“There Is A Prima Facie Case”

  • As BFA Lose Appeal Against Sambandawe And His Cohort

Molefhi Kannemeyer Obenne

On Monday 22nd June, BFA lost yet again, this time before Appeal Committee, after an appeal against the judgement passed by Botswana Football Association (BFA) Disciplinary Committee (DC) Chairman Martin Dingake, on the 11th June 2020, to lift suspension on First Division North (FDN) League Committee members and reinstated them with immediate effect. The appeal lodged on the 18th June 2020 reiterated reasons advanced by BFA Legal Officer Thato Pako Moakhofi during the initial case proceedings, it further mentioned that the Dingake erred in hearing and determining a dispute between the BFA and BFA officials when he had no jurisdiction to do so.

The Mpezani Sambandawe led FDN League Committee was reinstated on Thursday 11th June 2020, following their suspension by the BFA NEC on the 23rd October 2018, due to apparently failing to account for an amount of money around P168, 225. 60. The suspension was with immediate effect and barred them from participating in any activity of the Association until a disciplinary hearing was conducted and concluded.

“You are therefore informed that you and the rest of the FDN Committee members are suspended with immediate effect pending disciplinary hearing,” read the letter dated 29th October 2018, from the BFA CEO addressed to the then Secretary of the FDN League Committee, Mr Rapula Gaothobogwe. The letter, referenced BFA/1/5/1 (65), titled: Re- First Division North Financial Review Report 2017/18, mentioned that, ‘The exact nature of the charges and facts surrounding same, shall be in the formal charge letters which shall be delivered to yourselves in due course’.

Almost two years later, the suspended Committee was in limbo awaiting to be charged while still on suspension. With the delay of their charges in contention, they wrote a complaint letter to the BFA DC chairman on the 25th February, sorting to have their suspension lifted and be reinstated to their positions. The Chairman called matter for hearing. But before the matter could be heard, it looked like we were in for another lengthy night as BFA felt the matter should be taken to BFA Tribunal since they had already given the matter to BFA DC Chairman and if there is a dispute on the issue it should then be referred to Tribunal. The BFA DC Chairman took none of it and said he is ready to listen to the matter since it was addressed to him and believed it should be settled then.

When making his presentations, Advocate Samuel Bokang Plaatjie, who represented the seven (7) FDN Committee members said, “On the 29th October 2018, the BFA suspended the Committee from their duties, on allegations of financial misappropriation pending charges, as is natural. No single charge has been laid today and their term could have come to an end, save iterator BFA extending term of office for its structures. Two Annual General Meetings (AGMs) –which could have ratified their suspensions passed without a word, they can’t participate in any football activity and are in limbo. Justice delayed is justice denied. Talk of the matter pending investigation. It’s not like nothing has been happening on our end. Postponement will add to the prejudice; suspension should be given a reasonable time. Two years is beyond understanding and unbearable. Our courts in Botswana are clear, you can’t be charged after a long time.”

BFA Legal Officer Moakhofi, when coming for the defense of the Association urged that something is been done, in terms of article 116 Commencement of Proceedings of the BFA Disciplinary Code. “According to Article 101: No reasons on the decision denied them the right to be heard, and the matter should be referred to Tribunal since it’s a dispute on proceedings.”

For his part BFA DC Chairman Dingake said the matter can’t be taken away from DC since by extension many of these matters naturally came to DC. “Circumstances maybe different but part of the DC sits with the matter, the DC must therefore deal with the matter. I’m prepared to give you audience today or shortest possible time. As embodied in that judgment it would then have been desirable that two bodies of the BFA must be seized with the matter and run with it parallel to each other, with the possibility of an outcome of one body differing from the other.  As I have indicated, that may create serious confusion and therefore against public policy; and on the principle of lis pendis it would then be undesirable to remove the matter completely and altogether from Disciplinary Committee, let alone the Chair of the DC.” And indeed the matter proceeded after both agreed to proceed.

