Claudius Makova v Masvingo Mirror (Private) Limited t/a The Mirror and The Editor of The Mirror and Golden Maunganidze and Walter Mutsauri

### Preamble
1
HH 241-12
HC 623/10
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CLAUDIUS MAKOVA

versus

MASVINGO MIRROR (PRIVATE) LIMITED

t/a THE MIRROR

and

THE EDITOR OF THE MIRROR

and

GOLDEN MAUNGANIDZE

and

WALTER MUTSAURI

HIGH COURT OF ZIMBABWE

MAVANGIRA J

HARARE, 29 & 30 November & 14 December 2011 and 13 June 2012

Civil Action

T. Mberi for the plaintiff.

A. Demo with A. Nemaramba for the first, second and third defendants.

No appearance for the fourth defendant.

MAVANGIRA J: The plaintiff is the Member of Parliament for Bikita West Constituency. He claims against all the defendants jointly and severally, the one paying the others to be absolved, the sum of US$100 000 being damages for “defamation, injuria and impairment of dignity”, arising from a newspaper article published in The Mirror newspaper of 3 to 9 July 2009.

The first defendant is the publisher of The Mirror. The second defendant is the editor while the third defendant is the reporter of the article published in the said newspaper and giving rise to this action. The fourth defendant is said to have directly contributed to the publication of the defamatory story in question as quoted in the article.

The first, second and third defendants deny liability claiming that the words in the article were fair in the circumstances and that the publication was for public benefit. The fourth defendant has not defended this action.

When the matter was referred to trial the following issues were referred for determination by the trial court:

Whether the newspaper article was wrongful and defamatory of the plaintiff.

Whether the published article was fair under the circumstances and for public benefit.

Whether the plaintiff’s reputation, dignity and integrity was impaired by the article published by the defendants.

Whether the defendants are liable to pay the plaintiff damages for defamation and if so, in what quantum.

The article which was published in the issue of The Mirror newspaper of 3 to 9 July 2009 was headed “‘Big War in Bikita’ :Makova cited as problem: Mine workers terrorized”. With regard to the contents of the body of the article the plaintiff summarised the article in para 7 of the Plaintiff’s Declaration, as stating the following:

“7.1 The plaintiff was terrorising mine workers in the name of ZANU(PF)

7.2 The plaintiff was “stupid and greedy.”

7.3 The plaintiff was the major problem and the cause of the unrest in Bikita.

7.4 The plaintiff was dismissing elected people and replacing them with his own”

The plaintiff contends that the words in the context of the article were wrongful and defamatory of him in that they were intended to be, and were understood by the readers of the newspaper to mean that the plaintiff was a terrorist, who was terrorising management and mine workers in the name of ZANU(PF), that he was stupid and greedy, that he was the major problem and cause of unrest in Bikita, that he was destroying party structures from within by dismissing and replacing elected people from positions and replacing them with his friends and cronies, that he is a violent person who resorted to self help and did not respect the law and is a pervert of democracy who did not respect the will of the people as expressed in elections.

The plaintiff further contends that the newspaper enjoys wide circulation in Masvingo and other provinces which he did not name. Furthermore, that as a result of the publication of the defamatory and injurious article, his reputation was severely tarnished and his dignity and integrity immensely impaired thereby resulting in him suffering damages in the sum of US$100 000 for which all the defendants are jointly and severally liable.

In their plea the first, second and third defendants admit publishing the article. They also admit that the article says what is alleged in para 7 of the plaintiff’s declaration. They however deny that the words in the article were wrongful and defamatory of the plaintiff and aver that the “words in the article were fair in the circumstances and the publication was for public benefit”. They deny that the plaintiff’s reputation was tarnished or that his dignity and integrity were impaired persisting in their stated stance.

