adminZIMBABWE FOOTBALL ASSOCIATION versus VINCENT PAMIRE and CHARLES WESTERFALL and SUSAN CHIBIZHE and RAFIQ KHAN and FRANCIS ZIMUNYA and CHAIRMAN, SPORTS & RECREATION COUNCIL and MINISTER OF EDUCATION, SPORT AND CULTURE
HIGH COURT OF ZIMBABWE
SMITH J,
HARARE 3 January, 2003
Mr Manasefor the applicant
Mr Garabgafor the 1st, 2nd, 3rd, 4th & 5th respondents
Ms Charauyafor the 6th & 7th respondents
SMITH J (JUSTICE GEORGE SMITH): The applicant (hereinafter referred to as “ZIFA”) has filed this application seeking an order which –
interdicts the ZIFA Council from meeting on 4 January, 2003 to deal with the vote of no confidence taken by the ZIFA Board on 12 December, 2002;
declares Leo Mugabe (hereinafter referred to as “Mugabe”) and James Mutisi (hereinafter referred to as “Mutisi”) to be Chairman of ZIFA and ZIFA Board Member, Finance, respectively;
declares the vote of no confidence passed on 12 December, 2002 by the ZIFA Board to be null and void;
orders the third respondent not to sit on the ZIFA Board;
orders the sixth and seventh respondents to implement the provisions of s 3(1) of the Sports and Recreation Commission Act [Chapter 25:15] (hereinafter referred to as “Chapter 25:15”) insofar as the third respondent is concerned.
Mugabe is the Chairman of ZIFA. As such, he deposed to the founding affidavit. The first, second, third, fourth and fifth respondents (hereinafter referred to as “Pamire”, Westerfall”, “Chibizhe”, “Khan” and “Zimunya”, respectively) are all members of the ZIFA Board. Pamire is the Vice-Chairman of the ZIFA Board, Westerfall is an elected member, Chibizhe is an elected member and is also a member of the Sports and Recreation Commission, Khan is an ex officio member, being Chairman of the Premier Soccer League, and Zimunya is also an ex officio member, being Chairman of the Northern Region Soccer League.
On 12 December there was a ZIFA Board meeting which was attended by the first five respondents. They passed a vote of no confidence in Mugabe and Mutisi.
Mugabe did not attend the meeting because he was at that time in Nigeria on official ZIFA business.
Neither he nor Mutisi were aware that the motion of no confidence was an item on the agenda. In a letter dated 13 December, 2002, the ZIFA Chief Executive Officer advised Mugabe that the ZIFA Board, at its regular monthly meeting on 12 December, had passed a vote of no confidence in him and Mutisi. The reasons therefore were –
Recent findings about the way the Goal Project has been conducted and the fact that the Chairman and the Board Member Finance withheld information about the project from the Board members;
Arbitrary appointments to several key positions;
The appointment of an outsider to run the Footballer of the Year awards without consulting the Board. Mugabe submitted that the audi alteram partemrule was breached in that he and Mutisi were not given an opportunity to be heard before the vote of no confidence was passed.
The meeting at which the vote of no confidence was passed was irregular, firstly because a special or extraordinary Board meeting could only be convened if requested by not less than two-thirds of the voting members and, secondly, because the vote of no confidence can only be passed by the elected Board members and he and Mutisi, who are elected members, were not present.
Mugabe claims that the matter is urgent because it is necessary to stop the ZIFA Council meeting which has been convened for 4 January to discuss what he calls the “irregular findings” of the meeting of 12 December,
In a dispute such as this, which relates to the internal procedures and workings of a private organization such as ZIFA, it is not for the courts to investigate and decide on the merits or demerits of the actions of one party as against those of the other.
Thus, it is not for the Court to decide whether or not the vote of no confidence in Mugabe or Mutisi was justified and whether or not Pamire and Chibizhe were acting in the way they did so as to pre-empt Mugabe and get him kicked out of office before he could investigate their conduct.
The only concern of the Court is whether or not one or other of the parties has acted in a manner which was not in accordance with the law or the ZIFA Constitution.
Therefore, I do not consider it necessary or appropriate for the Court to inquire into the merits or otherwise of the votes of no confidence.
Article 10:11 of the ZIFA Constitution provides as follows –
“a) – A vote of ‘no confidence’ can be passed on any member of the elected ZIFA Board by the elected committee members for unbecoming behaviour or for serious dereliction of duty subject to ratification by Council within thirty days.
b)–The elected ZIFA Board may also have a vote of no confidence passed on it by a two thirds majority of the total voting strength of Council and for the purposes of such a vote, the members of the ZIFA Board shall not take part in the voting.”
As regards the submission that the audialteram partemrule was not observed, I agree with Mr Garabga that both Mugabe and Mutisi will have a full opportunity at the ZIFA Council meeting which has been convened on 4 January, 2003 to give their side of the story.
In my opinion that will be the appropriate forum for the issues to be discussed and resolved. As I have said earlier, those issues cannot be determined in this Court.
It is the ZIFA Board and the ZIFA Council which have the mandate and responsibility for administering the soccer world in this country.
It is not for the Courts to do so.
In terms of the ZIFA Constitution, once the Board has passed a vote of no confidence, that vote is subject to ratification by the Council within 30 days.
The issues that are dealt with in this application are of national concern and have been debated in the Press and on the radio and television channels.
It is obviously in the best interests of all concerned that the matters be fully debated in the Council and a final decision reached. The Council may ratify the vote passed by the Board or may refuse to do so.
It may also pass a vote of no confidence in all the elected Board members. That, however, is a matter for the Council. Until the Council ratifies the vote of no confidence passed by the Board, Mugabe remains as Chairman and Mutisi remains as Board Member, Finance.
The applicant seeks an order interdicting the ZIFA Council from dealing with the Board’s votes of no confidence at its meeting on 4 January.
In my view, the Court not only should not, but cannot, prevent the ZIFA Council from considering and dealing with the votes of no confidence.
I have given reasons why I consider that the votes were properly passed. It is in the interests of football in this country that the issues are settled as soon as possible.
(On January 4, 2003, the ZIFA Council met and ousted Leo Mugabe and James Mtisi, installed Vincent Pamire as acting chairman and on July 6, 2003, the Warriors qualified for the AFCON finals, for the first time)
Mathew Masinge
Online Reporter