The Sunday Mail
Petros Kausiyo
Sports Editor
FELTON KAMAMBO’s bid to have charges of bribing his way into becoming the Zimbabwe Football Association (ZIFA) president quashed has hit a brick wall following a High Court ruling that he must stand trial over the matter.
Kamambo, elected ZIFA president in December 2018, was recalled by the association’s Congress on April 23 last year, six months after the Sport and Recreation Commission (SRC) had suspended his executive committee on allegations of mismanagement of the domestic football body.
But before the SRC suspension and the recall by the Congress, Kamambo had been hauled before the magistrates’ courts on allegations that he paid inducements to 32 ZIFA councillors in order to win the association’s elections.
Kamambo upstaged then incumbent Philip Chiyangwa in that ZIFA election.
Over the last three years, Kamambo has been battling to clear his name in the long-dragging bribery case.
High Court judge Justice Benjamin Chikowero, with the concurrence of Justice Pisirayi Kwenda, on Friday dismissed Kamambo’s appeal against a case that was before Harare Regional magistrate Bianca Makwande.
Justice Chikowero ordered Kamambo returns to the magistrates’ court to stand trial.
“We are satisfied that at the heart of this application lies the contention that the trial court was wrong in not discharging the applicant at the close of the case for the prosecution.
“The applicant urges us to interfere in the uncompleted proceedings of the trial court by exercising our review powers to set aside the interlocutory decision and to, ourselves, discharge him,’’ read part of the five-page judgment.
In dismissing Kamambo’s application, Justice Chikowero also cited a previous ruling by the Supreme Court, which noted: “The general rule is that a superior court should interfere in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice, which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”
It is on this basis that the High Court directed Kamambo to return to the magistrates’ court. “We understand the law to be that even if an interlocutory decision is grossly irregular, a superior court must still not interfere unless the decision vitiates the proceedings irreparably.
“If that decision can lose its impact in the course of those ongoing proceedings, a superior court will not interfere before the proceedings are finalised,” Justice Chikowero said.
He added that similarly, if the impact of the grossly irregular decision can be remedied by a superior court, either on appeal or review after the conclusion of the matter in the court below, the superior court will not interfere before then.
Justice Chikowero said by the same token the High Court has to be satisfied that the applicant’s rights will be seriously prejudiced by what may be a clearly wrong interlocutory decision before it can interfere with the ongoing proceedings of the lower court.
“With these legal principles in mind, the present is not one of those rare cases as to call for our interference at this stage.
“We see nothing in the interlocutory decision that the judgment of the court below, after a full trial, cannot redress,” he further said.
The High Court also noted that Kamambo could still appeal to a superior court for a review should he be convicted, following a full trial. “Since the onus lies on the prosecution to prove its case beyond reasonable doubt, the arguments that he relies on to argue the interlocutory decision is wrong, on the evidence, may still be relied on by him to challenge the main judgment of the court below, should he be convicted.
“We take this view because the applicant’s grounds for review raise the sole contention that the court below grossly misdirected itself at law, and in fact, in dismissing his application.”
“He has identified the areas in question, although some of the grounds are in the nature of arguments. At the end of the day, we are satisfied that what the applicant has relied on as grounds for a review are in reality grounds of appeal.” Added Justice Chikowero: “He cannot appeal the interlocutory decision under cover of what he has chosen to characterise as grounds for review. We have looked at the substance of the grounds, not their form.
“In the circumstances, it becomes unnecessary to traverse the merits of the application lest we exercise appellate jurisdiction at this stage. In the result, the application be and is dismissed.”
Kamambo had approached the High Court for a review of the judgment of the magistrates’ court dismissing an application for discharge at the close of the case for the prosecution.
He is on trial in the magistrates’ court on account of 32 counts of bribery as defined in 170(1)(b)(ii) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).
“The allegations are essentially that he induced Zimbabwe Football Association (ZIFA) Congress members to vote him in the 2018 ZIFA presidential elections by paying those voters’’.
The court noted that the fact that councillors were paid was not disputable.
“The charge suggested that the principal was the ZIFA Electoral Committee but in determining the application, the trial court found that the principals were members of ZIFA.
“These were various local football bodies that were eligible to vote in the ZIFA elections. They included the Premier Soccer League and the Four Division One Leagues.
“It was not in dispute that the ZIFA Congress members, loosely referred to as councillors, received money, either in the form of cash or ecocash, from the applicant and in some instances through Robert Matoka (Kamambo’s campaign manager).
“However, all the councillors who testified, save for one, said that the payments were not bribes. Their evidence was that the payments were reimbursements for the expenses incurred by them in attending the applicant’s campaign meetings.
“Such expenses were for food, accommodation and transport. The lone councillor who testified differently told the court that the applicant, uninvited, insisted on availing cash so that the witness could refuel his car, with the balance going towards purchasing food for the witness’ children,’’ Justice Chikowero said.
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