KUDYA J: This is a claim for
defamatory damages. The plaintiff seeks US$35 000-00 forinjuria and contumelia
arising from an article written in the H-Metro of 13 October 2011 by the first
defendant, edited by the second defendant and published by the third defendant.
The three defendants contested the action.
The plaintiff testified and called
the evidence of Hilary Zhou and Kebby Zhou. In addition, he produced the
articles in issue as exh 1 and his letter of demand, exh 2. The defendants
called the evidence of the first defendant and that of one of his informants
Elizabeth Mutetwa.
The article appears in full on p 6
of the paper together with four colour photographs of Hillary, Kebby, a crying
Rumbidzai and a battered, bruised and bleeding Elizabeth. More captioned
pictures cover the whole of p 7. Three of the pictures on p 7 cover Rumbidzai
in various poses. The first is of a standing Rumbidzai with a torn top clad in
her brassiere and a leotard pair of trousers, the second is of a crouching
Rumbidzai covering her face with her left hand next to a destroyed door that is
lying on the floor and the third shows her seated on a bed with a ghastly wound
on her left shoulder. The fourth picture is that of the plaintiff standing in a
car park with the caption “MADDOCK MURDER CHIVASA allegedly teamed up with the
Chivasa siblings to bash two hookers”. The last covers a full frontal view of
Elizabeth bleeding from the nose and mouth with blood flowing down her face,
chin, chest and white blouse crying out in pain.
The
article on p 6 is headlined: Bashed for refusing free sex: and reads in
part:
“There was drama at Fintra Court in
the capital on Tuesday night when two suspected pimps beat up two self
confessed commercial sex workers for denying them FREE SEX services. The two
siblings identified as Hillary and Kebby Zhou, in the company of their friend
Maddock “Murder” Chivasa (who fled the scene), allegedly assaulted two sex
workers Rumbidzai Zambuko (23) and her flat mate Elizabeth Mutetwa (30).
H-Metro established that the trio had an understanding with the women such that
they would sometimes be given sex services on a “play now pay later basis”, but
on the day in question Rumbidzai was busy with a cash on delivery client. She
turned down Hillary who wanted free sex as per their tradition opting to go for
the cash paying client. Hillary could NOT afford to wait for his turn nor
fathom the idea of having left overs so he bashed Rumbidzai leaving her badly
injured. H-Metro learnt that Hillary and his mates Madock and Kebby were
“account holders” and could have regular free sex from the Fintra Court
self-confessed tarts whom they often even pimp. All the prostitutes here have
serviced Murder (Maddock) and he comes every day leaving his wife at his flat
located at the Corner of Selous and 8th here in the Avenues.”
The accompanying pictures on p 6 are
of Hillary and Kebby Zhou, a seated but crying half-dressed Rumbidzai and a
battered, bruised and bleeding Elizabeth with a caption that it was after allegedly
being bashed by Maddock “Murder” Chivasa, Hillary and Kebby Zhou. This is
despite the fact that in the body of the story Elizabeth accused Kebby as the
only person who head-butted her.
On p 4 of the same paper is the
editorial. It is entitled: PROSTITUTES: GIVE THEM PROTECTION. In his letter of
demand exh 2, the plaintiff took issue with a portion of the editorial which
reads:
“The picture of the commercial sex
worker butchered on our front page in the lead story should leave people
begging for answers within them. Is this really what we are as a society? Do we
let the hounds of anarchy haunt and hound all we do not like or think to be
lesser moral people than us? Like the pigs and humans through the window in
Animal Farm, one day people may never know the difference between us the moral
and they who err at the street corner every night if we do not stand up against
such a travesty.”
He may as well have complained over
the portion towards the end of the editorial that reads:
“In any commercial line of work, the
woman in our story today was beaten when she refused to let a hooligan 'loot
her stock' it may elicit giggles.”
