---

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

CASE NO.: 1078/2011

In the matter between:

BUFFALO CLUB …......................................................................................Applicant

And

BORDER CRICKET (AN ASSOCIATION

INCORPORATED UNDER SECTION 21 OF

THE COMPANIES ACT 61 OF 1973) …....................................................First Respondent

and

CRICKET SOUTH AFRICA ….....................................................Second Respondent

and

BUFFALO CITY MUNICIPALITY …................................................Third Respondent

JUDGMENT

BESHE J:

[1] This is an application wherein the following order is sought:

1. That the forms and service provided for in the Rules be dispensed with, alternatively, be abridged and that this application may be heard as one of semi-urgency;

2. Ordering and directing the First Respondent to allow the Applicant and any of its members access to and the use and the enjoyment of the rugby playing fields, alternatively, the grassed surface, alternatively, the rugby playing field located at Buffalo Park Cricket Stadium, East London forming part of the excised portion (known as the Cricket Stadium) and to utilize the floodlights and the change room facilities for any period between 1 April until 30 September for the duration of the written agreement entered into between the applicant and the Border Cricket Board (Annexure “FAM4” to the founding affidavit); Alternatively,

3. Interdicting and restraining the first respondent for refusing and disallowing the applicant and any of its members access to and the use and enjoyment of the rugby playing fields, alternatively, the grassed surface, alternatively, the rugby playing field located at Buffalo Park Cricket Stadium, East London forming part of the excised portion (known as the Cricket Stadium) and to utilize the floodlights and the change room facilities for any period between 1 April until 30 September for the duration of the written agreement entered into between the Applicant and the Border Cricket Board (Annexure “FAM4” to the founding affidavit)

4. Directing that the order contemplated in paragraph 2, alternatively, paragraph 3 above shall operate with immediate effect pending the finalization of an action to be instituted by the applicant against the first respondent for, inter alia:

4.1 A declaratory order that the said written agreement is valid, binding and enforceable as between the parties thereto and/or their successors in title;

4.2 A declaratory order stipulating and delineating the rights of use and enjoyment of the applicant and the first respondent of the Buffalo Park Stadium in terms of the said written agreement;

4.3 An order directing the first respondent to give the applicant and its members access to the cricket stadium for purposes of use and enjoyment of the facilities as contemplated in the written agreement between the parties and/or the first respondent, alternatively, restraining the first respondent from denying the applicant and its members access to and use of the facilities at Buffalo Park Stadium in terms of the written agreement between the applicant and the Border Cricket Board.

5. Directing that the action contemplated in paragraph 4 above be commenced by the applicant against the first respondent within 14 days of the order in terms of either paragraph 2 or 3 above being issued, failing which, such order shall lapse; and

6. That the first respondent pay the costs of this application;

7. Further and/or alternative relief.

[2] From the aforegoing it is clear that the gist of the relief sought is for the court to make an order and direct the first respondent to allow the applicant and its members in the interim access to, use and enjoyment of certain parts of the Buffalo Park Cricket Stadium, East London. And to allow applicant to utilize the floodlights and the change rooms at the stadium, pending the finalization of an action to be instituted by applicant against the first respondent for declaratory order concerning the written agreement. As no relief or order is sought from second and third respondent, it is only the first respondent who is opposing this application.

[3] The applicant is a sports club whose objective is to promote and foster different sports codes and past times and to provide social amenities to its members. This it does by facilitating the participation by its members in inter alia cricket, hockey, rugby, running, snooker, squash, water polo and radio cars.

[4] It appears to be common cause that in terms of a long term lease agreement spanning from 1952 to 1999 with the predecessors-in-title to the third respondent, applicant had exclusive use and enjoyment of what is presently known as the Buffalo Park Stadium which includes the Buffalo Park Cricket Stadium.

[5] In 1999 a written agreement was concluded between the applicant, Border Cricket which is the first respondent and the third respondent’s predecessor-in-title.

[6] In terms of this written agreement the applicant agreed to have excised from the lease a certain portion of the park.

[7] It was further agreed that the first respondent would pay to applicant a sum of money in consideration of the latter agreeing to the excision of the portion of land in question. This agreement was to enable the first respondent to enter into a lease agreement with the third respondent’s predecessor-in-title in respect of the excised portion of the stadium.

