Lawyers distance themselves from Bosso board decision

By Mehluli Sibanda and Sikhumbuzo Moyo

Highlanders Football Club lawyers, Ncube and Partners Legal Practitioners have distanced themselves from the decision by the club’s board to allow three members of the executive committee to continue in office despite their tenure having come to an end.

The three members, chairman Kenneth Mhlophe, secretary-general Israel Moyo and committee member Wisdom Mabhena were elected into office three years ago and according to clause 10.3 of the Highlanders constitution, they ought to step down or seek re-election from the club membership.

Mabhena is, however, no longer eligible to stand for office as he has served his mandatory two consecutive terms. According to a statement signed by board of directors chairman Luke Mnkandla and club president Ndumiso Gumede, the board agreed to let the trio continue in office since failure to hold elections was not out of their own making, citing force majeure (act of God) due to the Covid-19 pandemic.

“Due to the Covid-19 pandemic rules and regulations, the negative responses received from the police and relevant sporting authorities and broad consultation on the matter, the force majeure circumstances in which the club finds itself necessitates that we postpone both the Annual General Meeting and elections until such a time that the relevant authorities sanction the activities, the pandemic is beyond anyone’s control. Out of necessity and practical considerations, the current Executive Committee will continue until elections are held,” read the statement.

However, club lawyers have stated that they were not consulted by the board on the matter.

Zibusiso Charles Ncube

“We were not consulted on this matter but we believe the constitution is clear on what should be done because lockdown or Covid-19 does not suspend our constitution, it only suspends operations of the club,” said Zibusiso Charles Ncube of the law firm.

The board’s force majeure argument has been criticised by some members and supporters who said it was not valid.

“I find it strange that the board tells us it’s because of force majeure that they saw it necessary to let the trio continue in office. The fact that the electoral process kick started under lockdown and Covid-19 means that we were prepared to hold our Annual General Meeting and elections during the same period and had authorities granted us permission, the two events were going ahead so our failure to have the meeting and elections cannot surely be said to be as a result of an act of God but its man-made which therefore disqualifies force majeure argument. Also, our constitution has no provision for force majeure, where are we importing it from?” queried James Brown.

Mnkandla has refused to shed light on how they arrived at the contentious decision to allow members of the club’s executive committee whose terms have ended to continue in their positions. By allowing Mhlophe and Moyo to continue to occupy their positions, the board is seen as giving them an advantage since they were confirmed as candidates in the upcoming elections where they have challengers. Johnfat Sibanda is challenging Mhlophe for the chairmanship while Moyo is going up against Morgen Dube.

When asked which section of the Highlanders constitution was used to extend the term of office for the three executive committee members, Mnkandla snubbed the offer to elaborate on the board’s decision. A hostile Mnkandla insisted that the explanation will only be given to the members at the AGM, whose new date remains unknown.

“The decision was made by the board. The decision will be explained to members through the Annual General Meeting. On your question on divisions, we are not aware of any divisions. We work collectively for the interests of the club,’’ Mnkandla said.

Article 10.3 states that “When so elected executive committee members shall hold office for a period of three years (3) years after which they will automatically lose their positions.” Furthermore, article 10.2 of the same document states that “For purposes of achieving continuity and minimising disruptions in the smooth running of the club’s affairs, the Executive Committee members will automatically lose their positions and be elected rotationally as follows: i) Group 1: Chairperson, Secretary General and Committee Member ii) Vice Chairperson and Treasurer.”

Those against the decision by the board point to article 10 which they say is meant to cater for the present scenario where terms of office for one batch of executive committee members expires and elections cannot be held for one reason or another.

They argue that the substantive executive committee members can continue running the club with the assistance of co-opted members since co-option is provided for in article 7.6. Roles of the Highlanders vice Chairman include acting in the absence of the chairperson so since the term of office of the chairman has come to an end, their view is that the vice chairman is then supposed to act in that position until such a time when elections are held since the executive committee’s second in command is substantive.

Chairmanship aspirant Sibanda said there was need to be vigilant in the interpretation of the constitution and not use emotions.

“My understanding is that we should be careful and read the constitution to the book and follow it as it is. Whether it’s for me or against me I must not be emotional about it, I must be sure, if the constitution says he (Mhlophe) must go then he must go. If the constitution is silent then it’s up to those who are running the show to interpret it the way it suits them,’’ Sibanda said.

While Mhlophe did not respond to whether he was continuing in his position, Moyo said he is yet to get the communication from the board. The Sunday News