Jubilant ZANU-PF supportes : Top army man flouted party leadership code.
|
Andrew Moyse & Ors. v Tapfumaneyi Solomon Mujuru Civil Appeal No. 813/96 Judgment No. S.C. 153/98 Supreme Court of Zimbabwe 12 October 1998 |
THE Supreme Court of Zimbabwe held that for a defence of fair comment to succeed the allegation of in question must amount to comment or opinion; it must be fair; the factual allegation on which the comment is based must be true; and the comment must be on a matter of public interest.
It held that it was unnecessary for the defence to be based on facts expressly stated or clearly indicated in the document or speech which contains defamatory words, stating instead that it would suffice that the comment be based upon facts expressly stated or referred to in the document or speech concerned, or generally known to the relevant audience.
The appellants had pleaded that the sentences relied upon in the article were not defamatory; they constituted a fair and bona fide comment on matters stated in the article and known to its readers. They further pleaded that even if the sentences were defamatory, the printer and distributor of Horizon could not be held accountable in law for any damages suffered by the respondent; and that the amount of damages sought, Z$250,000, was excessive.The High Court, Chidyausiku J presiding, had held that the respondent had been defamed and awarded him Z$ 40, 000 as damages.
The complaint was directed at the primary meaning of the two sentences; and the meaning attributed was that because the Times newspaper was partly owned by Kestrel Holdings, in which company the respondent held an interest, it would not report on the dishonourable, disreputable or dishonest activities being undertaken by him in Shamva and Bindura.
The court held that in seeking judgment, the respondent was bound by the specific meaning selected by him as being defamatory [Demmers v Wyllie & Ors 1978 (4) SA 619 (D) at 622F; Wyllie & Ors v Demmes 1980 (1) SA 835 (A) at 843E-G; Auridiam Zimbabwe (Pvt) Ltd v Modus Publicatios (Pvt) Ltd 1993 (2) ZLR 359 (H) at 366].
The court pointed out that second sentence raised the query of how the Times would report the "goings on" of the respondent in the Bindura-Shamva area. It did not say that the newspaper would not report at all the "goings on" or cover them up. It merely pondered what emphasis would be placed on such "goings on". The court found that the word "goings on" may be said to "connote activities or conduct of a morally questionable, though not necessarily of a dishonourable or disreputable or dishonest, nature."
The court rejected the appellant's contention that the words specified in the second sentence were not capable of bearing the meaning attributed to them by the respondent holding that the defamatory meaning he alleged was within the ordinary meaning of those words.
Turning to the second stage of the test - that the defamatory meaning must be the meaning according to which the words alleged would probably be reasonably understood by the ordinary reasonable reader of Horizon, the court opined such a reader would become aware that the article concerned the Times newspaper and its link to the respondent; would have his/her attention directed to the well known public figure of the respondent and as to how the paper would overcome its consequent problem of reporting on the respondent's goings on in Bindura-Shamva. The reader would also likely understand the nature of those goings-on in a negative and curious sense; he/she would in all probability understand the activities of the respondent to be of a dishonourable or disreputable nature - perhaps even dishonest. The Supreme Court therefore agreed with the conclusions of the court below on that score.
Thirdly, the court would have to determine whether the ordinary meaning that would probably be assigned by the ordinary reasonable reader was one calculated to bring the respondent into contempt or undue ridicule; or diminish the willingness of others to associate with him; or to lower him in the esteem of right-thinking members of society generally. The Supreme Court shared the view of the trial judge that this test was clearly met.
First, the allegation in question must amount to comment or opinion. The court pointed out that the 'sting' of the defamation was contained in the words "the General's goings on in his beloved Bindura-Shamva area". The court observed that although 'goings-on' was a 'fact word', the statement was in reality a comment on matters stated in the article since it involved a value judgement and was therefore itself a comment on the activities referred to. The first basis of fair comment was thus established.
The second basis was that the comment must be fair. Assuming that there was some foundation for it, the comment could not be said to have been unfair in the sense that it was intemperate or exaggerated. It was mild, "no more… than a verbalised raising of the eyebrow." Third and, according to the court, the most important in this case, the factual allegations on which the comment was founded must be true. The factual basis for the remark that the respondent's activities in the area were morally questionable was that he had acquired business interests in the area contrary to the Leadership Code. He was a member of the ruling party's Central Committee and Politburo. He admitted that what he did was a breach of the Code but said that "he had sought authority from his seniors." The purported approval of his seniors did not detract from the fact that there was a breach of the Code when the respondent acquired business interests in Bindura-Shamva.
The court found that the comment was clearly linked to the respondent's business activities, which could reasonably be regarded as morally questionable or improper. Even if an exemption from the requirements of the Leadership Code had been granted as the respondent alleged, it was surely fair comment to say that the acquisition of business interests in those circumstances was an activity of questionable moral integrity. Fourth, the comment had to be on a matter of public interest. The court held that it was self-evident that the public had a legitimate interest in the extent to which political leaders adhered to their professed standards of public morality.
Fifth, the comment must be based on facts expressly stated or clearly indicated in a document or speech which contains the defamatory words. The respondent had argued that no such facts were stated in the article. But the Supreme Court cautioned against incorporating this requirement into the law of Zimbabwe as an absolute prerequisite for the defence.
It reviewed the decisions upon which Bartlett J had relied upon for his enunciation of this fifth requirement and concluded, agreeing with Ogilvie-Thompson AJ, that the fifth requirement could be satisfied when a statement which the court construed to be fair comment was made upon a matter of public interest which was known to the readers and was identified by them as the matter commented upon, even though such matter be not specifically mentioned in the statement in question. [Golding v Torch Printing and Publishing Co (Pty) Ltd 1948 (3) SA 1067]. The court therefore re-worded the fifth criterion to provide that the comment must be based upon some facts expressly stated or referred to in the document or speech concerned, or generally known to the relevant audience.
Applying this criterion to the case, the court observed that there was a Code, which had been widely publicised, and that was admitted to have been breached by the respondent. The fact that he had been involved in business contrary to the Code was not disputed. The court therefore concluded that the fact that the writer considered the respondent's business activities to be contrary to the Code was a comment which could not be described as unfair. The court opined, obiter, that a plea of justification might also have succeeded had it been pleaded. The Supreme Court therefore upheld the defence of fair comment and allowed the appeal with costs.
Njonjo Mue
Article 19.
 |
 |