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BONAVENTURE BWEUPE v THE ATTORNEY-GENERAL, AND ZAMBIA PUBLISHING COMPANY LIMITED, AND TIMES NEWSPAPERS ZAMBIA LIMITED (1984) Z.R. 21 (H.C.)
|HIGH COURT SILUNGWE, C.J.29TH MAY 1984(CASE NO. 1978/HP/466)|
|Tort-libel - Fair Condiment - Apology demanded from Plaintiff - Effect of on defence of fair comment.|
|The plaintiff was a High Court judge who delivered a ruling in a case heard in open court to the effect that UNIP special constables did not exist in law.
Reacting to that ruling, the then Minister of Home Affairs under whose auspices the special constables fell, made certain statements which were published by the second and third defendants. In the said publication the second defendant included the Minister's demand for an apology from the plaintiff. The third defendant did not include this in its publication of the Minister's reaction.
The plaintiff contended that the words spoken by the Minister and repeated by the second and third defendants were defamatory of him. The defendants argued that the words complained of amounted to fair comment, noble without malice, upon a matter of public interest, namely, a ruling delivered by the plaintiff in his capacity as a judge of the High Court.
|SILUNGWE, C.J.: delivered the judgment of the court.
This is an action for libel brought by the plaintiff, who was at the material time, and, who still is, a judge of the High Court in the Republic of Zambia. The action is against the first defendant - The Attorney- General who is being sued under the State Proceedings Act; the second defendant-the Zambia Publishing Company Limited-the proprietor and publisher of the Zambia Daily Mail and the third defendant - Times Newspapers Zambia Limited. The words complained of appeared on the front pages of the Zambia Daily Mail and the Times of Zambia of February 17, 1975 which the plaintiff claims were falsely and maliciously printed and published, or caused to be printed and published, In those papers. Those words are set out in paragraph 3 of the Statement of Claim and are reproduced here below:
The Zambia Daily Mail
for saying that UNIP special constables were not recognised by the law. Mr Milner said in Lusaka yesterday the judge was either misinformed or had not read his law volumes properly. 'The President directed that we should form the special constabulary to help eradicate crime. Can you imagine a Head of State praising something which is illegal.' Mr Milner asked amid shouts of 'Shame, shame' from the leaders. 'Special constables exist by law and an officer in charge of police is given authority to have, under his charge, these constables. In fact they were there even during colonial days,' he added. The judge is learned and should know the law to give the right judgment but I am shocked to read his remarks in the press and I demand an apology from Judge Bweupe,' he said.
The Times of Zambia
'Every special constable under this ordinance shall have the sane powers, privileges and protection and shall be liable to perform the same duties and shall be amenable to the same penalty and to be subordinate to the same authority as police officers.
4.By the said words the defendants meant and were understood to mean that the plaintiff was not a fit and proper person to hold the office of a High Court Judge in the Republic of Zambia.
The history of this action may be shortly stated. In February, 1975, a Mr R.B. Chimbavi and three others appeared before the plaintiff, in his capacity as puisne judge, on a criminal charge of aggravated robbery. At the end of the case for the prosecution, the plaintiff made a ruling in which he found that the identity of the four accused persons had not been established, and consequently, found that they had no case to answer and acquitted them. During the course of his ruling, he said that Gideon Daka, PW3 in that case, together with two special constables, had conducted an illegal search of a house belonging to the first accused in his absence, and that they had taken therefrom, and conveyed to a police station a bundle of goods, some of which were said to be part of the property stolen during the commission of the aggravated robbery.
May I warn the so called Special Constables that they did not exist in law. The law does not recognise their existence because they acted outside the ambit of its intendment. They have no powers to search other people's houses without a search warrant. Indeed they can assist the Police in the detection of crime just in the same way as any citizen can, but illegal acts would expose them to prosecution.
May I warn the so called Special Constables that they did not exist in law, when read in isolation, was capable of being interpreted to mean that special constables did not exist. He said, however, that when the paragraph containing that sentence was read as a whole, It would not give two interpretations
the ruling, save that he would now be more careful to quote relevant sections of the law so as not to make the ruling ambiguous and thereby forestalling lawyer's criticism of deficiency in the ruling.
Matters of Church and State. Everything which directly effects the welfare of Church and State is clearly a matter of general public interest. There can be no dispute as to the right of criticism with regard to the policy of the Government, the administration of justice, the proceedings of the legislature, the conduct of the executive in civil and military affairs, and generally the manner in which all those who may be called public servants discharged their duties,
Granted, as Mr Kasonde said, that the demand for an apology went beyond fair comment, I can see nothing in the foregoing passage to ameliorate or alter that position.
In the instant case, it is not seriously disputed that the words complained of were prima facie defamatory of the plaintiff. Indeed, the plaintiff stated in his evidence that, as a result of the publication aforesaid, he was deserted by his friends, except those who were close to him, his only witness, Mr Valentine Kayope, being among them.
728. The latitude of fair comment. In the following passage from his summing-up in Stopes v Sutherland, (4) Lord Hewart C.J., points out the latitude of fair comment:
'What is it that fair comment means? It means this-and I prefer to put it in words which are not my own; I refer to the famous judgment of Lord Esher, M.R. in Merivale v Carson (5): 'Every latitude,' said Lord Esher, 'must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say [not whether they agree with it, but whether any fair man would have made such a comment....Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this-would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said?' Again, as Bray L., said in R v Russell (6): 'When you come to a question of fair comment you ought to be extremely liberal, and in a matter of this kind-a matter relating to the administration of the licensing laws-you ought to be extremely liberal, because it is a matter on which men's minds are moved, in which people who do know entertain very, very strong language, every allowance should be made in their favour. They must believe what they say, but the question whether they honestly believe it is a question for you to say. If they do believe it, and they are within anything like reasonable bounds, they come within the meaning of fair comment. If comments were made which would appear to you to have been exaggerated, it does not follow that they are not perfectly honest comments.' That is the kind of maxim which you may apply in considering whether that part of this matter which is comment is fair. Could a fair-minded man, holding a strong view, holding perhaps an obstinate view, holding perhaps a prejudiced view-could a fair-minded man have been capable of writing this?-which, you observe, is a totally different question from the question, do you agree with what he has said?
I now have to decide whether the comment was made fairly. I will start in the reverse order of defendants and consider first the position of the third defendant.
But whether the authority and position of an individual judge or the due administration of justice is concerned, no wrong [is] committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public, a public act done in the seek of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men.
above, it follows that I would uphold the third defendant's defence of fair comment and dismiss the action against them. In the circumstances of the case, there will be no order as to costs.