[8] What has given rise to this application is a dispute that has arisen concerning the portion of the stadium that the applicant is entitled to co-use with the first respondent in terms of an agreement entered into between the parties which is meant to regulate the co-use of the excised portion (the cricket stadium) by the two parties. As well as the maintenance of the said portion of the stadium.

[9] It is opposite to quote the relevant portions of the agreement to regulate co-use entered into between the parties as it appears from the signed agreement (pages 260 to 270 of the record). The agreement reads as follows:

PREMEABLE

WHEREAS the Buffalo Club lease the area depicted on plan no. TP 706 – 4.

AND WHEREAS the Buffalo Club agreed to have excised from the lease the portion of land as hatched, such land being commonly known as the Cricket Stadium.

AND WHEREAS ..... ..... ..... ..... .....

AND WHEREAS ..... ..... ..... ..... .....

AND WHEREAS the Boarder Cricket Board and the Buffalo Club deem it necessary to record the terms of their agreement and to enter into an agreement to regulate the use of the excised portion (known as the cricket stadium) by both parties.

NOW THEREFORE THE PARTIES AGREE:

3. SEASONAL USAGE

3.1 The Buffalo Club shall henceforth not be entitled to use or possession of the said cricket stadium, or part thereof, save as follows:

i) from 1 April to 30 September the Buffalo Club shall be entitled to utilise the rugby playing field, floodlights and the change room facilities (as provided) as presently utilised by the Buffalo Club.

ii) from 1 October to 31 March the Buffalo Club shall be entitled to utilise the playing fields and change room facilities (as provided) for its cricket club’s matches and practices only.

iii) The Buffalo Club shall be entitled to utilise the lower cricket field below the cricket stadium during the period January to March 1999 for rugby training, subject to the use thereof, not interfering with the reasonable cricket requirements of the Border Cricket Board.

iv) the usage as contemplated in sub-paragraphs (i) and (ii) above is subject to the following:-

• on days falling during the months April to September, on which international, provincial semi-final and final provincial cricket matches are scheduled, the Buffalo Club shall not be entitled to utilise the said playing facilities, as well as during the time reasonably required to prepare the cricket stadium for the said fixtures. During the period the field is so required by the Border Cricket Board, the Buffalo Club shall be entitled to utilise the lower cricket field below the cricket stadium for training purposes.

• during the period October to March the Buffalo Club shall only be entitled to utilise the cricket stadium for cricket fixtures as scheduled by the Fixtures Committee of the Border Cricket Board.

v) Both parties shall maintain the field and hand over the field in a proper and reasonable condition at the end of each season.

vi) The Buffalo Club shall be entitled to utilise the change rooms during the period October to March for the storage of rugby training equipment. Should the Boarder Cricket Board utilise the change rooms during this period, then the Boarder Cricket Board shall provide an alternative secure lock-up facility for the storage of rugby training equipment for this period.

vii) The Boarder Cricket Board shall not move the existing wicket onto the existing rugby area without prior notice to the Buffalo Club. Such notice shall serve only as notification to the Club, and may not be utilised by the Club to prevent the movement or extension of the wicket.

[10] As would appear from the agreement applicant agreed to have excised from the lease the portion of the land as hatched, being cricket stadium.

[11] The hatched land appears from a plan or map referred to and annexed to the founding affidavit deposed to by Frederick Arthur Minty, the President of the applicant (Buffalo Club). However the map annexed to the founding papers is plan TP 706 - 3 and not TP 706 – 4 referred to in the Preamble to the agreement entered into between the applicant and the first respondent. I do not think that anything turns on this disparity since I do not understand the first respondent to dispute that the map depicts the hatched area. The hatched area is depicted in the said map as follows:

