David Mhuzha v Movement for Democratic Change [MDC-T] & 2 Ors

### Preamble
1
HH 472-13
HC 12099/11
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DAVID MUZHUZHA

versus

MOVEMENT FOR DEMOCRATIC CHANGE [MDC-T]

and

DOUGLAS MWONZORA

and

TOENDEPI SHONHE

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 14 & 15 October 2013, 4 December 2013

Civil trial – defamation

J. S. Mandizha, for the plaintiff

S. Njerere & E., Druryfor the defendants

MAFUSIRE J:  On 6 December 2011 the plaintiff issued a summons for damages for defamation and for iniuria. The defamation claim was against the first and second defendants. The iniuria claim was in two parts; the first against the first and third defendants, and the second against the first defendant only.

In his declaration the plaintiff described himself as a journalist, an author and a farmer. The first defendant is a political party. At all relevant times the second defendant was its secretary for information and publicity. The third defendant was the director general. For the defamation claim against the first and second defendants the plaintiff claimed an amount of US$100 000-00 jointly and severally. For the first iniuria claim against the first and third defendants the plaintiff claimed $50 000-00, also jointly and severally. For the second iniura claim against the first defendant only the plaintiff claimed $50 000-00.

In order to understand the plaintiff’s claims as set out in the summons and to appreciate the nature of the defences it is necessary to set out the background in some detail. This comes from the evidence led at the trial and the documents tendered.

BACKGROUND TO PLAINTIFF’S CLAIMS

According to the evidence, much of which was common cause, the first defendant was formed in 1999, initially as a pressure body the primary purpose for which was to influence policy changes in government following the economic hardships that were perceived to have been caused by the economic structural adjustment programme (ESAP) that had been prescribed by the International Monetary Fund (IMF). The first defendant was a conglomeration of disparate organisations and disparate interests. These included labour, non-governmental bodies, students, women and various other pressure groups. Labour, under its umbrella federation, the Zimbabwe Congress of Trade Unions (“ZCTU”) was more predominant.

Strategies included field visits by rapporteurs to the various parts of the country to collect raw data from the grass roots. The data was collated, synthesised and disseminated by and through the various thematic groups during two conventions held in February 1999 and May 1999. The ZCTU coordinated and facilitated these conventions. The avowed purpose was to find lasting solutions to the economic and political problems bedevilling the country.

Amongst other resolutions was the need to form an all-embracing mass movement to cater for the various interest groups. In May 1999 the first defendant was formed. It was named the“Movement for Democratic Change”. It subsequently morphed into a political party the major objective of which was to wrestle political power.

The summary of the two conventions in February 1999 and May 1999 was recorded in a document published by the ZCTU under the title “Workers Driven and People – Centred Development for Zimbabwe (June 1999 to February 2000)” (hereafter referred to as “the raw data document”). This was compiled by a group of persons under the leadership of one Timothy Kondo, then the ZCTU advocacy coordinator. An extract was produced at the trial.

The plaintiff claims that the name Movement for Democratic Change was conceived by him. At all relevant times the plaintiff was the editor of a ZCTU publication, The Worker.

The issue as to who coined the name Movement for Democratic Change became topical over a decade later. The fall out started in earnest in 2010. It literally boiled over in 2011. In order to fully appreciate the context of the plaintiff’s claim and the nature of the defence, it is necessary to go into some detail on the sequence of events on the furore surrounding that name. All this comes from the plaintiff’s evidence and documents.

On 19 July 2010, plaintiff’s erstwhile lawyers, J Mambara & Partners (hereafter referred to as “Mr Mambara”) wrote on behalf of the plaintiff a letter of demand to the first defendant, through its secretary general. In substance, the letter claimed how the plaintiff and others had worked tirelessly towards the birth and sustenance of the first defendant; how he had coined the name Movement for Democratic Change; how that point had been captured in the raw data document; how the name had become a brand which, allegedly, was second to none in Zimbabwe, a best-seller and a much sought after name; and how it had brought political mileage at both the national and international level, fame, power and fortune to those who had worked closely with the plaintiff.

Mr Mambara’s letter further claimed that the first defendant was the only post-independence political party with sufficient muscle to tackle the ruling ZANU (PF) party. The letter went on to allege that despite the party’s “rich pickings” over the years the plaintiff’s role in the formation of the party and in “christening” it had remained unrecognised. The letter concluded by demanding payment of the sum of $330 000-00 and monthly royalties to be agreed upon.

The first defendant, through the third defendant, responded to Mr Mambara’s letter ten days later on 29 July 2010. In essence the response, in very strong language, emphatically refuted the claim that the plaintiff had coined the name Movement for Democratic Change. Among other things, the letter threatened costs de bonis propriis against Mr Mambara if he would be so ill-advised as to prosecute such a baseless claim. I shall revert to these two letters in much greater detail later on since they were the basis of plaintiff’s first iniuria claim.

A month later, i.e. on 28 August 2010, Mr Mambara’s letter and the response by the defendants were both given publicity by an on-line publication, ZimEye. It was reported that defendants’ response had touched a raw nerve. The report said that on 4 August 2010 Mr Mambara had written back to the defendants complaining about the defendants’ apparent failure to appreciate that he had merely been a mouth-piece for the plaintiff who as such had not deserved the “heaps of insults” that had been hauled at him.

In the same ZimEye article the plaintiff was quoted as having given an interview during which he had fumed about the acerbic response by the defendants. He had opined that ZANU (PF) would not have used such language if someone had sought recognition for having contributed to that party. Asked whether he had not just been greedy the plaintiff was quoted as having said that people had made fortunes for themselves using the name MDC and that the mere mention of that name in some quarters would “loosen purse strings”. He then retorted as to how he could ever be accused of greed.

In May 2011 plaintiff published a book. It was titled Travesty of Democracy – Defining Moments. An extract of the book was produced at the trial. In it the plaintiff laid claim to the name Movement for Democratic Change.

