The Constitutional Court on Wednesday dismissed an appeal by Fli-Afrika with costs in which the travel agency was seeking R17 million against the South African Football Association (SAFA).
The Constitutional Court judgement is the final verdict in the long running battle in which Fli-Afrika Travel (Pvt) Ltd has been pursuing compensation from SAFA for monies they claim they were deprived of during the FIFA 2010 World Cup.
On 4 March 2020, Fli-Afrika had lost a Supreme Court of Appeal judgment after SAFA had appealed against the High Court finding that had ruled in favour of the travel agency. Then, 5 Judges of Appeal in the SCA found unanimously in favour of SAFA, upholding the appeal with costs, including the costs of two counsel. Fli-Afrika then decided to take the matter to the Constitutional Court which dismissed their appeal with costs on Wednesday.
The background to this case was that Fli-Afrika instituted an action in the Gauteng High Court for damages on the basis of what it alleged was a breach of a joint-venture agreement on the part of SAFA. The High Court dismissed Fli-Afrika’s claim, but it was then successful in an appeal to the full bench of the High Court.
Fli-Afrika’s claim was based on clauses 3 and 4 of the service level agreement concluded between it and SAFA on 23 January 2009 (“the SLA”). Fli-Afrika’s case was that SAFA was not only under an obligation, in terms of the SLA, to provide it with tickets to the 2010 FIFA World Cup, but that it was also under an obligation, in terms of the SLA, to pay for the accommodation and other travel arrangements that Fli-Afrika had already made and paid for.
In interpreting the SLA, the SCA found that SAFA and Fli-Afrika did not provide expressly in clauses 3 and 4 of the SLA that prior to SAFA supplying it with tickets, Fli-Afrika was obliged to expend money, recoverable from SAFA, for accommodation and other travel arrangements. It found that Fli-Afrika’s primary obligation was to provide packages, not to the public in general but to SAFA, its VIPs and football governing bodies of SAFA’s choice, which it could only do once it had the tickets to which it could then match the accommodation and transport, thus forming a package. In other words, the court found that it was only after the ticket had been supplied that a package could be completed. The court found further that there was no room for importing the alleged tacit term relied upon by Fli-Afrika.
In conclusion therefore, the SCA found that the interpretation of clauses 3 and 4 of the SLA contended for by Fli-Afrika could not be supported.
Although this was enough to dispose of the appeal in favour of SAFA, the SCA also considered the interpretation of the settlement agreement that had been concluded between SAFA and Fli-Afrika during April 2010. The court found that in the context of the history of the dispute between SAFA and Fli-Afrika, it was clear that the settlement agreement was, as it proclaimed to be, in full and final settlement of all obligations that had arisen between the parties, including any claims for damages that Fli-Afrika alleged it had suffered.
Therefore, even if SAFA had the obligations in terms of the SLA which Fli-Afrika asserted (and which the SCA had already found did not exist), these had been extinguished by the settlement agreement.
Accordingly, on that basis too, the SCA found in favour of SAFA, a judgement Fli-Afrika challenged by taking the appeal to the Constitutional Court which resulted in this week’s watershed judgment and in favour of the Association.