Thursday, 22 September 2016

MPHOKO : I WAS ACTING PRESIDENT, COULD NOT ATTEND COURT



Vice President Phelekezela Mphoko has revived his $50 million defamation suit against the Daily News through an application to have a default judgment entered against him rescinded.

The VP is claiming damages amounting to $50 million from Associated Newspapers of Zimbabwe (ANZ), the publisher of The Daily News, over a report claiming that he was “a sellout” and “enriched himself with the blood of the people of this country”.VP Mphoko sued the newspaper arguing the article was defamatory and demanded compensation from the paper for libel.

In March this year, the High Court threw out the claim after VP Mphoko failed to turn up for a pre-trial conference.

An application for rescission of the judgment was filed. Advocate Thabani Mpofu, instructed by Mr Gerald Mlotshwa of GN Mlotshwa and Company, yesterday argued for the setting aside of the order before Justice Lavender Makoni.

Mr Alec Muchadehama of Mbidzo, Muchadehama and Makoni law firm represented ANZ and its staffers Fungi Kwaramba and Stanley Gama.

After hearing arguments from the parties, Justice Makoni reserved judgment.
In the chamber application for rescission of judgment, VP Mphoko argued that the order was erroneously granted because on the day in question he was out of Harare on Government business since he was Acting President.

VP Mphoko attached a letter from the Chief Secretary to the President and Cabinet Dr Misheck Sibanda confirming that he was Acting President on the day a default order was granted against him.

In his affidavit, VP Mphoko said he had a busy schedule and that as Acting President, his absence in court was justified.

“Such an office is of highest order and ranking to the extent that the Constitution of Zimbabwe’s Section 98 provides for immunity of the President of the country from civil and criminal litigation in personal capacity.

“I am advised the rationale of such immunity is, inter alia, a result of the recognition of the priority of the functions of the President’s office that justifies the immunity . . .

“It follows that the unique nature of a President in light of the foregoing as a litigant extends to an Acting President as provided for in Section 100 of the Constitution of Zimbabwe. I was the Acting President at the relevant time in casu,” said VP Mphoko.

Gama’s opposing affidavit states that the court was never told the VP Mhoko was Acting President.

“The court was not even advised that the applicant was then Acting President. Such a reason would in any event have been irrelevant. Applicant is the plaintiff in Case Number HC678 8/ 15. He sued in his personal capacity and not as a Vice President or Acting President,” reads the affidavit.

The claim arose from a June 5 2015, article published under the headline: “Mphoko was a sellout: Sibanda”. It was quoting the former war veterans’ leader Jabulani Sibanda.

The article complained of said in part: “Fearless former war veterans’ leader Jabulani Sibanda claims that VP Mphoko sold out during the liberation struggle when he allegedly diverted weapons meant for the late Joshua Nkomo’s Zapu to President Mugabe’s Zanu-PF, a move he says could have led to the needless death of thousands of people.”

In his claim, VP Mphoko argued that he was branded a treasonous villain, who for his own benefit, clandestinely supplied apartheid South Africa with war material that was in turn supplied to Selous Scouts.

Selous Scouts were a Special Forces regiment of the Rhodesian army formed for specific purposes of clandestine elimination of Zanla and Zipra guerillas during the liberation war.
VP Mphoko’s lawyer also asked for the article to be deleted from The Daily News website to prevent further damage to his reputation. Herald

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