It appears to me that there can be no doubt that the words in the article, in their ordinary meaning, were per se derogatory and defamatory of the plaintiff. Being called a terrorist, being referred to as the cause of unrest, being described as a pervert of democracy, being called greedy and stupid and other such descriptions as are used in the article, are certainly derogatory descriptions or labels. They are words not complementary of any person. Furthermore, I do not understand the defendant’s defence to include contestation of the defamatory nature of the words in the article. Rather, their defence appears to be that of fair comment. I use the word “appears” deliberately. I do so because of the manner in which the plea has been crafted with particular reference to para 5 which reads: “... The words in the article were fair in the circumstances and the publication was for public benefit.” Paragraph 7 also reads: “It is denied the plaintiff’s reputation was tarnished or that his dignity and integrity were impaired since the words were fair in the circumstances for public benefit.” If the defendants’ defence is one of fair comment then the question in my view would be whether on the evidence adduced before this court that defence avails them; this in effect, being the second issue, or part thereof, referred for determination at trial. In Manyange v Mpofu & Ors HH 162/2011 PATEL J stated at P13:

“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 Albu1917 AD 102, Marais v Richard & Anor 1981 (1) SA 1157 (A) at 1167; Tekere v Zimbabwe Newspapers (1980) Ltd & Anor 1986 (1) ZLR 275 (H); Velempini v Engineering Services Department Workers Committee for the Engineering Services of the City of Bulawayo & Ors 1988 (2) ZLR 173 (H); Johnson v Becket & Anor 1992 (1) SA 762 (A); Madhimba v Zimbabwe Newspapers (1980) Ltd 1995 (1) ZLR 391 (H) at 410 Moyse & Ors v Mujuru 1998 (2) ZLR 353 (S) at 356; Masuku v Goko & Anor 2006 (2) ZLR 341 (H) at 347.”

The article starts off by stating in the first paragraph as follows:

“Chaos is reigning supreme in ZANU PF structures in Bikita as the big wigs in the area are clashing on several occasions as the battle to control resources mainly in Bikita Minerals intensifies.”

The next paragraph states that impeccable sources within ZANU PF have since told the publication (newspaper) that power struggles which have become the pattern of life in the district would threaten the whole image of the party “as dirty games and unscrupulous tactics are being used as means to oust each other from the position of power.”

The next two paragraphs are in the form of quoted words from the source(s). The article refers to a letter which it says the newspaper is in possession of which was written to Bikita Minerals top management “from a suspected highly placed ZANU PF official threatening them that they are likely to be abducted, tortured and even get killed for betraying the party in the area.”(the emphasis is mine). The next two paragraphs are excerpts from the said letter. The plaintiff’s comments follow thereafter, with the plaintiff denying any wrong doing in the manner or respects alleged. The fourth defendant who is a member of the district Coordinating Committee and also former Member of Parliament for Bikita East is alleged in the same article, as having also been eyeing the same senatorial post as the plaintiff was reportedly also aspiring for.The fourth defendant is also quoted and reported to have said, inter alia, that the plaintiff is stupid and greedy. Another named person is referred to in the article as another rival of the plaintiff but no comment was obtained from him as he was said to have continuously switched of his mobile phone. The Mine Manager who was allegedly abducted on 12 June (presumably of 2009) and tortured and held hostage for about 30 minutes by 10 ZANU PF youths is reported in the article as having directed the newspaper to his lawyer for comment. The said lawyer’s response about what happened at the mine is then quoted. In the final paragraph of the article the following is stated:

“The other ten who allegedly abducted MacPhail last year initially appeared before the courts in Bikita for kidnapping and assault. Two of the ten suspected ZANU PF youths pleaded guilty and they were sentenced to 18 months in jail. The other eight who appeared in court on Wednesday were remanded out of custody to 5 August but the people in Bikita were shocked to see them being dropped at court by a ZANU PF truck.”

A perusal of the article shows that the newspaper has in the main quoted the allegations made to them by their sources, against the plaintiff as well as what other people said about various aspects of the story. It also contains the responses or comments given by the plaintiff when requested for the same by the newspaper before publication of the article.

