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Published: November 30, 2013
The court procedings where outgoing Zimbabwe envoy to Australia Jacqueline Nomhle Zwambila is suing The Herald columnist Reason Wafawarova for defamation over a story published by the same paper in which she allegedly stripped naked before embassy staff, have seen the dates being shifted because Zwambila who has lost her job as Zimbabwe’s envoy to Australia is broke and has been asked to provide a security deposit of $60,000 if the case is to proceed fairly in the Australian courts.
Court proceedings which began in November 2010 continued on Monday November 4 in the Australian Capital Territory (ACT) Supreme Court in Canberra and were soon postponed.
The story Zwambila is suiing for carried allegations contained in a leaked letter written by three embassy officials to the Secretary for Foreign Affairs, Ambassador Joey Bimha, where the officials reported the envoy had stripped to her undergarments in front of them during a heated argument over an article that had earlier on been published by The Herald. The story for which the envoy is suing was titled “Envoy Allegedly Strips in Front of Staff,” and ran under the byline “Tendai Mugabe and Reason Wafawarova.”
Despite her denial, this story was later confirmed by a top MDC-T activist, Felix Machiridza who lived with Zwambila at her house when he stated that on the day of the stripping, she revealed it at home that she had actually “fixed them.” When she was contacted by ZimEye concerning the same story, Zwambila did not care to reply or comment on the yet very serious allegation.
Ambassador Zwambila’s lawyers have however applied to have Wafawarova’s defence thrown out on the basis that answers to interrogatories had not been given to the plaintiff’s expectation, and also that they did not meet the technical legal requirements in their formatting.
Wafawarova is unrepresented.
Judge Justice Penfold gave the plaintiff up to the 6 th of November to serve the defendant with and the court with the application.
Reason Wafawarova, who is representing himself indicated to the court he too was filing an application to have the whole case thrown out.
Asked by the court why he would do so he argued that in the absence of a security deposit of $60 000, denied by the same court in 2011, there is no prospect of a fair trial given that the plaintiff is a diplomat who was on her way out of Australia. There is a strong possibility that should the court rule against her suit, defendant would not be able to seek recourse or claim costs, argued Wafawarova.
He further argued that under Article 37 (1) of the Vienna Convention on Immunity and Diplomatic Relations, otherwise known as Diplomatic Immunity Act, plaintiff could refuse to abide by any court ruling unless she is stripped of her diplomatic immunity by Zimbabwe’s Foreign Affairs Ministry, something that is highly unlikely, given the response so far given to Wafawarova by the Zimbabwean authorities.
Wafawarova also argued that it is impractical for the defendant, for the court, or for any law enforcement agent in Australia to summon any of the three witnesses to an Australian court, again due to constraints related to the principle of diplomatic immunity. It is important in this case that these witnesses be cross- examined after giving their testimonies.
He argued that in the absence of these key witnesses he cannot see any prospect of a fair trial. He further argued that the court in fact does not have jurisdiction over a matter in which it has no legal power to summon key witnesses, or in fact to enforce its own decisions if plaintiff chooses to defy any of its orders or judgments.
Wafawarova also argued that for three years Zimbabwe’s Ministry of Foreign Affairs has denied him clearance for the three key witnesses, and the ministry continues to do so for the remaining witness, after two were recalled to Harare at the end of the tours of duty. Without this clearance it is not possible for defendant to receive a fair trial, Wafawarova argued.
He further argued that Ambassador Zwambila has already been recalled to Zimbabwe at the end of her tour of duty, and her departure is an “obstruction to the rights of the defendant” in the event of any cross claims or counter claim for damages so far suffered as a result of the suit.
He also argued that the allegations in the published story all relate to things that happened “in the exercise of the plaintiff’s functions” and “within the confines of the Zimbabwe embassy,” itself considered at law to be foreign territory. Wafawarova argued that Australian courts “cannot possibly have jurisdiction over such a matter”.
Plaintiff has also indicated in her sworn affidavits that she would be bringing volumes of letters, minutes, disciplinary hearings and other documents from both the embassy and from Harare Foreign Affairs Head Office. The plaintiff argues that these documents are meant to prove a political conspiracy “ to undermine” her and “to prop up the Mugabe regime”.
Wafawarova denies there is any such conspiracy, and has put as his defence that the appearance of his name on the byline could have been erroneous since his only role was to tip The Herald of what had happened, with all investigations and interviews being carried out by The Herald staff in Harare, including the call that was made to Ambassador Zwambila herself.
He also argues that in any event the published story was based on truth, given that the allegations reported by The Herald are in fact contained in the letter written by the three officials to Mr Bimha, and also in other documents supplied to court by the plaintiff.
Justice Penfold gave Wafawarova up to 28 December to file his application for the dismissal of the case, with evidence that the Foreign Affairs Ministry refuses to clear the witnesses.
Wafawarova was also given until 28 November to respond to the plaintiff’s application for the striking off of his defence submission. He was advised to seek independent legal advice on how to go about with the submissions.
The hearing which was scheduled for the 28th and 29th of November was vacated to a date to be established after the two applications from both sides are looked at by the court.