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THE High Court has set aside a default judgment that had ordered musician Fred Farai Nyakudanga to pay US$20 000 in damages for alleged defamation and injuria against Zimbabwe Music Rights Association (Zimura) board secretary, Polisile Ncube-Chimhini.
Harare High Court judge, Justice Christopher Dube-Banda, ruled in favour of Nyakudanga, who had applied for rescission of the judgment granted against him in October last year.
The judgment arose from a lawsuit filed by Ncube-Chimhini over an online article allegedly authored and shared by Nyakudanga on social media.
According to summons filed by Ncube-Chimhini on April 3, 2023, Nyakudanga, cited as the defendant, wrote and published an article online entitled General Licence Copyright Royalty Isn’t Zimura’s Money Alone.
The article appeared on the defendant’s personal blog, “Finto Marketing”, and was subsequently shared by Nyakudanga on Facebook.
Ncube-Chimhini claimed the article defamed her and caused personal humiliation and indignity, seeking US$100 000 in damages. The court, however, awarded a lesser amount of US$20 000 by default after Nyakudanga failed to enter an appearance to defend.
In his rescission application, Nyakudanga argued that he had never been properly served with the court summons and only became aware of the case after judgment had already been handed down.
He stated that the summons had been mistakenly served at number 15 Vashandi Road in Zengeza 3, instead of his actual residence at number 5 Vashandi Road.
Justice Dube-Banda accepted this explanation, citing a letter from the Sheriff of the High Court confirming the error in service. The court emphasised that valid service by the Sheriff, as required by Rule 15(4) of the High Court Rules, is a prerequisite for a lawful judgment.
“The court cannot ignore such an important factual position, which goes to the heart of the validity of the service. I take the view that the applicant has proffered a reasonable explanation for the default. He was not in wilful default,” said Justice Dube-Banda.
The judge also dismissed a preliminary objection raised by Ncube-Chimhini’s legal team, which argued that Nyakudanga’s application was invalid because he had not applied for the removal of the automatic bar against him.
Justice Dube-Banda ruled that such an application was unnecessary in rescission proceedings.
A further attempt by Nyakudanga to disqualify the respondent’s lawyers, Chinogwenya and Zhangazha Legal Practitioners, on grounds of conflict of interest, was also rejected.
Nyakudanga had alleged that Zhangazha, a legal advisor and board member at Zimura, could not act against a member of the same association. The court found no evidence of a past attorney-client relationship or possession of confidential information by Zhangazha.
On the merits, the judge found that Nyakudanga had plausible prospects of defending himself in the main defamation claim.
He noted that the online article did not name the respondent directly and that there was ambiguity over her designation at Zimura, which would need to be clarified at trial.
“In addition, even if the respondent were to succeed on liability, the issue of the amount of damages would still be up for consideration, including mitigating factors, which were not canvassed in the default judgment,” said Justice Dube-Banda.
While granting rescission, the court opted not to award legal costs to either party, warning against clinging to judgments obtained by default.
“This is a borderline case of attempting to cling to a default judgment. Notwithstanding, the respondent will escape being mulct with costs but must be warned that such conduct might attract an adverse order of costs,” the judge cautioned.
Nyakudanga has been granted ten days to file his notice of intention to defend, after which the matter will proceed in the normal course.
“In the circumstances, a no-cost order will meet the justice of this case. In the result, I order that the default judgment in HCH 2846/23 be and is hereby set aside in terms of Rule 27 of the High Court Rules, 2021,” ruled Justice Dube-Banda.