The allegations made against the plaintiff are defamatory. In the article the allegation that the plaintiff was terrorising mine workers in the name of ZANU PF is attributed to unnamed impeccable sources. The allegation that the plaintiff is the major problem and cause of unrest in Bikita is also attributed to the same unnamed impeccable sources. Similarly, the allegation that he was dismissing elected people and replacing them with his own cronies. The allegation that the plaintiff is stupid and greedy is attributed to Walter Mutsauri, the fourth defendant.

As already noted above the article in issue is mainly a sequential compilation of quotes of statements by the newspaper’s sources on the one hand and the plaintiff’s comments on the other. The portion of the article that appears to me to qualify as comment that may be attributable to the newspaper is the description of its sources as being impeccable in the statement that reads “impeccable sources within ZANU PF have since told this publication” (my emphasis) about power struggles in the district, the dirty games and unscrupulous tactics being used and the negative impact they could or would have on the image of the party. This follows after the introductory paragraph quoted earlier herein, which states that chaos is reigning supreme in ZANU PF and which precedes a few other paragraphs presumably meant to justify the opening statement of the article. The article refers to sources which informed the second and third defendants to the effect that the plaintiff is the major cause of the problems in Masvingo.

It appears to me that the description of the sources as impeccable is of significance. “Impeccable” is defined in the Concise Oxford dictionary as “not liable to sin; faultless”. The word has also been ascribed the following meanings: faultless, flawless, perfect, unimpeachable, above reproach, immaculate, spotless, unsullied. By ascribing that description to its sources the newspaper has, in my view, associated itself with the allegations allegedly made by the sources in contradistinction with the plaintiff’s comments to what the sources told the newspaper. Though indirectly, the newspaper thereby subtly commented on the allegations made by its sources. The newspaper’s comment however goes beyond commenting in the ordinary sense. It, in my view, in fact validates and associates itself with the allegations through its description of the sources as “impeccable”. It in fact appears to be adopting the said allegations. A similar situation pertained in Beesham v Solidarity Party & Anor 1991 (3) SA 889 where at 898F-G ALEXANDER J stated:

“This is not fair comment. It goes much further than suggesting one party is inferior to another, or that its candidates should be supported for that reason. It says of the plaintiff that he is prepared to stand on a platform tainted by the corrupt image attaching to his leader; and in so doing, makes common cause with it. In my opinion the plaintiff’s character has been besmirched without justification. He is not wrong in asserting that in the view of sensible people he is being held out as a man unconcerned about corruption. He was defamed and the magistrate was wrong in holding otherwise.”

In addition to the observations made above, looming above the newspaper’s patent partiality in the matter is the heading of the article which has already been quoted earlier:“‘Big War in Bikita’ :Makova cited as problem: Mine workers terrorized”.(the underlining is mine).

In Moyse & Ors v Mujuru 1998 ( ) ZLR 353 the requirements for the defence of fair comment are set out as being firstly, that the allegation must amount to a comment; secondly, that the comment must be fair; thirdly, that the factual allegations on which it is based must be true; fourthly, that the comment must be on a matter of public interest and finally, that the comment must be based on facts  expressly stated or referred to in the document or speech concerned, or generally known to the relevant audience. See also Manyange v Mpofu HH 162/11. In casu, there was no evidence to the effect that the plaintiff was terrorising mine workers in the name of ZANU PF. The evidence of the plaintiff was to the effect that he was only involved in the provision by ZANU PF of legal assistance to the youths who had been arrested in connection with acts of violence. There is no substantiation of any participation by the plaintiff in any acts of violence or terrorisation of mine workers at Bikita Minerals. The letter produced as exh 2 does not purport to have been written by the plaintiff; it makes no mention of the plaintiff and thus has not been linked to him. The plaintiff also denied that he ever had any power to dismiss elected people and there was no substantiation of the allegation that the plaintiff had so conducted himself. No evidence was placed before the court to establish the truthfulness of, or substantiate the allegation that the plaintiff is a greedy politician and that he is the major problem and cause of unrest in Bikita. It thus appears that the factual allegations on which the defendants purport to have “commented” if their publication can be said to be comment, have not been proved to be true. As discussed above, the defendants appear to me to have merely adopted and validated the information gathered from their sources despite the plaintiff’s protestations of innocence and this they did in the absence of any proof to the truthfulness of the allegations. This specific requirement for the defence of fair comment to avail them has thus not been met or fulfilled.

