HIGH Court judge Justice Tawanda Chitapi will next Thursday deliver judgment in the case where Walter Magaya is challenging his disqualification from contesting for the post of Zimbabwe Football Association (Zifa) president.
It was an intriguing court contest between Magaya’s lawyer Advocate Thabani Mpofu and Zifa legal representative Lovemore Madhuku.
Magaya took Zifa to court after he was disqualified for failure to produce an O Level certificate, arguing that he was illegally removed from the list.
The parties were in court before Justice Chitapi, with Mpofu arguing that the decision by the Zifa ethics committee should be reversed.
Mpofu said the ethics committe acted in an abnormal manner which is hinged on corruption.
He argued that their case was simple and carried weight.
“What brings to court is a simple and very straightforward issue. The requirement set out in the Zifa constitution is clear. It says an O Level certificate or an equivalent qualification,” Mpofu said.
“If a qualification issued by a university is even better than O Level, on that, this application ought to succeed.”
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Magaya submitted a national diploma in marketing from the University of South Africa.
“The respondents show that they are alive to a fact that they have to give reasons for the disqualification. But what they have not done is to give reasons to say that the documents they received do not amount to a qualification.
“What the constitution establishes is a minimum requirement.
“The tariff in the statute is a minimum qualification.
“The Electoral Code envisages the candidates may fail to meet requirements by failing to produce certain documents . . . and when they fail, they don’t get disqualified,” Mpofu submitted.
He also said Magaya failed to produce an O Level certificate and this does not mean he does not have that certificate.
He said the Zifa constitution says a candidate should be given seven days to do so.
“It gives you time within which to comply,” Mpofu said.
“Should there be a dispute on what a candidate would have given them, it will be a time to contest that.”
Mpofu said none of the respondents had the powers to disqualify prospective candidates.
“We challenge the respondents to identify a provision that allows them to disqualify a candidate,” he said.
According to Mpofu, Magaya had a chat with Zifa normalisation chairman Lincoln Mutasa who told him that the issue of qualifications was not the reason why he was disqualified.
He said his client would challenge Mutasa to dispute that.
“Where is Mutasa’s rebuttal. Where is his affidavit to say this was not the reason why they disqualified him. The decision has to be reviewed and set aside,” Mpofu said.
Madhuku, representing Zifa, argued that Magaya’s application was brought to the wrong court.
“The decisions of the respondent are not reviewable by this court,” he said.
“We don’t know the basis on which we, as Zifa, are being brought to court.”
Madhuku argued that Zifa is a non-profit organisation and is not an administrative organisation.
“It is nothing else, it is a private organisation and the law is very clear that you can only review disputes of administrative authorities,” he said.
“You should simply struck off this application for not meeting the requirements of the court.”
During the hearing, Justice Chitapi said Zifa was supposed to bring a record of proceedings which culminated in Magaya’s disqualification.
“If that record exists, it should be brought before the court to ascertain who took that decision,” the judge said.
“Without the record, there is nothing to talk about. The rules say that they have a duty to ensure that the record should be made available.
“The issue is the law says there should be that record. The submissions should speak on the action which was taken.”
The Zifa elections are for January 25, two days after the judgment is delivered in the Magaya case.
However, the elections face more hurdles as another disqualified candidate Temba Mliswa is challenging the legality of the same election and the matter will also be heard by Justice Chitapi.
