High Court judge Justice Gladys Mhuri has dismissed an application for rescission of the default judgment filed by lawyer Tendai Biti following the dismissal of his other application for exception in a matter where he is being sued for defamation by Augur Investments.
In his application for rescission of the default judgment, Biti had cited Augur Investments, the company's chief operations officer Tatiana Aleshina, chief executive officer Kenneth Raydon Sharpe, and the opposition Movement for Democratic Change Alliance party as respondents.
Augur Investments is seeking US$500 000 damages from Biti, while Sharpe and Aleshina are demanding USS$400 000 and US$100 000, respectively.
Sharpe has separately the opposition party for pursuing a malicious agenda based on Biti’s tweets.
On March 1 last year, High Court judge Justice Jacob Manzunzu issued a default judgment against Biti in the defamation case.
Biti then filed for rescission of the default judgment.
The background of the matter is that sometime in December 2020, Biti allegedly published two statements that were considered defamatory to Augur Investments, its top officials Sharpe and Aleshina, and several other prominent businesspeople.
The Augur Investments officials immediately instituted summons for defamation against Biti under case number HC 7528/20.
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Biti then raised an exception and a special plea, which Justice Manzunzu dismissed.
Aggrieved by the dismissal, Biti made an application for leave to appeal to the Supreme Court which application was also dismissed by Justice Manzunzu in default.
Biti later approached the Supreme Court under SC 143/23 but later withdrew the application.
He then made another application under SC 274/23 which Justice Alphas Chitakunye struck off on the basis that Biti should apply for the rescission of Justice Manzunzu’s judgment as it was a default judgment.
In the latest development, Justice Mhuri said that she first dealt with the application for condonation considering among other things, the length of the delay, the explanation of the delay, prospects of success, and finality to litigation.
Justice Mhuri said the judgment in question was pronounced on March 1 last year and the latest application was filed in June 2023, meaning there was a three-month delay.
She said the delay, in her view, is inordinate.
"Applicant (Biti)'s explanation for the delay was that he was pursuing the applications he had filed in the Supreme Court. After the striking off of his second application on June 7, 2023, he was trying to get reasons from the Supreme Court for the decision to strike off.
"He submitted that his application should be granted as there are reasonable reasons for the delay and that the granting of this application is in the interests of justice.
"He further submitted that he did not understand the judgment by (Justice) Manzunzu to be a default judgment as he had sent one Tapiwa Chipandu to represent him.
"I find the applicant’s explanation to be unsatisfactory. It is trite that a default judgment is not appealable," Justice Mhuri said.
" It is also not in dispute that the applicant is a seasoned practicing legal practitioner. He therefore knew that a default judgment was not appealable but chose not to seek rescission and approached the Supreme Court.
" Even before the Supreme Court, he was represented by legal practitioners of good standing who should have known better."
Justice Mhuri further said Chipandu whom Biti had sent to represent him before Justice Manzunzu was present when the default judgment was issued, adding that the former Finance minister knew that a default judgment had been issued as of March 1, 2023.
She added that Biti was initially represented by Jacob Mafume but on the hearing date, he sent a lawyer from his law firm when Mafume had not renounced the agency.
Mhuri said the trial of the defamation suit must proceed to finality.
"It is,therefore, ordered that the application for condonation of late filing of the application for rescission be and is hereby dismissed with costs," Justice Mhuri said.
