Judgment record
Byl Manyange v Obert Moses Mpofu & 2 Ors
HH 162-2011HH 162-20112011
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HC 2308/09
BYL MANYANGE
versus
OBERT MOSES MPOFU
and
BREZHNEV MALABA
and
ZIMBABWE NEWSPAPERS (1980) LIMITED
HIGH COURT OF ZIMBABWE
PATEL J
Civil Trial
HARARE, 1 September and 2 November 2010
18 January and 15 March 2011
6 September 2011
H. Zhou, for the plaintiff
F. Mutamangira, for the 1st defendant
C. Muringi, for the 2nd and 3rd defendants
PATEL J: The plaintiff in this matter is the Mining Commissioner
for the District of Kadomah. 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 1 st defendant is the Minister of
Mines, but is sued in this case in his personal rather than official capacity.
The 2nd defendant is the editor of The Chronicle, while the 3rd defendant is
the publisher of that newspaper.
The issues for determination in this matter revolve around the
words uttered by the 1st defendant and published by the 2nd and 3rd
defendants in The Chronicle. Firstly, were these statements understood to
refer to the plaintiff and, if so, was the plaintiff injured in his name and
reputation? Secondly, if the statements were defamatory of the plaintiff,
was their publication justified on the grounds of fair comment and/or the
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public interest? And 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 Kadomah District. He has held that post since his
promotion in 1993 [Exhibit 1] and is comfortably settled in Kadomah.
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 & 3] containing statements attributed to the 1 st
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 & 6] relating
to the transfer of Ministry officials and specifically referring to the
plaintiff by name.
According to 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
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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 1st 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 29 th 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
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At the end of the plaintiff’s case, the defendants applied for
absolution from the instance. In Nestoros v Innscor Africa Ltd HH 73-2007
at 1-2, 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) at 94,
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 at 156-158.
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 loath 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 at 451; Erasmus v
Boss 1939 CPD 204 at 207; Supreme Service Station (1969) Pvt Ltd v Fox &
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Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5-6. 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
1st 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 at
281; Bane v Colvin 1959 (1) SA 863 (C) at 865. 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
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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) at 83; Moyo v Chipanda 2004 (2) ZLR 67 (H) at 72.
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
1st defendant had received several letters to that effect from their
lawyers. The evidence shows that on the 16 th 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 15 th 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
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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 1st 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
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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 1st 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 2nd 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
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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 1 st 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 HC
2104/09) were only filed on 8 April and 14 May 2009 respectively.
Citation of 1st defendant and Service of Process
In his closing submissions, Mr. Mutamangira argues that the 1st
defendant made his utterances in the discharge of his public duties.
Consequently, the plaintiff has no cause of action against the 1 st
defendant in his personal capacity. Therefore, because there was non-
compliance with the citation requirements of section 4 of the State
Liabilities Act [Chapter 11:10] and the formalities governing the service of
process under Order 5A of the High Court Rules 1971, the plaintiff’s
election to sue the 1st defendant in his personal capacity is fatal to his
case. The thrust of this argument is not entirely clear. In any event, it is
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an aspect that was not raised at all in the 1 st defendant’s Plea, nor was it
directly canvassed in the evidence presented in court. It certainly cannot
be entertained at this juncture.
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’s case and Bane’s case)
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, at pp.128-129.
Again, the cases already referred to (Vermaak’s case and Moyo’s case)
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) at 45, 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.”
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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 1st 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 1 st defendant.
Additionally, the 1st defendant is quoted in the third article as stating that
some officials have been “issuing claims to undeserving 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
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that there was no going back on the reassignment 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) at 149; Madhimba’s case, supra, at 400; Moyse & Others v
Mujuru 1998 (2) ZLR 353 (S) at 356; Masuku v Goko & Another 2006 (2) ZLR
341 (H) at 347. 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
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It is submitted for the 1st 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 2nd and 3rd 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 reassignment, 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, 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). 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’s
case, supra, at 205.
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) at 9-11. 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 at 9; Johnson’s
case, supra, at 197. As is succinctly summarised by Burchell, op. cit., at pp.
211-212:
“The truth of the statement means that truth of such
statement in so far as it is of a defamatory nature”.
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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 reassignment 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 1 st 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 1st 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 2 nd and 3rd defendants
argue that what they reported in their articles, when read in context,
constituted fair comments on the utterances made by the 1 st defendant.
They amounted to opinions based on true factual allegations concerning
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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. The statement complained of was an opinion
or comment and not a statement of fact. The comment was fair and not
excessive. The factual allegations on which the comment is based were
true. The comment was based on facts expressly stated or clearly
indicated in a document or speech containing the defamatory matter.
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) at 1167; 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’s case, supra, at 410; Moyse’s case, supra, at 359.
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 1st defendant or in the reportage of the 2 nd and 3rd
defendants. In essence, the articles contain statements of fact, drawn
from the 1st 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.
