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Behind The Confusion Of Judge Nyathi’s Order

Velile Mnyandu reports on the confusion regarding the promotion-relegation playoffs following last night’s court order in the South Gauteng High Court.

There was confusion last night on the order made by Judge Justice Nyathi in the South Gauteng High Court especially on the final log positions in the GladAfrica Championship for the 2020/2021 season after having listened to the arguments made by the senior counsels representing all the parties.

Royal AM had brought an application seeking, a final declaratory order that the National Soccer League (NSL) had acted unconstitutionally in making changes after the ruling of the South Gauteng high court Deputy Judge President Roland Sutherland.

The second relief that they sought was the interim interdict to prevent the promotion and relegations play-offs from being commenced, as well as the operation of the Epstein Award being suspended pending the final determination of their application for leave to appeal and/or appeal.  

After having listened to the arguments from the applicant and the respondents who included the NSL, Richards Bay FC and Sekhukhune FC, Nyathi had to make his ruling as the game Royal AM was seeking to stop from commencing was their opening fixture against Richards Bay FC this afternoon (15:00). 

The league in their responding papers had been clear about the relief that Royal AM was seeking. 

“At the outset I emphasis that the interdictory relief sought by Royal AM is final in effect. And Royal AM has failed to make out any case for final relief. The application should be dismissed on that basis alone,” read the affidavit of the NSL. 

In making his order, Nyathi dealt with the two reliefs that were sought but it was the matter of the log standings which got his wires crossed. 

“I said to protect and recover the applicant’s right, that is the status quo as it was on Friday, prior to eviction (replacing of Royal AM at the top with Sekhukhune by the NSL) if you call it,” said Nyathi about the league positions. 

This prompted a quick response from Advocate Norman Arendse SC, who was representing Sekhukhune FC. 

“Well, what’s going to happen to the order and further orders is prayed for my Lord, the position before Friday was that there was an award which is final and binding on the parties. And that in terms of that award, which is now being given effective by the league, is that the winners of the league are Sekhukhune. What happened on Friday which was then confirmed by the DJP on Saturday, is that the award is confirmed. There’s a court order, which is binding on your lordship. On what basis can your lordship set aside that court order chipset inside that code Oda there is no place it ends,” said Arendse. 

This brought back Advocate Mpofu (representing Royal AM) into the stand as he said… “My lord, we disassociate ourselves from the disrespect of the court like this,” he said. 

Mpofu had led the proceedings since the court started at around 17:00 with a break at 17:30 and returned at 18:00 until just before 20:00. 

“My lord, there is no disrespect to the court, Mr. Mpofu has had the lion’s share by far in this in this urgent hearing, which started at half past five, it is now past half past nine. He has spoken for more than three hours. Collectively, me and my colleagues have spoken for half an hour. Now, I’m asking your lordship with due respect to clarify this order going on what Mr. Cockrell has requested of Your Lordship, what is going to happen with the playoffs tomorrow,” asked Arendse again. 

And this was the question to which Nyathi responded: ”That is, for me to decide, I dealt with this order. I can’t start now to give you piecemeal, the reasons why I arrived at it.” 

After some back and forth around the clarity that was being sought about his order, Nyathi then tried to read out his order again. 

“The order is that, order two, is an order declaring that the first respondents conduct is inconsistent with the constitution and/or PAJA. Because the first one I’ve granted already about urgency, order three granting an interim order that pending the final determination of the application for leave to appeal and/or appeal? The commencement of the 2020/2021 GladAfrica Championship relegation and promotion play-offs is suspended. And three, the operation and implementation of the arbitration award of Epstein SC is hereby suspended. I will give full reasons within 14 days,” said Nyathi. 

The commotion continued in court after Nyathi had clarified these points around his order and eventually he asked for an adjournment which went on for about 15 to 20 minutes. 

After coming back from the short break, this is what Judge Nyathi concluded: ”I hereby recall the order that I made earlier and I make the following order. Prayer one that the application be heard and determined as one of urgency as contemplated by rule 612 of the rules. Two, that the first respondent’s conduct is inconsistent with the constitution and/or PAJA. Three, granting an interim order that pending the final determination of the application for leave to appeal and/or appeal 3.1 the commencement of the 2020/2021 GladAfrica Championship relegation and promotion play-offs is suspended,” said Nyathi. 

To say last night’s court proceedings were confusing would be an understatement but what is clear is that the PSL’s programme for the 2021/2022 season is going to be delayed.  

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