On 16 May 201 plaintiff’s book was reviewed by one of the daily newspapers, The Herald, under the by-line “Insider opens MDC can of worms”. The review was spiced with liberal jibes against the person of one Morgan Tsvangirai (“Mr Tsvangirai”), the leader of the MDC and then Prime Minister of Zimbabwe in the inclusive government that was formed in 2008 following a political arrangement called the global political agreement which involved the then three dominant political parties, namely ZANU (PF) and two MDC formations, after the outcome of a national election in that year had been disputed. Regarding the naming of the party the review said that the plaintiff had “insinuated” that he had even “suggested” the name Movement for Democratic Change.

In August 2010 Mr Tsvangirai launched his own book. It was titled MORGAN TSVANGIRAI – At The Deep End. An extract was also produced at the trial. The book credited no specific individual for the name Movement for Democratic Change. It reported on the formation of the party on 7 May 1999 and on the debate preceding the adoption of the name at the May 1999 convention. It said eventually they had settled for Movement for Democratic Change among several other possible names that had been suggested.

A year later, i.e. on 13 September 2011, SW Radio Africa, in an on-line report said that one Grace Kwinjeh had been honoured for having coined the name MDC. Described as an MDC-T activist, women’s rights advocate and a fierce critic of the Robert Mugabe regime, she was quoted as having explained how she had come up with the name. In that report it was noted that not many Zimbabweans, except party insiders, had known about who had coined that party’s name and that this had now been revealed at its 12th anniversary celebrations.

Two days later, on 15 September 2011, a weekly newspaper, the Zimbabwe Independent, published an article by one Eddie Cross (“Mr Cross”), then an MDC member of parliament for Bulawayo South, under the headline “How MDC became Zanu PF’s nightmare”. In that article credit was given to the same Grace Kwinjeh for having coined the name Movement for Democratic Change.

Fifteen days later, on 30 September 2011, the Zimbabwe Independent published a letter by the plaintiff which was a response to the article by Mr Cross. In the letter the plaintiff strongly refuted many of the assertions in the article by Mr Cross, particularly the claim that Grace Kwinjeh had coined the name. The plaintiff also alluded to the third defendant’s response to Mr Mambara’s letter and claimed that there had been a deliberate attempt to distort history. The plaintiff, who said his middle name was Chidziva, insinuated that the name MDC was his initials re-arranged. However, from comments posted onto the Zimbabwe Independent’s website it seems plaintiff’s letter sparked ridicule from some members of the public.

Finally, on 10 November 2011, i.e. about two months later, there was an article published in another weekly newspaper, The Financial Gazette. That is the article that has formed the basis of plaintiff’s defamation claim in these proceedings. Published under the bye-line “Furore over MDC name honour” the article reported on the controversy that followed the honouring of Grace Kwinjeh at the party’s 12th anniversary celebrations for allegedly having coined the name of the party. The labour movement was said to have been up in arms with what it considered to be an attempt by Mr Tsvangirai to distort history, allegedly owing to new influences and interests surrounding him and which he was desperate to accommodate. The article also quoted the secretary general of the ZCTU, one Japhet Moyo, as having stated emphatically that Grace Kwinjeh had not coined the name and that she had been nowhere in the picture. Mr Moyo had gone on to assert that it had been the plaintiff who had come up with the name.

The article further stated that the second defendant, as the spokesman for the party, had claimed that they had evidence which included minutes, to prove that it had been Grace Kwinjeh who had coined the name. In direct quotes were the following:

“‘In fact, Learnmore Jongwe came up with the name Democratic Movement for Change. It was Kwinjeh who refined it to Movement for Democratic Change,’ said Mwonzora”.

The article went on to state that when he had been challenged to produce the minutes to counter the raw data document which had indicated that the plaintiff had come up with the name, the second defendant was reported to have “stuttered” and to have referred the issue to one Biti, who however was said to have been unreachable.

With that background I now turn to consider the pleadings, starting with the claim for defamation. I shall be referring to the article in the Financial Gazette as “the FinGaz article”.

THE PLEADINGS IN RESPECT OF THE CLAIM FOR DEFAMATION

The plaintiff’s declaration begins by describing who the parties are. It then states that the plaintiff had never been a member of the first defendant; that he had authored his book aforesaid; that the FinGaz article had appeared in that paper’s issue of the week 10 to 16 November 2011 and that the Financial Gazette was widely read within and outside Zimbabwe. The declaration avers that central to the FinGaz article was the contention by the plaintiff that he had coined the name Movement for Democratic Change at the formation of the party in 1999 when he was then the editor of “The Worker”.

The rest of the averments in the plaintiff’s declaration and which are germane to his claim for defamation damages are as follows:

“8.

It is common cause that in compiling the said article, the Financial Gazette interviewed 2nd defendant who went on to oblige answers. It is common cause that in doing so he was speaking in his official capacity.

9.

It is common cause that in giving the interview the 2nd defendant said and or replied to the effect that:

‘They [the MDC-T] had evidence, which included minutes, to prove that Kwinjeh had come up with the name Movement For Democratic Change and that Muzhuzha’s claim was false’

10.

In the said article, 2nd defendant is quoted as going on to rubbish (sic) plaintiff’s contention in the following words:

“Infact, Learnmore Jongwe came up with the name Democratic Movement for Change. It was Kwinjeh who refined it to Movement For Democratic Change”.

11.

The portions of the said article set out in paragraphs 9 and 10 above, and the context in which they were used, were wrongful, unlawful, false and scandalous and defamatory of the plaintiff, as they were understood by members of the public in their literal sense which is defamatory but also to mean that:

11.1	that plaintiff is a liar;

11.2	as a journalist and author, the plaintiff had no scruples and was unashamed 		about distorting the historical truths about the formation of the MDC;

11.3	plaintiff’s contention and claims were a travesty of history and the truth;

11.4	the Zimbabwe Congress of Trade Unions, on behalf of whom plaintiff was working at the time, had not played the role attributed to it by plaintiff in the said article, in the formation of the MDC.

12.

