January judgment in Moyo's defamation lawsuit

By Staff Reporter

A HIGH Court judge has postponed to January next year judgment in a defamation lawsuit filed by former Information Minister Professor Jonathan Moyo against John Landa Nkomo, the Zanu PF national chairman and Speaker of the House of Assembly.

Justice Francis Bere had in September indicated that he would deliver his ruling in the first week of December, but this week, he told lawyers for the two men he is still writing his judgment.

Both defence counsels have submitted dossiers of more than 50 pages.

The lawyers, Job Sibanda, of Job Sibanda and Associates for Prof Moyo and Francis Chirimuuta of Chirimuuta and Associates for Nkomo, both failed to meet their deadlines to submit written submissions to the court, prompting them to apply to be given more time to submit the papers.

Sibanda had been given a September 30 deadline and Chirimuuta had to submit his by October 30.

Moyo dragged Nkomo to court last year seeking to prove that he had defamed him by telling Zanu PF supporters in Tsholotsho district that he (Moyo) was the mastermind of an alleged “smart coup” plot to topple President Robert Mugabe and his deputies.

Nkomo told the meeting, Moyo said, that he (Moyo) had also received funding from donors hostile to President Mugabe’s government.
Sibanda, in his 50 page written submissions, described Nkomo as an unreliable witness and urged the court to set “high and exemplary damages” because of Moyo’s “elevated public standing”.

Sibanda also argued that the pleas filed by Nkomo, the 1st defendant in the $100 billion lawsuit, and Dumiso Dabengwa, who was the 2nd defendant, were improper.

"It is trite law that in pleading, defendant against whom a claim has been filed may deny the allegation, admit the allegations against him and avoid the consequences thereof by offering justification for same or admit and offer to settle," said Sibanda.

He argued that a party may not deny and avoid, as to do so, which Nkomo and Dabengwa did, would be improper.

In their defences, Nkomo and Dabengwa denied having said the words complained of, thus putting Prof Moyo to the proof of his allegations.

They further averred that if the court held that they had uttered the defamatory words, which they quickly pointed out they denied, then the words complained of were true and for public benefit.

Sibanda noted that faced with the confusing and confused plea, Moyo was entitled to pursue his claim against both Nkomo and Dabengwa, although the claim against Dabengwa has been dropped.

To avoid footing Dabengwa’s costs, Moyo submitted that his claim against the former Home Affairs Minister and liberation war hero was not frivolous.

Moyo’s lawyer said: “Midway through the trial, after Moyo had closed his case and after Nkomo had testified and had been cross-examined, during the testimony of Dabengwa, Moyo withdrew his claims against Dabengwa who was then absolved of any liability in the case by the court.

"The question for determination now is whether Dabengwa should be allowed to recover his costs incurred up to the day Moyo withdrew claims against him, or whether he should bear his own costs.”

He submitted that in order to answer the question of costs against Dabengwa, the "court must have regard to the evidence led by Moyo against Dabengwa prior to the withdrawal, and also Dabengwa’s own defence and the strength of such defence.”

He noted that Dabengwa’s defence was improper, meaning it was ambivalent, and that Moyo was entitled to demand an amplification of such a plea during the trial.

He added: "A defendant has a duty to plead to properly plead his true defence, it is submitted. Where he fails to do so, or where he pleads a defence that he fails to prove, it is submitted, in the event of claims against him being withdrawn for whatever reason prior to the conclusion of the case, he should not be awarded his costs. It is submitted that such a defendant should be ordered to pay his own costs as a mark of the court’s displeasure with the manner he framed his plea."

Sibanda further argued that when the claim against Dabengwa was withdrawn, sufficient evidence to establish his liability had been led by Prof Moyo. He noted that at the end of Moyo’s case, Dabengwa did not apply for absolution from the instance.

On the question of the quantum of damages, Sibanda urged the court to take note of the fact that his client was an accomplished scholar, writer, academic and public figure and is a professor of political science.

"At the time of the publication of the defamatory material he was a Cabinet Minister in the Office of the President of the Republic of Zimbabwe, responsible for Information and Publicity and Non-Constituency Member of Parliament.

"Without a doubt, Moyo’s social standing and academic achievements place him in a higher than normal strata. It is indeed difficult to perceive of a plaintiff of higher social and academic standing in our society," Sibanda said.

There was a legal dispute on the validity of minutes of a meeting of the Tsholotsho District Coordinating Committee held on January 12, 2005, at which Nkomo and Dabengwa were said to have made defamatory remarks about Moyo. Sibanda said a glaring fact about the minutes was that they were not confirmed and they were not verbatim minutes.

While the minutes are deficient in certain respects, he said, they accurately summarise other aspects and urged the court to regard the minutes with some qualification.

On the analysis of evidence, Sibanda noted that Nkomo’s main defence to the claim was a "bare denial” of the allegations made against him and to deny that the meeting of January 12, 2005, was a public meeting.

"A meeting does not cease to be public merely or only because the attendants belong to the same party. Members of the same party constitute a section of the public. Where they congregate in a hall, such as is the case, to discuss party issues, they are in fact doing a private thing in public," says Sibanda.

He submitted that Nkomo did not impress as a witness adding that in general, he was belligerent and hostile towards Moyo for no apparent reason.

"He for example failed to give any reason as to why his subordinates in the party would fabricate a story so serious against him. He belatedly claimed, rather scandalously for a man of his stature, that one of the witnesses was visibly sick, and needed assistance with her medication and Moyo was providing this assistance, hence her lying against him.

"The other witness did not respect him because she called him John during her evidence, and that is taboo. He, however, had no reason to proffer as to why she would fabricate a story against him," noted Sibanda.

Nkomo had failed to advance a plausible motive for the witnesses testifying against him, the lawyer said.

In response, Chirimuuta noted that Prof Moyo’s defence counsel had failed to give reasons for withdrawing claims against Dabengwa although he had indicated during the trial that he would do so later.

He argues that Prof Moyo is liable for the costs adding that the withdrawal of the allegations without giving any reasons at all "is highly reprehensible and deserving of an award of costs on a higher scale, that of legal practitioner and client scale".

"Without any reason for withdrawal having been given the issue is only but left to speculation which, as it is, the court has no duty to. In the circumstances the only reasonable inference is that Moyo must have realised that his case was going nowhere against Dabengwa and sought to cut costs by withdrawing his claims against Dabengwa," said Chirimuuta.

He added that there was nothing improper about his clients’ pleas in the matter.

It is his contention that the minutes of a meeting held in Tsholotsho on January 12, 2005, did not support any of the allegations made by Moyo.

He noted that a newspaper cutting produced in court as an exhibit was based "on information obtained by the reporter from sources other than the defendant".

"The article clearly states Nkomo refused to comment on what had been discussed during the meeting. The net effect of this is that Nkomo cannot be held liable for whatever was published that maybe defamatory of Moyo," he said.

He added that there was no basis for holding Nkomo liable for publication of any defamatory matter, if at all, in the Chronicle newspaper.

He says it is surprising that Moyo alleges that the defamatory statements were widely published in the press circulating in the country and yet he did not enjoin the publishers of the said press to the suit as is ordinarily the case in such suits.

On the nature of the defamation, Nkomo submitted that the nature of the allegations was political and it is an accepted phenomenon that "politics is a dirty game".

He added: "In such a game, insults, twisted facts, below the belt punches and false accusations are traded for political advantage. This is more so where there is rivalry for power, control and influence. Thus the above allegations should be generally viewed in that light".
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