By Desmond Chingarande
THE National Prosecution Authority has filed a High Court application challenging a decision to acquit Zimbabwe Football Association (Zifa) board members in a case they were accused of defeating the course of justice.
Prosecutor Tendayi Shonhayi in a High Court application said Harare magistrate Stanford Mambanje grossly erred by absolving Zifa president Felton Kamambo and his accomplices, Phillimon Machana, Bryton Malandule and Farai Jere of wrongdoing.
The four were accused of moving money from a Zifa account to a company’s account in a bid to evade creditors.
It was alleged that they moved US$740 000 from Zifa’s account to an account belonging to Conduit Investments, a company owned by Machana, sometime in 2019.
Machana is the board member in charge of finance, while Malandule is in charge of competitions and development, and Jere sits on the board by virtue of his position as Premier Soccer League chairman.
In 2018, Daisy Guest House (Pvt) Limited had obtained a garnishee order against Zifa for US$161 172, but magistrate Mambanje found that it specifically mentioned Zifa’s account held with Steward Bank and not Ecobank.
He ruled that the money transferred to Machana’s account was, therefore, not judicial funds.
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“It is strange why the Sheriff rushed to the Ecobank account when the court order says Steward Bank,” Mambanje said.
“This was suspicious, as the Sheriff does not embark on such on his own.
“From the agreed facts, as the State alleges the offence was committed, there was no legal process. Garnishee orders are granted in specific terms and no such order was granted against Ecobank. At that time, Ecobank account was not under any attachment and there was nothing which could stop the transfer. The legal process commenced way long after the day of the alleged offence was committed.”
In challenging this ruling, Shonhayi said the trial should proceed before a different magistrate.
“Mambanje’s decision to quash the charges and return a verdict of not guilty against the four was grossly irregular in its defiance of logic that no sensible court having applied its mind would arrive at it,” Shonhayi said in her founding affidavit.
“There was gross irregularity in the decision to such an extent that the fifth respondent failed to appreciate the nature of the application before him.”
The prosecution said the magistrate, through his decision, denied the State a constitutionally-mandated chance to prove its case beyond reasonable doubt.
The applicant accuses the regional magistrate of lacking probity by rendering a criminal case useless.
“The magistrate failed to appreciate the nature of the application before him and this anomaly created an unlevelled playing field for the State as it has been robbed of an opportunity to prove its case beyond reasonable doubt,” Shonhayi said.
“The courts are very strict in applications of this nature and are not quick to grant any relief unless in exceptional and compelling circumstances. It is my considered view that my case falls within the realm of exceptional circumstances warranting the honourable court to interfere with the proceedings in my matter which has already been terminated by the magistrate.”
The matter is yet to be heard.
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