By Petros Kausiyo
ZIFA remain resolute in their bid to keep Gift Banda suspended and have now filed their heads of argument in which they are contesting the decision of their disciplinary committee to exonerate the association’s vice president from charges of usurping powers of the board.
Banda — elected in the December 2018 ZIFA polls — was suspended a few weeks into office on allegations of usurping the board’s powers by unilaterally dismissing then-Warriors assistant coaches Rahman Gumbo and Lloyd Mutasa.
However, the Bulawayo businessman and legislator, through his lawyers, is counter-arguing that the board has no legal basis “to contest their own application”.
The ZIFA board meeting of January 16, 2019 resolved to suspend Banda, who then sat on the sidelines for 14 months.
On March 7 this year, he was cleared of any wrongdoing by the football mother body’s disciplinary committee.
Before the ink on the ruling that acquitted Banda had dried, the board contested the judgment and have now turned to the ZIFA Appeals Board, chaired by Stead Kachere, to overturn the acquittal.
The board wants Banda found guilty of all the charges, arguing that the disciplinary committee misdirected itself by focusing on issues that were not up for determination.
ZIFA filed their submissions through Harare law firm Ngaravo Moyo and Chikono.
“It is respectfully submitted that the disciplinary committee misdirected itself by arriving at a decision based on technicalities without looking at the merits of the matter that had been brought to its attention for a determination.
“The disciplinary committee erred at law in that it failed to make a determination on various charges that had been levelled against the respondent. The hearing was concluded without a pronouncement being made on many charges being faced by the respondent,” reads part of ZIFA’s heads of argument.
The local football governing body also believes that “the disciplinary authority disregarded the issue that was before it for determination”.
It is ZIFA’s contention that the matter has to be determined on its merits.
“It is trite that in the disciplinary hearing there is no strict adherence to evidentiary rules. The issue of admissibility of evidence is less onerous as opposed to the court’s rules.
“In casu, the disciplinary authority tied itself to the statement of agreed facts and could not entertain any other relevant evidence that was meant to assist the authority in arriving at a proper determination of the matter. The admission of evidence must be done in a manner that accords the other party an opportunity to respond,” it adds.
It is believed that the disciplinary body erred by not pronouncing itself on charges that had been brought to its attention.
“It is accordingly respectfully submitted that the refusal by the disciplinary authority to accept evidence from appellant of the words uttered by the respondent constituted an error at law.
“It is now settled law that failure by a judicial officer to determine all issues brought to its attention for resolution constitutes an error at law. The disciplinary authority did not make any pronouncement on the charges that had been brought against respondent.
“This constitutes a grave error at law. The disciplinary authority should have considered every charge and made a pronouncement on each and every charge that respondent was facing. This was not done.”
However, Banda’s lawyers — Dube-Banda, Nzarayapenga & Partners — say the Appeals Board should bear in mind that it was the appellant (ZIFA) that “requested that the matter . . . should be decided as a stated case”.
Parties, therefore, had to agree on all the facts which led to the proceedings, and the disciplinary committee had to decide whether those facts amounted to a breach of the law.
Overall, the decision that was taken by ZIFA dispensed with the need to call witnesses, since they serve the purpose of proving facts.
Banda’s counsel cites the case of Premier Soccer League v Freddy Mangoma & Anor HH 291-17, which also proceeded as a stated case.
The court ruled that where parties have agreed on the real issues to be decided, through a stated case, as in this case, neither party should cry foul in the event of an unfavourable ruling.
“Once a party has agreed to the facts, such a party cannot hide behind a newspaper article whose contents it did not prove through any witness. Such a party cannot hide behind a charge sheet which contains nothing, but wild and fanciful allegations,” read part of the ruling.
It added: “Appellant makes the cardinal error that it expects everything it alleged in the charge sheet to be accepted as fact without having been proved.
“If this were the manner in which disputes are decided there would have been no need for hearings.
“The fact that something is in the charge sheet and in a newspaper article does not make those averments facts. Section 69 of the Zimbabwean Constitution offers the right to a fair hearing.’’ The Sunday Mail