The detailed background
At
the time this suit was initiated, the plaintiff was the Minister of Information
and Publicity in the Office of the President and Cabinet. The first defendant
was a cabinet Minister and the National Chairman of a political party called
ZANU (PF). The second defendant was a committee member of the Politburo of the
same political party - ZANU (PF).
The
circumstances which led to this suit, and as taken from the plaintiff's declaration,
were given as follows:
“4.
On the 12th of January 2005 both defendants said of and concerning
the plaintiff words to the following effect:
4.1
That the plaintiff had instigated, funded and led the hatching of a coup plot
against President Robert Mugabe and others in the top leadership of ZANU (PF)
party with the view of removing the national leadership of the government.
4.2
That the coup plot by the plaintiff crafted a “Tsholotsho Declaration” that
detailed the coup plot.
4.3
That plaintiff had paid unspecified sums of money sourced from foreign persons
or countries hostile to Zimbabwe to unnamed people including some members of
ZANU (PF)'s Tsholotsho District Coordinating Committee (DCC).
4.4
That the plaintiff was to be barred from contesting in the ZANU (PF) primary
election because of his role in the coup plot.
5.
The above meeting and statements made by both defendants were widely published
in the press circulating in the country.
6.
The statements by the defendants of and concerning the plaintiff were false,
wrongful, unlawful and highly defamatory of the plaintiff…,.”
For
the alleged utterances by the defendants the plaintiff sought to be paid a sum
of Z$2,000,000,000,= (two billion dollars) in defamation damages.
In
response to the claim against them both defendants denied any form of liability
and offered a joint plea.
In
their joint plea to the plaintiff's claim, both defendants accepted having
attended the meeting in Tsholotsho on the 12th of January 2005 but
denied that that meeting was a public meeting. The defendants denied having
addressed the meeting in issue. The defendants denied everything that was
alleged against them by the plaintiff.
They,
however, concluded their plea by stating as follows:
“5.2
In any event, even if the words complained of were defamatory, which is not
admitted, defendants aver that the statements were true or substantially true
and the publication thereof for the public benefit.
5.3
In the circumstances, any publication of these statements in the press, which
is not admitted was not wrongful.”
They
proceeded to seek for the dismissal of the plaintiff's case with costs.
At
the pre-trial conference conducted by the parties before my brother judge NDOU
J on 7 September 2005 it was agreed that the following issues be determined at
trial:
1.
Whether the meeting of 12 January 2005 was a public or private meeting?
2.
Whether the defendants uttered the words complained of.
3.
Whether, if the words complained of uttered by the defendants, they were true
or substantially true or for the public benefit?
4.
Whether if the words complained of were uttered by the defendants, plaintiff
suffered any damages and the extent thereof...,.
Were the words
uttered by the defendant substantially true and for the public benefit
This
issue raises the defence of justification which was part of the defendant's
plea.
One
cannot effectively deal with this defence without having to consider the
ambivalence nature of the plea filed by the defendant. By filing this plea, and
put in simple terms, the defendant was advising the court “My Lord, I did not
utter these words. However, in the event that you find that when I say I did
not utter these words I actually uttered then, I would then argue they were
true or substantially true and for the public benefit.”
McNALLY
JA in the case of Ndewere vs Zimbabwe Newspapers (1980) Ltd and Anor 2001 (2)
ZLR 508 aptly summed up the legal position that guides the issue of fair
comments. He remarked as follows:
“The
tests for fair comment were set out by BARTLETT J in Madhimba vs Zimbabwe Newspapers (1980) Ltd 1995 (1) ZLR 391 (H) and appeared in Moyse supra 359D-362C, subject to a rewording of the
fifth test proposed by the learned judge. I do not think it is necessary to go
beyond the third test, namely –
“The
factual allegations on which the comment is based must be true…,.”
The
bulk of the defendant's cross examination of the witnesses was calculated to
demonstrate that the events at Dinyane Secondary School represented a “scene of
crime.” It was meant to demonstrate that the alleged Speech and Prize giving
day function was no more than a cover up by the plaintiff to strategise his
plot of changing the leadership of ZANU (PF) or Government by irregular means,
by way of a smart coup.
