Siphakeme .Mnindwa
Eddie Chikamhi and Yeukai Karengezeka, Zimpapers Sports Hub
THE highly anticipated Zifa elections are now set to go ahead tomorrow without any worry of legal hurdles in the formal courts after High Court judge Justice Tawanda Chitapi, yesterday dismissed an urgent chamber application for review filed by disqualified presidential aspirant, Walter Magaya.
Magaya, was seeking the court to set aside the decision by the Zifa Ethics Committee and be allowed to contest the ballot after challenging the clause in the association’s new statutes, which says “the president and the two vice-presidents of the executive committee shall have passed a minimum of five O-level subjects or any equivalent educational level.”
The Yadah owner, who is among the five disqualified candidates, had not submitted an O-level certificate but argued that the decision by Zifa not to accept his alternative qualifications was “unreasonable”, “discriminatory” and “unlawful”.
He cited Zifa Normalisation Committee chairman, Lincoln Mutasa, as the first respondent, the Zifa Electoral Committee and the Zifa Normalisation Committee, which he also leads as the second and third respondents.
Magaya had wanted the court to set aside the Zifa Ethics Committee decision. However, Justice Chitapi dismissed the review application after going through the submissions by the two parties.
In his ruling, Justice Chitapi stated that Magaya’s application lacked merit and upheld the decision made by the Zifa Ethics Committee, which disqualified the clergyman on the basis that he did not submit the requisite O-level certificate with five subject passes.
“The court, before setting aside a decision, must be satisfied that anyone with common sense and logic and who is rational would not have reached the decision of getting authority and legitimacy. The applicant’s challenge cannot succeed in the circumstances of this case,” said Justice Chitapi.
The High Court ruled that the applicant did himself a huge disservice by not availing the required certificate.
The judge also criticised Magaya for failing to provide sufficient evidence to challenge the Zifa Electoral Committee’s decision or to demonstrate how the committee’s process was flawed.
“There was nothing grossly unreasonable and irregular in the decision reached to disqualify the applicant who has not done himself good by withholding facts and not being candid to the court with information, which he says, if this decision is set aside and he places it before the vetting committee, the decision may be deferred. Accordingly, the challenge by the applicant cannot succeed.
“It is my view that the challenge by the applicant was not frivolous or vexatious and involved a matter of public interest. I am of the view that the appropriate order in relation to costs is one in which each party must pay its own costs.
“Accordingly, I dispose of this matter as promised. This application is dismissed and each party will pay its own costs,” said Justice Chitapi.
Magaya and his legal counsel insisted the committee had failed to consider his tertiary qualifications, which included diplomas from the University of South Africa (Unisa).
The applicant contended that his higher qualifications, a Higher Certificate in Marketing and another in Theology should have been sufficient under Zifa’s statutes, which allow for equivalent qualifications.
He argued that the Electoral Committee erred by failing to consider his tertiary qualifications and not informing him in writing, within seven days that additional documents were required.
He also argued that the committee lacked a clear appealing structure.
“The issue is not whether a diploma is higher than O-level, but that the minimum requirement of five O-level passes must still be met. Even a PhD holder must produce an O-level certificate,” Chitapi stated.
“The requirement to have O-levels or their equivalent must be met. The effect that holds a degree, which is a higher qualification, does not, unless the requirements absolve the applicant from producing an O-level qualification or equivalent.
“It is incorrect as established by the applicants that O-levels are a minimum requirement. The minimum refers to a number of subjects, which is given as five O-levels. Thus, if a candidate has passed less than five subjects, he cannot qualify.
“What this means is that the applicant will have to produce the equivalent educational certificates, which shows that the education qualification is indeed equivalent to a minimum of those five O-level subjects and must give an indication of the curriculum that is covered by that equivalent.
“The applicant will be required to produce the O-level certificate or equivalent, even if he holds a PhD. That is the spirit behind Article 38 (of the Zifa constitution),” Justice Chitapi explained.
The ruling means that the Zifa are now set to go ahead without having to worry about legal challenges in the formal courts after Justice Chitapi earlier this week also dismissed another High Court application that had been made by another disgruntled office aspirant, Temba Mliswa.
However, Magaya, Mliswa, Benjani Mwaruwari and Gift Banda, who had wanted to contest the vice-presidency, still have pending cases after approaching the Court of Arbitration for Sport in Switzerland, as stipulated by Article 65 of the new Zifa constitution.
Six candidates – Philemon Machana, Nqobile Magwizi, Marshall Gore, Martin Kweza, Makwinji Soma-Phiri and Twine Phiri – have been cleared to run for the association’s hot seat.