The plaintiff took the view that his
dignity and reputation were maligned by the article and accompanying photograph
and caption that were understood by all readers of average intelligence to mean
that he was of loose morals, consorts with prostitutes and engages in risky
sexual behaviour, a serial cheat who engages in adultery with prostitutes and
is a violent character. He further found the article factually incorrect,
materially false, scurrilous and malicious especially as his side of the story
was not sought before publication thus convicting him in the court of public
opinion. As a public figure in the form of a spokesperson of the National
Constitutional Assembly, NCA, he sought retraction and apology of the same
prominence and an additional payment of US$35 000-00 in his letter of demand.
The plaintiff Maxwell Tatirai
Chivasa testified. He is currently a student at the University of Zimbabwe. He
worked for the Zimbabwe Development Country Trust as an Advocacy and Projects
Officer for six years. Thereafter in 2004 he became a volunteer spokesperson
for the NCA, a position he still holds. He is also a consultant for various local
civil society organisations.
He was shown the news article
exh 1 by his younger brother in the morning of 13 October 2011. On 10 October
2011 at 4pm he visited his friend Hillary Zhou at his flat at Fintra Court. He
surfed the internet on his friend's laptop together with Darlington. Rumbidzai
Zambuko barged into the flat without knocking. Hillary took issue with her and
took her out of his flat. Rumbidzai kicked and felled the door open and
shattered two bottles of Savannah Dry liquor that she held in her hands.
Darlington and the plaintiff restrained Hillary from assaulting her. Hillary
took their advice and went and reported the incident at Fife Avenue police
post. The plaintiff left for Lion King to shoot pool when Hillary went to make
a police report. Later that evening Hillary and his young brother Kebby found
him at Lion King. Kebby made a report to him. Kebby was later arrested, tried
and convicted for assaulting Rumbidzai's flat mate Elizabeth Mutetwa. He
performed community service at David Livingstone Primary School for assaulting
her. The plaintiff stated that he did not assault either Rumbidzai or
Elizabeth. He never saw Elizabeth on that day. He disputed having a credit
account with prostitutes who reside at the flat in question. He was happily
married and faithful to his wife.
It was the plaintiff's view that the
author of the article was unprofessional in failing to hear his side of the
story. He was embarrassed and hurt by the story. That day he drove to Bulawayo
for a meeting of Civil Society Organisations. Almost every one had the
article and asked him about it. He had problems with his wife emanating from
the article that led him to temporarily relocate from his matrimonial home for
two months. It dented his political ambitions to represent Bikita West in the
forthcoming general elections. His opponents in Bikita photocopied the article
and distributed it. He was phoned by his agents in that constituency and other
representatives of civil society organisations in Masvingo over the article. He
believed that US$35 000-00 would fairly compensate him for the damage to his
dignity and reputation.
In cross examination he said
Rumbidzai was once married to one of his friends Gerald. The two set their
matrimonial home at the flat where the plaintiff presently resides. He
agreed that in the article neither Rumbidzai nor Elizabeth stated that he
assaulted either of them but correctly pointed out the caption on p 6 of the
bleeding Elizabeth that alleged that he also assaulted her while the caption to
his picture on p 7 alleged that he teamed up with his two friends to “bash the
two hookers”. The article revolved on the one sided story of Rumbidzai. He
further intimated that his organisation, the NCA, is represented through out
the country. He stated that his nickname was Meda and not Murder. He got
it as a short cut for Madock when he was in Form Two at Silveira Secondary
School in Masvingo.
The whole story from Rumbidzai as
shown by quotations does not implicate the plaintiff in any wrongdoing that day.
Rumbidzai complained about Hillary's conduct. The author of the article, the
first defendant took literary licence to interleave his own investigations and
opinions between Rumbidzai's quoted version and implicated the plaintiff in the
assault of the two women. It was the author's view that the plaintiff was a
pimp and a “part-time gigolo”.
Hillary Zhou confirmed the
plaintiff's version to the hilt both in his evidence in chief and under
cross-examination. A visibly drunk Rumbidzai barged into the flat and broke the
two beer bottles she had. When he escorted her out, she kicked his flat door,
broke it and re-entered. He took her outside and left the flat with his
companions. He went on his own to report at the Fife Avenue police post. He
exonerated the plaintiff from any wrongdoing. Rumbidzai did not make a report
against the witness. He was never charged with assaulting any of the two women.