The statements and or import attributed to 2nd defendant, acting on behalf of 1st defendant in the article cited above, in paragraphs 9 and 10 of the declaration are false, scandalous, contrived and highly defamatory of plaintiff in one or other of the following ways:

12.1	it is the plaintiff who indeed coined the name Movement For Democratic Change;

12.2	the plaintiff was indeed the editor of “The Worker”, a ZCTU publication as aforesaid and it is common cause that the ZCTU itself played an integral, irrefutable and indelible role in the formation of the 1st plaintiff”

(my underlining)

Plaintiff’s declaration went on to assert that the statements attributed to the second defendant, “and or [their] import”, had been highly defamatory allegedly because it was common cause that his contention “about his intellectual idea” in coming up with the name Movement for Democratic Change had been borne out by the ZCTU official documents and records which, he claimed, had been in the public domain.

Before dealing with the quantum of damages for the alleged defamation the plaintiff’s declaration further repeated the claims that the Financial Gazette was a widely read newspaper the readership for which not only included the local elites but also the international market and that the first defendant was a “brand depending on the reader’s political inclination and disposition towards Zimbabwe and its political discourse”.

The declaration makes repeated reference to “the literal and or import or implied” meaning of the statements attributed to the second defendant. I quote paragraph 17 in full:

“17.

By reason thereof, the reach and readership of the Financial Gazette, the statements and or import thereof attributed to the 2nd defendant, acting on behalf of 1st defendant, their defamatory meaning in the literal sense, or the sense in which they were understood by members of the public, against their falsity, plaintiff suffered damages in his fair and good name, fame, reputation, professional integrity and career as a journalist”

(my underlining).

The defendants deny the claim. Vey briefly the important features of the defendants’ defence as set out in the plea are that the defendants were not aware of plaintiff’s book and that they had never read it; that while the second defendant had been interviewed by The Financial Gazette, it had never been disclosed to him that the plaintiff had been the person laying claim to the name Movement for Democratic Change as the interviewer had merely stated that there was “someone” who had been doing that.

The defendants’ plea avers that the bold words in paragraph 9 of the declaration (namely that MDC-T had evidence, which included minutes, to prove that Kwinjeh had come up with the name Movement For Democratic Change and that Mr Muzhuzha’s claim was false) were not the ipse dixit of the second defendant but rather the paraphrase by the reporter.

The plea further states that the remarks by the second defendant in the FinGaz article were true or, alternatively, that they constituted fair comment as the defendants maintain that it was Grace Kwinjeh in conjunction with Learnmore Jongwe who had coined the name for the party.

The plea admits the words in paragraph 10 of the plaintiff’s declaration (namely “In fact, Learnmore Jongwe came up with the name Democratic Movement for Change. It was Kwinjeh who refined it to Movement For Democratic Change”). However, the defendants deny that the FinGaz article had been defamatory of the plaintiff at all or that the words in it had been said with the intention to defame the plaintiff but that they were the truth or constituted a fair comment.

With regards the plaintiff’s conclusions in paragraph 11 that the portions of the FinGaz article to the effect that they had been scandalous of the plaintiff; that they had been understood by members of the public to mean that the plaintiff was a liar and a shameless person bent on distorting history and the truth, and so forth, the defendants’ plea denies that the second defendant had made any reference to the plaintiff and it denies all the inferences that he sought to draw. The plea denies that the second defendant had had any knowledge that the plaintiff had laid claim to the name. It denies that the comments made by the second defendant had been defamatory to anyone in the literal sense or in any other sense and avers that the comments were merely setting out the position of the first defendant on the matter.

Regarding plaintiff’s claim that he had coined the name Movement for Democratic Change, the plea expressly denies that he had and claimed that it was Grace Kwinjeh who had coined the name. It denies that the ZCTU documents and records were in the public domain.

THE EVIDENCE IN RESPECT TO THE CLAIM FOR DEFAMATION

The plaintiff gave evidence. He also called a witness, one Isidore Zindoga - Manhando (hereafter referred to as “Mr Zindoga”). Much of the plaintiff’s evidence and that of his witness is what is set out above as the background to the claim. However, an important feature of the plaintiff’s evidence, both in chief and in cross-examination, was his emphatic and unequivocal assertion that his claim had been motivated by a desire to get compensation for having coined the name that had brought fame and fortune to the members of the first defendant when he himself had nothing to show for it.

It was also an important feature of the plaintiff’s evidence that what had inspired and finally decided him to sue was an article in the South African press in 2010 to the effect that a certain individual who claimed to have coined the name “Bafana bafana”, the famous nickname by which the South African national soccer team is known, had sued for monetary compensation for the use of that name by the South African football administration. According to the plaintiff the case had been settled out of court with the individual accepting an undisclosed sum of money. It had then occurred to him that he could also make money in respect of the MDC name that he claimed to have coined.

Other aspects of the plaintiff’s evidence were that he was a journalist by profession. He had once worked for the Financial Gazette. Between 2000 and 2001 he had stayed in the United Kingdom where he had engaged in piece jobs in the factories. When he had come back to Zimbabwe he had survived on cross border trading and freelance writing. Eventually he had gone into farming after being allocated a piece of land by the government in terms of the land reform programme. Despite a promising start, he had not made a profit out of the farming enterprise. It had been more than ten years since he had written anything as a journalist.

Regarding his book, the plaintiff had been the author, the editor, the publisher and he was also marketing it himself. He had written it to correct what he considered to be historical distortions, particularly in relation to the formation and the naming of the first defendant.

Finally, the plaintiff conceded that the bold words in paragraph 9 of his declaration may not have been the ipse dixit of the second defendant and that there was nothing to show that the second defendant had been apprised of plaintiff’s name prior to his responses to the interview by the Financial Gazette reporter. He also claimed that the FinGaz article “had innuendo”.

Mr Zindoga, plaintiff’s witness, had at all relevant times been the deputy secretary general for the ZCTU. His immediate boss was Mr Tsvangirai. He had become the acting secretary general for the labour body following Mr Tsvangirai’s elevation to the helm of the first defendant. He was now retired after having been a trade unionist since 1972.