Advocate Plaatjie went on to mention his clients expected a disciplinary action against them as per the letter, not investigation. “No charges have been brought forward. Common course to BFA, justice delayed is justice denied. We can’t accept the charges now. The mnemonic suggest the committee has been punished for something they didn’t not commit. Therefore, our relief sought is to have the suspension lifted and members reinstated.”

“In terms of BFA documents”, quizzed Dingake, “Is there a prescribed period as for when the DC or investigation should be done? “BFA Disciplinary Code Article 42: Limitation Period for Persecution, sub 3 reads, ‘Persecution for corruption is not subject to a limitation period’. Time makes inferences, there is no limitation to period, therefore in the absence of that, Botswana laws take precedence. Consideration ought to be made based on the essence of reasonability. A wide scope is not a license for abuse, otherwise that’s an arrogance of power. That conduct crisps abuse, unlimited period must be defined”, responded Plaatjie. “I will need explanation from the BFA but we are now beyond explanation. Prosecution must be done while events are still fresh in the minds of the prosecuted. So explanation won’t surpass the prejudice. I won’t accept an explanation.”

Moakhofi on behalf of BFA urged that, there are peculiar circumstances pertaining to the matter and their position is that the steps have been taken and the matter was placed before the BFA DC Chairman. “On the 30th July 2019 a paginated bundled letter was sent to the complaints. They should have interdicted at that point by raising a point of disagreement, which they didn’t. The complaints were summoned to appear before the DC Chairman with the investigations duly done.” However, the complaint responded that they only received the letter but without the said paginated bundle, which BFA couldn’t not confirm service of. “The ordeal then renders the matter to be in abeyance until on the 25th February 2020, the matter is not allotted a date until the 8th June 2020” reads the judgement.

Moakhofi furthers said, “Minutes of the Committee depicted a resolution in the last paragraph, which read, ‘we pray that the pending amount be cancelled so we start on a clean slate’. There is a case to answer, a prima facie case to answer. They admit for the amounts to be cancelled, swipe the matter under the rack. That is to say, ‘let our guilt not be dealt with’. This P168, 000, let it be cancelled. Vividly, there is a case to answer for, a prima facie case. This persecution doesn’t use the law of the land, we use FIFA standards. There is no perceived delay. Their preparedness should be we want our day in court. There was never a delay and by FIFA standards there is no delay.”

When passing judgement on the 11th June 2020, Dingake lamented that, “Whereas consideration must always be made of the serious nature of the allegations leveled against an accused, one must not lose sight of the need to act in the interest of justice, quick disposal of cases and generally, in consideration of the interest of the complainants.”

He further went on to address the delay of persecution in its entirety as unjustifiable, “No reason has been given why such a long period is necessary and I find that there cannot be any justification for it. In deciding this matter, I must also be alive to the prejudice the complainants have suffered and continue to suffer. They have been out of office and not participating in any matters of the BFA. The BFA sat idle and not bothered to timeously prosecute. They plead no challenges to see their intentions of the 29th October 2010 through.

In the end the DC Chairman, in his capacity, under Article 85 of the BFA Disciplinary Code; Jurisdiction of the Chairman ruling Alone, lifted the suspension of the First Division North league committee and reinstated them with immediate effect. When doing so he said, “The appropriate remedy in the circumstances is that; any investigation and/or charges either arising from the investigation or the alleged failure to account should be stayed and dismissed; The complainants’ suspension is lifted with immediate effect and a Committee appointed in terms of paragraph 5 of the letter 29th October shall cease to oversee the operations of the First Division North League committee with immediate effect,” concluded Dingake.

The decision, which the BFA wont taking laying down despite the judgement demonstrating that this dismissal of the committee’s suspension is not a bolt from the blue. The BFA believes there is a prima facie case to answer and feels the ruling was a gross injustice to football. The Sambandawe and cohort might have won the two encounters but the war is still far from over., as we await BFA’s next form of action.