Cassim’s ruling broken down: Kaizer Chiefs would have been ‘reckless’ to play

Arbitrator Nazeer Cassim SC was critical of Kaizer Chiefs’ willingness to provide crucial information to the Premier Soccer League (PSL), but ultimately decided Amakhosi’s case for a postponement of two matches in December had merit.

Cassim ruled on Friday that the two DStv Premiership games Chiefs failed to honour against Cape Town City on December 4 and Golden Arrows on December 8 had to be played. The arbitrator went so far as to find the club would have been “negligent if not reckless” to try to field a team amid an outbreak of 31 cases of Covid-19 at Naturena.

Cassim defended the decision in December of the PSL to reject Chiefs' initial application for a postponement of five games that month, saying criticism of league football manager Selwyn van Wyk was “unfortunate”, and found the executive committee did not show bias.

He noted that new information was brought to the arbitration by Chiefs’ high-powered legal team, but said even based on the information provided to the PSL in December the club’s situation was worthy of “proper investigation and determination”.

The ruling noted that Chiefs were asking for the decision of Van Wyk on December 2 and the executive committee later to be set aside, and “attacked the legitimacy of circular 12/2020 issued by the NSL” on August 6 2020.

Chiefs requested their postponement on December 2 in a letter addressed by club administrative manage Abdulla Mayet to PSL acting CEO Mato Madlala. This was accompanied by a letter by Amakhosi head physician Dr Mohammed Moosajee addressed to club chairperson Kaizer Motaung. Madlala referred the application to Van Wyk.

Scrutinising Van Wyk’s rejection Cassim wrote: “It is not in dispute that KC [Chiefs] did not comply with the requirements of Rule 6.9 of the Football Manual when it sought the postponement of fixtures for the month of December.

“I think it appropriate to point out that, although postponement of five marches in December was sought, by December 12 KC fielded a team and it was only two games that were not played.”

Cassim noted that the NSL’s “Rule 9.4 provides that ‘in extraordinary circumstances the league may postpone a match at any time prior to the start of the match’.”

“Van Wyk was alive to these factors and more so, the governing structure concerning the application of teams functioning within the Covid-19 regime,” Cassim wrote.

These included Circular 12/2020, and that on December 10 2020 Madlala issued a circular to clubs that “Covid-19 positive results are not exceptional circumstances justifying the postponement of a match”. PSL compliance officer Michael Murphy on August 4 2021 sent Circular 11/2021 that such directives would continue in the 2021-22 season.

Cassim notes: “In context, I do not consider there to be any merit to the criticism levelled against Van Wyk. On the contrary KC must accept responsibility for its application for a postponement to be wanting in accordance with Rule 6.9.4 of the Football Manual.

“KC should have fully and in detail provided all the necessary supporting documentation to motivate a fixture change. It failed to do so and cannot now lay the blame with the football manager.”

On the “rehearing before the exco”, Cassim said: “KC was given no less than four opportunities to demonstrate that it was unable to field a team. No useful purpose will be served in analysing KC’s response to the very fair and precise questions addressed to it by Murphy, which in my view were aimed at eliciting whether KC could field a team.

“Ms Hofmeyr SC, representing the NSL [in the arbitration], demonstrated ... KC did not demonstrate that it could not field a team. In the ... statement on behalf of the defence ... the issue is crystallised as: ‘When a team requests a postponement, a critical question is not whether that club can field its best team, the question is whether it is able to field any team.'

“It appears to me that Dr Moosajee, Mayet and KC never came to terms with the issue that its application for a postponement ... had to demonstrate that KC was not in a position to field a team. The exco having reconsidered the reasons for a postponement presented by KC refused the application.”

While the arbitrator was critical of the argument presented by Chiefs in December, Cassim noted his task was to “identify the real issue in the dispute and deal therewith in a manner which is in the interest of the league”.

He noted that Chiefs’ evidence in the arbitration “sought to expand the issues as pleaded and determined by the [PSL] exco”.

He added, though, that: “Arriving at the decision I have not realised on matters raised for the first time or put differently. My findings [do] go beyond the case on behalf of KC before Van Wyk and the exco, but it is not extraneous to the documentation and objective facts that prevailed at the material time and which warranted a proper investigation and determination.

“The just settlement of disputes demands a system in which the adjudicator strives to get as close as possible to the actual facts of the controversy.”

He notes that Mayet’s letter to Madlala on December 2 relied “to appreciate the gravity of the situation” on the other attached letter, by Dr Moosajee to Motaung.

Moosajee’s letter noted that “the entire Chiefs team and technical team are currently either in isolation or quarantine”. It noted NICD (National Institute for Communicable Diseases) and department of health guidelines at the time were for quarantine or isolation of 10 days, and a further seven for a safe graduated return to play. Then players needed seven more days to be safely match fit.

Mayet’s letter said 17 players, nine technical staff and five administrative staff had tested positive and the situation represented “nothing less than a force majeure”.

It said with respect to the Circular 12/2020 the exco “could never have envisaged a situation in which the club currently finds itself” and that the PSL took that resolution “in the absence of the current highly infectious omicron variant”. Therefore Chiefs’ situation could be regarded as “‘exceptional circumstances’ as required in the Compliance Manual for postponement of fixtures”.

Cassim notes “Dr Moosajee’s reference in his first letter that the Omicron variant did herald extraordinary times in SA” came at a time when “international markets were roiled and travel bans imposed on SA and its neighbours” in response to the variant.

“This was an extraordinary event justifying Dr Moosajee’s concerns. Extraordinary events call for extraordinary remedies,” Cassim wrote.

“... This is, in my view, a proper case where the interruption by KC of its performance was temporarily halted vis major or casus fortuitous on the objective criteria created by Omicron.”

Most importantly, Cassim then finds: “In short, this was a case in which it would have been negligent if not reckless for KC to field a team for the fixtures on December 4 and December 8. Its house (embodying the larger community making up the team) was infected and a threat to others.”

Therefore, Cassim concluded, Chiefs were “justified in not fielding teams” and “these two games must be replayed”.

He awarded costs to the NSL, City and Arrows because Chiefs’ “case before the exco was not considered” and the club was “at fault in not properly motivating its case before” Van Wyk, and did not engage the other two clubs timeously.

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