The East London High Court has granted an interim interdict preventing the newly elected Border Rugby Union (BRU) executive from exercising its powers and restoring the previous leadership until a challenge to the union’s August elections has been decided.
The order, granted on Tuesday evening, follows an application brought by Komga United Rugby Club, Lovedale College Rugby Club and former BRU deputy president Asanda Simoyi.
They are seeking to have the election of president Theo Mvalo and his executive committee declared unlawful and unconstitutional.
Simoyi had previously appealed to SA Rugby and the Eastern Cape Department of Sport to intervene, alleging that constitutional provisions and prescribed procedures were not followed in the run-up to the August 2 annual general meeting and elections.
The respondents include Mvalo, deputy president Phumelele Hlati, vice-president Siphokazi Njani, district representatives Vusumzi Joni and Zongezile Mdoda, club representative Mzingisi Douw, additional members Wayne Weyer and Mandisa Mgabadeli, BRU general manager Mthunzi Hewu and SA Rugby.
Representing the applicants in the two-part application, advocate Sinethemba Vobi sought interim relief preventing the newly elected executive from exercising any powers, performing duties or overseeing the administration and governance of BRU pending the final determination of the matter.
In Part B, the applicants seek an order declaring the August 2 AGM and subsequent elections unlawful, unconstitutional and invalid, setting aside the election of Mvalo and the executive committee and declaring the results null and void.
They contend the AGM and elections were conducted in breach of the BRU constitution and that mandatory procedures were not followed.
Vobi argued that the meeting should not have proceeded after a notice postponing it was issued on July 31 because of alleged constitutional non-compliance.
He submitted that the process was further tainted by irregularities including the cancellation of representative elections, nomination processes not being completed within prescribed timeframes and an agenda that was allegedly not validly issued.
The applicants argued that without court intervention, the newly elected leadership would continue making decisions on behalf of the union while the legality of its election remained under challenge.
Vobi told the court that if interim relief was granted, the previous executive would remain in office until the legality of the AGM and elections had been determined.
Counsel for the respondents, advocate Brandon Tarr, argued that the dispute should be resolved through arbitration rather than the courts.
Handing down judgment, Acting Judge Thembelani Nkele described the matter as “a long and gruelling hearing”, saying both counsel had presented “convincing” arguments.
“I’ve got to make a decision. And I won’t be standing in defence, unfortunately, although I would have preferred to satisfy both sides.
“But considering the fact that, indeed, there is continuing illegality, which has not been challenged, I came to the conclusion that the interim order should be granted in terms of the proposed order with costs in terms of state B of the rules of our court. So Part B will be dealt with in the ordinary court.”
The order effectively restores Simoyi to the helm in an acting capacity pending the final outcome of the case.
Simoyi and his supporters celebrated after the judgment was handed down, while Mvalo left the courtroom visibly upset.
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