Court rejects Manikai's bid to appeal Mawarire defamation ruling

The High Court has dismissed lawyer Edwin Isaac Manikai's application for leave to appeal against an earlier ruling that struck his urgent chamber application against activist Jealousy Mbizvo Mawarire off the urgent roll for lack of urgency.

Manikai had approached the court in April seeking an interim interdict compelling Mawarire to remove two articles published on his X account on March 31 and April 2, which he alleged were defamatory.

The articles related to the collapse of a Constitutional Court challenge against the Constitution of Zimbabwe Amendment Bill No. 3. They alleged that former Cabinet minister Professor Jonathan Moyo was the architect of the litigation and that a person identified only as "Manikai" had personally delivered cash to Moyo on behalf of businessman Kudakwashe Tagwirei, who was alleged to have financed the legal challenge.

In her initial ruling delivered on April 9, Justice Esther Muremba struck the application off the urgent roll, finding that the publications did not specifically identify the applicant.

The judge held that the surname "Manikai" was not unique to the lawyer and that there was insufficient basis to conclude the articles referred to him personally.

She also found that the interim relief sought was procedurally defective because it was linked to a damages summons to be filed within 30 days rather than pending the determination of a substantive application.

Dissatisfied with that decision, Manikai sought leave to appeal to the Supreme Court on three grounds.

He argued that the court should not have struck the matter off the urgent roll without first hearing oral submissions, that the ruling effectively determined the defamation dispute without considering its merits, and that the judge had erred in failing to recognise that the interim interdict would automatically lapse.

Represented by advocate T. Magwaliba, Manikai argued that the threshold for obtaining leave to appeal was relatively low and relied on previous case law in support of his application.

Justice Muremba dismissed all three grounds.

Addressing the issue of identification, she noted that Manikai's own court papers acknowledged that about 35 of his relatives share the same surname, making it impossible to conclude that the publications necessarily referred to him without additional identifying details.

The judge further clarified that her earlier ruling did not determine whether the publications were defamatory.

"There is nowhere in the order where I stated that the applicant was not defamed. My remarks were confined to the issue of urgency and not to the substantive merits of defamation," she said.

On the procedural complaint, Justice Muremba ruled that Rule 60(18) of the High Court Rules does not require an oral hearing before a judge strikes an urgent application off the roll where the issue of urgency can be determined from the papers filed.

The court also dismissed preliminary objections raised by Mawarire's legal team, including an argument that no appeal lies against a decision striking a matter off the urgent roll.

Justice Muremba held that a right of appeal exists under Section 43(2)(d) of the High Court Act and is distinct from Rule 60(19) of the High Court Rules, which merely provides for matters struck off the urgent roll to proceed on the ordinary court roll.

Although she dismissed Manikai's application, Justice Muremba declined to award costs against him.

Instead, she criticised Mawarire's lawyer, L. Chiperesa, for advancing preliminary objections that she described as irrelevant to the application and for failing to adequately address the substantive grounds upon which leave to appeal had been sought.

The ruling means Manikai's underlying defamation claim against Mawarire will now proceed on the ordinary court roll, where the dispute will be determined on its merits.