Ousted Zimbabwe Football Association (ZIFA) president Felton Kamambo facing 32 bribery counts had his appeal for a review of the magistrate’s decision dismissing his application for discharge thrown out by the High Court.
Kamambo 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 thirty-two counts of bribery.
Allegations are that he coerced ZIFA congress members to vote for him in the association’s 2018 presidential elections by paying them.
During trial, the prosecution led evidence from numerous witnesses.
These included the losing candidate in that election, Phillip Chiyangwa; Kamambo’s campaign manager, Robert Matoka; the investigating officer and twelve congress members.
The latter were counted among the thirty-two who had been paid either by the applicant directly or through Matoka.
The charge suggested that the principal was the ZIFA Electoral Committee but, 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 ecocash.
However, all the councillors who testified, save for one, said the payments were not bribes.
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 availing cash so that the witness 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 testified 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 ecocash.
Once on the witness stand, however, Matoka testified that he had appended his signature on the affidavit under duress and, in any event, not before a commissioner of oaths.
He said the truth was not in the “affidavit” but in what he was testifying to in court.
Matoka was declared to be a hostile witness, cross-examined by the prosecution and the court relied on those portions of his evidence favourable to the state in finding that a prima facie case had been established.
The judges said under such a scenario, where the State had managed to prove its case, 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.”