In their evidence the second and third defendants were at pains to state that the article complained of was balanced as the plaintiff was asked to give his comments before the article was published and which comments were incorporated in the said article. In A Guide to Media Law in Zimbabwe (Legal Resources Foundation, 2002} at p 22 Professor G. Feltoe stated:

“Journalists sometimes hold the erroneous view that provided they have confronted plaintiff with a defamatory allegation against him, they are then entitled to go ahead and publish that allegation and they will have protection against being sued for defamation even if the story turns out to be without foundation. This is entirely wrong. The purpose of confronting the plaintiff with the allegation is to try and check the story. If, when confronted, P admits the allegation, the press can go ahead safely and publish the story. But if plaintiff completely denies the allegation or refuses to comment on it and the press still publishes it, the plaintiff will be able to sue for defamation if the defamatory allegation is without substance.”

In casu the plaintiff when asked to comment completely denied the allegation. As already indicated earlier, the allegations made against the plaintiff have not been shown to have any substance. The defendants nevertheless went ahead and published the same.

I am also in agreement with the plaintiff’s legal practitioner’s submission that the defendants would be misguided in assuming that as the words or allegations concerning the plaintiff are in quotes no liability attaches to them. The law as stated by Professor G. Feltoe in his work referred to above states:

“It is no defence that someone else made the statement or that the statement has already been published in, say, another newspaper. Anyone who further disseminates a defamatory statement is also guilty of defamation because the action of spreading the story around causes more harm to the plaintiff’s reputation.”

I thus agree with the plaintiff’s legal practitioner’s submission that the fact that the words may not have been of the defendants will not avail them as they are the ones who published the story and thus defamed the plaintiff. The defence of fair comment is therefore in my view, not available to the defendants.

The defendants have tagged onto their plea in paragraphs quoted earlier herein the words “for public benefit.” It is not clear whether by the use of these words the defendants intended to also raise the defence of justification or truth for the public benefit. If that was the intention, the question also arises whether on the evidence before this court that defence avails them. In Manyange v Mpofu & Ors (supra) PATEL J said at p11:

“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 & Ors; Neethling v The Weekly Mail & Ors 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.’”

I have already dealt with the lack of substantiation of the defamatory allegations published about the plaintiff in the determination of the availability of the defence of fair comment. It is not necessary to revisit the discussion. Suffice to say that for the lack of truth in the defamatory statements, the defence of public interest or justification, if it was the intention of the defendants to also raise it albeit in a vague manner, does not avail the defendants.

For the reasons discussed above it is my opinion that the second and third defendants have failed to establish any defence to the plaintiff’s claim. The fourth defendant has opted not to defend the action at all. The plaintiff is thus entitled to judgment in his favour against all the defendants jointly and severally the one paying the others to be absolved.

The plaintiff’s claim is for US$100 000. In his cited work Professor G. Feltoe states at p40:

“The award of damages for defamation is more as a solace for injured feelings, rather than as a way of repairing all the damage that has been done. This is the approach because once the defamatory statement has been published, it is very difficult to rehabilitate completely a reputation even if it is proved in court that the statement was misguided and a full apology is extracted.

The factors that the courts take into account in assessing the level of compensation are the character and status of the plaintiff, the nature of the words used and the intended effect thereof, the extent of the publication, and whether or not the defendant has subsequently made attempts to rectify the harm done by way of retraction and apology.”