One
needs to look closely at the events at Dinyane Secondary School. There should
be no room for fanciful imagination.
The
witnesses provided by both the plaintiff and the defendant took the court
through the events at Dinyane Secondary School. Believe Gaule, who the court…, found
to have been both a credible and truthful witness, advised the circumstances
pertaining to how the function was organized right up to the holding of the
actual ceremony on 18 November 2004. Josephine Moyo and J V Dube, who were the
most visible witnesses for the defence on the events at Dinyane Secondary
School, did give us detailed accounts of what they saw at Dinyane Secondary
School. The plaintiff also took the court through what happened at Dinyane
Secondary School and Rainbow Hotel.
Perhaps
it is necessary for me to reaffirm the position that the onus to sustain this
alternative plea lay squarely on the shoulders of the defendant.
The
allegations that the Dinyane Secondary School function was a cover up to plan a
coup, smart or otherwise, are of very serious magnitude and such allegations
cannot be subject to speculation and conjecture. Such allegations screamed for
the tabling of real evidence including, but not limited to, the people who sat
down with the plaintiff to plan such a coup or people who heard the plaintiff
planning such a coup including the funding of that adventurous exercise. It
seems to me there was nothing tendered by the defendant, by way of evidence, to
substantiate the alternative defence. Even in his own testimony in court, the
defendant was completely silent on this defence except to continuously repeat
his very strong conviction that the plaintiff was the architect of the coup
plot. It was not shown to the court, despite the defendant's assurance in his
plea and cross-examination of the plaintiff and his witnesses, that he would,
in addition to his denial, lead evidence to show that the statements complained
of were true and substantially true and published for the public benefit.
It
is one thing to state one's plea and another to back up that plea with tangible
evidence. The record of proceedings will show that the plaintiff's witnesses
who testified on the Dinyane Secondary School function were thoroughly
questioned about the function at Dinyane Secondary School and on suggestions of
a coup plot by the plaintiff. But none of the defence witnesses testified in
support of such serious allegations….,.
What
happened at Dinyane Secondary School on 18 November 2004 occurred during broad
daylight and everyone who cared to follow the events did so. All the witnesses
who testified about the events at Dinyane Secondary School, the plaintiff
inclusive, did explain what happened. I did not see anything consistent with
organization of a coup. There was not even time for the participants to sit
down and craft the much talked about Tsholotsho Declaration. The evidence
tendered, even from those witnesses like Josephine Moyo and J V Dube who
painted the picture that they were most critical of the events at the school,
did not support the crafting or even discussion towards the crafting of the
Tsholotsho Declaration. I would probably understand it if it was called the
“Harare Declaration” because in Tsholotsho the schedule was so tight that the
events for the day spilled into early evening and ended without giving the
guests time to discuss anything at Dinyane Secondary School.
The
plaintiff stated that after Dinyane people went to Rainbow for dinner and the
meeting there was a chance meeting. He explained that the party members sought
clarification from the party's legal advisor, P. Chinamasa, as regards the
amendment of the ZANU (PF) Constitution to pave way for the accommodation of a
woman Vice-President. It was his uncontroverted evidence, and well given for
that matter, that after the explanation given by the ZANU (PF) legal advisor
those who had gathered appeared to have fully understood although there were
others who voiced dissent by threatening to scuttle the decision of the ZANU
(PF)'s politburo. According to the plaintiff, the discussion at the Rainbow
centered mainly on whether or not the politburo had the power to amend the ZANU
(PF) Constitution. Others argued that this was the prerogative of the Central
Committee. His testimony was that with the confusion having been explained by
the party's legal advisor the matter ended there although some people in that
informal and unsanctioned gathering started discussing names they thought would
serve them best in the Presidium.
