News / National
Mphoko resuscitates his $50 million defamation claim against Daily News
12 Apr 2016 at 15:53hrs | Views
Vice President Phelekezela Mphoko, has resuscitated his $50 million defamation claim against Associated Newspapers of Zimbabwe (ANZ) - publishers of the Daily News, Daily News on Sunday and the Weekend Post.
In his fresh legal action after his previous claim was recently dismissed by the High Court with costs, Mphoko is arguing the default judgment that was entered against him was an "ambush".
But in a replying affidavit deposed by ANZ Group Editor, Stanley Gama, the company rubbished Mphoko's application, calling on the court to once again dismiss the VP's claim with costs.
Gama said had Mphoko been present at the pre-trial conference which had culminated in the default judgment against him, "perhaps the judge would have knocked some sense into his head regarding his claim of $50 million whose chances of success are ice in hell".
The last time the matter was heard, High Court judge Justice Joseph Musakwa dismissed Mphoko's lawsuit with costs following an application by ANZ lawyer Alec Muchadehama to have the case thrown out, after the VP failed to attend the pre-trial conference in person - choosing instead to send an official from his office, one Themba Ndlovu, to represent him.
Mphoko is now arguing that his absence then had been necessitated by the fact that he was attending to State business.
"The order in H.C 6788/15 was erroneously sought and granted in the absence of the applicant without having taken into account the fact that the applicant was acting president on the day and so was saddled with State functions," Mphoko said.
But Gama shot back, accusing him of failing to explain the nature of State business that he was attending to on the day.
"The nature of government business has not been outlined. Later on I watched ZBC television and saw applicant opening a branch of Choppies Supermarkets and distributing wheelchairs. I understand applicant had or has had interest in Choppies Supermarkets. Talk of government business," the ANZ Group Editor said.
"The court was not even advised that applicant was then acting president. Such a reason would in any event have been irrelevant … after all he sued in his personal capacity," he added.
"I am also advised … that the applicant has followed a wrong procedure in seeking redress. Applicant ought to have known that the respondents would oppose the application.
"With this knowledge, applicant ought to have proceeded by way of court application as opposed to a chamber application.
"I am further advised that the rules of court are there to be strictly followed. Failure to abide by the rules renders an application liable to be dismissed.
"Further, applicant must not over-exaggerate the importance of the office of the President. The incumbent of this office must be humble, uphold the Constitution and lead by example, including respecting the courts and their processes," Gama said.
"It is most unfortunate that applicant wishes the existence of criminal defamation which has since been outlawed. Criminal defamation was a draconian law which was outlawed by the Constitutional Court of Zimbabwe. It was outlawed in many progressive jurisdictions world-wide.
"It is spine-chilling that a person who occupies the office of Vice President and claims to be a highly-decorated liberation icon could wish the existence of such an odious law such as criminal defamation.
"I must add that applicant is a Vice President and a politician. He attracts publicity even on the slightest of things. The President of the Republic, Mr Mugabe, has advised that politicians must develop thick skins.
"Despite the so many publications and caricatures thrown at the President, he has never sued anyone. Perhaps Applicant may learn one or two things from the president regarding the relations with the media vis-à-vis suing for defamation," Gama said.
"Even when one considers the quantum of damages, a staggering $50 million, it is apparent that applicant's aim is to threaten the media.
"It appears this applicant's primary aim is to have third respondent closed. Such approach has a chilling effect on the media. And yet, applicant must be day dreaming to expect to be awarded $50 million for merely a story based on an interview with Jabulani Sibanda," Gama added.
Mphoko's lawsuit followed a June 5, 2015 article that the VP took exception to that was based on an interview with firebrand former war veteran's leader Jabulani Sibanda.
In the story, Sibanda claimed that Mphoko had sold out during the liberation struggle when he allegedly diverted weapons meant for the late Joshua Nkomo's Zapu to Zanu — a move that Sibanda further claimed could have led to the needless deaths of thousands of people.
In his fresh legal action after his previous claim was recently dismissed by the High Court with costs, Mphoko is arguing the default judgment that was entered against him was an "ambush".
But in a replying affidavit deposed by ANZ Group Editor, Stanley Gama, the company rubbished Mphoko's application, calling on the court to once again dismiss the VP's claim with costs.
Gama said had Mphoko been present at the pre-trial conference which had culminated in the default judgment against him, "perhaps the judge would have knocked some sense into his head regarding his claim of $50 million whose chances of success are ice in hell".
The last time the matter was heard, High Court judge Justice Joseph Musakwa dismissed Mphoko's lawsuit with costs following an application by ANZ lawyer Alec Muchadehama to have the case thrown out, after the VP failed to attend the pre-trial conference in person - choosing instead to send an official from his office, one Themba Ndlovu, to represent him.
Mphoko is now arguing that his absence then had been necessitated by the fact that he was attending to State business.
"The order in H.C 6788/15 was erroneously sought and granted in the absence of the applicant without having taken into account the fact that the applicant was acting president on the day and so was saddled with State functions," Mphoko said.
But Gama shot back, accusing him of failing to explain the nature of State business that he was attending to on the day.
"The nature of government business has not been outlined. Later on I watched ZBC television and saw applicant opening a branch of Choppies Supermarkets and distributing wheelchairs. I understand applicant had or has had interest in Choppies Supermarkets. Talk of government business," the ANZ Group Editor said.
"The court was not even advised that applicant was then acting president. Such a reason would in any event have been irrelevant … after all he sued in his personal capacity," he added.
"I am also advised … that the applicant has followed a wrong procedure in seeking redress. Applicant ought to have known that the respondents would oppose the application.
"I am further advised that the rules of court are there to be strictly followed. Failure to abide by the rules renders an application liable to be dismissed.
"Further, applicant must not over-exaggerate the importance of the office of the President. The incumbent of this office must be humble, uphold the Constitution and lead by example, including respecting the courts and their processes," Gama said.
"It is most unfortunate that applicant wishes the existence of criminal defamation which has since been outlawed. Criminal defamation was a draconian law which was outlawed by the Constitutional Court of Zimbabwe. It was outlawed in many progressive jurisdictions world-wide.
"It is spine-chilling that a person who occupies the office of Vice President and claims to be a highly-decorated liberation icon could wish the existence of such an odious law such as criminal defamation.
"I must add that applicant is a Vice President and a politician. He attracts publicity even on the slightest of things. The President of the Republic, Mr Mugabe, has advised that politicians must develop thick skins.
"Despite the so many publications and caricatures thrown at the President, he has never sued anyone. Perhaps Applicant may learn one or two things from the president regarding the relations with the media vis-à-vis suing for defamation," Gama said.
"Even when one considers the quantum of damages, a staggering $50 million, it is apparent that applicant's aim is to threaten the media.
"It appears this applicant's primary aim is to have third respondent closed. Such approach has a chilling effect on the media. And yet, applicant must be day dreaming to expect to be awarded $50 million for merely a story based on an interview with Jabulani Sibanda," Gama added.
Mphoko's lawsuit followed a June 5, 2015 article that the VP took exception to that was based on an interview with firebrand former war veteran's leader Jabulani Sibanda.
In the story, Sibanda claimed that Mphoko had sold out during the liberation struggle when he allegedly diverted weapons meant for the late Joshua Nkomo's Zapu to Zanu — a move that Sibanda further claimed could have led to the needless deaths of thousands of people.
Source - dailynews