Kebby Zhou, the person who assaulted
Elizabeth testified too. When he got home around 6 pm he found his brother absent.
The door was broken and lay on the floor. He received a report from a drunken
Rumbidzai that H-Metro was on its way to report on the happenings at the flat.
As he was closing the steel screen gate to the door, Elizabeth came to stop
him. He then assaulted her. In the street outside the flat he met three H-Metro
journalists. One of them took his photograph. He shielded himself and ran
away. He did not change his version under cross examination. Kebby confirmed
the plaintiff's version that he was not present when the door was broken. That
he was the only one in the vicinity of the flat when H-Metro personnel arrived
at the scene was also confirmed by the first defendant.
The first defendant, a
photojournalist for the third defendant attached to H-Metro received calls from
Elizabeth, Rumbidzai and Fungisai to attend the fracas at Fintra Court. He
arrived at the flat as Kebby Zhou was leaving. Kebby declined to comment but
ran away and jumped over a pre-cast wall but only after he had captured his
photograph. He found Rumbidzai in Hillary's flat. He recorded her story but did
not produce the recording or transcript of the recording in evidence. Her
version was that she had asked to use Hillary's toilet. She found the plaintiff
seated with “her girlfriend”. The plaintiff ordered Hillary to have sexual
relations with her for which the plaintiff would pay notwithstanding that her
fee paying client stood outside Hillary's door. She declined. All hell broke
loose. Hillary beat her up. The disturbance led other local residents to call
H-Metro. In fear of H-Metro the plaintiff hurriedly left with Hillary. He
interviewed Elizabeth who fingered Kebby in the assault upon her.
He went to Fife Avenue police
post where he interviewed Hillary and audio-recorded the interview. Again he
did not produce the recording in transcript or in its original form. Rumbidzai
provided him with the plaintiff's cell but it was not reachable. He did not
confirm with the plaintiff in cross examination the cell number that he was
given. His version in court of what Rumbidzai told him about her affair with
the plaintiff was not recorded in the article. He then wrote his story
without hearing the plaintiff's version. In his testimony he identified the
plaintiff with the accused persons. He took the plaintiff's picture from his
Facebook profile so that readers would be able to identify one of the
perpetrators of violence.
It was demonstrated during cross
examination that he acted unprofessionally and recklessly in writing a one
sided and unbalanced story and submitting it for publication. He did not seek
the plaintiff's comments. A reading of the story shows that the plaintiff was
not a major player in the disturbances and assaults yet his name took
prominence in the story. He did not run Rumbidzai's version of her alleged
association with the plaintiff with Hillary.
The defendants also called Elizabeth
Mutetwa. She was not present when Rumbidzai barged into the plaintiff's flat.
She only went to the flat to investigate Rumbidzai's screams. She saw Hillary
assaulting Rumbidzai. She saw the plaintiff leave the room without restraining
Hillary. She was assaulted by Kebby as she was picking Rumbidzai's cell from
the floor to contact H-Metro. Her version was that Rumbidzai told her that he
wanted to solicit the plaintiff for prostitution to raise money to pay their
landlord who had locked the two women out of their flat. Her version as told to
her by Rumbidzai is different to the one Rumbidzai gave to the first defendant
that she had a fee paying client and wanted to use Hillary's toilet.
It became apparent under cross
examination that she was couched on what to say by the first defendant. Like
the first defendant she associated the plaintiff's nickname with violence only
because she called him “Murder” instead of “Meda”. She did not see him acting
violently against anyone. She came to demonize the plaintiff as a man of loose
morals and justify the article published by the defendants. Some key aspects of
her version were not canvassed with the plaintiff when he was cross examined.
Two things became clear to me after the defendants' case. These were that
Rumbidzai and Elizabeth had no compaction about lying against the plaintiff.
The second was that the conflicting stories emanating from Rumbidzai showed beyond
a shadow of doubt that she was drunk. Elizabeth falsely painted her as sober
that evening.
I am satisfied that the plaintiff
and his witnesses told the truth while the defendants deliberately gave false
testimony concerning the plaintiff's conduct on 10 October 2011.
The two
issues referred to trial were:
1.
Whether or not the newspaper article published by the defendants was defamatory
of the plaintiff and
2.
