CLIVE COOMBE WILSON
ANDREW FOLYON MOYSE
APPELLATE DIVISION OF THE HIGH COURT OF ZIMBABWE
KAMOCHA and KARWI JJ
HARARE, 7 July 2003 and 19 May 2004
E.W.W. Morris, for the appellants
Mr Tokwe, for the respondent
KAMOCHA J: The three appellants were jointly charged with criminal defamation. The allegations were that on 30 January 2000 they or one or more of them unlawfully and with intent to defame the Executive Committee of the Constitutional Commission of Inquiry of Zimbabwe, published in their Standard Weekly Newspaper issue of the 30th of January to 5th of February 2000, an article headed “Draft Printed Ahead of Report”. The report averred that the Standard newspaper had established that the Draft Constitution that the Executive Committee said had been printed on the 29th of November, 1999, had in fact been printed way back in September, 1999. That meant, the general populance’s views on the constitutional review had not been taken into account and the Executive Committee would have misled the people of Zimbabwe.
As a result, the accused committed the offence of criminal defamation against the Executive Committee of the Commission.
All three accused tendered pleas of not guilty but were nevertheless convicted at the end of the trial. They were sentenced as follows. The first accused was sentenced to pay a fine of $4 000 or in default of payment 2 months imprisonment. Accused 2 was sentenced to pay a fine of $8 000 or in default of payment 4 months imprisonment while the 3rd accused was sentenced to pay a fine of $6 000 or in default of payment 3 months imprisonment. Aggrieved by the magistrate’s decision they lodged this appeal against both conviction and sentence. The appeal against sentence was, however, abandoned when the appeal was argued.
In relation to the conviction appellants complained that the judgment of the trial court amounted to a total abandonment of the judicial process in that:-
(a) the magistrate misdirected herself in failing to consider the question of reference to a named or ascertainable complainant and should have found that there was no reference in the article to any ascertainable person or persons;
(b) the magistrate misdirected herself in finding hat the first appellant appeared in a representative capacity;
(c) the magistrate erred in finding that first and third appellants had the requisite actus reus for the offence;
(d) the magistrate erred in finding that the first and third appellants had the requisite mens rea for the offence;
(e) the magistrate misdirected herself in taking into account events that occurred after the alleged offence had been committed; and
(f) the magistrate erred in taking into account evidence that was hearsay.
The relevant facts of the case are these. A company known as Standard Press (Private) Limited is a publisher which publishes The Standard Weekly Newspaper – “the Standard”. The three appellants held different positions in the company. The first appellant Clive Wilson was the Managing Director. Andrew Joylon Moyse – the second appellant was the editor of the Standard while Zvouya Chengetai was its reporter.
It was common cause that as the managing director the first appellant’s sole responsibilities were to ensure the smooth and efficient administration and financial security of the company. It was his duty to appoint and employ the editor of the Standard. He, however, had no say in the content of the paper which was strictly left to the editor who at the relevant time was the second appellant. This accords with the tradition in newspaper publishing as stated by GUBBAY CJ in S v Modus Publications (Pvt) Ltd 1996 (2) ZLR 553 (S) at 55C at D where he said:
“Modus Publications (Pvt) Ltd publishes and distributes extensively throughout the country a weekly newspaper known as the Financial Gazette. Its chief executive is Mr Elias Rusike. At all material times his function was to determine the policy of the newspaper, to ensure that it was financially viable and to recommend the appointment of editors to the members of the board. He did not concern himself with the editorial content or articles appearing in each individual issue of this newspaper. For, in accordance with tradition in newspaper publishing, the editor is to be allowed complete latitude in deciding, on a day to day basis, what is worthy of print.”
In casu Clive Wilson testified to the same effect. He did not concern himself with the editorial content or articles appearing in each individual issue of the Standard Newspaper. Such maters are the responsibility of the editor. He therefore cannot be held liable for what the editor decides is worth of print.
The State purported to cite Clive Wilson in his representative capacity. The State’s view was that he was representing the Standard Press (Private) Limited – “the company”. The company itself was, however, not charged with criminal defamation. Citing Clive Wilson in is representative capacity would be contrary to the provisions of section 385(3) of the Criminal procedure and Evidence Act [Chapter 9:07] which provides:
“385(3) In any criminal proceedings against a corporate body, a director or employee of that corporate body shall be cited as representative of that corporate body, as the offender, and there upon the person so cited may, as such representative, be dealt with as if he were the person accused of having committed the offence in question.”(emphasis added.
It is quite clear that a director or employee can only be cited as a representative of a company where the company itself is facing criminal charges. It was therefore improper to cite Clive Wilson as a representative of the company.
The trial magistrate laboured under the mistaken belief that Clive Wilson was the owner and the publisher of the Standard newspaper. She referred to him as such in her judgment. That is clearly erroneous. He in fact held the position of managing director.