Mr Zindoga’s evidence corroborated that of the plaintiff in most respects, including on the plaintiff’s claim that he had coined the name Movement for Democratic Change. However, one notable feature about his evidence was what the defence in cross-examination put to him as a contradiction with what the plaintiff had written in his book. This was on the details concerning the manner in which the delegates to the May 1999 Convention had finally settled on the name Movement for Democratic Change. Mr Zindoga was emphatic that it was the plaintiffs who, with his trademark stammer, whilst seated and speaking in the Shona language, and with Mr Tsvangirai chairing the plenary session, had proposed the name. He also said that the plaintiff’s proposal had been seconded by one Remus Makuwaza, a trade unionist from the chemicals and plastics trade union. The name had been adopted. People had clapped hands.

However, it was brought to his attention that contrary to his assertion the plaintiff had said in his book that he had stood up to propose the name, and that Mr Tsvangirai had seconded the proposal. To this Mr Zindoga said he had not read plaintiff’s book. He denied that Mr Tsvangirai had seconded plaintiff’s proposal and pointed out that he could not have done that as he was the one chairing the plenary session. He said that if plaintiff had said such a thing in his book then the book had not captured correctly the reality of what had transpired.

After Mr Zindoga’s evidence the plaintiff closed his case. The defence counsel immediately applied for absolution from the instance. This, of course was in respect to both the claim for defamation and those for iniuria which I have so far not dealt with. The plaintiff opposed the application. Both parties made oral submissions for and against the application. On my direction they subsequently supplemented the oral submissions with written ones. I reserved my judgment. Below is the judgment, starting with the claim for defamation.

THE TEST FOR ABSOLUTION FROM THE INSTANCE

When a party seeks to be absolved from the instance at the close of his opponent’s case, he is in fact saying that his opponent has not established the facts that support his cause. He is saying his opponent has adduced no such evidence as to warrant him taking the witness’ stand to rebut the opponent’s case or to put across his own. He is also saying that the elements necessary to prove the opponent’s case have not been established. He is urging the court to be absolved from the opponent’s suit or instance, but not the action. The opponent may have to go away and come back with better evidence next time since the absolution from the instance does not discharge the action completely.

HERBSTEIN & VAN WINSEN The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, at pp 918 – 919 note that in Roman – Dutch an “instance” was different from an “action”, even though both were claims instituted and prosecuted by means of legal process. “Action” comprised both the law and the cause of action. “Instance” referred only to the judicial ventilation of the cause of action and the law. According to DE VILLIERS CJ in Corbridge v Welch (1892) 9 SC 277 absolution from the instance is a form of judgment which enables the plaintiff to take fresh proceedings without exposing himself to a plea of lis finite.

When faced with an application for absolution from the instance at the close of the plaintiff’s case, the court has to consider whether there has been evidence upon which it reasonably might find for the plaintiff. In other words the court has to decide whether the plaintiff has established a prima facie case against the defendant. The court is not being called upon to decide whether it should or ought to give judgment against the defendant. This test was laid down in the case of Gascoyne v Paul and Hunter 1917 TPD 170 at p 173. It has been followed in numerous other cases. In this jurisdiction BEADLE CJ adopted it and illuminated the difference between “might” and “ought to” in the case of Supreme Service Station (1969) (Pvt) Ltd and Goodridge (Pvt) Ltd 1971 (1) RLR 1.

HARMS JA, in the case of Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88 (SCA) noted that the test for absolution from the instance has from time to time been formulated in different terms, with some formulations - for example the reasonable man’s test as formulated in Gascoyne’s case - tending to cloud the issue. In Rivera’s case the learned judge of appeal adopted the following formulation:

“The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G – H in these terms:

‘… (W)hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)’

This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no Court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37 G – 38A; …)”

(my emphasis)

It is the practice of our courts in an application for absolution that in the case of doubt as to what a reasonable court might do the judicial officer should always lean in favour of the trial proceeding. HERBSTEIN & VAN WINSEN, in the same edition above, at p 923, say that a court should be extremely chary of granting absolution at the close of the plaintiff’s case. At this stage the plaintiff’s evidence must be assumed to be true unless very special circumstances exist, such as the inherent unacceptability of the evidence adduced. In Theron v Behr 1918 CPD 443 JUTA J remarked, at p 451, that judges are very loath to decide upon questions of fact without hearing all the evidence. The remark found favour with SUTTON J in Erasmus v Boss 1939 CPD 204; BEADLE CJ in the Supreme Service Station case, supra;  SMITH J in Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 484 (H) and MATIKA J in Bailey NO v Trinity Engineering (Pvt) Ltd &Ors 2002 (2) ZLR 484 (H).

With the test for absolution from the instance as set out above in mind I now analyse the plaintiff’s evidence, starting with the claim for defamation.

ABSOLUTION WITH RESPECT TO CLAIM FOR DEFAMATION

Defamation is a wrong committed by one person against the person of another. It consists of the publication of defamatory matter. The remedy is the actio iniuriarum. It seeks to protect the dignity of the plaintiff. Every person has a right not to be impaired in his reputation or good name. Every person has a right not to be attacked unjustly. In the same way that there are no scales by which to measure pain and suffering in cases of bodily injury there are also no scales by which to measure the injury to one’s reputation, one’s dignity or fame in a defamation case. Nonetheless the law attempts to repair the wrong done to the victim of attack by ordering monetary compensation.

In the present matter the plaintiff, in his declaration, relies on the “literal sense” or the “implied sense” or the “import” of the remarks attributed to the second respondent in the FinGaz article. Although in his evidence the plaintiff made reference to “innuendo”, plainly his claim, as set out in the pleadings and amplified in his evidence, is that the remarks in the FinGaz article attributed to the second defendant were defamatory per se. The claim is not based on ordinary innuendo. Innuendo refers to the indirect meaning of words or the defamatory sense to which the plaintiff ascribes to them. Undoubtedly, plaintiff, in the alternative, relies on what is called quasi innuendo. AMLER’S Precedents Of Pleadings, 7thed, at p 161, says:

“When the statement is defamatory per se, a plaintiff may attach to it a particular meaning in the form of a quasi innuendo and point to its sting.”

