SUPREME COURT DISMISSES BITI APPEAL

The Supreme Court has dismissed Harare lawyer Mr Tendai Biti’s appeal, effectively upholding a High Court decision that denied his application for condonation in a US$1 million defamation suit brought against him by two executives of Augur Investments.

Mr Kenneth Sharpe, alleging defamatory accusations that he is among the country’s most corrupt individuals looting national resources, is seeking US$400 000 in damages.

Augur Investments itself is claiming US$500 000, while its chief operations officer, Ms Tatiana Aleshina, is demanding US$100 000 in damages.

The appeal arose after a default judgment was entered against Biti, paving the way for trial proceedings.

Seeking to reverse this judgment, Mr Biti escalated the matter to the Supreme Court.

However, the Supreme Court, in a unanimous decision, dismissed the appeal for lack of merit.

Writing for the court, Justice Felistus Chatukuta said the lower court had meticulously considered the key requirements for condonation.

She highlighted that Mr Biti’s three-month delay in filing the application was excessive and his explanation for the delay wholly inadequate.

The bench, which included Deputy Chief Justice Elizabeth Gwaunza and Justice Chinembiri Bhunu, also evaluated the prospects of success.

It concluded that Mr Biti’s chances of succeeding on appeal were negligible, referencing Justice Manzunzu’s earlier decision to dismiss his application for leave to appeal the default judgment.

The lower court had further determined that the balance of convenience favoured the respondents, stressing the necessity of bringing litigation to a definitive conclusion.

Justice Chatukuta rejected any suggestion that the High Court failed to address the relevant requirements for condonation or failed to provide adequate reasons for its decision.

She underscored that Mr Biti’s grounds of appeal tacitly acknowledged the lower court’s reasoning but failed to challenge its adequacy, a failure she deemed fatal to his case.

The court ruled that Mr Biti had not demonstrated any basis to overturn the High Court’s exercise of its discretion, rendering his appeal unsustainable.

The dispute in the High Court centred on an application for rescission of judgment.

However, as Justice Chatukuta observed, the dismissal of the condonation application rendered the judgment final and definitive, precluding further consideration of rescission.

As a final judgment, the judge ruled it was appealable without leave.

Addressing the merits, Justice Chatukuta found that all three grounds of appeal lacked substance.

She reiterated that the lower court had thoroughly examined and applied the relevant legal principles, providing clear reasons for its conclusion.

Last year, Justice Gladys Mhuri of the High Court dismissed Mr Biti’s explanation for the late filing of his heads of argument, describing the delay as unreasonable.

She noted that it is well established that a default judgment is not, in ordinary circumstances, appealable.

As an experienced lawyer, the judge said, Mr Biti was expected to be aware of this principle. Herald 

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