THE High Court has dismissed an application by an opposition politician, Tendai Biti who was seeking condonation for the late filing of heads in a matter he is being sued for US$1 million for defamation by Augur Investments' top executives Kenneth Raydon Sharpe and Tatiana Aleshina.
This comes after a default judgement directing the commencement of trial was granted in favour of Augur Investments last year.
Biti was also seeking the reversal of the default judgement but the High Court did not decide on this request while ordering that trial should go on.
Justice Gladys Mhuri sitting at the Harare High Court dismissed Biti's requests ruling that his explanation was unsatisfactory.
"In casu, the judgment in question was pronounced on 1 March 2023. This application was filed in June 2023. This was a three-month delay. This delay in my view and contrary to the applicant's submission, is inordinate.
"Applicant's explanation for the delay was that he was pursuing the applications he had filed in the Supreme Court and after the striking off of his second application on 7 June 2023, he was trying to get reasons from the Supreme Court for the decision to strike off.
"I find the applicant's explanation to be totally unsatisfactory. It is trite that a default judgment is not appealable," ruled the judge.
Mhuri also said Biti as a senior legal official, is well-versed with legal technicalities and should have known better.
"It is also not in dispute that the applicant is a seasoned practising legal practitioner. He therefore knew that a default judgment is not appealable but chose not to seek rescission and approached the Supreme Court.
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"Even before the Supreme Court he was represented by Legal Practitioners of good standing who should have known better," said the judge.
The court also said the lawyer Tapiwa Chipandu whom he had sent to represent him before her colleague, Justice Jacob Manzunzu was present when the default judgment was issued, so Biti knew as of 1 March 2023.
"He however chose to take the route that he did at his own peril. His explanation is unsatisfactory, I find that he has failed to pass this hurdle.
"Applicant's prospects of success are not bright.
"The adage, there must be finality to litigation is apt in this case.
"I am of the considered view that the balance of convenience favours that the main matter proceeds to finality.
"In the result, applicant cannot be granted the indulgence he is seeking and to that end I will not proceed to deal with the application for rescission," she ruled.
Biti was sued after he allegedly labelled Sharpe as one of the most corrupt people looting Zimbabwe's resources.
Augur Investments is seeking US$500 000 damages while its chief operations officer, Aleshina is claiming US$100 000 and Sharpe US$400 000.