The plaintiff conceded that the words in paragraph 9 of his declaration (namely that MDC-T had evidence, which included minutes, to prove that Kwinjeh had come up with the name Movement For Democratic Change and that Muzhuzha’s claim was false) were not the ipse dixit of the second defendant. He conceded that he did not know what the Financial Gazette reporter had said to him in the interview. Plaintiff could only surmise that the second defendant must have been aware of his claim to the name Movement for Democratic Change. But he led no evidence in that regard. The following portion of his evidence is the nearest on the point:

“[Ms Njerere – defence counsel] There was nothing to show that he [second defendant] had been apprised by the reporter of your claim? – Yes

You didn’t know second defendant during your tenure at ZCTU? – Yes

So if he says he does not know you that would be true, isn’t it? – Physically, yes

Do we know what the reporter said to second defendant to get that response?  - I don’t know”

If plaintiff led no evidence that the words in paragraph 9 of his declaration were second defendant’s words, and if in fact he conceded that they were not his words and he does not know what the second defendant had said to the reporter for him to respond in the manner he did, then the plaintiff cannot rely on those words for his claim for defamation. There is nothing for the defendants to rebut.

But even if those words in paragraph 9 were second defendant’s words, even with their reference to plaintiff’s claim allegedly being false, I still would not regard them as having been defamatory per se, both in the literal sense or the other sense inferred by the plaintiff. I do not accept that the members of the public would have read and ascribed to those words the meaning that the plaintiff was a liar, unashamed and that his contention was a travesty of history. I find nothing scandalous in those words. I find no sting in them, let one the one the plaintiff seeks to ascribe to them. I do believe that members of the public would merely have read the FinGaz article with bemusement and would have taken it as a hilarious tussle between different factions of the MDC over a name.

Interestingly, plaintiff’s exhibits gave a glimpse of the reaction of the public to the tussle over the name. The following responses were posted on the internet in response to Plaintiff’s response to Mr Cross’ article in the Zimbabwe Independent:

“So what? Besides dropping names & demonstrating a rather small mind, one fails to see the moral of this letter. Sour grapes maybe?”

“If you did, as you claim, good for you, but remember that it had to be accepted by the party leadership in which case if it had not, the MDC would be known by some other silly acronym. Pen one for Welshman Ncube as he is clutching to MDC-whatever like a blood sucker on a goat”

“You sound bitter that you never assumed a prominent role in the MDC”

“I have no problem with Mr Muzhuzha’s assertions that he coined the name of the party! I have a problem when he says if one looks closely, that actually stands for his initials – really, why personalise the people’s project? I may as well add that Mr Muzhuzha is being selfish.”

If the words in paragraph 9 of the plaintiff’s declaration carry no sting, then less so those in paragraph 10 which are the admitted ipsissima verba of the second defendant (namely “In fact, Learnmore Jongwe came up with the name Democratic Movement for Change. It was Kwinjeh who refined it to Movement For Democratic Change”). There was nothing defamatory in those words. If the defendants believed it was Grace Kwinjeh who had coined the name Movement for Democratic Change, they were entitled to say so to anyone who might have cared to listen. They are entitled to refute any claim to the contrary. They would be justified. It would be the truth according to them. For them it would be in the public interest to set the record straight. Anyone laying claim to the name would be untruthful according to them. That would be a fair comment from their point of view. All these are classical defences to a claim for defamation.

Not only would the defendants have had the right to set the record straight from their point of view, but also such conduct would plainly show the absence of any animus iniuriandi on their part. One is not liable for defamation unless, among other things, one had the requisite animus iniuriandi. Animus iniuriandi, in relation to defamation, is the intention to defame with the knowledge of the wrongfulness. In Smith NO and Lardner-Burke NO v Wonesayi 1972 (3) SA 289 (RA), animus iniuriandi, was said to refer to the defendant’s subjective state of mind. Where the words complained of are defamatory, the onus shifts to the defendant who must plead the circumstances in which he uttered them and satisfy the court that he uttered them bona fide with no intention to injure.

In this matter there can be no shifting of onus to the defendants because second defendant’s ipse dixit was not defamatory in any sense. If the defendants genuinely believed that it was Grace Kwinjeh who had coined the name Movement for Democratic Change, how else could they have rebutted plaintiff’s claim to the contrary without hurting his ego? How does defendants’ claim become defamatory of the plaintiff?

The plaintiff claims that he, and nobody else, coined the name Movement for Democratic Change. He claims that the defendants knew, or ought to have known, that he and nobody else coined that name. His evidence that the defendants’ knew, or ought to have known, that it was him who conceived that name was firstly the raw data document, a compilation made by someone else a year after the event and from reports from other people. Plaintiff’s evidence was also his book which he published more than a decade after the event. He claimed that the raw data document and his book were documents in the public domain.

Plaintiff’s other evidence that it was him that coined the name Movement for Democratic Change were the articles which he wrote in rebuttal to the defendant’s assertion also more than a decade after the event. His most important evidence was undoubtedly the testimony of his witness, Mr Zindoga, who supported his claim to the name.

The defendants, in their application for absolution have made a frontal attack on the quality of the plaintiff’s evidence and have urged me to disregard it as unreliable. They attack the raw data document as hearsay. They dismiss Mr Zindoga’s evidence as self-contradictory in some respects and plainly contradictory of the plaintiff’s own evidence, particularly in relation to the process leading to the adoption of the first defendant’s name. About plaintiff’s book, the defence counsel highlighted that the plaintiff had dismally failed to show how many copies had been sold for him to insist that the defendants must have read it, and that, among other things, even his own witness had not read the book. On the authority of Munuhwa v Mhukauhuru Bus Service (Pvt) Ltd 1994 (2) ZLR 382 (H), in which CHATIKOBO J evaluated the evidence of quantum that had been led by the plaintiff and had granted absolution from the instance at the close of the plaintiff’s case as such evidence had been held to be insufficient, defence counsel submitted that I must assess the plaintiff’s evidence and find against him.