0100090000031602000002009601000000009601000026060f002203574d4643010000000000010084070000000001000000000300000000000000030000010000006c0000000000000000000000350000006f00000000000000000000008e4500000147000020454d4600000100000300001000000002000000000000000000000000000000c012000000190000cb0000000f010000000000000000000000000000c019030055220400160000000c000000180000000a000000100000000000000000000000090000001000000070100000c6100000520000007001000001000000a4ffffff000000000000000000000000900100000000000004400022430061006c00690062007200690000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000110040ae110010000000a4b1110024af110052516032a4b111009cae1100100000000cb0110088b1110024516032a4b111009cae11002000000049642f319cae1100a4b1110020000000ffffffff9c2fd300d0642f31ffffffffffff0180ffff0180efff0180ffffffff0000000000080000000800004300000001000000000000005802000025000000372e90010000020f0502020204030204ef0200a07b20004000000000000000009f00000000000000430061006c00690062007200000000000000000064af1100dee32e31e88d0832c4b21100d0ae11009c38273107000000010000000caf11000caf1100e87825310700000034af11009c2fd3006476000800000000250000000c00000001000000250000000c00000001000000250000000c00000001000000120000000c00000001000000180000000c0000000000000254000000540000000000000000000000350000006f0000000100000055558740008087400000000057000000010000004c0000000400000000000000000000006e100000c610000050000000200000003600000046000000280000001c0000004744494302000000ffffffffffffffff71100000c7100000000000004600000014000000080000004744494303000000250000000c0000000e000080250000000c0000000e0000800e000000140000000000000010000000140000000400000003010800050000000b0200000000050000000c020c03f802040000002e0118001c000000fb02efff0000000000009001000000000440002243616c6962726900000000000000000000000000000000000000000000000000040000002d010000040000002d010000040000002d0100000400000002010100050000000902000000020d000000320a100000000100040000000000f7020c0320b20a001c000000fb020300010000000000bc02000000000102022253797374656d0000000000000000000000000000000000000000000000000000040000002d010100040000002d010100030000000000

[12] In paragraph 37 of the founding affidavit, Mr Minty avers that the agreement provided for the continued use by the applicant of the playing fields, floodlights and change room facilities at the stadium as utilised by the applicant at the time that the agreement was entered into. However the agreement in one part provides for the use of rugby playing field as opposed to playing fields.

[13] According to Mr Minty at the time of signing of the agreement and for an indeterminate period prior to that, the applicant utilised the excised playing fields, floodlights and change room facilities. It appears from the founding affidavit that the “playing fields” utilised by the applicant at the time of the agreement comprised of two fields separated by a cricket pitch. This prevailed for 10 years after the agreement was entered into. However during 2009 the applicant took issue with first respondent for failing to enter into negotiations with it for use of the playing fields on the excised area as per the agreement entered into between them in view of the fact that applicant is a stakeholder. This took place ahead of the Indian Premier League competition which was due to take place during period April – May 2009.

[14] According to clause 3.3 of the agreement; All other events, including but not limited to fixtures involving touring teams which are scheduled during the April to October period, will be subject to negotiations between Border Cricket Board and the Buffalo Club, and consent thereto by the Buffalo Club shall not be unreasonably withheld.

[15] In its answering affidavits deposed to by Themba Lupulwana and Ashley Nel being Chief Executive Officer and Grounds man of the first respondent, applicants were entitled to the use of only one rugby field. In 2008 applicant began to extend its usage of the field to the entire field including the cricket pitch.

[16] First respondent took issue with applicant’s usage of the entire field as well as raised a number of concerns regarding the use and maintenance of the rugby field they were entitled to use. According to the first respondent this was contrary to the agreement.

[17] This culminated in first respondent cancelling the agreement on the basis of a breach of the said agreement by the applicant. A letter dated 16 February 2011 addressed to the applicant whereby the first respondent confirmed that the agreement has been cancelled and that the applicant and its members were not allowed to access that stadium and or use its facilities. This was not the first instance that first respondent purported to cancel the agreement. However, it transpires that that earlier attempt of the 19^th of August 2009 was retracted following deliberations between the parties.

[18] In a letter dated 19 August 2009 and entitled Notice of Cancellation of Contract: Border Cricket Board / Buffalo Club, addressed to applicant’s attorneys, Mr Wesley Pretorius of Wesley Pretorius and Associates on behalf of the first respondent remarked as follows:

“1. ... ... ...

2. We note that your client has not provided the undertakings or concessions which our client sought. On the contrary your client has persisted with the unlawful conduct which our client has complained of.

3. In the premises our instructions are to inform you that our client hereby cancels the agreement in so far as it relates to the use of the cricket stadium by your client.

4. Your client is required to forthwith refrain from entering our client’s premises for any purpose whatsoever. In this regard our client requires your client’s written undertaking, by no later than close of business on Friday 21 August 2009, that it will not enter our client’s premises, failing which our client will apply for urgent interdictal relief from the High Court, pending an action for cancellation of the agreement.”

