Pedal Power Association v Cycling South Africa

• Jurisdiction: South Africa
• Judge: Savage AJ
• Judgment Date: 14 February 2014
• Docket Number: 8546/2013
• Hearing Date: 05 December 2013
• Court: Western Cape High Court, Cape Town

Savage AJ:

Introduction

[1]

The applicant, Pedal Power South Africa ('PPA'), a voluntary association, seeks an order declaring that it does not require the prior sanction or approval of the first respondent, Cycling South Africa ('CSA'), or members of the first respondent, in respect of cycling events organised by the applicant, including fun rides or league rides. In addition, PPA seeks an order interdicting and preventing CSA, its officials or members, from representing to any person or body, including commercial sponsors, local authorities, national, provincial or local traffic and policing authorities, or cyclists, that PPA requires such prior sanction, or that such sanction is a pre-requisite for any other necessary permission or approval granted by national, provincial or local authorities.

[2]

PPA has been in existence for 35 years and has more than 18 000 members, with its main purpose and object, apparent from clause 3 of its constitution, being to promote cycling and the interests of cyclists. Its activities are centred in the Western Cape where it is involved in five major annual events, including the organisation of the Argus Pick 'n Pay Cycle Tour and the Coronation Double Century cycle event in conjunction with the Cape Town Cycle Tour Trust.

[3]

CSA is a national federation, defined in s 1 of the National Sports and Recreation Act 110 of 1998 ('NSRA'), as –

'a national governing body of a code of sport or recreational activity in the Republic recognised by the relevant international controlling body as the only

2014 JDR 0306 p3

Savage AJ:

authority for the administration and control of the relative code of sport or recreational activity in the Republic'.

[4]

By agreement between the parties the South African Sports Confederation and Olympic Committee ('SASCOC') was joined as second respondent in the matter. SASCOC is the national co-ordinating macro body for the promotion and development of high performance sport in the Republic. High performance sport is defined in s 1 of the NSRA as –

'the high level of participation in major international sporting events including but not limited to world championships and other international multi-sport events such as the Olympic Games, Commonwealth Games, Paralympic Games and All Africa Games'.

[5]

There is no dispute that the recreational and competitive cycling events organised by PPA do not fall within the ambit of high performance sport contemplated in the NSRA.

Background

[6]

In 2004 PPA became an affiliate of CSA, following an agreement between the two organisations. Under the CSA's 2004 constitution PPA was permitted to function autonomously in relation to the administration of recreational and competitive cycling, while required to conduct its affairs even-handedly and without unfair discrimination against competitive cycling in favour of recreational cycling. The 2004 constitution also recognised PPA's jurisdiction in respect of the geographical areas in which it operated before that constitution

2014 JDR 0306 p4

Savage AJ:

came into effect in the 'setting and operating of all their domestic fun ride calendars and all recreational tours; fun rides and league races'. In terms of article 13.1 of the 2004 constitution, the amendment of PPA's autonomy rights and the manner in which they were to be exercised required a special resolution passed by 75% of all CSA affiliates and the consent of PPA.

[7]

Relations between PPA and CSA became strained over time with PPA dissatisfied that it had paid amounts in excess of R1.2 million to CSA since 2004, with what it perceived to be little benefit to PPA in return and while it held less than a quarter of the votes in governing CSA.

[8]

On 18 February 2012 CSA and its members adopted a new constitution at a meeting from which PPA was intentionally absent. The 2012 constitution, to which PPA was not party, omitted PPA's autonomy rights and PPA's membership of CSA terminated with the adoption of this constitution. PPA accepts the termination of its affiliation to CSA, of which it is no longer a member.

[9]

In the minutes of the meeting of the CSA Special Constitutional Congress held on 18 February 2012, Mr Raymond Hack, legal representative for SASCOC was recorded as having stated that 'it was a pity that Pedal Power Association was not attending the Congress as effectively this means that the Cape Argus Cycle Tour will not take place without the approval and sanctioning of Western Cape and CyclingSA'. The minutes further reflect his view that PPA was obliged to register as a club, failing which none of its events 'will be able to take place as they will not have Provincial or National approval'.

2014 JDR 0306 p5

Savage AJ:

[10]

On 8 March 2012, Mr Tubby Reddy, the Chief Executive Officer of SASCOC wrote to CSA informing it that arising out of a meeting with SASCOC's Transformation, Ethics and Dispute Resolution Commission -

'…it was decided that CSA were required to amend their Constitution to bring same in line with the directives of SASCOC in regard to the development of Sport in all 9 geopolitical regions of the country, and in all disciplines, as well as to ensure transformation.

As a result thereof, a new Constitution was duly prepared between our representatives and those of your Federation and thereafter a duly constituted Special General Meeting was convened to adopt the Constitution to enable you to comply with the provisions of same…'.

[11]

This letter sought that CSA inform PPA that SASCOC has jurisdiction over its members, being national sports federations, as well as its officials and athletes, all being subordinate to SASCOC in terms of SASCOC's Memorandum and Articles of Association; that constitutions must not conflict with that of SASCOC, with reference made to the entrenched provisions in favour of PPA contained in CSA's 2004 constitution; and that SASCOC may regulate member's constitutions.

[12]

Various unsuccessful attempts were made to resolve the differences between PPA and CSA thereafter. An interim arrangement was agreed between the parties in...