The
plaintiff in this matter is the Mining Commissioner for the District
of Kadoma. He claims damages in the sum of US$30,000= for defamation
arising from several newspaper articles published in The
Chronicle
in March and April 2009. The first defendant is the Minister of
Mines, but is sued, in this case, in his personal rather than
official capacity. The second defendant is the Editor
of The
Chronicle,
while the third defendant is the publisher of that newspaper.
The
issues for determination in this matter revolve around the words
uttered by the first defendant and published by the second and third
defendants in The
Chronicle.
(i)
Firstly, were these statements understood to refer to the plaintiff,
and, if so, was the plaintiff injured in his name and reputation?
(ii)
Secondly, if the statements were defamatory of the plaintiff, was
their publication justified on the grounds of fair comment and/or the
public interest? and
(iii)
Lastly, if the plaintiff was defamed without justification, what is
the quantum of damages that he should be awarded?
Evidence
for the Plaintiff
Byl
Manyange, the plaintiff, testified as follows. He is the Mining
Commissioner for Kadoma District. He has held that post since his
promotion in 1993 [Exhibit 1] and is comfortably settled in Kadoma.
In
March 2009, after returning from vacation leave, he received a memo
from the Secretary of Mines [Exhibit 11] advising him that he had
been laterally transferred to Bulawayo in terms of an earlier notice
and instructing him to assume duty at his new station without any
further delay. Subsequently, he saw two articles in The
Chronicle
of the 17th
and 20th
of March [Exhibits 2 and
3] containing statements attributed to the first defendant, qua
Minister of Mines, to the effect that certain Mining Commissioners
had been transferred because of their corruption and that they were
refusing to transfer as per letters from their lawyers. On the 16th
of March, the plaintiff's lawyers had written to the Secretary for
Mines contesting his transfer [Exhibit 4A]. This letter was copied to
the Minister and Deputy Minister of Mines. There followed two further
articles in The
Chronicle
on the 3rd
and 15th
of April [Exhibits 5 and
6] relating to the transfer of Ministry officials and specifically
referring to the plaintiff by name.
According
to the Public Service Commission Circular No.11/2004 [Exhibit 7], the
power to transfer an official of any rank equivalent or senior to
that of the plaintiff vests in the Commission. The transfer of the
plaintiff was directed by the Secretary of Mines and not by the
Commission.
In
April 2009, a District police officer visited the plaintiff's
office on two occasions. In the same month, the Chief Mining
Commissioner and the Director of Finance in the Ministry of Mines
also came to the plaintiff's office. They replaced the lock on the
door to his office and he only resumed occupation of the office after
obtaining an interdict from this Court against the Ministry and the
police [Exhibit 8].
Apart
from the present action, the plaintiff also instituted an application
before the Labour Court, in April 2009, claiming to have been
subjected to an unfair labour practice. This application was heard in
September 2009 and is still awaiting the court's ruling.
Under
cross-examination, the plaintiff conceded that he had never
approached the first defendant directly in order to resolve the
allegations of corruption before filing the present action. However,
this suit, for defamation, was not part of any strategy to resist and
avoid his transfer to Bulawayo. Moreover, it was only instituted on
the 29th
of May 2009 because until then he lacked the requisite funds to pay
his lawyers.
The
plaintiff has never been charged with any act of misconduct involving
corruption or other illegal activity. Moreover, he was never
interviewed by The
Chronicle
to present his side of the story. He takes the view that the
newspaper articles in question, taken together, justify the inference
that he is one of several corrupt officials being transferred by the
Ministry of Mines. They impact negatively on his professional career
in the future as he intends to leave the Ministry of Mines at some
stage for other pastures.
Absolution
from the Instance
At
the end of the plaintiff's case, the defendants applied for
absolution from the instance.
In
Nestoros
v Innscor Africa Ltd
HH73-07…, the relevant test to be applied was considered as
follows:
“The
approach to be adopted in an application for absolution from the
instance was succinctly expounded by GUBBAY CJ in United
Air Charters (Pvt) Ltd v Jarman
1994 (2) ZLR 341 (S) at 343, as follows:
'The
test in deciding an application for absolution from the instance is
well settled in this jurisdiction. A plaintiff will successfully
withstand such an application if, at the close of his case, there is
evidence upon which a court, directing its mind reasonably to such
evidence, could or might (not should or ought to) find for him. See
Supreme
Svc Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd
1971 (1) RLR 1 (A) at 5D-E; Lourenco
v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd
1984 (2) ZLR 151 (S) at 158B-E.'
