Fidelis Munyoro Chief Court Reporter
Vice President Phelekezela Mphoko has approached the Supreme Court challenging the High Court ruling dismissing his bid for rescission of judgment in the $50 million defamation suit against the Daily News and the Daily News on Sunday.
The Vice President twice lost the suit at the High Court.He is now appealing the decision upholding ANZ contention that he used the wrong practice in seeking to retract a previous ruling, which had also gone against him.
The suit stems from the June 2015 article the Daily News published, alleging that VP Mphoko had during the liberation struggle deserted his colours in exchange for personal gain and aggrandisement.
Through his lawyer, Advocate Thabani Mpofu, the Vice President argues that the allegations touching on the vending of the national cause to the prejudice of the blood of the many gallant fighters of the land were of concern and particularly serious.
The alleged defamatory article was founded on the Daily News interview with ex-war veterans leader Jabulani Sibanda. In the article, Sibanda claimed that VP Mphoko had sold out during the liberation struggle, when he allegedly diverted weapons meant for the late Joshua Nkomo’s Zapu to Zanu-PF.
This, Sibanda further claimed, could have led to the needless deaths of thousands of people. In the heads of argument filed last week, Adv Mpofu said no cause ever existed for the denial of the application for rescission, which had been brought as a matter of right.
He wants the appeal be allowed, saying the parties ought to have their differences resolved in fully contested adversarial proceedings. “Justice demands no less,” said Adv Mpofu.
According to the amended grounds of appeal, it is being argued that after the High Court improperly found that there was no proper application before it, it erred in proceeding to consider an application which it had found to be non-existent.
“The court aquo (lower court) erred in failing to find that having been represented by a representative who had full instructions to relate to the matter together with a similarly circumstanced legal practitioner, no legal basis existed upon which appellant could be deemed to have been in breach of rule 182(11) of the High Court Rules,” said Adv Mpofu.
“The court aquo erred in failing to determine the point taken before it to wit, first respondent’s (Daily News reporter Fungai Kwaramba) absence at the pre-trial conference militated against the dismissal of appellant’s claim to first respondent’s benefit.”
Further, it is being argued that the lower court misdirected itself in not finding that the parties having agreed to the referral of the matter to trial, the dismissal of the claim on the basis that appellant was not in personal attendance was an error cognizable under rule 449(1)(a) of the High Court Rules.
The lower court, argues Adv Mpofu, erred in concluding without a basis, that the Practice Directive governing the holding of pre-trial conferences is in conflict with provisions of rule 182 (11) of the High Court Rules.
“The court aquo erred in all circumstances in giving effect to respondent’s ambush tactics under circumstances where they were not prejudiced by appellant’s absence and also given that they had been content at all times to deal with only his representatives,” he said.
Adv Mpofu said it was fundamental to court procedures in this country and in all civilised countries that standards of truthfulness and honesty be observed by parties who seek relief.
In the premises, the lawyer argues that the appeal is merited and should to be allowed with costs.
Vice President Mphoko lost the suit after he failed to attend a pre-trial conference, arguing that he was attending to national duty.