My task is not to determine who between the plaintiff and Grace Kwinjeh coined the name Movement for Democratic Change. But even if I were to assume that it was the plaintiff who did, and even if I were to assume that the defendants knew that the plaintiff was laying claim to that name, I would still not find anything said by the second defendant that would be said to be defamatory of the plaintiff in any sense. The defendants would still have been entitled to rebut plaintiff’s claim if they believed that Grace Kwinjeh, and not him, had conceived the original name which Learnmore Jongwe had allegedly subsequently refined. There would be nothing defamatory in that.

I do not accept that at this stage it is my task to consider the weight of the evidence to determine the application for absolution from the instance. The probabilities of the case are assessed after all the evidence has been led. At this stage I am only required to assess whether or not the plaintiff has established a prima facie case for absolution. But as HARMS JA stated in Rivera’s case, supra, the prima facie case that a plaintiff has to establish to survive absolution is in the sense that there is evidence relating to all the elements of the claim. In my view, Munhuwa’s case does no more than show that the plaintiff had failed to establish a prima facie case to ward off absolution.

In casu, the plaintiff has failed to establish that the words complained of were defamatory in any sense. He has failed to establish animus iniuriandi on the part of the defendants. Therefore absolution form the instance is granted against the plaintiff’s claim for defamation.

BACKGROUND TO CLAIM FOR INIURIA AGAINST FIRST & THIRD DEFENDANTS

Plaintiff’s first claim for damages for iniuria against the first and third defendants is based on third defendant’s aforesaid letter, on behalf of first defendant, on 29 July 2010. It was a response to Mr Mambara’s aforesaid letter of 27 July 2010. Mr Mambara’s letter was quite lengthy. I have had to paraphrase certain portions. Addressed to the secretary general of the first defendant it read as follows:

“RE:	REQUEST FOR RECOGNITION AND COMPENSATIN FOR FORMULATING THE NAME – MOVEMENT FOR DEMOCRATIC CHANGE: DAVID MUZHUZHA

We address you at the instance of our above client.

During the formative years of your political party our client, DAVID MUZHUZHA and other cadres worked tirelessly towards its birth and sustenance. It is undisputable that our client in particular coined the name ‘MOVEMENT FOR DEMOCRATIC CHANGE’ on the 9th May 1999.”

The letter went on to make reference to the raw data document and to make the point that in it the plaintiff’s role in coming up with the name which was then adopted for the first defendant, amongst other names, was captured. The letter also claimed how the name became a rallying point for democratic processes; how it gave them vision; how it captured their non-violence and non- partisan desires and aspirations for natural justice, fairness and political pluralism. It continued:

“Indeed the name MOVEMENT FOR DEMOCRATIC CHANGE is a brand name, second to none in Zimbabwe. It has become a best-seller, and political friends and foes alike have tussled over its usage and ownership. Apart from national and international political mileage the name has brought fame, power and fortune to many a cadre who worked head and shoulder with our client.

It is our considered and humble opinion that cadres like DAVID MUZHUZHA’s names should be inscribed in your party’s “hall of fame” as it were. The name of DAVID MUZHUZHA should be close to all those who were there in the trenches during the formative years of MOVEMENT FOR DEMOCRATIC CHANGE.

The name, MOCEMENT FOR DEMOCRATIC CHANGE is a brand name that resonates very well with local and international supporters of the democratic processes. One cannot think of any other political party on the continent that quickly became acceptable to the world at large and to western governments and international donors for democratic processes. In the country, it is the only post-independence political party that had and has the muscle to tackle ZANU (PF) on its own turf.”

The letter went on to claim how the plaintiff was involved in the recruitment and fundraising drives for the party and how he had organised the first ever overseas trip for its inaugural president. The letter then concluded as follows:

“Yet, despite the party’s rich pickings over the years our client’s contribution towards this name has remained largely unrecognised. DAVID MUZHUZHA has nothing to show that he is indeed a founding member of the MOVEMENT FOR DEMOCRATIC CHANGE, and more importantly that he christened your party.

In our considered and humble effort to put a lid to an ironic story on Zimbabwe’s democratization, we hereby write to seek on behalf of our client a settlement amounting to:-

$330 000-00

Agreed monthly royalties

We hope and trust your esteemed office will give consideration to this matter within the shortest time.”

Third defendant shot back as follows:

“RE:	MR DAVID MUZHUZHA

We refer to your letter dated 27th of July 2010.

With great respect, your client’s claim is both factually unfounded and legally unsustainable.

For the record David Muzhuzha did not ‘coin’ the name “Movement for Democratic Change” nor was he in any manner involved in the formation of the MDC. The statement ‘ourclient’s ingenious and historic contribution to your party’s establishment and sustenance (sic)’ is self serving mendacious glorification that is insulting, unbalanced and heretical.

From a legal standpoint the basis of your client’s claim is totally non existent under both public and private law. A fact that should be self evident to any self respecting lawyer, unless that lawyer is driven by other nefarious motives. In short the claim as currently formulated is so grossly unreasonably that no half decent lawyer properly applying his mind would have brought himself to bring the same. Indeed it is your client’s constitutional right to bring any action against any party but in the event that he proceeds as indicated in your letter, we will seek costs against you, de bonis, on a scale as between attorney and client.”

As mentioned earlier, the ZimEye reported that Mr Mambara had written a rejoinder on 4 August 2010 reminding the defendants that he had merely been the plaintiff’s mouth piece who had not deserved  the “ heaps of insults” in the letter.

THE PLEADINGS IN RESPECT TO CLAIM FOR INIURIA AGAINST FIRST & THIRD DEFENDANTS

The portion of the plaintiff’s declaration dealing with his claim for iniuria against first and third defendant avers that it was common cause that he had instructed his legal practitioners to send the letter of demand for recompense for his “intellectual property” in coining the first defendant’s name and for his contribution to first defendant’s democratic discourse. The declaration, among other things, quotes the words “self serving, mendacious glorification that is insulting, unbalanced and heretical” in the third defendant’s letter and then proceeds as follows:

“23.

