By Petros Kausiyo
ZIFA’s row with Henrietta Rushwaya over vehicles and generators donated to the association continues to drag on at the High Court with the association challenging claims by their former chief executive that the fight was a labour dispute.
The soccer mother body want their former chief executive to return vehicles and generators donated by the Reserve Bank of Zimbabwe in 2008 while Rushwaya argues that the property was never Zifa’s as it belongs to the Warriors Trust.
Rushwaya also claimed in her opposing papers which had a supporting affidavit from former Zifa president Wellington Nyatanga that the association’s application should not come before the High Court as it was linked to a labour dispute she has with her former employers.
Three of the vehicles and as many generators were donated by the late Vice President Joseph Msika who was also the Zifa patron while the fourth vehicle – a Toyota Hilux – was originally bought for technical director Nelson Matongorere using as grant from the Confederation of African Football.
In opposing Zifa’s application for her to be ordered to release the property, Rushwaya had also questioned the locus standi of Zifa vice-president Ndumiso Gumede and chief executive Jonathan Mashingaidze to file supporting affidavits for the association.
Rushwaya also averred that Zifa could not file the application she still had a dispute that was pending before the Labour Court in which she is allegedly challenging her dismissal.
But according to the latest answering affidavit filed with the High Court, Gumede insisted that the case between Zifa and Rushwaya had nothing to do with her labour case against the association. Gumede claimed that Rushwaya “was trying to create dispute of facts which did not exist.”
Rushwaya is now the only respondent in the matter after Zifa withdrew their case against the Central Mechanical Equipment Department and the RBZ.
“Respondent wished to create disputes of facts which do not exist. Respondent is moulding pigeons in order to shoot them down. This is a clear and unchallengeable case, which has no single dispute of fact, neither does it have other procedural flaws as alleged by the first respondent or at all.
“To the best of my knowledge the Reserve bank of Zimbabwe donated cars buses and generators to Zifa (the applicant) and the Governor (Gideon Gono) has confirmed that, so where is the dispute of fact.
“The donor has clarified who was the donee and time of the donation. It was neither the first respondent nor a non-existent (legally) entity called the Warriors Trust. That is why there is no affidavit from the board of trustees of the said trust.
“Secondly the labour dispute which the first respondent claims is before the arbitrator has nothing to do with this civil dispute between the parties. It is not true that there is a dispute before the arbitrator, no such dispute has been referred to the arbitrator and the first respondent is challenged to produce such proof,” wrote Gumede.
Zifa, Gumede also said, was not asking the court to deliberate on Rushwaya’s dismissal from work but was seeking an order compelling her to release property, which they believe belong to the association.
“In any event, the question of first respondent’s dismissal which she claims to be contesting has nothing to do with this court. Applicant has not asked this Honourable Court to deal with the issue of first respondent’s dismissal but rather it has asked the court to compel respondent to release motor vehicles and generators unlawfully in her possession.
“This is a clear case of rei vindicatio. I am advised by my lawyers as opposed to a dispute between employer and employee governed by the contract of employment first respondent has not alleged that the dispute before the court is pursuant to an employment contract between the parties because it is not.
“In any event even if first respondent had appealed against her dismissal, the appeal would not suspend the operation of the decision appealed aginst in terms of the law. I therefore reiterate that the respondent’s purported points in limine are of no force or effect,” Gumede said.
The Zifa vice-president also told the court of his understanding of the role of the Warriors Trust in terms of its relation with local football and also argued that the fact that two buses donated under the scheme had been handed to the association without dispute.
“Respondent deliberately left out the fundamental issue that the so called ‘Trust’ was neither registered as such nor as a non profit making organisation or association as suggested.
“In legal parlance the well meaning esteemed individuals formed nothing. Further first respondent deliberately leaves out the mandate of the so-called trust because it does not assist her skewed opinion about the noble donation.
“The mandate of the so-called Trust was to raise funds for the Warriors campaign for that period. The chairman of the said ‘Trust’ confirmed this position to the current Vice President Honourable J. Nkomo at a meeting we held earlier this year where the other donated vehicles namely buses were released to us.
“The so called ‘Trust’ was mandated to fundraise for the Warriors and not to own assets on behalf of the Warriors or Zifa for that matter. The chairman Mr Savanhu (Tendai) was at that meeting at the Vice President’s office and confirmed that position . . . this is the reason why there is no supporting affidavit from him to support the first respondent’s pipe dream.
“Why did the Warriors Trust chairman not block the release of the buses to Zifa which buses were parked at the Vice President’s residence if indeed the Reserve Bank donated same to the Trust and not the applicant. The buses are at applicant’s premises for that matter were donated at the same time with motor vehicles to Zifa.”
Gumede also insisted that he had a right to represent Zifa in the application given his role in the new dispensation at the association.
“In the founding affidavit it has never been suggested that I was a member of the so called Trust or that I served as vice-president of applicant at the time of the Zifa administration headed by Mr Nyatanga.
“All I have said is that when I came into office I have appraised myself of the association’s assets and with the help of the Reserve Bank Governor and Vice President of the Republic of Zimbabwe and Mr. Savanhu himself, established that some of the applicant’s assets are not in the hands of the applicant.
“In the process of doing I recovered buses from the office of the Vice President Honourable John Nkomo and was correctly advised where the motor vehicles were i.e. in the first respondent’s possession.
“My findings are factual because first respondent has not only confirmed that she has the vehicles but is in fact claiming ownership of the same through the non-existent trust,” Gumede said. With both parties filing their affidavits, the saga looks set to drag on before the High Court.
