismissed.

Having heard counsel on behalf of all parties on Friday‚ Gauteng deputy judge president Roland Sutherland on Saturday issued an order dismissing the application brought by Polokwane City to review the arbitration award given by advocate Hilton Epstein on May 19‚ 2021.

Sutherland also ordered that costs incurred by Sekhukhune be borne by Polokwane City and Royal AM jointly and severally‚ the one paying the other to be absolved.

The Premier Soccer League (PSL) and the SA Football Association (Safa) are to bear their own costs.

The PSL responded almost immediately on Saturday afternoon‚ releasing a press release with the updated log that declared Sekhukhune as GladAfrica Championship champions.

But Royal AM will not go away quietly and have taken the matter to the Supreme Court of Appeal‚ with Safa‚ the PSL‚ Epstein‚ Sekhukhune‚ and Polokwane City named as the respondents.

Safa were named as the first respondents and CEO‚ advocate Tebogo Motlanthe‚ confirmed to TimesLIVE that they have received Royal AM's urgent application for leave to appeal against the decision that saw Sekhukhune declared as GladAfrica Championship winners.

“Yes we have received that one‚” he confirmed on Sunday.

The Durban club argue in their court papers that they are appealing against Sutherland's order because they believe he “committed various gross misdirections of fact and/or errors of law such that the appeal would have reasonable prospects of success and/or another Court would come to a different conclusion‚ more particularly in that:

1. The order is inherently contradictory because the very effect of granting the NSL declaratory order is that the arbitrator must have and did indeed commit a material error of law by unduly resorting to and applying the Fifa disciplinary code in respect of sanction‚ to a domestic dispute which had nothing to do with “eligibility” and/or a “fielded player” but everything to do with breaching rule 35.2 of the NSL Handbook which deals with the requirement to list a minimum of five (5) under 23 players in a team sheet‚ in respect of which the disciplinary committee in terms of rule 51.14.4 of the NSL Handbook had a completely free hand to choose from any one of the nine different sanctions listed in rule 57.13.16.

2. The arbitrator had committed material errors of law in breach of section 6(2)(d) of PAJA in awarding the three points to Sekhukhune United FC under the legally erroneous belief that the disciplinary committee did not enjoy a discretion in respect of sanction supposedly because:

2.1 The disciplinary committee was bound to apply the sanction of forfeiture prescribed in rule 57.13.16 of the NSL Handbook; and also

2.2 The disciplinary committee was bound to apply rule 22.9 of the Fifa disciplinary code.

3. Similarly‚ the learned judge issued an internally inconsistent order by upholding the award of arbitrator Cassim SC which was squarely premised on the existence of a discretion in relation to sanction and the principle that “teams must be encouraged to succeed on the soccer field and not through litigation”. Yet the learned judge dismissed the review application which was inter alia premised on the same principle.

4. The learned judge failed to take the following material factors into consideration:

4.1 That the alleged transgression by Polokwane City FC was entirely caused by the situational emergency and unforeseeable emergency that three (3) players had unexpectedly contracted Covid-19-9;

4.2 While the unforeseen contraction of Covid-19 was not a justification of the transgression it was a major mitigating factor which must have played a major role in the disciplinary committee imposing the lesser sanction lawfully available to it of deducting points from the offending club;

4.3 There was nothing “disturbingly inappropriate” or “inducing a sense of shock” about the sanction imposed by the disciplinary committee‚ nor did the arbitrator make any finding to that effect or that the discretion of the disciplinary committee was improperly exercised;

4.4 That the discretion exercised by the disciplinary committee was a discretion in the wide sense as enunciated by the Constitutional Court in the Trencon case;

4.5 That Polokwane City FC had commendably taken a major step to soften the blow of the transgression by voluntarily listing only 19 players instead of the required 20 players on its team sheet so as to ameliorate or eliminate any potential prejudice to Sekhukhune United FC which might have flowed from the transgression;

4.6 Sekhukhune United FC lost to Polokwane City FC by 1-0 on the field which loss was unrelated to the team sheet transgression; and

4.7 The punishment meted against Polokwane City FC was accordingly sufficiently serious and exemplary and therefore there was no need to take the extra and illogical step rewarding Sekhukhune United FC‚ being the losing team‚ with three points.

5. The arbitrator’s award was not rationally connected to the purpose of the

empowering provision‚ the information before him‚ and/or the reasons given for the decision by him in breach of section 6(f)(ii) of PAJA.

B. SECTION 17(1)(a)(ii)

1. There are other compelling reasons why the appeal should be heard‚ more particularly in that‚ the are conflicting arbitration awards and certainty is required.

2. Royal AM FC was already placed as log leaders and automatic qualifiers to the Premier Soccer League and therefore enjoyed the legal right of incumbency and legal occupier of that position.

3. Royal won the Championship on the field of play which is in keeping with the universal culture of football and the best interest of football stakeholders including players and supporters.

4. Sekhukhune United FC ought to have been penalised and not unjustly rewarded and enriched with promotion when it had surreptitiously reconfigured its protest from a rule 35.2 charge to a contrived “ineligibility offence” and the “fielding of an ineligible player”‚ both of which were inapplicable.

5. There are reasonable prospects of success‚ in the circumstances‚ that another court may and/or will come to a different conclusion.