The
background to the dispute between the parties is as follows:
The
plaintiff is a Cabinet Minister in the current Government of Zimbabwe. He
is co-Minister of Home Affairs. The second defendant is a publisher of a
newspaper known as The
Standard. The third defendant is employed by the second
defendant as Editor. The first defendant is the name of a newspaper. In
its issue of The
Standard of October 11-17, 2009 the second defendant published
a letter authoured by the fourth defendant under the title “Criminal vandalism”. The
full text of the letter is as follows:
“DRIVING
to Harare last week, I saw an astonishing sight just outside Gweru. From
Gweru to Harare, a distance of more than 250 kilometres, the electrical system
built after independence at a cost of over US$100 million dollars, has been
stripped and lies derelict and destroyed.
Tens
of millions of dollars damage carried out on the side of the main road and in
front of the entire country and its police force. Recently the co-Minister
of Home Affairs responsible for the Police had his 30-tonne truck impounded
with 30 tonnes of stolen copper wire onboard.
We
have heard nothing since then but I understand a close relative has been
running a gang stripping wire from power lines for several years. The police at
Beitbridge are well aware of this and have done nothing.
This
criminal vandalism on a massive scale, just when we need our railways for
exports and bulk movements of food, coal and other commodities, someone
cripples the only major investment we have carried out in our rail system since
independence.
Eddie
Cross
Bulawayo.”
Based
on the publication of the above letter, the plaintiff issued summons against
the defendants claiming a sum of thirty-five million United States dollars
(US$35,000, 000=) for defamation. The material paragraphs of the plaintiff's
declaration read as follows:
“6.
In
its October 11-17 issue, the Standard newspaper published a letter written by
the fourth defendant headed “Criminal Vandalisation” (sic) which letter
contains lies, and misleading statements of and concerning the plaintiff. A
copy of the newspaper article is attached and marked “A”.
7.
The
article is not only false but is defamatory of and concerning the Plaintiff in
that it states falsely that:
7.1
The plaintiff is responsible for vandalising the electrical system from Gweru
to Harare.
7.2
That the plaintiff owns a 30 tonne truck that was impounded by the police with
30 tonnes of stolen copper wire onboard.
7.3
That the plaintiff or his close relatives is (sic) responsible for theft of
copper wire countrywide.
7.4
That the plaintiff has a criminal gang that has been stripping wire from power
lines for several years and police at Beitbridge, where the plaintiff is the
Member of Parliament, is aware of but has done nothing.
7.5
That the plaintiff who is a co-Minister responsible for the police and
the sole minister of police before the formation of the current inclusive
government has somehow corruptly managed to influence the police not to
investigate or prosecute the thieves.
8.
Though
the plaintiff is not mentioned by name the article in the newspaper is couched
in such a way that it leaves an ordinary reader with no doubt that the
plaintiff is the subject of the article. The publication is, in fact,
based on a similarly false and defamatory publication by an obscure online
publication http.//www.the zimbabwetimes.comm, of the 14th June 2009
a copy of which is attached and marked “B”.”…,.
The
exception taken is that the words complained of contain no reference to the
plaintiff, and, further, that the declaration makes no proper allegations of
what facts would enable the ordinary reader to identify the plaintiff as the
person referred to.
It
is trite that in order to succeed in a claim for defamation damages a person
must establish that the material complained of referred to, or concerned, him
or her. See Ndewere v Zimbabwe Newspapers (1980) Ltd & Anor 2001
(2) ZLR 508 (S)….,; Goodall v Hoogendoorn Ltd
1926 AD 11.
The
test for determining whether in any publication the reference is to the
plaintiff is an objective one. In the case of Young v Kemsley & Ors 1940 AD 258…, the court
expressed the position in the following terms:
“The
test is whether the ordinary, reasonable man hearing the speech would have
understood the words complained of to apply to (the plaintiff).”
See
also Potgieter v Ellis & Anor 1948 (3) SA 1183 (D)…,; SA Associated Newspapers Ltd & Anor v Estate Pelser 1975 (4) SA 797 (A)…,.
There
are two stages in the inquiry into the question whether the material complained
of refers to or concerns the plaintiff. The first stage is whether the
statements complained of are reasonably capable of referring to the plaintiff,
either in their ordinary meaning or by reason of some special
circumstances. This is a question of law which can be determined on exception.