Moreover,
in considering an application for absolution, the court should lean
in favour of continuing the case rather than dismissing it. See
Standard
Chartered Finance Zimbabwe Ltd v Georgias & Anor
1998 (2) ZLR 547 (HC) per
SMITH J at 552-553.”
See
also Walker
v Industrial Equity Ltd
1995 (1) ZLR 87 (S)…, where the above approach was reiterated by
the Supreme Court.
The
test to be applied is not whether the evidence for the plaintiff
establishes what would finally be required to be established to
obtain judgment. It is whether the plaintiff has made out a prima
facie
case against the defendant on the basis of which the court could or
might find for the plaintiff.
See
Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd
1984 (2) ZLR 151 (S) per
DUMBUTSHENA CJ…,.
In
principle, a reticent defendant should not be allowed to shelter
behind the procedure of absolution from the instance. And, in
practice, the courts are loathe
to decide upon questions of fact without hearing all the evidence
from both sides, and have usually inclined towards allowing the case
to proceed.
See
Theron
v Behr
1918 CPD 443…,.; Erasmus
v Boss
1939 CPD 204…,.; Supreme
Service Station (1969) Pvt Ltd v Fox & Goodridge (Pvt) Ltd
1971 (1) RLR 1 (A)…,.
Moreover,
at this stage of the trial, it is not pertinent to evaluate the
weight of the evidence adduced or the preponderance of probabilities,
save where such findings are manifest from the evidence already
heard. See Quintessence
Co-ordinators (Pty) Ltd v Government of the Republic of Transkei
1993 (3) SA 184 (Tk) at 185.
In
the present matter, the argument for absolution in favour of the
defendants runs as follows.
The
statements made by or attributed to the first defendant refer to
other corrupt officials and do not specifically refer to the
plaintiff. Furthermore, a reasonable person who is aware of the
plaintiff and his circumstances would not read the articles in
question to mean that the references to corrupt officials also apply
to the plaintiff. The real reason for the present action is that the
plaintiff is opportunistically using it as a ruse to delay or prevent
his transfer to another posting. As regards the quantum of damages,
the plaintiff has failed to lead any evidence to support his claim
and this is fatal to his case, as there is no basis upon which the
Court can make a decision to award damages. Finally, in his evidence,
the plaintiff has accepted the defences raised pertaining to fair
comment and the public interest.
In
an action for defamation, the plaintiff is required to prove that the
injurious statement referred or related to him, not necessarily that
he was specifically mentioned by name. The test for this purpose is
an objective one, viz.
whether the ordinary reasonable person reading or hearing the
statement would have understood the words complained of as applying
to the plaintiff.
See
Young
v Kemsley & Others
1940 AD 258…,.; Bane
v Colvin
1959 (1) SA 863 (C)…,.
As
regards a series of statements, it is settled law that the
publication of defamatory words and the identification of the person
intended to be defamed need not occur contemporaneously. Thus,
evidence of a subsequent statement identifying the plaintiff is
admissible as proof that an earlier defamatory statement referred or
related to him.
See
Vermaak
v Van der Merwe
1981 (3) SA 78 (N)…,.; Moyo
v Chipanda
2004 (2) ZLR 67 (H)…,.
Turning
to the matters complained of in
casu,
the first article, published on the 17th
of March 2009 [Exhibit 2], does not mention the plaintiff's name.
However, it does state that some of the Mining Commissioners have
been recalled or transferred because of allegedly corrupt activities.
The same allegations of corruption are then repeated in the second
article on the 20th
of March 2009 [Exhibit 3]. It was further added that the corrupt
officials were resisting their transfer and that the first defendant
had received several letters to that effect from their lawyers. The
evidence shows that on the 16th
of March 2009 the plaintiff's lawyers had sent a letter to the
Secretary for Mines [Exhibit 4A] protesting against the attempts to
forcibly transfer the plaintiff.
At
this juncture, a reasonable person would have understood the articles
as possibly, but not necessarily, alluding to the plaintiff, by
reference to his office and the fact of his resisting transfer
through his lawyers.
The
third article, published on the 3rd
of April 2009 [Exhibit 5], as well as the fourth article on the 15th
of April 2009 [Exhibit 6] explicitly identify the plaintiff by his
name, as one of the Mining Commissioners who was resisting transfer
and who had engaged the services of Gill, Godlonton & Gerrans for
that purpose.
At
this stage, taking all four articles conjunctively, the reasonable
reader would undoubtedly have identified the plaintiff as one of the
Mining Commissioners who was being transferred on the grounds of
corruption.
In
my view, the prima
facie
and cumulative effect of the impugned articles was to identify the
plaintiff as a corrupt official and to injure him in his name and
reputation. Whether or not it was the intention of the defendants to
defame the plaintiff is an altogether separate inquiry that must
await the articulation of the defendants' case in court.
