High Court throws out Kamambo appeal for review

Zim Now Writer

The High Court has thrown out suspended Zimbabwe Football Association president Felton Kamambo’s appeal for review of the magistrate’s decision dismissing his application for discharge.

Kamambo is facing 32 bribery counts and had mounted an appeal at the High Court, complaining that magistrate Bianca Makwande erred in failing to discharge him at the close of State’s case.

In their ruling, judges of appeal, Justices Benjamin Chikowero and Pisirayi Kwenda said they had no reason to interfere with an ongoing 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 (Kamambo) 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.

“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”.

Kamambo is currently on trial in the magistrates’ court on 32 counts of bribery after he allegedly coerced Zifa congress members to vote for him in the association’s 2018 presidential elections by paying them.

The prosecution led evidence from numerous witnesses during the trial and these included losing candidate in that election, Phillip Chiyangwa; Kamambo’s campaign manager, Robert Matoka; the investigating officer and twelve congress members.

The latter were included among the thirty-two who had been paid either by the applicant directly or through Matoka.

The charge suggested that the Zifa Electoral Committee was the principal, in determining the application, the trial court found that the principals were the members of Zifa.

These were the various local football bodies that were eligible to vote in the Zifa elections. They included the Premier Soccer League and the four Division One Soccer Leagues.

The judges noted that it was not in dispute that the Zifa Congress members, loosely referred to as councillors, received money either in the form of cash or mobile money payments.

Their evidence was that the payments were reimbursements for food, accommodations and transport expenses incurred when they attended Kamambo's campaign meetings.

The lone councillor who testified differently told the trial court that Kamambo, uninvited, insisted on giving him cash so that he would re-fuel his car with the balance going towards purchasing food for his family.

Chiyangwa told the court that he filed a police report after Matoka approached him and disclosed that Kamambo had won the election because he had bribed the councillors.

Police investigations unearthed proof of the payments that Kamambo and his campaign manager had effected in favour of the councillors.

Matoka argued that all the payments were not bribes but reimbursements.

An affidavit was produced whose contents reflected that he had sworn before a commissioner of oaths that, indeed, Kamambo had bribed the councillors in cash and at times via mobile money payments.

He changed statements though when he got onto the witness stand, saying that he had appended his signature on the affidavit under duress and not before a commissioner of oaths.

He argued that the truth was not in the "affidavit" but in what he was testifying to in court.

Matoka was declared a hostile witness, cross-examined by the prosecution with the court relying on those portions of his evidence favourable to the State in finding that a prima facie case had been established.

Under such a scenario, where the State had managed to prove its case, the judges said, they can only wait for the lower court to dispose of the case.

“Thus, put conversely, the general rule is that a superior court must wait for the completion of the proceedings in the lower court before interfering with any interlocutory decision made during the proceedings.

“We understand the law to be that even if an interlocutory decision is grossly irregular a superior court must still not interfere unless that decision vitiates the proceedings irreparably.

“...by the same token we have to be satisfied that the applicant's rights will be seriously prejudiced by what may be a clearly wrong interlocutory decision before we can interfere with the on-going proceedings of the lower court.

“With these legal principles in mind, the present is not one of the rare cases to call for our interference at this stage.

“In the result, the application be and is dismissed.”