In Manyange v Mpofu & Ors HH 162/11 PATEL J stated at p14 of the cyclostyled judgment:

“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 … .

… 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.”

In Thomas v Murimba 2000 (1) ZLR 209(H) at 220A-B CHINHENGO J stated:

“… The award must also reflect that the award is essentially compensatory in nature … .”

In casu the evidence adduced before the court was to the effect that the offending article was published in a community based weekly newspaper circulating in Masvingo Province. This would mean that as a weekly newspaper it would remain on sale for a whole week during which readers could purchase it. Such availability for the whole week would presumably have the effect of increasing the coverage of the newspaper. The evidence also established that at the time of the publication the newspaper was not yet on the internet. The implication would thus be that to that extent the coverage of the newspaper was limited. The evidence further showed that the article was front page headline news. As rightly submitted by the plaintiff’s legal practitioner, given the tendency of readers to skim through newspapers, the real likelihood is that a big number of readers carried with them a negative impression of the plaintiff. It was common cause there was no subsequent retraction of the article that was ever published. Rather the defendants’ stance has been that the plaintiff did not suffer any harm to his reputation, that the article had no negative impact on the plaintiff’s standing. They contend that this is confirmed by the fact that there were no disciplinary proceedings taken by ZANU PF against the plaintiff despite the publication of the article.

It was also stated in evidence that on the day that the article was published many copies of the newspaper were sold. Evidence was also adduced by the second and third defendants that both the first and third defendants had in the past received local and international recognition of their high class reporting standards through various awards. In such circumstances most if not all those who read the story would be more likely to believe that what had been published by the defendants about the plaintiff was true. In this regard sight is not lost of the third defendant’s evidence to the effect that even before summons had been served he knew that the plaintiff would take legal action against the defendants. This must be considered in conjunction with the articulation of the headline of the story. It must also be viewed in conjunction with the extent of the defamation. In this regard the defendants’ contention that the plaintiff had suffered no harm to his reputation and that his reputation had remained unscathed by the article appears to have overlooked the presumption that as soon as defamatory matter is published, a presumption arises that the plaintiff has suffered harm to his reputation. See Tekere v Zimbabwe Newspapers (1980) Ltd & Anor 1986 (1) ZLR 275 (H) at 280F where SANDURA JP, as he then was stated:

“In the circumstances, I am satisfied that there is a presumption in our law that where the words complained of are defamatory per se the plaintiff is entitled to general damages.”

A similar contention was also dismissed in the same case at 290C - D.  The learned then Judge President stated:

“... Mr De Bourbon submitted that the fact that the plaintiff was elected chairman of ZANU (PF) in Manicaland and was re-elected to Parliament in 1985 reduces the amount of damages recoverable because it shows that the publication of the defamatory statements did not affect his reputation and standing. I disagree because the fact that the words complained of did not achieve their objective does not make less defamatory (Buthelezi’s case supra).” (Buthelezi v Poorter 1975 (4) SA 608)

In Zvobgo v Kingstons Ltd 1986 (2) ZLR 310 at 325G – 326A REYNOLDS J, as he then was, stated:

“The extent of the injury is impossible to determine, and that is why, as I understand it, the presumption exists. In the words of the LORD ATKIN in Ley v Hamilton (1935) 153 LTR 385 (HL) at 386, ‘it is impossible to track the scandal, to know what quarters the poison may reach.’ It may be, for all I am aware, that the plaintiff’s reputation and standing was seriously damaged, and that he was on the brink of disaster as far as his political career was concerned. It may be that members of his party and the public scoffed at the imputations, and did not accept them. The point is that the actual effect is unknown, and it would be idle and dangerously unreliable to speculate on the possibilities.”

He further stated at 326B – D:

“..., it is clear that if a man has actually been ruined by a defamatory statement this is more serious than if the statement does not appear to have had any adverse effect at all. This is certainly a matter to be taken into account.