Furthermore, whether the statements in
casu
amounted to fair comment or were justified in the public interest are
defences that the defendants will have to prove through their
testimony. Again, the issue of damages is a matter for assessment
once the extent of the injury to the plaintiff's reputation is
clearly established.
It
follows that the plaintiff has made out a prima
facie
case against the defendants on the basis of which the Court could or
might find for him. In the result, the application for absolution
from the instance is dismissed. As regards costs, although the
plaintiff has incurred additional expense in opposing the
application, I am inclined, at this stage, to hold that the costs of
the application shall be costs in the cause.
Evidence
for the Defendants
Obert
Moses Mpofu, the first defendant, has held public office in Zimbabwe
since 1980 and was appointed as the Minister of Mines in February
2009. He testified that he did not know the plaintiff personally
before the trial commenced. His statements in the first and second
articles arose from public complaints about the allocation of mining
claims. The first article emanated from an interview given to
journalists and the second from his speech at a police pass-out
parade. His statements were not directed against the plaintiff but
against Ministry officials generally. On the other hand, the third
and fourth articles were concerned with transfers within the Ministry
and not the allocation of claims. The third article was drawn from
previous public statements and the fourth from a telephone interview.
At that time, he was aware of a previous letter from the plaintiff's
erstwhile lawyers in March 2004 [Exhibit 4B] but the subsequent
letter of 16 March 2009, from his current lawyers [Exhibit 4A], was
not brought to his attention until after the articles had been
published. On 23 March 2009, he wrote to the Commissioner of Police
[Exhibit 9] requesting the assistance of the police in enforcing the
transfer of three Mining Commissioners, including the plaintiff.
Following the latter's appeal to the Public Service Commission, the
Secretary for Mines responded to the Commission on 8 May 2009
[Exhibit 10] explaining the Ministry's position.
Under
cross-examination, the first defendant explained that the first and
second articles contained journalistic paraphrasing of his utterances
to some extent. In the third article, only the last two columns are
quoted from his own statements. As for the specific references to the
plaintiff in the third and fourth articles, he personally did not
mention the plaintiff by name.
Breshnev
Malaba, the second defendant, was the Editor of The
Chronicle
at the relevant time. He is presently the Editor of The
Sunday Mail.
He was responsible for supervising the reporters and content of the
articles in
casu.
His evidence was that all four articles dealt with statements on
matters of public concern and importance, i.e.
alleged corruption in the Ministry of Mines generally. The first and
second articles made no mention of the plaintiff by name. The third
and fourth articles did make specific reference to the plaintiff and
were drawn from letters written by the plaintiff's lawyers. They
were not intended to hurt or defame the plaintiff directly. After the
last article was published, the plaintiff's lawyers wrote to The
Chronicle
to complain about the articles. He then personally telephoned the
plaintiff as well as his lawyers and invited his version of the
story, but no response was ever received.
Under
cross-examination, he accepted that his invitation was probably only
made after summons in this case had been issued and that he did not
at any stage apologise to the plaintiff. When questioned by the
Court, he explained that the third and fourth articles were simply
following up on the first and second articles.
Paul
Nkala has been the Deputy News Editor of The
Chronicle
since 2002. He personally compiled the third article. Its content was
drawn from court applications filed by the Mining Commissioners
challenging their transfers. The statements from the first defendant
were taken from a telephone interview on 2 April 2009, seeking his
response to the letter from the plaintiff's lawyers. The essence of
the article is captured in its headline and it was not intended to
insinuate any corruption on the part of the plaintiff. The witness
also authored the fourth article. This article too was not intended
to scandalise the plaintiff or make any allegation of corrupt or
improper conduct.
Under
cross examination, he conceded that the third article might not have
been drawn from any court application, as the relevant applications
by the plaintiff (in LC/H/ORD/13/09 and HC2104/09) were only filed on
8 April and 14 May 2009 respectively…,.
Whether
Statements Referable to Plaintiff
As
I have already stated earlier, the plaintiff in a defamation action
is required to prove that the injurious material referred or related
to him, but not necessarily that he was specifically mentioned by
name. The authorities that I have cited above (Young
v Kemsley & Others
1940 AD 258 and Bane
v Colvin
1959 (1) SA 863 (C)) articulate the test for this purpose as being an
objective one, viz.
whether the ordinary reasonable person reading or hearing the
statement would have understood the words complained of as applying
to the plaintiff. See also BURCHELL: The
Law of Defamation in South Africa…,.
