By Gavin Rich and Lenore Oliver
South African rugby was in turmoil on Friday night after the Cape High Court ruled that SA Rugby was contractually bound to include the Southern Spears franchise in this year's Currie Cup and Super 14 tournaments, as well as to support them financially.
The Currie Cup competition is already in its fifth week and any accommodation of the Eastern Cape franchise would throw the competion into chaos.
Judge Dennis Davis has left it up to the warring parties to find a way out of the mess, noting that "the courts don't run rugby and they shouldn't have to".
SA Rugby is to convene a meeting as soon as possible and issued a statement yesterday in reaction to the ruling in which it said the inclusion of the Spears in the Super 14 would have far-reaching commercial consequences for the competition.
Southern Spears chief executive Tony McKeever said that while he would not seek a place for his team in the Currie Cup he would seek "a compromise" that would give his team a chance to prepare for next year's Super 14.
He noted Currie Cup participation had been sought as a means of getting the Spears prepared to play Super 14 and "I am now waiting for SA Rugby to set up a meeting so we can sort this matter out".
McKeever said an earlier request for exhibition games to allow the Spears to play the top Currie Cup unions had been turned down because the Currie Cup schedule was said to be too cramped.
But, "now they must come up with a solution as we need games to prepare us for the Super 14 and they must come up with a way of compensating us for our unlawful exclusion from the Currie Cup."
"I don't think it will be a problem organising these fixtures later in the competition as teams will start dropping out towards the end, when the knock-out stages arrive, and we can play against those teams before facing the top teams after the final. We can play into November if necessary."
The franchise most likely to lose out following the judgement is the Cats (Lions), but Lions president Jannie Ferreira said he did not want to pre-empt anything and there was no reason to assume his union would be affected by the judgement.
"Until I have discussed everything fully with South African rugby and made a full reading of the judgement, I cannot really comment," said Ferreira.
"The Spears took South African Rugby to court, they did not take us to court, so at the moment it does not have anything to do with us. I will be able to say more about this once I have had a chance to discuss it with everyone."
The assumption that the Cats would drop out comes about because when SA Rugby last year agreed to the Spears' participation in the 2007 Super 14, it was agreed that the team finishing bot-tom in the 2006 Super 14 would fall away to allow them to take part.
SA Rugby said: "SA Rugby's management and legal representatives will be meeting urgently to study the judgment and consider its legal implications in order to decide on their further conduct and on whether it is necessary to appeal against the judgment. SA Rugby remains hopeful that the matter can be resolved in the interests of rugby in this country," said the statement.
McKeever, speaking five hours after the judgement had been passed down, said his e-mail inbox had been very active throughout the afternoon from player agents from both inside South Africa and overseas who wished to move players to his region.
"I don't need to tell you that there are many players who are sitting on the benches of some Super 14 franchises who are just itching to be the first choice in the competition and to get an extended opportunity," said McKeever.
In court, SA Rugby argued it had never entered into any formal contract with the Southern Spears because all the terms of the negotiations had not been concluded.
Andre Oosthuizen, for SA Rugby, said: "There can be no contract because there was no agreement on the material terms. It was more a case of two parties feeling their way towards an ultimate agreement."
However, Norman Arendse, for the Spears, said proof that SA Rugby had entered into a contract with them was that by March this year they had already paid out more than R5 million to the franchise.
Judge Dennis Davis agreed and said in his judgment "not anywhere in any of the correspondence is any other word than agreement used".
The decision to take the Spears on board had been settled at two meetings held in December 2005 and January (this year).
The recommendation was first made in June 2005 and then later ratified by SA Rugby at these meetings. When new president Oregan Hoskins took over, the decision was reversed.