In
the court's view, this cannot be equated to a coup plot. Is it not the position
that in any democratic organization it is in fact these informal discussions in
pubs, churches, hotels, at funerals or any other social function for that
matter that form the pillars of democratic decisions? I want to imagine that
even the result of a national election is largely a result of informal
discussions. Such informal gatherings require no sanctioning because, like the
plaintiff stated, they do not require such authorisation.
From
a distance, the testimony of Josephine Moyo about the events at Dinyane
Secondary School appear to lend some credence to the concerns raised by the
defendant. But a closer look at her evidence would show that other than trying
to feed the court with her own opinion about the events at Dinyane Secondary
Schoo her real evidence came nowhere nearer to justify the defendant's
concerns. According to this witness' testimony, she was unsettled by, among
other things, the fact that there was an imbongi from Bulawayo who was clad in
a leopard skin who kept the crowd on their feet by continuously praising the Guest
Speaker who was expected to grace the occasion - E. D. Mnangagwa. It was her
testimony that she was surprised to hear some songs AAAA and praises which she
thought were a preserve for the late Joshua Nkomo and the sitting President of
the Republic. She became suspicious.
She
was also concerned about the leopard skin donated to E. D. Mnangagwa and she
felt that was consistent with the king-making of E. D. Mnangagwa. Strange
reasoning, is it not so?
It
should be remembered that according to the plaintiff the Dinyane Secondary
School function was not without precedent. A similar function had been held at
Ntalale with resounding success and E. D. Mnangagwa had attended together with
other senior ZANU (PF) party members. It was reported that E. D. Mnangagwa had
made generous donations there and this was one of the reasons why a decision
was made to also invite him as a Guest of Honour with the hope that Dinyane
Secondary Schoo would also benefit from his benevolent hand. In my view, the
praise songs must be seen as a desperate attempt by the Dinyane Secondary School
function organizers to encourage the Guest Speaker to make helpful donations to
improve the school in question.
I
observe that revolutionaries, heroes and puppets will come and go but
revolutionary or praise songs for true heroes and those songs calculated to
demean puppets will remain and forever will remain part of a nation's rich
heritage. Praise songs are never meant to be for the exclusive benefit of a particular
person – living or departed. These are songs which are passed from one
generation to the other. The averment by Josephine that these are songs for the
exclusive benefit of a particular leader must not be taken seriously by all
fair minded persons. Really, in my view, the praise songs by the imbongi,
coupled with the donation given to E. D. Mnangagwa must not be soiled by the
opinion of Josephine Moyo but must simply be seen as an effort by Dinyane
Secondary School to get the financial assistance which it desperately needed to
develop the school. I would take advantage of having presided over this case
and urge those who made pledges to Dinyane Secondary School to honour those
pledges for the good of the school whose image suffered severely from the unnecessary
fighting by these two litigants. I imagine Dinyane Secondary School was the
greatest sufferer when these two “elephants” were engaged in this unproductive
fight. It is not too late to rekindle the bright side of Dinyane Secondary
School.
I
find it to be extremely inconceivable that the plaintiff could have been so
naïve to mastermind a plan about the so-called smart coup in the full glare of
such senior and high ranking members of ZANU (PF). Add to this, the possible
presence of members of the security agents of this country. Could the plaintiff
have tried to implement such a plan in such a reckless manner as suggested by
his political foes? Lest we forget, the Dinyane Secondary School function was
not only about the suspended six Provincial party leaders and the five (5) Governors.
Dinyane attracted several other senior politicians in ZANU (PF) as well as
Ministers, some of whom are serving in this inclusive government.
I
am unable to come to this conclusion.
Whichever
way one looks at the evidence placed before this court, I am satisfied the
defendant has failed to establish his alternative plea. If anything, that plea
is corroborative of the fact that he indeed uttered the words attributed to him
by the witnesses.
At
this stage, I must go back to the pleadings and see whether, in fact, the
plaintiff has been able, on a balance of probabilities, to prove the
allegations stated in his declaration. I note that the words complained of by
the plaintiff were allegedly uttered on the 12 January 2005. Not everything he
stated in his declaration was proved on a balance of probabilities.
