OBERT MOSES MPOFU
ZIMBABWE NEWSPAPERS (1980) LIMITED
HIGH COURT OF ZIMBABWE
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 1st 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 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 1st 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 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 29th 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
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 vJarman 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 vFox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5D-E; Lourenco vRaja 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 vRaja 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 & 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 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 16th 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 15th 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 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 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 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 1st 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 1st 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 an aspect that was not raised at all in the 1st 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.”
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 1st 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 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
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”.
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 1st 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.
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 2nd and 3rd defendants argue that what they reported in their articles, when read in context, constituted fair comments on the utterances made by the 1st defendant. They amounted to opinions based on true factual allegations concerning 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 2nd 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.
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 vZimbabwe Newspapers (1980) Ltd & Another 1994 (1) ZLR 445 (H) at 503; Levy vModus Publications (Pvt) Ltd 2000 (1) ZLR 68 (H) at 70-71 & 73; Mnangagwa vNyarota & 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 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 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 1st defendant himself did not directly identify the plaintiff by name in the offending articles. He was indirectly reckless in that regard. In contrast, the 2nd 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 1st defendant. That being so, it would be proper and fitting to apportion the damages to be awarded, as between the 1st defendant on the one hand and the 2nd 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:
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.
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.
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