Evidence is not admissible in that enquiry. The case of SA Associated Newspapers Ltd & Anor v Estate Pelser 1975 (4) SA 797 (A)….,
states that the inquiry on the exception will be directed at “whether the words
are reasonably capable of conveying to the reasonable reader…, that the alleged
defamatory matter refers to the plaintiff.” See Taylor &
Anor v Chavunduka & Ors
1995 (2) ZLR 22 (H)….,.
The
second leg of the inquiry is whether a reasonable person would regard the words
complained of as referring to the plaintiff.
The
determination of this matter is not concerned with that second stage but only
with the first one. See JONATHAN BURCHELL, The Law of
Defamation in South Africa….,.
In
the instant case the article does not refer to the plaintiff by name.
Where
the plaintiff is not identified or referred to by name or description such as
his office or occupation, he must state the facts upon which he relies as
showing that the statements complained of referred to or concerned him. JONATHAN
BURCHELL, The Law of Defamation in South Africa….,.
In casu, the article contains
a general complaint regarding vandalism of railway cables and the author's
perceived inaction of the police in the face of such vandalism. The only
reference to a co-Minister of Home Affairs is in the context of an instance
given of a motor vehicle belonging to him which was impounded by the police
while carrying thirty tonnes of copper wire and to the alleged fact that the
said co-Minister's close relative is believed to be leading a group which
steals railway cables. The fourth respondent, who is the author of the
article, further states that the police at Beitbridge are aware of the acts of
vandalism but have not acted to avert them or to bring the perpetrator to
account. While it is possible to identify the plaintiff as the co-Minister
of Home Affairs being referred to in the article by reference to his gender, by
a reader who knows that the other co-Minister is female, it is clear that the
defamatory aspects of the article which the plaintiff seeks to rely upon do not
refer to or concern the co-Minister of Home Affairs. They concern a relative of
the Minister as well as the police who are being accused of inaction.
The
plaintiff's declaration reveals that he relies on what is referred to as a
“quasi-innuendo” or innuendo pointing to the sting to the defamation or “sting
pointing imputation.” See Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H)….,. In
paragraph 7 of the declaration, the plaintiff points to certain defamatory
meanings which he attributes to the words in the article. In the case of Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H)….,
the following is pointed out:
“What
is of importance in regard to the pleading of a 'quasi-innuendo' is that the
plaintiff is bound by the specific meanings selected by him as being those
defamatory of him, those therefore being the limited charges which the
defendant has to meet.”
See
also Demmers v Wyllie & Ors 1978 (4) SA 619 (D)….,.
In
other words, the court must examine the meanings identified and relied upon by
the plaintiff in order to determine whether the defamatory aspects of the
article referred to in the plaintiff's declaration are reasonably capable of
conveying, to a reasonable reader, that the alleged defamatory matter refers to
the plaintiff.
The
assertion by the plaintiff that the article states that he is responsible for
vandalising the electrical system from Gweru to Harare is not supported by the
contents of the article. The allegation that the police impounded a motor
vehicle owned by the plaintiff carrying thirty tonnes of copper wire does not
in any way mean that the plaintiff was involved in the stealing of the copper
wire. In fact, the article specifically states that a close relative of the
plaintiff has been leading a gang of persons responsible for stealing copper
wire from the railway company. There is no suggestion that the plaintiff is
responsible for the conduct of his relative. The article does not state,
or suggest, in any way, that the plaintiff runs a criminal gang that has been
stealing copper wire. That allegation relates to a relative of the plaintiff.
Also, nowhere in the article is there a suggestion that the plaintiff has
influenced the police not to arrest the persons who steal the copper cables.
In
paragraph 8 of his declaration, the plaintiff alleges that the article
complained of is based upon another article, a copy of which is attached, which
was published online on http.//www.the zimbabwetimes.com on 14 June
2009. That assertion is not supported by a reading of the letter written
by the fourth defendant and published by the second defendant. I agree
with counsel for the excepient
that the fourth defendant would not have lost the opportunity to
blame the plaintiff for the matters complained of in the letter if he wanted
and had a basis to do so. But he blames the police.
I
am persuaded that the facts relied upon by the plaintiff do not show that the
words in the article complained of refer to him. The plaintiff's
declaration is therefore exceptionable….,.
Accordingly,
it is ordered as follows:
1. The defendants' exception is upheld with
costs and the plaintiff's declaration is set aside.
