African Wanderers Football Club (Pty) Ltd v Wanderers Football Club

• Jurisdiction: South Africa
• Judge: Holmes JA, Trollip JA, Muller JA, Kotze JA and Miller JA
• Judgment Date: 21 December 1976
• Hearing Date: 25 November 1976
• Court: Appellate Division

Muller, J.A.:

The respondent is referred to in the record of proceedings in the Court a quo as the Wanderers Football Club, also known as the African Wanderers Football Club. I shall refer to it as the club. As will appear from what is stated D hereinafter, the present existence of the club is a matter in dispute in these proceedings. But it is common cause that the club, if it still exists, is a voluntary association with a constitution, and is a universitas, capable of suing and being sued; and is administered by an executive committee.

The club was formed in Durban in or about 1921 with the object E of promoting "football amongst the African people". Over the years its membership grew to more than 1 000 members. It controlled amateur football teams since its foundation and as from 1973 it also entered a team in the National Professional Soccer League, the team playing under the name of African Wanderers. It is the existence of this professional team that eventually led to the present litigation.

F The appellant was registered as a company on 26 June 1974. According to its memorandum of association, the main object of the company was:

"To acquire and conduct a football club known as African Wanderers Football Club."

The principal place of business of the appellant, to which I shall hereinafter refer as the company, is in Durban.

G It appears from the papers before us that by the end of 1973 certain members of the club had become dissatisfied with the manner in which the affairs of the professional team were being managed. Some of the members advocated the formation of a limited liability company as they considered that, for financial and other reasons, the professional team could best be administered by a company. And that is how the company came H to be registered.

After its incorporation the company claimed that it had the exclusive right to control and manage the professional football team and to receive the "gate money" paid by spectators attending football matches played by the professional team. The club denied that the company had any such right.

The aforesaid dispute between the parties led to an application being made on notice of motion by the club to the Durban and Coast Local

Muller JA

Division for an interdict pendente lite. The interdict sought was one restraining the company from interfering with the management and control of the club's professional soccer team and authorising the club to manage and control all the affairs A of the club, including the professional team, pending the final determination of an action to be instituted by the club against the company for a declaration of rights.

The company opposed the application and, in an opposing affidavit filed on its behalf, it was contended, inter alia, as follows:

"It was constitutionally agreed to incorporate the Club as a private company without objection by the members (of the club) B at the said general meeting on 4 November 1973... Subsequently on 9 December 1973 at a special general meeting the incorporation of the Club as a private company with shareholders was again accepted by the members (of the club) present without objection."

By reason thereof it was submitted that the club was no longer in existence and, in the alternative, that, if the club was still in existence, it was no longer vested with the management C and control of the professional team, such management and control having been transferred to the company.

On 11 December 1974 HOWARD, J., granted an order which was to operate as an interdict pending the final determination of an action to be instituted by the club against the company for a declaration of rights. The order was to the following effect:

(a)

D The company was interdicted and restrained from:

(i)

interfering with the management and control of the professional soccer team which plays under the name of African Wanderers;

(ii)

representing itself to the National Professional Soccer League as the body which has the right to manage and control E the professional team;

(b)

The club was authorised to manage and control all the affairs of the Wanderers Football Club, including the professional team;

(c)

The club was directed:

(i)

to deposit into a bank account in the name of Wanderers Football Club the net proceeds F of all gate money received by it from matches played by the said professional team after deduction therefrom of the expenses of the match including the remuneration payable to members of the team, such proceeds to be held in the said account pending the final determination of the action;

(ii)

to furnish the company, within one week G after receipt of any such gate money, with an account showing the amount so received, the payments made therewith, and the amount of the balance paid into the said bank account;

(d)

The action was to be instituted within one month from the date of the order, failing which the foregoing H interim interdicts and orders would lapse.

With regard to costs, it was ordered that the company pay the costs occasioned by its opposition to the application, and that the remaining costs be reserved for decision at the trial.

The action contemplated in the aforementioned order was duly instituted by the club in the Durban and Coast Local Division. In its particulars of claim the club again set out the facts which led to the dispute between the parties and prayed for an order:

Muller JA

(a)

declaring that the control and management of the professional football team known as African Wanderers is vested in the club and that the company has no rights in regard to such team; and

(b)

that the company pay the costs of the action, such A costs to include those reserved in the interdict proceedings.

In its plea the company challenged the locus standi of the club to institute the action. It averred that a resolution was taken by the members of the club, at a meeting held on 4 November 1973, that a company should be formed to take over the control B and management of the club, which would include the control and management of the professional team, and that the said resolution was duly ratified by the members of the club at a meeting held on 9 December 1973. This was the basis for a contention that the club's existence did not continue after the date of incorporation of the company on 26 June 1974, and the plea that the club has no locus standi in these proceedings was founded thereon.

C From what is stated above, it is clear that in the action the company, in its plea, raised the same issues that had unsuccessfully been raised in the interdict proceedings before HOWARD, J.

After the company had filed its plea, the parties came to an agreement which was recorded as follows (the club is referred D to therein as the plaintiff and the company as the defendant):

"By agreement between the parties and subject to the consent of the presiding Judge, it has been agreed that the presiding Judge be asked to give judgment on the questions set out hereunder before the trial of this action commences.

1.

E Whether on a consideration of the papers before HOWARD, J., in case M 696 /74 and in the light of his judgment delivered in that matter:

(a)

It is now open to the defendant to challenge the locus standi and the authority of the plaintiff in these proceedings;

(b)

It is now open to the defendant to raise the issue:

(i)

F that a formal resolution was taken by the members of...