The aforesaid letter from 1st and 3rd defendant, the latter acting in his official capacity, was spiteful, unrestrained, uncouth, unbecoming and hurtful of plaintiff and the legal practitioner who he was using at the time, both of whom understood the quoted words in their literal sense as well as to mean;

23.1	that both plaintiff and his lawyer were and are incorrigible liars;

23.2	that plaintiff and his lawyer are mentally unstable, schizophrenic, delusional and or suffer from psychotic disorders;

23.3 	that plaintiff and his lawyer are primitive and unorthodox;

23.4	that plaintiff and his lawyer are selfish.

24.

The aforesaid letter from the 1st and 3rd defendant was injurious to plaintiff’s self –esteem, personal dignity, professional integrity as a journalist and reputation. The contents of the aforecited letter were also wrongful, unlawful, injurious of the person of plaintiff and impaired his general self-worth and esteem.

25.

It is a matter of public knowledge and record that the MDC-T purports to espouse and be anchored on principles of democracy, freedom of expression, political tolerance and political excellence. By dint thereof, the aforecited letter from 1st and 3rd defendant was not only ironic, but also wrongful, unlawful and injurious of plaintiff’s self –esteem, personal dignity, integrity and professional standing.”

The declaration, concludes by claiming $50 000-00 as damages.

The defendants’ plea, in essence, avers that the claim for compensation for intellectual property was misconceived as the first defendant, not the plaintiff, was the owner of the “brand”. The plea expressly denies that the third defendant’s letter was spiteful, uncouth, unbecoming or hurtful. It denies that any reasonable person could have inferred from it that the plaintiff and his lawyer were schizophrenic, delusional and psychotic or that they were suffering from any other mental condition. The letter is said to have set out the position of the first defendant on the matter. The plea denies the claim that the letter was injurious or could have injured the plaintiff in his self-esteem or professional integrity as a journalist. It admits the values of freedom and democracy ascribed to the first defendant but denies that anything contained in the third defendant’s letter could have been contrary to such principles.

THE EVIDENCE IN RESPECT TO CLAIM FOR INIURIA AGAINST FIRST & THIRD DEFENDANTS

On this aspect of the claim only the plaintiff gave evidence. He merely repeated the assertions in his declaration and said the letter really hurt him. In cross-examination the defence repeatedly drew attention to the fact that the third defendant’s response did not say the plaintiff’s claim was “self-serving, mendacious glorification” but rather that these words referred to the statement in Mr Mambara’s letter. The defence also insisted in cross-examination that whatever could be inferred from third defendant’s letter it was directed at Mr Mambara, and not him, and that this was borne out by the threat of costs de bonis propriis which can only be made against someone acting in a representative capacity. However, the plaintiff maintained that Mr Mambara had not been acting independently and that the response by the third defendant had been in respect to his claim.

ABSOLUTION FROM THE INSTANCE IN RESPECT TO CLAIM FOR INIURIA AGAINST FIRST & THIRD DEFENDANTS

Plaintiff’s effort to ward off absolution against this aspect of his claim falls on the simple point that the perceived blow or sting in third defendant’s letter was aimed, not at the owner of the claim, but at the author of the letter, his erstwhile lawyer. Firstly, the response, in the very opening paragraph, referred to Mr Mambara’s letter. Then before the perceived bombshell the letter singled out “the statement” in Mr Mambara’s letter, (namely that “our client’s ingenious and historic contribution to your party’s establishment and sustenance”). It then makes short work of that statement by labelling it “self-serving, mendacious glorification”.

The third defendant’s letter plainly shows that the author, or whoever had instructed him to write that way, had very little respect for Mr Mambara as a lawyer. That is why there were uncomplimentary references such as “self-respecting lawyer”, a “lawyer driven by other nefarious motives”, “half decent lawyer” and of course the threat of costs “de bonis [propriis]”.

In my view the plaintiff himself must have understood that the alleged blow or sting in third respondent’s letter was not aimed at him but his lawyer. For how else does he explain the strange formulation of his claim in the declaration? In the paragraphs quoted above he makes consistent reference to the hurt that he and his lawyer suffered and how both of them had understood the words to mean that they were incorrigible liars, unstable, schizophrenic, delusional and psychotic. Thus if the perceived attack in third defendant’s letter was aimed, not at the plaintiff, but at his lawyer, as clearly it was, thenthere can be no cause of action for the plaintiff for iniuria on this score.

Mr Mambara’s rejoinder as quoted in the ZimEye also betrays the understanding that the alleged attack in third defendant’s letter had been aimed at him and not his client. He complained that the defendants seemed to have failed to appreciate that he had merely been the mouthpiece that had conveyed his client’s claim and that as such he had not deserved the “heaps of insults”.

I am mindful that the plaintiff maintained in his evidence that it had been his case that Mr Mambara had been prosecuting and that third defendant’s letter had in fact been shown to him. However, this takes plaintiff’s case no further. It is a requirement for an action based on the actio iniuriandum that the injurious words should have concerned the plaintiff. The test is whether the ordinary reasonable person hearing or reading the utterances would be likely to apply them to the plaintiff. It is an objective assessment; AMLER, supra, at p 163.