I
accept that the general tenure of the allegations, as captured in paragraphs
1-4.1; 4.4; 5; 6; and 7 have been substantially established.
Perhaps
I need to briefly comment on the publication of the defamatory statements.
From
the evidence tabled before me, I am not quite satisfied that the defendant must
be taken to have been the source of the publications before the meeting of 12
January 2005. There is evidence that by the time people gathered for the
meeting at Tsholotsho on 12 January 2005 the plaintiff had received quite some
battering in the various newspapers. In this regard, I can do no more than
refer to the evidence of Dabengwa when he remarked:
“I
accept that at the time of the meeting of 12 January 2005 plaintiff had
received quite some battering from the press. There were several newspaper
articles whose source the evidence tendered could not link to the defendant.
Going by the media statements that has been made the Professor's reputation had
been seriously injured even the cartoons in the press. I remember the one he
was firing a salvo with a gun trying to shoot himself.”
I
agree with the observation and the quantum that I will award will reflect this.
Did the plaintiff suffer damages as a result
of the utterances by defendant?
In
the much celebrated case of Shamuyarira v Zimbabwe Newspapers (1980) Ltd and
Anor 1994 (1) ZLR 445 (H) ROBINSON J…, laid down some guidelines which should
assist the court in the assessment of damages. The learned Judge listed the
following guidelines:
“The
content of the article which includes the defamatory matter, the nature and
extent of the publication, the plaintiff's standings including his status; the
nature of the defamation, the probable consequences of the defamation; the
conduct of the defendant from the time the defamation matter was published up
to time of judgment; recklessness of the publication; comparable awards of
damages in other defamation suit and the declining value of money.”
The
list is not exhaustive.
The
plaintiff projected himself as an accomplished scholar, writer, academic,
public figure. He is a professor and has lectured and worked at universities in
the United States of America, Zimbabwe, South Africa, Tanzania and Uganda. He
has worked for an international organization. There is no doubt in my mind the
plaintiff is a man of recognizable status.
There
were various publications which followed the utterances by the defendants as
found out by the court.
The
plaintiff gave a graphic detail of the effect the defamation had on him
including his unceremonious eviction from Government and the attended loss of
benefits which he would have been ordinarily entitled to had he not left Government
in a huff.
Although
the defamation was done in Tsholotsho, his home, the plaintiff showed his
resilience by standing as an Independent and winning the seat, an achievement
he repeated in 2008. It seems like the plaintiff's constituency did not quite
bother about the adverse utterances made against the plaintiff. The bulk of the
newspaper articles that published the defamatory material were local ones and
there was nothing tabled to show that internationally his image had been
battered.
I
also would want to make the following observation.
Political
life is a hazardous exercise. It is no easy walk. It can be dirty at times and
those who opt for it must appreciate that by doing so they are voluntarily
assuming certain risks. In an effort to compete for the same political space
there is bound to be a lot of fighting in politics. Political foes are always
competing for recognition and it is not unusual that in the vicious competition
for political space day in and day out politicians are busy defaming each
other. That is part of the hazards of the journey in politics.
It
should not be the desire of courts to settle petty political disputes.
Politicians must learn to resolve their differences within the sometimes not so
friendly political environment. Really, politicians are in a special category
when it comes to defamation suits. Sometimes these disputes are better resolved
at constituency level as opposed to someone running to court at every
opportunity to prop up one's damaged reputation. Political defamation must be treated
differently from the other ordinary forms of defamation.
The
defendant's counsel aptly summed it up when he stated in his closing address:
“The
nature of the allegation is political and it is an accepted phenomenon that
“politics is a dirty game.” In such a game, insults, twisted facts, below the
belt punches and false accusations are traded for political advantage. This is
moreso where there is rivalry for power, control and influence.”
It
would appear to me that the conflict between the plaintiff and defendant was
really nothing but an indulgence in acerbic political wits by the defendant to
tilt the balance of power and popularity at that time against the plaintiff
whose growing political stature in Tsholotsho appeared to have caused so much
discomfort to him. The defamation of the plaintiff must be seen within this
context. 