Again, the cases already referred to (Vermaak
v Van der Merwe
1981 (3) SA 78 (N) and Moyo
v Chipanda
2004 (2) ZLR 67 (H)) make it clear that the publication of defamatory
words and the identification of the person intended to be defamed
need not occur contemporaneously. The evidence of a subsequent
statement identifying the plaintiff is admissible as proof that an
earlier defamatory statement referred or related to him.
In
any event, it may be necessary to exercise some measure of caution in
ascertaining what impression the ordinary reader is likely to have
formed when reading newspaper reports. As was observed in Dorfman
v Afrikaanse Pers Publikasies (Edms) Bpk en Andere
1966 (1) PH J9 (A)…, cited with approval in Madhimba
v Zimbabwe Newspapers (1980) Ltd
1995 (1) ZLR 391 (H):
“In
such an inquiry, the court must eschew any intellectual analysis of
the contents of the report and of its implications, and must also be
careful not to attribute to the ordinary reader a tendency towards
such analysis or an ability to recall more than an outline or overall
impression of what he or she has just read.”
Turning
to the articles in
casu,
the defendants' evidence has not persuaded me to depart from my
earlier findings when determining their application for absolution
from the instance. In particular, it is difficult to credit the first
defendant's assertion that the letter of 16 March 2009 from the
plaintiff's current lawyers, which letter was copied to him, was
not brought to his attention until after the articles had been
published. This difficulty is compounded by the fact that he wrote to
the Commissioner of Police on 23 March 2009, specifically requesting
the assistance of the police in enforcing the transfer of three
Mining Commissioners, including the plaintiff, who were identified by
their names.
The
first article states that some Mining Commissioners had been recalled
or transferred because of allegedly “corrupt activities”. The
second article then repeats the same allegations of corruption and
adds that the 'corrupt officials' were resisting their transfer
through letters to that effect from their lawyers. Following these
two articles, those readers who knew the plaintiff might have
understood the articles as possibly, but not necessarily, alluding to
the plaintiff, by reference to his office and the fact of his
resisting transfer through his lawyers.
Subsequently,
the third and fourth articles explicitly identify the plaintiff by
his name, as one of the Mining Commissioners who was resisting
transfer and who had engaged a named firm of lawyers for that
purpose. Apart from the author's own statements, that link is also
attributed in both articles to statements made by the first
defendant. Additionally, the first defendant is quoted, in the third
article, as stating that some officials have been “issuing claims
to un-deserving individuals” and were suspected of 'refusing to
be transferred to buy time to cover up their illegal activities.'
He is then quoted in the fourth article as insisting that there was
no going back on the re-assignment and transfer of the officials
concerned. At that stage, taking all four articles conjunctively, the
reasonable reader would undoubtedly have identified the plaintiff as
one of the Mining Commissioners who was being transferred on the
grounds of corruption. Even taking into account the cautionary
approach alluded to above, I do not think that it would need an
extremely astute or unusually incisive reader to conclude that the
first and second articles were referable to the plaintiff.
Whether
Statements Defamatory of Plaintiff
Having
determined that the articles complained of related to the plaintiff,
there appears to be very little in the defendants' closing
submissions to dispute their defamatory effect. It is simply
contended that the articles, given the context in which they were
written and published, did not bear or convey the meanings and
insinuations ascribed to them by the plaintiff, and were not intended
to defame him.
As
I read them, the articles, taken together, impute on the part of the
plaintiff (amongst others) a proclivity towards corrupt behaviour,
illegal activities, dishonest and unprofessional conduct and
attempting to cover up illegalities. Such imputations are
unquestionably defamatory in accordance with the applicable tests
laid down by the courts.
See
Chinamasa
v Jongwe Printing & Publishing Co. (Pvt) Ltd & Another
1994 (1) ZLR 133 (H)…,.; Madhimba
v Zimbabwe Newspapers (1980) Ltd
1995 (1) ZLR 391 (H)…,.; Moyse
& Others v Mujuru
1998 (2) ZLR 353 (S)…,.; Masuku
v Goko & Another
2006 (2) ZLR 341 (H)…,.
The
unavoidable conclusion, as I have found earlier, is that the
cumulative effect of the impugned articles was to identify the
plaintiff as a corrupt official and to injure him in his name and
reputation.
Public
Interest or Justification
It
is submitted for the first defendant that, as the Minister of Mines,
he had a public duty to speak out against corruption. The statements
made by him were truthful and accurately reflected the endemic
corruption and malpractices within the Ministry of Mines.
On
their part, the second and third defendants contend that they were
justified in publishing the articles in
casu
and were discharging their duty of informing the public which has a
clear interest in being informed of the matters reported. They had a
duty to report on the corruption of public officers and their
resultant transfers and re-assignment, and the public had a
reciprocal interest in receiving such information.
