SOCCER – HIGH Court Judge Zonke Magagula relied significantly on the circumstances surrounding former Mbabane Swallows President Bishop Bheki Lukhele’s appointment and eventual resignation in concluding that Mbabane Swallows remained an unincorporated association rather than the property of Mbabane Swallows (Pty) Ltd.
The written judgment, delivered on Tuesday following an ex tempore ruling issued in November last year, dismissed an application by Swallows (Pty) Ltd and its director Wonder ‘Samba Jive’ Nhleko seeking to wrest control of the club from the management committee led by Absalom Ngwenya.
Central to the dispute was whether the incorporation of Swallows (Pty) Ltd in December 2016 automatically transferred ownership and control of the football club from the long-standing association to the company established by the late Victor Gamedze.
Judge Magagula held that while the company had been incorporated with objects that included owning and operating Mbabane Swallows Football Club, there was no evidence proving that the club itself had ever been transferred, ceded, acquired or otherwise vested in the company.
In reaching that conclusion, the judge examined how leadership of the club changed hands following Gamedze’s death in January 2018.
The court noted that after Gamedze passed away, his widow, Lungile Gamedze, continued overseeing the club before stepping down ahead of the 2019/20 season after indicating that she no longer wished to shoulder the financial burden associated with running the team.
Judge Magagula then considered what happened next.
ALSO READ | Ally for Wanderers takeover
According to the evidence before court, Bishop Lukhele assumed the presidency of Mbabane Swallows after Lungile Gamedze relinquished control and remained in that position until submitting a resignation letter dated May 9, 2023, effective at the end of the 2022/23 football season.
Although there was no formal document transferring ownership of the club to Bishop Lukhele, the judge found that his appointment was an important indicator of how the club had historically been administered.
The judgment states that the court could take judicial notice that Bishop Lukhele served as president because documentary evidence showed that, on October 1, 2019, he signed a resolution in that capacity appointing Andreas Mfaniseni Lukhele to represent Mbabane Swallows on the Premier League of Eswatini Board of Governors.
Judge Magagula said the surrounding circumstances enabled the court to infer a succession in the administration of the football club from one leader to another.
However, she stressed that such evidence did not establish that ownership of the football club had passed to the company.
Instead, the court found Bishop Lukhele’s appointment and resignation strengthened the respondents’ contention that the club continued to operate through the traditional governance structures of the association.
The judge reasoned that had Swallows (Pty) Ltd genuinely owned the football club, the succession following Victor Gamedze’s death would have unfolded differently.
Judge Magagula stated that control of the football club should have been handed over by Gamedze’s legal successor within the company structure, whether an executor of his estate or a person who inherited his shares and subsequently became director.
Instead, evidence showed that Bishop Lukhele assumed office through the club’s Council of Elders rather than the company’s corporate structures.
Judge Magagula described this as the most decisive factor in the matter.
“The most decisive factor though in this matter is that the Applicants (Swallows Pty Ltd) have failed to convince the court by cogent evidence that Swallows Football Club and Swallows (Pty) Ltd did not exist in tandem and parallel,” he wrote.
He added that no evidence had been produced demonstrating a transfer, takeover, purchase, acquisition or succession of the football club from the association governed by its constitutions to the company.
While acknowledging that Victor Gamedze may well have intended for the company eventually to own the football club, Judge Magagula said the court could only determine the case on the evidence presented before it.
The court therefore concluded that Swallows Football Club remains an unincorporated association despite the incorporation of Swallows (Pty) Ltd and its stated corporate objects.
Having found that the applicants had failed to establish a clear legal right to ownership or control of the club, the court dismissed the application for a final interdict.
Judge Magagula further ordered Swallows (Pty) Ltd and Nhleko to pay the first respondent’s costs on the ordinary party-and-party scale, declining a request for punitive costs after finding that the application raised a genuine legal dispute and was neither frivolous nor vexatious.