It is usually the case in an action for defamation that one of the plaintiff’s main reasons for coming to court at all is to attempt to clear his tarnished reputation. Should he eventually succeed, and be awarded substantial damages, this decision will in some measure vindicate his reputation. (See Pienaar & Anor v Argus Printing & Publishing Co Ltd supra at 323G; Rhodesian Printing & Publishing Co Ltd v Howman NO 1967 RLR 318 at 339E.) This is another factor, therefore, that will be taken into account.

The difficult task of assessing appropriate damages in a defamation case is exacerbated by the conflicting demands of what appear to be factors of equal importance. ... .”

From the evidence it was also common cause with the parties that the plaintiff is a high profile politician and public figure. In the defendants’ closing submissions the case of Moyo v Nkomo & Anor HB 38/11 is cited wherein at p18 BERE J said:

“I also would want to make the following observation. Political life is a hazardous exercise. It is not easy to 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 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 the 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. … .”

In casu the court is not in my view, dealing with a petty political dispute. This is a matter involving defamation of a politician by a newspaper. Furthermore, although the plaintiff is a politician and a public figure whose life is necessarily in the public domain and open to criticism, the law does not divest him of protection against harm to dignity and reputation. He is entitled to protection and this factor must also be considered in the assessment of the award that the court will grant in his favour.

Amongst the factors that guide the court in assessing an appropriate award is the consideration of comparable awards of damages in other defamation suits. No case authorities were cited in support or justification of the amount claimed by the plaintiff. The defendant’s legal practitioner however cited two authorities for the court’s guidance in this respect. The first is Moyo v Nkomo (supra) in which the plaintiff was a Minister of Information and Publicity in the Office of the President and Cabinet. As a result of serious allegations made against him he was unceremoniously dismissed from government and all benefits which he used to enjoy were taken from him. The offending article was published in national newspapers. The court awarded him US$5 000. The second is Manyange v Mpofu (supra). The plaintiff was a Mining Commissioner for the district of Kadoma. The offending article was published in the Chronicle, a relatively widely read newspaper. In that case the court took into account, among other factors, the fact that the plaintiff was never interviewed or invited to present his side of the story. The publishing company was ordered to pay US$4 000. The defendants’ legal practitioner urged this court to give the plaintiff a token award or no award at all. I disagree. Whilst there are factors on the basis of which a reduction of an appropriate award would be justified, it appears to me that there are also factors that justify an increase thereof. This, in my view, is the difficult task referred to in Zvobgo v Kingstons Ltd (supra) that is exacerbated by the conflicting demands of factors that appear to be of equal importance. The net result in casu in my view, is that the two sides are almost balanced. It is therefore my view that the two cited authorities should guide this court significantly. This court’s award therefore will reflect the trend exposed by the cited authorities. It will also take into account the venomous sting of the unsubstantiated allegations which have the effect of tarnishing the plaintiff as not only morally bankrupt but also of showing him as a person with criminal, unruly and unbecoming tendencies. He is in fact portrayed as a menace to the district of Bikita and also as a disgrace to his political party. I am also of the view however, that had a wider circulation been proved, ie wider than Masvingo Province, a higher award than will be granted in this case would have been justified. In the result, the plaintiff having succeeded in his claim, costs will follow the cause.

For the above reasons it is ordered as follows:

The first, second, third and fourth defendants jointly and severally the one paying the others to be absolved, shall

pay the plaintiff the sum of US$7 000.

pay costs of suit.

Hogwe, Dzimirai & Partners, plaintiff’s legal practitioners. See also Matthews & Ors v Young 1022 AD 492 and Tekere v Zimbabwe Newspapers (1980) Ltd & Anor 1986 (1) ZLR 275 (H)

Chihambakwe, Mutizwa & Partners, first, second and third defendants’ legal practitioners