His case has been dismissed
THE ZIFA board’s appeal against their disciplinary committee’s decision to nullify the suspension of vice-president, Gift Banda, suffered a mortal blow yesterday when the case was dismissed on a technicality.
The seemingly endless case was brought before the ZIFA Appeals Board yesterday and dismissed, on a technicality, since it could not be established if the association had paid the $40 000 appeal fee as demanded by their rules and regulations.
Lawyers representing Banda, who has been on suspension since January 16, last year, raised a preliminary point that ZIFA had not complied with Article 7 of the rules and regulations, related to the execution of such an appeal, and the appeal was defective and could not be heard.
Munyaradzi Nzarayapenga, of DBN Attorneys, representing Banda, raised the key preliminary point just before proceedings could commence, arguing that, without confirmation that ZIFA had paid the $40 000 appeal fee, the case could not be heard as scheduled.
He argued that this meant the appeal, as per the ZIFA rules and regulations, was never fi led in the first place and, without confirmation of the payment of a fee, the Appeals Board could not go into the merits of ‘’a defective process.’’
Nzarayapenga said the rules and regulations were clear and were meant to protect football and could not be violated, by a party to the proceedings, without throwing the whole process into a sham.
“We raised a preliminary point that ZIFA did not comply with Article 7 which says that the appeal should be accompanied by an appeal fee prescribed,’’ said Nzarayapenga.
“The rule is very clear that such an appeal should be accompanied by the payment of a fee and, without such a payment, then the appeal becomes a nullity.
“It means there is no appeal that was lodged to the committee (Appeals Board).
“Without a record, that the money was paid to support the appeal, the appeal could not be heard.’’
Nzarayapenga said, given a ruling had to be passed to the preliminary point they raised, it was up to ZIFA to satisfy their Appeals Board as to what had happened to the money which they were supposed to pay to accompany their appeal.
Without such a satisfaction being provided, said Nzarapenga, the ZIFA Appeals Board ruled in their favour given the rules and regulations were very clear.
“The ruling was to the effect that ZIFA did not comply with the provisions of the Article and, in the absence of the accompanying payment, the appeal was defective,’’ he said.
‘’Remember, for an appeal to be lodged, it has to be done within a certain number of days and, also, it has to be accompanied by a payment.
“This means that Gift Banda retains his post as ZIFA vice-president as per the ruling of the ZIFA disciplinary committee which nullified his suspension by the board.
“We were ready to deal on the merits of the case, remember the decision of the disciplinary committee was based on a stated case and, any appeal, could not bring in things that were not agreed to by both parties when the matter was first heard, which led to the judgment which was passed.’’
ZIFA lawyer, Chenaimoyo Gumiro, of Harare law firm, Ngaravo, Moyo and Chikono, confirmed to The Herald last night that complications rose when the respondents raised the issue of the payment of the $40 000 appeal fee.
He also confirmed that it was mandatory that an appeal should be accompanied by an appeal fee and a receipt to confirm its payment.
“We tried to contact the person, who does the payments, to see if we could get the receipt but he said he couldn’t make it into town because of the lockdown issues today (yesterday),’’ said Gumiro.
“The Appeals Board said since the confirmation that the fee had been paid was not there, they could not proceed with the case since the process could be deemed to be defective.
“The onus is on ZIFA to satisfy the Appeals Board that, as and when the appeal was lodged, payment was done to accompany that appeal.’’
Banda was suspended by the ZIFA board after a meeting held on January 16, 2019, after he was accused of having reshuffled the Warriors technical team without the input of his fellow executive committee members.
However, on March 7 this year, he was cleared of any wrongdoing by the football mother body’s disciplinary committee.
However, in the same week that the disciplinary committee provided him with relief, the ZIFA board appealed against the decision of their disciplinary committee.
“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,’’ ZIFA claimed.
“The disciplinary committee erred at law in that it failed to make a determination on various charges that had been levelled against the respondent.
Th e 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”.
However, Banda’s lawyers said 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.
“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.’’