Chronicle Editor
Sports Reporter
SOME Highlanders members raised a storm in social media platforms when the club’s board chairman Luke Mnkandla announced the postponement of the annual general meeting (AGM) and elections that had been scheduled for January 31 and February 7 respectively.
The storm was not about the postponement, but the board’s decision to extend the terms of office of the chairman, secretary and committee member, whose tenure would have ended with the holding of elections.
Sport and state authorities refused Bosso a special waiver to gather for the AGM and elections since the country was in the midst of a rapid rise in Covid-19 infections and deaths never experienced since the outbreak of the pandemic in Zimbabwe in March last year.
This forced the board to postpone the two gatherings and extend the executive’s term until the AGM and elections could be held.
However, the board’s critics described the decision to extend the executive’s term as a breach of the club’s constitution, arguing that the vice-chairman should have been installed as acting chair and three members are co-opted into the executive.
Secretary Israel Moyo even resigned, saying he could not be party to unconstitutionality at the club.
Highlanders’ life member Cornelius Ngwazana threatened to take the club to court unless the board reversed its decision to extend the executive’s term.
Another Bosso life member Joel Ncube also sought legal advice from a prominent advocate and shared the response with Chronicle Sport.
Ncube put four questions to the advocate:
1. In the circumstances where elections can’t be held because of the pandemic and the Government rules and regulations, was the board correct in postponing both events?
2. Is it correct that the vice-chairman should act as chairman when the term of the current chairman has ended? Is the absence envisaged in Clause 8 (of the Highlanders constitution) the same as when the term of the chairman has ended?
3. Under what circumstances is co-option allowed in terms of the (club) constitution?
4. What powers can the board have in dealing with the lacuna in the (club) constitution?
The advocate, who cannot be named for professional reasons, said the board was correct in adopting its current position and in so doing yielded to clear constitutional demands and discharged an imperative function.
“The board was under constitutional obligation to state the fact. This is on the basis of Clause 13.4.1 of the (club) constitution which provides that the board must advise and oversee the executive on technical and specialised matters of concern which pertain to the smooth operation of the club’s affairs.
“Given that the executive could not make a decision on a matter that affected it, it was up to the board to tell it that it remains in office by law and must hold the elections when the time allows. The board was correct in telling the executive to stay put. The obligation was the board’s to discharge and it discharged it,” said the advocate.
With the terms of the chairman, secretary and committee member not having terminated ex lege (by operation of law), he said the question of incumbency cannot arise in response to the second question.
He said co-option is only permissible under circumstances where the tenure of the official to be replaced has not ended, and it also takes a quorate executive committee meeting to co-opt.
“An obligation whose performance has been rendered impossible by reason of a vis major is not required to be discharged until the event vis major has ceased. The effect is that a constitution is affected in its operations by a vis major,” the advocate argued.
He said an elective general meeting can’t be postponed without that having the effect of extending the tenure of the executive.
The contrary view, he said, is without merit, as the argument does not derive from a purposive reading of the club’s constitution, as it leaves the executive with two members (vice-chairman and treasurer) that can’t form a quorum and cannot therefore make a decision on co-option.
“Taken to its logical conclusion, if three members are co-opted and the vis major does not end till the other elected two officials cease to hold office, one would be left with an untenable situation in which the three unelected would co-opt two more unelected members.
“At the end of the day, should the vis major persist, the club will end up with a full complement of unelected officials. It is itself bad that two elected officials can co-opt three unelected officials who immediately become decision makers,” he said.
Co-option only happens when there is a casual vacancy and that position must fall vacant before the expiry of the term of office, according to Clause 7.6 of the club’s constitution.
Clause 7.4 stipulates that the quorum of the meeting of the executive is three, meaning the two remaining cannot co-opt given that they may not transact any business.
“The fact that the board may then be involved is of no consequence; a key circumstance that must exist before there is co-option does not accordingly exist,” he said.
He said a constitution must be given a sensible construction which best protects its purpose and enables it to discharge its function.
Whenever there is to be an election between two possible constructions, one must go for that which makes sense and jettison the nonsensical one.
“A constitution does not have to address what happens in the event of there being a pandemic. In that event, the law simply takes over and the constitution must be read in accordance with the law. No lacuna is created by the existence of a pandemic,” he said.
He said given that the quorum is three, there is no use in the five officials being elected at different times because if the three are not elected, the remaining two still can’t transact any business.
“The constitution provides that within 30 days after the elections, a budget must be presented. Which elections are these; are those the elections of the three or the two? How is that decision made and by who? What happens in the year there is no election? I raise this issue in the current context where there is some period of a year between these two elections.
“There is very wide scope for arbitrary conduct, itself a fertile ground for disputes. There is need to harmonise the operation of the provisions of the constitution. The issue I raise can be easily dealt with if the two elections are going to be held 30 days apart. That way the purpose of the provision will be achieved and the difficulties that would arise from its application minimised.
“These problems only arise as a result of the elections being held 12 months apart. The club might therefore want to consider altering its electoral programme. Perhaps the pandemic has afforded the club the opportunity to adopt this course,” he said.
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