[19] Applicant contends that the purported cancellation of the agreement is invalid and therefore unenforceable because the applicant has not breached the written agreement in any manner.

[20] This court is not called upon to pronounce on the correct interpretation or purport of the agreement, or whether there was a breach of the agreement or not however this issue relevant in determining whether or not the applicant has met the requirements that should be satisfied in order for it to succeed in obtaining the relief sought. I was referred to a number of authorities by both counsel in regard to the approach to be adopted when interpreting an agreement. I have taken them into consideration.

[21] Applicant contends that the matter is urgent inter alia because refusal by the respondent to permit the applicant to have access to and use of the playing fields, applicant and its members will severely be prejudiced in that there will be no facilities to train, practice and play rugby matches in the manner they used to before permission was refused by the first respondent to access the playing fields. This will result in applicant suffering financial prejudice. Applicant further contends that it will suffer loss of membership something which will impact on applicant’s viability. Applicant has been unable to secure alternate facilities.

[22] It was argued on behalf of the applicant that the application was launched on a semi-urgent basis and there was marginal deviation from the normal time frames as they apply to ordinary applications. Applicant denies that it created its own urgency and contends that after receipt of the January letter in which first respondent sought to cancel the agreement they endeavoured to resolve the issue with the first respondent which attempts came to naught. They then resorted to launching these proceedings.

[23] It is common cause that on 15 March 2011 applicant made an application for a rule nisi to be issued on the 22^nd of March 2011 on an urgent basis for an order directing and ordering the first respondent to allow it to have access to the playing fields in question. First respondent indicated its opposition of the matter and on the 22^nd of March 2011 an order was issued regulating the future conduct of the application, nmely that it be heard as an opposed matter on the on the 14^th of April 2011. First respondent was to deliver its answering papers by 29 March 2011.

[24] The application was however withdrawn before the 14^th of April 2011 because first respondent denied that it existed in the manner described in the papers – namely a voluntary association of persons but that it was public company. The application was re-launched and served on the first respondent on the 15^th of April 2011 giving notice that the application will be heard on the 5^th of May 2011 requiring the first respondent to notify the applicant of its opposition on the same day the application was served on them and to file its answering affidavit within 5 days of its giving notice of intention to oppose the application.

[25] Clearly the time frames set for first respondent to file its notice of opposition and answering affidavit do not comply with Form 2 (a) of Schedule 1 to the Rules. The question is whether the truncation of the time limits by the applicant was reasonable in the circumstances. In Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135 (W) at 137 E-G Coertzee J stated as follows:

“Practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the Rules and of the ordinary practice of the Court is required. The degree of relaxation should not be greater than the exigency of the case demands. It must be commensurate therewith. Mere lip service to the requirements of Rule 6 (12) (b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter be set down.”

[26] In the circumstances of this matter and given the history and nature of the disputes between the parties and the fact that the application is being re-launched on essentially the same basis as the initial application and re-launched during the same month that it was withdrawn, I am of the view that the matter was of sufficient urgency to justify applicant approaching the court in the manner it did. Especially in view of the fact that first respondent do not contend that they were prejudiced in any way by the launching of this application on an urgent basis.

[27] As regards to the merits of the application wherein the applicant seeks an interim interdictory relief, it is trite that it has to establish:

a) A prima facie right.

b) A reasonable apprehension of harm should the interim relief not be granted, but final relief be granted.

c) Balance of convenience and

d) Absence of satisfactory or alternative remedy.

[28] As far as the first requirement is concerned, it is trite that in determining whether an applicant for an interim interdict has succeeded in proving a clear right or prima facie right though open to some doubt, the proper approach is to take the facts set out by the applicant together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to inherent probabilities, the applicant should, not could, on the facts obtain final relief at the trial. See Spur Steak Ranches Ltd v Saddlers Steak Ranch 1996 (3) SA 706 (C).

[29] The agreement in question is by no means a model of clarity - specially as regards what is envisaged by reference to “rugby field, floodlights and change room facilities (as provided) as presently utilized by Buffalo Club” in clause 3.1 (i). (my underlining) Although Clause 3.1 (ii) refers to a different season mention is made therein of playing fields and change room facilities (as provided) for its cricket club’s matches and practices only.