For
the defence of public interest or justification to succeed, the
following requirements must be satisfied. In essence;
(i)
The statement alleged to be defamatory must be true and must be made
in the public interest.
See
Johnson
v Rand Daily Mails
1928 AD 190; Neethling
v Du Preez & Others; Neethling v The Weekly Mail & Others
1994 (1) SA 708 (A); Ndewere
v Zimbabwe Newspapers (1980) Ltd & Another
2001 (2) ZLR 508 (S).
(ii)
It is not necessary for the truth of every word to be established. It
suffices that the statement is substantially true in every material
respect.
See
Johnson
v Rand Daily Mails
1928 AD 190 …,.
(iii)
The element of public interest lies in telling the public something
of which it is ignorant and which is in its interest to know.
See
Mahommed
v Kassim
1973 (2) SA 1 (RAD)…,.
(iv)
As for the element of truth, it is well established that what must be
true is the “sting of the charge” or the material allegation
only.
See
Kennedy
v Dalasil
1919 EDL 1…,.; Johnson
v Rand Daily Mails
1928 AD 190….,. As is succinctly summarised by BURCHELL: The
Law of Defamation in South Africa…,:
“The
truth of the statement means that truth of such statement in so far
as it is of a defamatory nature.”
Turning
to the present case, there is no doubt that the articles in question
contained information that was of considerable public interest. The
matter published centred on the functions and activities of senior
civil servants. The alleged malpractices within the Ministry of
Mines, and the consequent re-assignment of Ministry officials, were
of unquestionable public importance. Additionally, as was explicitly
acknowledged by the plaintiff himself, it was true that there were
allegations of corruption within the Ministry. However, what is
relevant for present purposes is whether the material imputation that
the plaintiff himself was corrupt and dishonest was factually true.
Apart from making certain bald assertions, the defendants were unable
to proffer anything to verify that imputation. Indeed, the plaintiff
testified that there were no allegations of misconduct levelled
against him, while the first defendant confirmed that the plaintiff
had not been charged with any criminal offence.
In
the absence of any evidence to substantiate the utterances of
illegality and impropriety against the plaintiff, I am satisfied that
the claim of justification in the public interest cannot avail the
defendants.
Fair
Comment
The
first defendant asserts that he was merely expressing an opinion on
the prevailing state of affairs in the Ministry of Mines. His opinion
was not outlandish, emotive or needlessly scandalous of the plaintiff
and his reputation. His comments were a true reflection of the
corrupt practices of Ministry officials and were necessary to restore
the public's confidence in the Ministry.
In
turn, the second and third defendants argue that what they reported
in their articles, when read in context, constituted fair comments on
the utterances made by the first defendant. They amounted to opinions
based on true factual allegations concerning official corruption and
transfers within the Ministry, and were matters of public interest
pertaining to the conduct of public officials.
The
defence of fair comment imposes upon the defendant the onus to prove
the following;
(i)The
statement complained of was an opinion or comment and not a statement
of fact;
(ii)The
comment was fair and not excessive;
(iii)
The factual allegations on which the comment is based were true;
(iv)
The comment was based on facts expressly stated or clearly indicated
in a document or speech containing the defamatory matter;
(v)
Lastly, it must be shown that the comment was on a matter of public
interest.
See
Crawford
v Albu
1917 AD 102; Marais
v Richard & Another
1981 (1) SA 1157 (A)…,.; Tekere
v Zimbabwe Newspapers (1980) Ltd & Another
1986 (1) ZLR 275 (H); Velempini
v Engineering Services Department Workers Committee for the
Engineering Services of the City of Bulawayo & Others
1988
(2) ZLR 173 (H); Johnson
v Beckett & Another
1992 (1) SA 762 (A); Madhimba
v Zimbabwe Newspapers (1980) Ltd
1995 (1) ZLR 391 (H)…,.; Moyse
& Others v Mujuru
1998 (2) ZLR 353 (S)…,.
In
the instant case, I unable to discern anything approximating a
comment or opinion in the offending articles, whether in the
statements attributed to the first defendant or in the reportage of
the second and third defendants. In essence, the articles contain
statements of fact, drawn from the first defendant's utterances and
from correspondence by the plaintiff's lawyers. There is nothing by
way of comment or opinion expressed in the articles. In any event,
even if one were to stretch the notion of comment to include the
content of the articles, the defendants have failed to show that the
factual allegations on which the supposed comment is based were true.
For
these reasons, it is clear to me that the defendants clearly cannot
rely on the defence of fair comment in this case.
