Petina Gappa and Fadzayi Mahere
Feisty local lawyer, lecturer and political activist Fadzayi Mahere is taking fellow attorney, author and former consultant for President Emmerson Mnangagwa’s government Pettina Gappah to the cleaners – she has attached her properties for failing to pay US$18 000 for defamation.
Gappah lost a dramatic High Court defamation case after her vituperative and malicious attacks on Mahere on social media, and was ordered to pay US$18 000 in damages.
Mahere initially wanted US$1 million, but the figure was reduced to US$50 000 at trial before she was awarded US$18 000 damages.
Besides losing her property, Gappah has been left facing civil imprisonment as her assets are not enough to pay the full damages cost.
This means Mahere can pursue civil imprisonment of Gappah unless she pays the balance.
A writ of attachment – dated 5 November – against overseas-based Gappah – an international trade lawyer who describes herself as a “globalist” and “multilateralist” – shows she has lost household furniture (sofas, coffee tables, glass displays, stands and desks, among other things) over the ground-breaking defamation case.
However, these properties were not enough to settle the full amount of damages.
High Court Justice Joseph Mafusire ruled in August in favour of Mahere after a series of setbacks against Gappah during the explosive process.
The unprecedented judgement in the defamation case holds critical lessons for social media users and the broad digital community in Zimbabwe and elsewhere.
In his judgement on 29 August, Mafusire said:
“On 11 October 2018 the plaintiff (Mahere) issued a summons for damages for defamation against the defendant (Gappah).
Until the ‘last minute’ the defendant contested both liability and quantum quite vigorously. But in the end, she admitted liability. She published some retraction and an apology.
The plaintiff did not accept them. So, the issues remaining for trial reduced to the weight to be given to the purported retraction and apology, the level of damages as may be due to the plaintiff, if any, and of course, the question of costs.
The journey to the day of judgment has been long, arduous and acrimonious.
The theatre of contest has been a ‘hard hat area’.
At the various milestones the court has assumed the roles of conciliator, mediator, counsellor and judge over interlocutory disputes, spats, tiffs and rows being urged upon it with so much zest and passion. It has rather been distressing to be umpire over an internecine contest between arguably two brilliant legal minds…”
In his final disposition of the matter, Mafusire said: “I determine that the plaintiff is entitled to her costs but not on the higher scale. My reason for this is that whilst the defamatory statements by the defendant were vile and persistent, the stiff award of damages above has been in recognition of that factor, among others.
Furthermore, the defendant lost all the interlocutory applications with costs being awarded against her there and then. None were held over for determination later as is sometimes done.
In the recusal application, the costs were awarded on the higher scale. There is no reason to mulct the defendant any further. Lastly, the plaintiff’s summons was not issued in October 2020, but in October 2018 when the monetary regime in place was different from the one-to-one ratio referred to by her. So it cannot have been the reason for the initially inflated claim.
“However, whilst the plus petitio principle is relevant, it has had little sway in this matter because I have considered that there are really no special circumstance to warrant a departure from the general rule about costs.”
In the result, the following order is hereby made:
i/ The defendant shall pay the plaintiff the sum of US$18 000 [eighteen thousand United States dollars], or the equivalent thereof in local currency at the rate of exchange prevailing at the time of payment.
ii/ The defendant shall pay interest on the above amount at the prescribed rate, namely 5% per annum from the date of judgment to the date of payment.
iii/The defendant shall pay the plaintiff’s costs of suit.”
T he judgement has shown the digital community that they must be aware that their online activities, including commenting, sharing, liking, and tagging, can have legal consequences.
Prior to the judgement, Mafusire had said Gappah needed “psychological intervention” — mental assistance – amid her unrestrained wild attacks on the judge, the judiciary and Mahere after initially losing interlocutory battles on the US$1 million defamation suit filed against her.
BACKGROUND
In a series of tweets posted on 29 September 2018, Gappah made a number of scurrilous accusations against Mahere.
Gappah, among other things, claimed Mahere did not qualify to study law at the University of Zimbabwe and was only admitted because of her father’s infinfluence.
Her father, Stephen Mahere, once served as the permanent secretary in the Ministry of Education, Sport, Arts and Culture.
Gappah further claimed Mahere only got admitted to Cambridge University in the United Kingdom after she had edited and almost completely rewritten her application essay.
She also said her fellow “learned friend” doctored her curriculum vitae to embellish it, which is fraudulent and deceitful.
In a further vituperative attack, Gappah said Mahere had attempted to sleep with her partner, which seemed to be the main source of her uncontrollable rage.
Later during proceedings, Gappah accused Mahere of sleeping with people’s husbands, saying “my witnesses will testify that if anyone is to blame for her reputation as a ‘woman of low morals’, it is the plaintiff (Mahere) herself who has earned that reputation for herself, separately from anything I have said.”
She added: “I will show that her reputation is in fact that of a serial mistress renowned for her affairs with married (men).”
However, Mafusire, in ruling in favour of Mahere, said Gappah’s “torrent of abuse” ranked as the “nadir of dishonour”.
This led to his unprecedented defamation judgement in Zimbabwe in a social media context and digital era.
Source: News Hawk
