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Sikhumbuzo Moyo in BULAWAYO
ZIFA chief executive Joseph Mamutse has written to suspended vice president, Gift Banda, advising him the association’s condonation case will be heard before the Appeals Committee on Friday.
The association’s application is premised on two key issues — that the decision by the Appeals Board to throw out their appeal, on the basis proof of payment could not be established, should be reviewed.
The other key issue is that ZIFA want all the six charges preferred against Banda to be heard.
Condonation means there was an implied pardon in a case in which the alleged offender was treated as if the offence was not committed at all.
Banda was accused, among other charges, of usurping the authority of the ZIFA Board by reshuffling the Warriors technical staff, barely a year after he was ushered into office.
However, the ZIFA disciplinary committee cleared him of all charges, but the association’s leadership then took the case to their ZIFA Appeals Board.
The case was thrown out by the Appeals Board, on a technicality, after ZIFA failed to provide proof of payment to accompany their appeal as per Article 7.1 of the association’s rules and regulations.
ZIFA then said they would apply for a condonation and have the matter reset again.
According to ZIFA spokesperson, Xolisani Gwesela, payment of the appeal fee was done on March 9, a day before the association formally filed their case before the Appeals Committee, led by Harare lawyer Stead Kachere.
The matter was then set for hearing on June 2, exactly 84 days later.
It appears the case has become a test of the credibility of the ZIFA Appeals Committee with the reputation of the lawyers on the committee now under scrutiny.
Munya Nzarayapenga of DBN and Partners, who is representing Banda, yesterday said they received an e-mail from the ZIFA head of secretariat, Mamutse, advising them of the Friday date.
“We were just informed yesterday that the matter was going in on Friday. I don’t know if the Appeals Committee can still sit and consider such a matter, which it had already heard, and made a determination,” he said.
“I tried to call the ZIFA lawyer to understand who had actually set up the matter and the date because if it’s the Appeals Committee, which has set down the matter, it means they have proceeded to hear a matter which they had already heard.”
Given the ZIFA Appeals Board judgment on June 3, signed by Kachere, Rodin Mzycee and Givemore Nyahuma clearly stated it was a “ruling,” it means an establishment was made by the committee the association did not accompany their appeal with a fee and, therefore, it was defective.
In such a scenario, how ZIFA can then have the case reviewed will be a litmus test for their Appeals Board.
The judgment from Kachere and his colleagues read:
“The said appeal was filed with the Appeals Board on the 10th of March 2020 and it was subsequently set down for hearing on the 2nd of June 2020.
“At the commencement of the hearing, the respondent (Banda) enquired from the ZIFA Appeals Board if the Appellant (ZIFA) had paid the appeal fees as required by Section 7.1 of the ZIFA Rules and Regulations. The record of proceedings did not have proof of payment of the appeal fees.
The respondent then raised a preliminary point to the effect that, in terms of the ZIFA rules and regulations, Section 7.1 thereof provides that, “any party, including ZIFA, to proceedings before the disciplinary committee, shall have the right to appeal to the Appeals Board of the association, subject to a notice of appeal being lodged in writing to the chief executive officer accompanied by an appeal fee as specified in the schedule of fees with seven days of the decision appealed against, or such later period or may, on good cause, be condoned by the appeals board.”
The respondent further contended that if an appeal is not accompanied by an appeal fee, it is invalid. The mere absence of proof of payment renders the appeal a non-event.
The appellant respondent that the appeal fee was paid, in terms of the ZIFA rules and regulations and that proof of payment can be availed if the Appeals Board gives them time.
The proof of payment was said to be in the custody of the ZIFA accountant who was not at work because of the shutdown (lockdown).
It is the findings of the Appeals Board that the rules require that an appeal should be accompanied by an appeal fee. These two should not be separate.
The record of proceedings did not have proof that the appeal lodged by the Appellant was accompanied by an appeal fee.
The Appeals Board cannot, therefore, proceed to hear this matter in the absence of the said proof that payment was made in terms of the rules. Such rules are peremptory and they should be strictly complied with.
A Fortiori (denoting or based on a conclusion for which there is stronger evidence than for a previously accepted one), there was no appeal before this board to consider.
Online Reporter