Federation Internationale de Football Association v Kgopotso Leslie Sedibe and South African Football Association

Mr Sedibe, a former CEO of SAFA, was investigated and sanctioned by FIFA's Ethics Committee Adjudicatory Chamber for match-fixing in relation to friendly matches during the run-up to the 2010 World Cup. On 2 March 2016, the FIFA Ethics Committee suspended him from football activities for five years and imposed a fine. In August 2018, Sedibe approached the South African High Court ex parte, seeking to review the FIFA decision. He obtained an order authorizing (a) edictal citation to bring review proceedings against FIFA, (b) service on FIFA by email in Switzerland, and (c) attachment of all FIFA trademarks in South Africa to found jurisdiction. FIFA, a Swiss-registered association headquartered in Zurich, applied to set aside the ex parte order on multiple grounds: improper service contrary to Swiss law, lack of jurisdiction by South African courts, invalidity of attachment in review proceedings not sounding in money, and violation of binding arbitration clauses in FIFA regulations. The High Court (Vorster AJ) dismissed FIFA's application, reasoning that Sedibe's claim could include monetary elements (the fine, costs, and potential damages). FIFA appealed to the Supreme Court of Appeal.

• Whether a South African court has jurisdiction to review a decision by FIFA's Ethics Committee, a Swiss administrative body with headquarters in Switzerland
• Whether attachment of property to found jurisdiction is permissible in review proceedings against administrative decisions not sounding in money
• Whether attachment can be based on speculative or potential future monetary claims
• Whether the repeal of s 19(1)(c)(ii) of the Supreme Court Act 59 of 1959 and its replacement with s 21(3) of the Superior Courts Act 10 of 2013 affected the common law power to attach property to found jurisdiction
• Whether attachment of trademarks under s 41(2) of the Trade Marks Act 194 of 1993 can found jurisdiction in review proceedings
• Whether service by email on FIFA in Switzerland was lawful

1. The appeal was upheld with costs, including the costs of two counsel. 2. The order of the High Court was set aside and substituted with the following: (1) The order of Van der Westhuizen J dated 22 August 2018 is set aside. (2) The first respondent is to pay the costs of the application.

Attachment of property to found jurisdiction is only permissible in (a) actions in personam sounding in money (contract, quasi-contract, delict, quasi-delict or other like causes to give, do or make good something for an opponent) and (b) actions in rem for movables. It cannot be used to found jurisdiction in review proceedings directed at setting aside an administrative decision of a foreign body where the claim does not genuinely sound in money. Speculative or hypothetical future monetary claims (such as potential damages or costs orders) that might arise if a review succeeds cannot justify attachment to found jurisdiction. The purpose of attachment is to enable execution on property after judgment; this purpose cannot be served where the primary relief sought is administrative review, not a monetary judgment. Lack of jurisdiction over a foreign administrative body cannot be cured by attachment of property where the claim does not fall within the recognized categories permitting such attachment.

The Court noted that FIFA's complaint about service by email appearing to contravene Swiss law (which requires service of judicial process by officially recognized authorities) appeared justified, and the assertion that this was not confirmed by expert evidence was unpersuasive since the relevant Swiss law provisions were not contested. However, given the Court's conclusions on jurisdiction and attachment, it was unnecessary to make a definitive finding on the service issue. The Court also observed, without deciding, the issues relating to: whether s 21(3) of the Superior Courts Act tacitly amended s 41(2) of the Trade Marks Act; whether binding arbitration clauses in FIFA regulations precluded South African court proceedings; and whether a South African court judgment would be enforceable in Switzerland. The Court made a colorful observation about Sedibe's appeal to considerations of fairness against a 'global giant', noting with reference to a footballing metaphor that this was a call for a 'hometown decision' but that 'the away side is entitled to a win', emphasizing that procedural propriety must prevail over sympathy. The Court also noted that more than five years after FIFA's decision and more than three years after the ex parte order, Sedibe had still not launched the review application, suggesting lack of bona fides or genuineness in the stated intention to pursue review proceedings.

This case is significant in South African law because it clarifies and affirms the limits of attachment to found jurisdiction. It establishes that: (1) Attachment to found jurisdiction cannot be used in review proceedings directed at administrative decisions unless the claim sounds in money or is an action in rem for movables. (2) Speculative or hypothetical future monetary claims cannot justify attachment to found jurisdiction. (3) The common law principles governing attachment remain applicable and must be read together with statutory provisions such as the Superior Courts Act and the Trade Marks Act. (4) South African courts will not permit procedural devices like attachment to circumvent lack of jurisdiction over foreign administrative bodies. (5) The case reinforces the principle that attachment is not a general remedy to enable South African courts to exercise jurisdiction over foreign entities in matters where no proper jurisdictional basis exists. The judgment protects against abuse of the attachment procedure and confirms the limited circumstances in which it may be employed, particularly in the context of international disputes involving foreign administrative or quasi-judicial bodies.