The High Court has decisively dismissed an application by prominent lawyer Edwin Isaac Manikai for leave to appeal a previous ruling that struck his urgent chamber application against activist Jealousy Mbizvo Mawarire from the urgent roll. The court found Manikai’s initial application lacked the requisite urgency, a decision now upheld after his attempt to challenge it.
Manikai had initiated legal proceedings in April, seeking an interim interdict to compel Mawarire to remove two articles published on his X (formerly Twitter) account on March 31 and April 2. The lawyer contended that these articles were defamatory.
The contentious publications delved into the collapse of a Constitutional Court challenge concerning the Constitution of Zimbabwe Amendment Bill No. 3. They controversially alleged that former Cabinet minister Professor Jonathan Moyo orchestrated the litigation and that an individual identified only as “Manikai” had personally delivered cash to Moyo. This payment was purportedly on behalf of businessman Kudakwashe Tagwirei, who was accused of financing the legal challenge.
In her initial judgment on April 9, Justice Esther Muremba removed the application from the urgent roll. Her reasoning hinged on the lack of specific identification, noting that the articles did not explicitly name the applicant. Justice Muremba highlighted that the surname “Manikai” was not exclusive to the lawyer, thus providing insufficient grounds to conclude the articles referred to him personally. Furthermore, she deemed the interim relief sought procedurally flawed, as it was tied to a damages summons to be filed within 30 days, rather than pending a substantive application.
Undeterred, Manikai sought leave to appeal to the Supreme Court, advancing three primary arguments:
Represented by advocate T. Magwaliba, Manikai argued for a low threshold for obtaining leave to appeal, citing relevant case law.
However, Justice Muremba rejected all three grounds. On the issue of identification, she pointed to Manikai’s own court papers, which acknowledged approximately 35 relatives sharing the same surname. This fact, she noted, made it impossible to definitively conclude that the publications referred to him without additional identifying details.
The judge further clarified that her earlier ruling did not delve into the defamatory nature of the publications. “There is nowhere in the order where I stated that the applicant was not defamed. My remarks were confined to the issue of urgency and not to the substantive merits of defamation,” Justice Muremba stated.
Regarding the procedural complaint, Justice Muremba affirmed that Rule 60(18) of the High Court Rules does not mandate an oral hearing before an urgent application is struck from the roll, particularly when the issue of urgency can be determined from the filed documents.
The court also dismissed preliminary objections raised by Mawarire’s legal team, including the argument that no appeal could be lodged against a decision to strike a matter from the urgent roll. Justice Muremba clarified that a right of appeal exists under Section 43(2)(d) of the High Court Act, distinct from Rule 60(19) of the High Court Rules, which merely allows matters struck from the urgent roll to proceed on the ordinary court roll.
Despite dismissing Manikai’s application, Justice Muremba opted not to award costs against him. Instead, she criticized Mawarire’s lawyer, L. Chiperesa, for presenting preliminary objections deemed irrelevant to the application and for failing to adequately address the substantive grounds for the appeal.
This ruling means Manikai’s underlying defamation claim against Mawarire will now proceed on the ordinary court roll, where the dispute will finally be adjudicated on its merits.
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