I do not believe that a reasonable person reading the third defendant’s letter, especially if he or she had read it together with Mr Mambara’s letter, would have concluded that the alleged attack had been aimed at anyone else other than Mr Mambara himself. Plaintiff led no evidence to show that the person or statement being attacked was him or his. On the contrary, the wording in the letter was undoubtedly Mr Mambara’s formulation. Plaintiff had merely given Mambara certain instructions and a mandate to execute. The form and manner of execution had undoubtedly been Mr Mambara’s. This much is plain if reference is had to the words in Mr Mambara’s letter, such as: “It is our considered and humble opinion that cadres like DAVID MUZHUZHA’s names should be inscribed in your party’s ‘hall of fame’…” and: “In our considered and humble effort to put a lid to an ironic story on Zimbabwe’s democratization, we hereby write to seek on behalf of our client a settlement amounting to …”

Plaintiff’s claim on this aspect also falls on the same basis as that on defamation. I assume, without deciding the point, that the third defendant’s letter was intemperate. It was probably scurrilous. I assume the words were manifestly injurious. Prima facie they carried a sting. But it seems plaintiff, through Mr Mambara’s letter, had provoked such a strong response. In my view, Mr Mambara’s letter had itself been full of buffoonery. However, if defendants felt that the plaintiff had not been  involved in the formation of the first defendant or that he had not conceived its name, it would have been their duty to set out the truth as they perceived it. It would have been their right and privilege to have written back to refute plaintiff’s assertions. These are classical defences to a claim for iniuria. Animus iniuriandi cannot be inferred in such circumstances. The onus was on the plaintiff to establish it. At p 224 AMLER says:

“In the normal course of events, a plaintiff seeking damages based on the actio iniuriandi is required to allege and prove animus iniuriandi, the intention to injure the plaintiff” (emphasis added).

Plaintiff’s claim fails on yet another basis. He clearly started the whole suit with the avowed intention of making money or getting recompense for having conceived the name Movement for Democratic Change, which according to him had brought fame and fortune to a myriad of first defendant’s members. According to him what had inspired him and triggered his suit had been the article in the South African press about the individual who had received a sum of money for having coined the name Bafana bafana, the other name for that nation’s football team. Plaintiff had then considered how he could also make money here over the name he claimed to have penned for the first defendant. However, the law says that the main purpose of the actio iniuriarum is to recover sentimental damages: AMLER, at p 225. The damages, as far as money can do, are meant to sooth injured feeling. It is not the object of this type of remedy to make money out of inventions or to get royalties from trademarks.

Plaintiff’s formulation of this aspect of his claim in the declaration demonstrably betrays the manifestly misguided premise on which it had originally been premised. The claim had originally been premised on royalties for a trade mark. In his evidence he conceded that he had not registered the name Movement for democratic Change as a trade mark or to be able to claim a copy right. It was common cause that in fact the first defendant had registered the name. Therefore, the third defendant’s letter, in spite of the wording, could only have been correct when it stated that the basis of plaintiff’s claim was “… both factually unfounded and legally unsustainable,” and that “[f]rom a legal standpoint the basis of your client’s claim is totally non existent under both public and private law.”

In the circumstances the application for absolution from the instance against the plaintiff’s claim for damages for iniuria against the first and third defendants which is based on the letter by the third defendant, on behalf of the first defendant, to Mambara ------& Partners on 29 July, is hereby granted.

BACKGROUND TO CLAIM FOR INIURIA AGAINST FIRST DEFENDANT ONLY

In September 2011, the first defendant, at its 12th anniversary celebrations, conferred various honours on a number of its members allegedly for their different roles in inter alia the formation and well-being of the party. Among other recipient of the awards was, as mentioned earlier, Ms Grace Kwinjeh, who was honoured for having come up with the name for the party. Other awards were allegedly for the courage shown by the party’s president; an award for the invention of the party’s slogan and symbols, another for loyalty, and so on.

Plaintiff took umbrage at what he perceived to have been the audacity of the first defendant to credit someone else for the name of the party, especially twelve years after its formation and in circumstances in which it knew or ought to have known of his claim to the name. He said he felt hurt. Therefore he formulated a claim for damages for iniuria against such action by the first defendant.

PLEADINGS IN RESPECT TO CLAIM FOR INIURIA AGAINST FIRST DEFENDANT ONLY

The plaintiff’s declaration in respect of his claim for iniuria against the first defendant only reads as follows:

“28.

It is common cause that in various other fora, including the MDC-T’s twelfth anniversary celebrations, the 1st defendant and or various of its officials have wrongly and falsely attributed the owner of naming the MOVEMENT FOR DEMOCRATIC CHANGE (as it then was), to one Grace Kwinjeh.

“29.

By so doing the 1st defendant and its officials and party members have wrongly, unlawfully and deliberately injured the self–esteem, professional integrity, self-worth and dignity of plaintiff, the real and true conceiver of the term “Movement for Democratic Change”.

The declaration then goes on to claim USD50 000-00 as damages.

Of course paragraphs 28 and 29 of the plaintiff’s declaration above have to be read together with the rest of the averments in the preceding paragraphs.

The only amplification to the declaration that the plaintiff made in his evidence was, to paraphrase the essence of such evidence, that it had been spiteful of the first defendant and its officials to have chosen to honour, twelve years after its formation, someone else for the name of the party and in the face of his claim.

However, the plaintiff led no evidence to show that the defendants’ action to honour Grace Kwinjeh, was made with an intention to injure the plaintiff in his self-esteem, professional integrity, self-worth or dignity. In a claim based on the actio iniuriandum malice need not, of course, be pleaded. Where the words or conduct complained of are, or is injurious in whatever sense, then malice is assumed. Malice goes to show the motive of the defendant in the alleged attack. Plaintiff does not have to deal with a defendant’s motive. He only has to show the legal intent to injure, or dolus eventualis.

However, this aspect of the plaintiff’s claim fails also on the same grounds as his claims on the other two aspects above. First defendant’s conduct in conferring an honour on one of its members for the credit given to her for allegedly conceiving the name of their party can in no way be considered injurious in any sense. There can be no shifting of onus to the first defendant to prove an absence of malice. Plaintiff did not prove the intention to injure. The first defendant did not have the necessary animus iniuriandi. The first defendant, and not the plaintiff, was the registered owner, and therefore the legal owner of the name. It was entitled to decide who to honour for conceiving it. Plaintiff’s hurt or injury, could not in law have stemmed from such action. In the premises, I am satisfied that the defendants’ application from the instance against this aspect of the plaintiff’s claim must also succeed.

DISPOSITION

In all the circumstances the plaintiff has failed to ward off the defendants’ application for absolution from the instance in respect of all aspects of his claim. Therefore, the application for absolution at the close of the plaintiff’s claim is hereby granted with costs.

Mandizha & Company, legal practitioners for the plaintiff

Honey & Blanckenberg, legal practitioners for the defendants