If so whether the plaintiff is entitled to any damages for defamation.
I turn to
determine these issues.
Whether or not the newspaper article
published by the defendants was defamatory of the plaintiff
In his oral address MrGasva,
for the defendants, conceded that the published words were per se
defamatory. He, however, contended that they were substantially true and of
public interest. I agree that the collage of pictures on pp 6 and 7 correctly
capture what the first defendant saw. I also agree that the first defendant
reproduced some of the statements he attributed to Rumbidzai and Hillary. I
also agree that the editorial comment on p 4 was fair to the extent that it did
not seek to link the violence in the collage of pictures with the
plaintiff. However, the article must be read as a whole and in context of
what it states about the plaintiff.
I pointed
out in Butau vMadzianike & Ors HH 378/12 at p 8 that:
“A false story cannot be
substantially true. In my view, no justification or public interest was served
in writing and publishing a false story. The defences of justification and public
interest are grounded in the truth.”
In the present matter
Rumbidzai's failure to testify and the failure to produce her interview
transcript was fatal to the defendants' defence. The article refers to
the plaintiff as a pimp and gigolo. The Collins Dictionary defines a pimp,
amongst other things, as “one who lives off the proceeds of prostitution and as
a whoremaster”. Elizabeth, even in her damning testimony against the plaintiff
did not paint him as a pimp but as a male prostitute. However, I have found her
an untruthful witness. The story written by the first defendant and published
by the second and third defendants was half-baked and half true. There was
clearly absence of investigative journalism. Investigative journalism involves
verifying information given with other corroborative sources independent of the
main parties involved. A story that is based on accusation and denial and
counter-accusation lacks depth and truthfulness. A journalist who produces such
a story and a publisher who publishes it runs the risk of falling into the
vortex of defamation. The defendants ought to have held their horses before
publishing the story. There was no need to hurriedly publish such a half baked
story. They misspelt the nickname of the plaintiff and gave it an untrue and
pejorative meaning. The story was false in so far as it painted the plaintiff
as a man who consorted with prostitutes, had a credit facility with
prostitutes, was a serial cheater and adulterer and was a violent man.
I am satisfied that the defences
raised by the defendants of substantial truth, justification and public
interest must fail.
The measure of damages
In the Butau case, supra,
at p 9 I highlighted the factors a court takes into account in calculating
defamation damages. The content and nature of the publication painted the
plaintiff in grave light as a pimp, a gigolo, a male prostitute and a serial
cheater who was violent. He is a student who, however, is a volunteer national
spokesperson of the NCA. He has political ambitions in Bikita West. He is a
public figure and is well known in that Constituency. The publication went far
and wide. It was read in Bulawayo where he had a meeting with other civil
society members. It was widely published in the constituency he seeks to contest
in. Even though he did not call further evidence to support this spread, his
testimony to that effect was not disputed in cross examination. It is an
accepted fact that the H-Metro does have wide circulation outside its base in
Harare.
The defamatory article dented his
political future. It upset his marriage for two months. He moved out of the
matrimonial home and stayed in a hotel. He was embarrassed and had to defend
himself to his family, friends, workmates and acquaintances. The defendants
acted maliciously and recklessly. The story should have been about Hillary and
Rumbidzai, Kebby and Elizabeth. The defendants did not retract the story
against the plaintiff nor did they apologise to him. In evidence the first
defendant and Elizabeth added insult to injury by persisting in maligning the
plaintiff as a male prostitute. Their overall conduct was reprehensible.
Taking into account all these
factors and the decided cases referred to by counsel of Butau vMadzianike,
supra and the cases cited therein , I estimate the plaintiff's defamatory
damages in the sum of US$4 000-00.
Accordingly,
it is ordered that:
1. The
defendants shall jointly and severally, one paying the others to be absolved,
pay the plaintiff:
(a) The sum of
US$4 000-00 together with interest at the prescribed rate from the date of the
service summons to the date of payment in full.
(b) Costs of suit.
Kadzere, Hungwe and Mandevere, plaintiff's legal practitioners
Chirimuuta & Associates,defendants' legal practitioners
