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Who owns 'Trust' properties, Rushwaya or ZIFA?

[Posted 15 Sep 2011]
[By Brighton Mupangavanhu]
Who owns "Trust" properties, Rushwaya or ZIFA?

Many soccer loving Zimbabweans must be wondering at what the meaning is around the whole court challenge where in the Zimbabwe Football Association is demanding the return of 'Trust' vehicles in former Chief Executive Officer Henrietta Rushwaya's possession, while the latter is opposing the former's High Court application.

The simple question which begs an answer is "Who has the rightful claim to the ownership of the properties? Is it ZIFA or can it ever be Ms Rushwaya?"

Whoever between the two parties to the High Court application, claims ownership, must be in a position to explain the grounds on which such ownership is claimed, if such party is to make any general, and more specifically, legal sense.

Let us dissect the matters at issue in this dispute, a dispute which sounds like an unnecessary one at face value.

What are the facts in dispute?

The real bone of contention is the ownership of about six pieces of property which are in the possession of Rushwaya, which ZIFA through its representatives, Vice-President Ndumiso Gumede and Jonathan Mashingaidze, the current ZIFA CEO, are claiming must be returned to the bona fide owners, Zifa.

The properties include four vehicles, three of which vehicles and three generators are properties donated to an unregistered trust, popularly known in football circles as the 'Warriors Trust', formed ofcourse under the auspices of ZIFA, the recognised custodians of football and more importantly the national soccer team of Zimbabwe, nicknamed, the Warriors.

The three vehicles and as many generators were donated to the Warriors by the Reserve Bank of Zimbabwe via the person of the late Vice President of the Republic of Zimbabwe, Joseph Msika, who was the ZIFA patron at the time of his death. 

The disputed fact is whether ZIFA has a bona fide claim to the six properties, which Ms Rushwaya avers belong to the 'Warriors' Trust'.

The major fact is dispute alone raises a lot of questions, some very legal complexities regarding the ownership of the properties, possession and the legal persona or status of the so-called 'Warriors' Trust', and whether Ms Rushwaya has a right or even entitlement to keep the vehicles on behalf of such a trust, if it exists at all in the eyes of the law, given the fact that she is currently fired from her former position as CEO at ZIFA. 

Turning to the legal issues in the High Court dispute, Ms Rushwaya is apparently arguing that either ZIFA or the duo of Mr. Gumede and Mr. Mashingaidze, lacks standing in law or locus standi in judicio to file papers in this matter because they cannot speak on behalf of the 'Trust', as they are not Trustees.

Another legal issue raised by Rushwaya is that ZIFA is precluded from bringing an application to the High Court on the same facts which form the basis of a case in which she is challenging her dismissal as CEO by ZIFA, a matter currently before the Labour Court.

Zifa on the other hand, is arguing that the so called 'Warriors Trust' does not exist as a seperate or full legal personality, as it was never registered.

The national soccer governing body further argues that the vehicles were donated for the sake of assisiting the national soccer team in its preparations for a major soccer tournament, and after the expiry of that period, the properties were handed over to ZIFA.

Gumede, on behalf of ZIFA, further argues that the High Court application for the return of the properties in Rushwaya's possession is not linked to the former CEO's Labour court challenge.

So, is there any merit to ZIFA's application for the return of vehicles? Or is Zifa the lawful owners of the properties donated to the Warriors, and which properties are currently in Rushwaya's possession?

Another key question is whether Rushwaya makes sense in defending her possession of the said properties, or is she entitled to keep possession of the properties, even if it is to be claimed that she is doing so on behalf of a 'Trust', whose legal status appears questionable, if it at all exist.  

Well, to conclude, it does appear that on a balance of the facts available within the public domain, ZIFA has a better claim of either ownership or right to possess the properties, even if it is to be proved that the 'Warriors Trust' does exist and possesses a legal personality.

Ms Rushwaya's queer claim that she is keeping possession of the vehicles on behalf of the 'Trust' sounds, to some critics, not only less plausible, but even ridiculous to say the least.

Even if Rushwaya's argument that the property belongs to the Warriors' trust is to be found to be correct, what grounds does she have to hold the said properties on behalf of the 'Trust' when she currently is not in charge of local football?

Ms Rushwaya's arguments have many holes to be sustainable in any court of law. Her other argument that Gumede and Mashingaidze lack locus standi to challenge her apparent unlawful possession of the national soccer team properties because they were not Zifa board members at the time the properties were donated, sounds extremely absurd.

Gumede and Mashingaidze are the current ZIFA Vice-President and CEO respectively. That alone gives them the right to act on behalf of ZIFA.

Rushwaya's argument that they lack standing can only be sustainable in terms of general Company Law if the two Zifa board members are challenging her possession of the said properties in their individual capacities, without the requisite Special Resolution of the entire Zifa board of directors, authorising them to act on behalf of the mother body.

Rushwaya's challenge does not appear to hinge on an understanding that she is holding onto the vehicles to force Zifa to pay her outstanding salaries or any moneys she is entitled to claim from Zifa as a former employer. If not then, why is an individual allowed to hold a national association to ransom in the manner Rushwaya is trying to do?

Could this have something to do with her supposed support of some political heavy weights, as some claim? Or is Ms Rushwaya flexing her own political muscle in this dispute?

If the answer to these questions is in the affirmative, then why should local football be allowed to be manipulated in this manner and be impoverished to the benefit of individuals who currently are making little or meaningful contributionat all to the development of the national team or local football.

The above helps put into perspective the nobility of the Zifa High Court application, seeking the return of the vehicles to the national soccer govening body, wrestling such possession from an individual, who is currently not using the properties to benefit any national cause.

The author acknowledges however, that there could be more to Ms Rushwaya's High Court challenge than the information available in the public domain suggests. It is therefore not a given that Rushwaya's challenge is doomed for failure.

 It may as well be proved that the two individuals, Gumede and Mashingaidze are acting in their personal capacities or in public interest. If that is the case, Rushwaya might therefore have a ground to challenge their locus standi. If the opposite is to be proved, then the prospects of success of her court challenge could be next to nothing.  

The author is a researcher in Corporate Governance issues under South African Company Law, and has been admitted to begin PhD studies in Commercial Law by the University of Cape Town, and will focus specifically on matters of corporate governance.

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