CIVIL PRACTICE – SPECIAL PLEA OF LACK OF LOCUS STANDI

CIVIL PRACTICE – SPECIAL PLEA OF LACK OF LOCUS STANDI

The plaintiff avers that it is a national sports body in terms of the Namibia Sports Act 12 of 2003 (“the Sports Act”) and it is registered as a member of the first defendant. Its objective is to promote, organize and control gymnastics in Namibia. The plaintiff further alleges that it is a national federation and a member of the second defendant as the sole national governing body for gymnastics in Namibia.

The plaintiff further avers that on 19 June 2020 the first and second defendants purported to place the Executive of the Namibia Gymnastics Federation (NGF) under sequential administration until the elective Extra Ordinary General Assembly is held. This decision meant that the executive would just handle the day-to-day administrative matters of the NGF in consultation with other stakeholders.

An appeal was lodged to the Appeal Committee against the above decision, which was upheld but the first defendant still did not allow the plaintiff to conduct its affairs and business in terms of the NGF Constitution. The plaintiff, then, instituted these review proceedings against the defendants where it contends that the decisions of the first and second defendants were illegal, with no basis in law.

The defendants defended the action and raised the special plea of locus standi in judicio. The defendants pleaded that the entity that was suspended is the NGF and not the plaintiff. The defendants contended further that the plaintiff is not a registered member of the first and second defendants, nor is the plaintiff recognized by the second defendant as the sole national governing body for gymnastics in Namibia and has no contractual relationship with the plaintiff. In reply, the plaintiff stated that a properly constituted Special General Assembly held on 28 November 2020 amended the plaintiff’s Constitution to provide for the name change to the plaintiff. In attempt rebut the special plea, Ms Olivier, The Executive President of the plaintiff testified for the plaintiff.

SIBEYA J considered the matter and held that:

1. Olivier’s reduction in the number of members of the NGF from 38 to 19 between August and November 2020 due to the alleged effective resignation of members was not supported by documentary evidence. Ms. Olivier further appeared to adjust her evidence whenever her documentary and oral evidence did not tally.
2. Held further that – The Special General Assembly of 28 November 2020 is governed by the 2013 NGF Constitution and should have been conducted within the confines of the provisions of the said Constitution.
3. Held further that – The additional vetting requirements are not part of the NGF Constitution where the eligibility of membership is outlined but appears to exclude certain members. Furthermore, the said vetting requirements were not sanctioned by the Executive Council as required, therefore, they are of no force of effect.
4. Held further that – From 11 August 2020 to 28 November 2020, no members were disqualified by the Executive Council, which Council in any event never convened. Therefore, the assertion by Ms. Olivier that other members effectively resigned lacks merit and is contradicted by established facts.
5. Held further that – Considering that a quorum consists of one half plus one of all possible votes of paid-up members and Council members of the NGF Constitution, it follows that had the members present at the SGA of 28 November 2020 been 19 out of 38, they would not have formed a quorum. The additional vetting outside the NGF Constitution and without authorization by the Executive Council, together with a concession by Ms. Olivier that had any of the eight paid-up members disqualified been counted it would have tilted the scale against the quorum, points to no quorum having been formed at the meeting of 28 November 2020.

As a result, the defendants’ special plea that the plaintiff lacks the necessary locus standi in judicio to institute these proceedings is upheld. The plaintiff’s claim was dismissed with costs.

Namibian Gymnastics v The Namibia Sports Commission and Others NAHCMD (28 July 2022)