MDC-T seeks absolution

THE Movement for Democratic Change (MDC-T) party led by former prime minister Morgan Tsvangirai has applied for absolution from the instance in a matter in which journalist David Muzhuzha is suing for defamation and injuria against the party and two of its members.

When absolution from the instance is sought at the close of the plaintiff's case, the suggestion by the defendants is that the plaintiff has failed to make out a prima facie case and wants the judge to make a ruling that the court cannot make a finding.This would absolve the MDC-T and possibly save it from calling witnesses to defend the case.

The defendants in the case are the MDC-T, its spokesman Douglas Mwonzora and former MDC-T director, Toendepi Shonhe.

In its application for absolution from the instance lodged on October 25, 2013, lawyers for the defendants, Sarudzayi Njerere and E. Drury from a law firm Honey and Blackenberg, said plaintiff had failed to lead evidence that the MDC-T and Mwonzora published any statement that referred to him in an article published by this newspaper in November 2011.

The lawyers alleged that plaintiff had failed to show that Mwonzora was aware of Muzhuzha at the time the Financial Gazette interviewed him in November 2011 in connection with an article that Muzhuzha had coined the name MDC-T and that there was "insufficient evidence" submitted in court to prove that the MDC-T and Mwonzora's "statements were wrongful".

Similarly, the lawyers said there was no evidence from the plaintiff "to show that a factual violation of plaintiff's feelings was occasioned by (the MDC-T and Shonhe's) conduct.

"Neither was it shown before the courts that essential elements of injuria have been met in any way," the lawyers charged on behalf of the defendants.

They said Muzhuzha had not produced evidence that he had suffered any harm as a result of the defendants' actions.

Muzhuzha, through his lawyers, Joseph Mandizha of Mandizha and Company, has opposed the appeal for absolution, saying there was reasonable evidence on which the court might find for him on aspects of wrongfulness in general and injuria in particular.

Mandizha and Company also said Muzhuzha had testified before the court on the Financial Gazette article "and how in his estimation it defames him".

"The gist of his evidence was simply that while ipsi dixit (a dogmatic and unproven statement) of second defendant (Mwonzora) may only be in paragraph 10 of the declaration, the intention of second respondent was to call (Muzhuzha) a liar," said Muzhuzha's opposing papers.

Muzhuzha is suing the three for defamation arising out of the Financial Gazette article and injuria arising out of the attribution of the coinage of the name MDC to former journalist and MDC-T politician Grace Kwinjeh.

Mwonzora had dismissed the claim that Muzhuzha had coined the MDC's name saying the party had evidence, which included minutes, to prove that Kwinjeh had come up with the name Movement for Democratic Change and that Muzhuzha's claim was false.

"In fact, Learnmore Jongwe came up with the name Democratic Movement for Change. It was Kwinjeh who refined it to Movement for Democratic Change," said Mwonzora, clearly dismissing the assertion that had been put to him that Muzhuzha had coined the name.

Mwonzora, however, failed to produce the minutes to counter a ZCTU official record produced by Timothy Kondo, then a ZCTU advocacy co-ordinator, indicating that Muzhuzha had come up with the name Movement for Democratic Change. Interestingly, the MDC and other defendants have not produced such minutes before the court to support their case.

Welshman Ncube, who leads a breakaway formation of the MDC created after the 2005 split, said in an interview: "I can guarantee you that it was not Grace Kwinjeh who came up with that name."