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Quantum of Damages
In assessing the quantum of damages in a defamation case, it is
necessary to consider a variety of factors. These include the following:
the content and nature of the defamatory publication; the plaintiff’s
standing in society; the extent of the publication; the probable
consequences of the defamation; the conduct of the defendant; the
recklessness of the publication; comparable awards of damages in other
defamation suits; and the declining value of money. See Tekere’s case,
supra, at 289; Shamuyarira v Zimbabwe Newspapers (1980) Ltd & Another
1994 (1) ZLR 445 (H) at 503; Levy v Modus Publications (Pvt) Ltd 2000 (1) ZLR
68 (H) at 70-71 & 73; Mnangagwa v Nyarota & Another HH 153-2004;
Masuku’s case, supra, at 350; Garwe v Zimind Publishers (Pvt) Ltd & Others
2007 (2) ZLR 207 (H) at 236-242; Macheka v Metcalfe HH 62-2007. In
applying these factors, it must be borne in mind that damages for
defamation are intended to compensate the plaintiff for sentimental loss
and should not as a rule be punitive. See Shamuyarira’s case, supra, at
502-503; Levy’s case, supra, at 73; Thomas v Murimba 2000 (1) ZLR 209 (H)
at 217.
Insofar as concerns recent comparable awards, the only relevant
case that I was able to locate was Moyo v Nkomo & Dabengwa HB 38-2011,
in which four cases dating from December 1986 to January 2000 were
considered. The damages granted in those cases ranged from the
equivalent of US$526 to US$8,750. In Moyo’s case itself, Bere J awarded
the sum US$5,000 as fair compensation on the facts before him.
The plaintiff herein claims the sum of US$30,000 as the
appropriate quantum of damages for the injury to his name and
reputation. It is common cause that he is one of a handful of Mining
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Commissioners in the country and has been the Mining Commissioner
for Kadomah since 1993. It is also not disputed that the offending articles
were carried in a daily newspaper circulating in Bulawayo and probably
elsewhere in Zimbabwe. The plaintiff’s unchallenged evidence was that
he has never been charged with any act of misconduct involving
corruption or other illegal activity. Moreover, he was never interviewed or
invited to present his side of the story, until after he had issued
Summons in casu, and no retraction of the defamatory material was ever
tendered. The articles could have a negative impact on his professional
career in the future.
Apart from this, there was very little in the plaintiff’s own testimony
to support the amount that he claims. While his professional status is
relatively clear, he said nothing at all about his social standing. Although
it may not be necessary, as is remarked by Mr. Mutamangira, to go so far
as to “divine by esoteric quackery” the quantum due, the absence of any
evidence on this aspect makes it very difficult to arrive at an appropriate
computation of solatium for the harm suffered by the plaintiff. After all,
the most significant measure of a man’s fama or reputation must be his
social status or estimation in the eyes of others. Without this, the injury
sustained by him can only be perceived as being personalised and
confined to his self-esteem. In this context, it is also necessary to
accurately ascertain the scope of coverage of the defamatory material.
Adv. Zhou’ submits that The Chronicle is a widely read national newspaper.
However, no evidence was lead at the trial as to the extent of its
circulation and the nature of its readership.
There is one further point that must be taken into account in
assessing the plaintiff’s claim. He conceded under cross-examination that
he had never approached the 1st defendant directly, before instituting
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this action, in order to discuss and resolve the allegations against him. It
is quite possible, if he had done so, that this matter might have been
amicably settled out of court. The plaintiff’s failure to do so is yet another
factor that must weigh negatively against him so as to reduce the
quantum of damages that he is entitled to.
One final point concerns the relative degrees of responsibility for
the injury occasioned to the plaintiff, as between the three defendants. It
is clear from the evidence that the 1 st defendant himself did not directly
identify the plaintiff by name in the offending articles. He was indirectly
reckless in that regard. In contrast, the 2 nd and 3rd defendants specifically
named the plaintiff. Moreover, they did not, as would be expected of a
professional journalist or reputable newspaper, invite the plaintiff to
comment before publishing the defamatory material. Their overall
conduct was clearly more reprehensible than that of the 1 st defendant.
That being so, it would be proper and fitting to apportion the damages to
be awarded, as between the 1 st defendant on the one hand and the 2 nd
and 3rd defendants on the other, so as to reflect their respective degrees
of culpability.
Having regard to all of the foregoing, I am of the view that the sum
of US$6000 represents a fair and reasonable measure of the damages
that should be awarded to the plaintiff. In the result, the plaintiff is
entitled to judgment in his favour as follows.
It is ordered that:
1. The 1st defendant shall pay to the plaintiff the sum of US$2000
together with interest thereon at the prescribed rate, calculated
from the date of service of Summons to the date of payment in
full.
19
HH 162-2011
HC 2308/09
2. The 2nd and 3rd defendants, the one paying the other to be
absolved, shall pay to the plaintiff the sum of US$4000 together
with interest thereon at the prescribed rate, calculated from the
date of service of Summons to the date of payment in full.
3. The 1st, 2nd and 3rd defendants, the one paying the others to be
absolved, shall bear the costs of suit.
Gill, Godlonton & Gerrans, plaintiff’s legal practitioners
Mutamangira & Associates, 1st defendant’s legal practitioners
Chirimuuta & Associates, 2nd & 3rd defendants’ legal practitioners