A further difficulty is that even if the corporate body itself had been charged and Clive Wilson had been cited in his representative capacity no evidence was adduced in court to show that he knew or ought to have known of the falsity of the offending article. On the contrary, he was advised by the editor that the offending story had been confirmed and it was only after its publication that he began to take a personal interest. He therefore could not be held liable for what the editor did.
I now turn to deal with the liability or otherwise of the third appellant Chengetai Zvauya - the reporter. He was assigned to write the article in question by the assistant editor. He wrote the story and took it to the editor for discussion. He advised the editor that the story was not ready for publication as there was still checking to be done. It was his evidence that the editor agreed with him and said he, too felt the same. Zvauya said it was not his wish that the story be published at the time it was published in the light of the checking which had still to be done. Nevertheless, the editor decided to print the story before the checking was done as the decision to publish or not to publish any story was solely his. It therefore admits of no doubt that the reporter had no hand in the decision making process which culminated in the publication of the offending story. It, therefore, seems to me that he cannot be held liable for the publication of the article published against his wish which he had made known to the editor who appeared to agree with him. In the result, I make a specific finding that he cannot be held liable for the publication of the said article.
While counsel for the respondent could not advance any meaningful submissions relating to the liability or otherwise of the first and third appellants he argued that the second appellant should be held liable for the publication of the offending article since he was the editor of the Standard. He tendered an apology for doing so and finally resigned over the story in question. This in fact is common cause.
It was, however argued on behalf of the second appellant that the respondent had failed to prove that the article complained of contained a defamatory reference to any individual. This was a case of class or group defamation in which the appellants were alleged to have criminally defamed the Executive Committee of the Constitutional Commission of Inquiry of Zimbabwe. No evidence was led to show that the Commission was a body corporate or universitas which is independent from its members and has succession. Section 2 of the Commission of Inquiry Act [Chapter 10:07] which enjoins the State Present with the powers to appoint commissions of inquiry into matters of public nature does not make such commissions corporate bodies or universitas with powers to sue or be sued. For the Executive Committee to be defamed reference must have been to its named or ascertained member or members. The defamatory mater must not just refer to the Executive Committee itself without reference to a certain definite person or definite persons who are its members.
When dealing with this type of class or group defamation WESSELS JA said in SA Associated Newspapers Ltd & Another v Estate Pelser 1975 (4) SA 799 at 810C-D:
“In every defamation action the plaintiff must allege, and prove, that the defamatory words were published of and concerning him. So too, in a case of so-called class or group libel, the plaintiff can only succeed if it is proved at the trial that the matter complained of, though expressed to be in respect of the class or group of which he is a member, is in fact a publication thereof of and concerning him personally.”
In the light of the current status of the law on that subject it was submitted on behalf of the appellants that there was nowhere in the offending article where the person who gave the order to Government Printers was identified, it could not have been the executive Committee which, at any event, only came into being after November 1999, when the re-print of the earlier document was said in the article to have taken place. According to Mr Moyo’s evidence the Executive Committee came into existence on 11 December 1999 and he remained as its spokesperson.
It is common ground that there was no reference in the article to the Executive Committee, neither was it said, as alleged in the indictment that the Executive Committee had said that the draft constitution was published on the 29th November 1999.
Appellants further submitted that Mr Moyo had not named any of the Executive Committee members except for himself and there was no evidence that the names of the committee members were generally known to the public. Indeed, there was no evidence that the general public knew that Moyo was on the committee. For that reason the appellants submitted that the defamatory words were written about an unnamed entity comprising anonymous individuals. Such entity could not possibly have been identified with sufficient clarity to have made it a complainant.
Especially when regard is had to the passage that appears in paragraph 10 of the article which reads:
“Many individuals, including commissioners and civic organizations, have denounced the draft constitution, saying it misrepresents the views canvassed by the commissioners.”
It was their assertion that that could only mean to the average reader that there was dissension in the ranks of the commissioners themselves with some actually attacking the draft constitution. Those who attacked the draft could hardly, in the minds of the average reader, have had any hand in faking it.
It is significant to note that the Executive Committee could not have been defamed because it only came into being after the activity complained of had already taken place. I find that there is no evidence indicating that the general public knew that Moyo was on the executive Committee. The Executive Committee members were not identified. There was no evidence to indicate there was reference to ascertainable members of the Executive Committee. I am therefore inclined to agree with the submission that the defamatory words were written about an unnamed entity comprising anonymous individuals. Consequently there is no evidence showing that there was reference in the article to any ascertainable person or persons.
The appeal succeeds in respect of all appellants and both the conviction and sentence are hereby set aside.
Karwi J, I agree.
Atherstone & Cook, appellants’ legal practitioners.
Criminal Division, Attorney-General’s Office, respondent’s legal practitioners.