Mphoko loses Daily News case – again

By Tarisai Machakaire

Vice President Phelekezela Mphoko has once again lost in the High Court, with costs, in his staggering $50 million lawsuit against Associated Newspapers of Zimbabwe (ANZ) — publishers of the Daily News, the Daily News on Sunday and the Weekend Post.

In a judgment delivered on Wednesday, Justice Lavender Makoni threw out Mphoko’s appeal against an earlier defeat that the VP suffered in the same matter, after Judge Joseph Musakwa had also dismissed his lawsuit after he failed to attend a pre-trial conference in person — choosing instead to send an official from his office, Themba Ndlovu, to represent him.

“The urgent chamber application by the applicant is dismissed and the applicant is ordered to pay the respondents wasted costs … the applicant used the wrong procedure in seeking to rescind judgment.

“The pre-trial conference is not a formality. It is an essential part of the proceedings and the judge will have put aside other work and studied the pleadings in order to prepare for the conference. It is therefore in the extreme to wait until the time scheduled to advise the court that parties are unable to attend,” Makoni ruled on Wednesday.

Mphoko’s lawsuit followed a June 5, 2015 article that the VP took exception to, which 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.

But Mphoko had continued to argue that his failure to appear in person during the pre-trial conference had been necessitated by the fact that he was attending to State business at the time, adding that in any event he had sent a representative to stand in for him.

His lawyers also argued in vain that in terms of the rules of the court it was allegedly acceptable for one to send a representative during a pre-trial conference.

However, ANZ’s lawyer, Alec Muchadehama, successfully argued that Ndlovu was a stranger to the case’s proceedings and could thus not represent Mphoko in any way.

He also said Mphoko had exhibited “a bad attitude” towards his case by failing to attend the pre-trial conference in person, in addition to following the wrong procedure in the case and making an exorbitant claim.

“He (Ndlovu) had nothing to do with the court process,” Muchadehama said, adding that Mphoko’s claim was personal, and also arguing that only a company could send a representative, or a parent stand in for a child in court.

“Ndlovu could not have known or justify applicant’s claim of $50 million, he was not able to tell how the applicant (Mphoko) has been defamed, so he was of no use,” Muchadehama said.

“Everything about the procedure has been wrong and he seeks the court’s indulgence. He is claiming $50 million. That kind of claim would appear to prove he is not serious with his claim.

“The amount is so high as opposed to what can be taken to be serious by this court. Given precedence, nobody has been granted such an amount. His claim is almost like a dream,” the ANZ lawyer had also argued.

In earlier papers responding to Mphoko’s claims that his reputation and status had been diminished by the story, Muchadehama said, “Defendants (ANZ chief writer Fungi Kwaramba, Group Editor Stanley Gama, ANZ itself and its printing division Printco) will say that they do not know what plaintiff’s claim to fame is.

“They do not know of his immense contribution to the liberation of Zimbabwe. Defendants will put the plaintiff to the proof of his claims.

“Defendants will say that the amount of damages being claimed by plaintiff (Mphoko) is ridiculously high and constitutes a petit patio,” Muchadehama said in the defendant’s plea.

“For this reason, plaintiff’s claim must be dismissed with costs.”

Commenting on the High Court’s latest ruling in ANZ’s favour, Gama thanked Muchadehama and the courts for upholding the rule of law irrespective of the “station” that parties to court processes occupied — adding ruefully that it was “always of concern” when people in high office such as Mphoko appeared “too thin-skinned and unnecessarily litigious”.

“Let’s give credit where credit is due, President (Robert) Mugabe and Mphoko’s co-deputy, Vice President Emmerson Mnangagwa, have never sued the media despite being at the receiving end of worse negative press from the Fourth Estate.

“But even more importantly, it is hugely problematic when those either in the presidency or the Cabinet, who wield immense executive powers, also come across as thin-skinned, belligerent and litigious.

“Our hope is also that at some point those of our people who are in senior leadership positions will come to realise that it is not ideal, unbefitting and ultimately not very helpful to Zimbabweans’ quests to build a fair, egalitarian and desperately needed democratic society,” Gama said. Daily News