[30] Applicant disputes that it breached the terms of the agreement. There appears to be a dispute as to which parts and during which period applicant is entitled to utilize in terms of the agreement. That the applicant is entitled to use certain parts of the stadium is however apparent from the agreement. The dispute is as regards the part of the stadium applicant is entitled to use, which in my view is not clearly discernable from the agreement. In my view the applicant has established that it has a prima facie right to use the facilities at the said stadium and that the court hearing the action to be instituted by the applicant will be better placed to determine whether or not there has been a breach of the agreement by the applicant, and therefore whether the first respondent was justified in cancelling the agreement.

[31] As to whether the applicant has a reasonable apprehension of irreparable harm, applicant contends that it will suffer financial loss as well as loss of members should access to and use of the stadium be refused by the Buffalo Club. First respondent does not seem to deny that applicant will suffer financial loss and members, save to say that these averments are not relevant to the application. I am satisfied that the applicant has a well grounded apprehension of harm if the interim relief is not granted.

[32] I am not persuaded on the facts before me that if I were to grant the interim interdict that the first respondent will suffer more prejudice than the applicant if I refused the interdict.

[33] It has not been suggested by the first respondent that there is alternative appropriate or satisfactory remedy that is available to the applicant.

[34] As would appear earlier in the judgment the first respondent raised in limine lack of urgency. In addition thereto, first respondent raised the point that applicant did not attach a resolution to its founding papers authorising that legal proceedings to be instituted against the first respondent but annexed one where it was resolved to institute procedure against the Border Cricket Board.

[35] This point was not pursued in argument before me. In any event a resolution referring to the first respondent correctly as an Association Incorporated under Section 21 was annexed to the replying affidavit. In Nahrung Smittel Gmbh v Otto 1991 (4) SA 414 (c) it was held that it was not necessary to attach the resolution authorising the institution of the proceedings to the founding affidavit. In Beck and Co v Van Zummeren and Another 1982 (2) SA 112 it was held that a deficiency such as the one first respondent complains of can be cured by in the replying affidavit. This was done by the applicant in this matter by attaching the correct resolution to its replying affidavit.

[36] I am satisfied that the applicant has succeeded in satisfying all the requirements that are to be met in order for an interim interdict to be granted.

[37] As regards to the costs of the application there is no reason why the first respondent should not be ordered to pay same. However this will exclude the costs pertaining to the previous proceedings.

[38] In the result the following order is issued:

1. That the forms and service provided for in the Rules be abridged and this application be heard as one of urgency.

2. That first respondent be and is hereby ordered to allow the applicant and any of its members access to and the use and enjoyment of the ruby playing fields, alternatively, the grassed surface, alternatively the rugby playing field located at Buffalo Park Cricket Stadium, East London forming part of the excised portion (known as the Cricket Stadium) and to utilize the floodlights and the change room facilities for the period between 1 April until 30 September for the duration of the written agreement entered into between the applicant and the Border Cricket Board.

3. The order in paragraph 2 above shall operate with immediate effect pending the finalisation of an action to be instituted by the applicant against the first respondent for:

3.1 A declaratory order that the written agreement is valid, binding as between parties thereto and / or their successors in title;

3.2 A declaratory order stipulating and delineating the rights of use and enjoyment of the Applicant and the First Respondent of the Buffalo Park Stadium in terms of the said written agreement;

3.3 An order directing the first respondent to give the applicant and its members access to the cricket stadium for purposes of use and enjoyment of the facilities as contemplated in the written agreement.

4. Applicant is directed to commence the action set out in paragraph 3 of this order against the first respondent within 14 days of this order being issued failing which such order shall lapse.

5. The first respondent is ordered to pay the costs of this application which costs shall exclude the costs of previous proceedings in this matter.

_____________

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For Applicant ADV: M J Lowe SC and ADV: N C F Schultz

Instructed by WHEELDON RUSHMERE & COLE

119 High Street

GRAHAMSTOWN

TEL: 046 – 622 7005

For Respondent ADV: P J M Paterson SC

Instructed by DOLD & STONE

100 High Street

GRAHAMSTOWN

046 – 622 2348

Date Heard 10 June 2011

Date Reserved 10 June 2011

Date Delivered 26 April 2012

---