Moyo v Chipanda (HC 1770 of 2004; HC 703 of 2004) [2004] ZWBHC 98 (1 September 2004)

Judgment No. HB 98/2004 Case No. HC 787/04 X-Ref HC 1770/04 & HC 703/04 CHARLES PAUL MOYO Versus PURVESS CHIPANDA IN THE HITGH COURT OF ZIMBABWE CHIWESHE J BULAWAYO 3 MAY & 2 SEPTEMBER 2004 Plaintiff in person B Ndove for defendant Opposed Matter CHIWESHE J: The plaintiff, a registered legal practitioner, issued summons out of this honourable court against the defendant for defamatory damages in the sum of $25 million arising from an article published by the Chronicle newspaper of Friday 13 February 2004. The plaintiff avers that the article was published at the defendant’s instance. The plaintiff also seeks interest a temporae morae from 16 February 2004, the date of demand to date of full payment and costs of suit. The plaintiff’s declaration reads in the penultimate paragraphs as follows: “3. 4. 5. On Friday February 13, 2004 at Bulawayo an article was published in the Chronicle, entitled “Woman forcibly takes away son.” A copy of the article is attached hereto marked as “Annexure CP1”. The Chronicle is a newspaper that is widely distributed in Zimbabwe and is also widely read by the general public. The article said of plaintiff that: “The boy’s father, Mr Purves Chipanda, said the wrangle began last year in September, two years after he separated with the child’s mother, Petronella Tiwandire … Mr Chipanda alleged his wife’s lawyer (name supplied) phoned and threatened him. He phoned me and threatened, telling me that the child was not mine but his he said … HB 98/04 6. 7. When the lawyer’s wife was contacted for comment on these allegations she said she was not aware of them.” The above mentioned words, taken in the context of the article are wrongful and defamatory of plaintiff in that they were intended and were understood by the readers of the Chronicle that the plaintiff indulges in extra-marital sexual affairs with his clients. That he is a violent person and uses threats to induce fear in others to obtain an unfair advantage over them. That plaintiff was not a fit and proper person to practice as a lawyer.” As a result of this defamation plaintiff was brought to contempt and undue ridicule. He was lowered in the estimation of right “thriving” (thinking?) or reasonable members of society generally. Plaintiff thus suffered damages in the sum of $25 million.” The defendant has excepted to the plaintiff’s summons and declaration as follows: “1. Plaintiff’s summons and declaration do not disclose a cause of action for the delict of defamation for inter alia the following reasons: (a) The words complained of by the plaintiff do not make reference to the plaintiff and in any event these words do not sufficiently identify with the plaintiff. Further, and in any event, the words complained of are not reasonably capable of being understood by an ordinary reader of the article as referring to plaintiff. Accordingly therefore the words are not defamatory of plaintiff per se. In the premises the plaintiff has got no locus standi to bring this action. Prima facie, plaintiff’s declaration does not even allege that defendant himself published or intended or authorised the publication of the words complained of. Neither does plaintiff allege that, to defendant’s knowledge, the Chronicle had a legal or moral obligation to publish the words complained of. (b) (c) (d) Wherefore, and for the aforesaid grounds, defendant prays for the dismissal of plaintiff’s claim with costs on an attorney-client scale.” In support of its exception the defendant raises three points. Firstly the defendant argues that the article in question did not disclose the plaintiff’s names and that in any event the article does not sufficiently identify with the plaintiff. I agree with the defendant’s contention in that regard. HB 98/04 Secondly, the defendant argues that the words complained of are not reasonably capable of being understood by an ordinary reader of the article as referring to the plaintiff and for that reason the words and the article are not defamatory of the plaintiff per se. To that extent therefore so argues the defendant the plaintiff does not have locus standi to bring this action. Both the first and second points raised by the defendant hinge on the same or similar factual basis – namely that the article does not sufficiently identify the plaintiff in the eyes of the ordinary reader and that for that reason there is no cause of action. I will return to this argument in due course. The third point raised by the defendant is that the summons and declaration do not allege that the defendant himself published or intended or authorised the publication of the words complained of nor is it alleged that to the defendant’s knowledge the Chronicle had a legal or moral obligation to publish the words complained of. I disagree with that view. The plaintiff’s claim on the face of the summons is for defamatory damages “arising from an article published by the Chronicle on Friday 13 February 2004 at the instance of defendant” (own underlining) And under paragraph 5 of the plaintiff’s declaration a quotation from the article complained of indicates that the Chronicle reporter attributed the words complained of to the defendant, the primary source. In my view there is no basis for alleging as the defendant does that the summons and declaration do not link the defendant to the publication. If it is true that the defendant uttered the words complained of to a newspaper reporter, the implication in the absence of anything to the contrary must be that the defendant intended or must have intended that the words be published in the Chronicle whether or not the Chronicle had any legal or moral HB 98/04 obligation to do so. I would accordingly dismiss the defendant’s third contention on that basis. I now return to the point raised earlier namely the contention by the defendant that the article does not sufficiently identify the plaintiff as the person in respect of whom the words complained of were published. During argument it was accepted by both parties and correctly so in my view that a previous publication which explicitly identified a party would cure the defect if a complaint arose out of a subsequent publication if in respect of such subsequent publication an exception were to be raised on the grounds that the publication did not sufficiently identify the defamed party. The question that arose during argument was whether the converse was true, namely whether a subsequent publication that explicitly identified the plaintiff, for example, by name and other details could be relied upon as ground upon which an exception such as the present could be dismissed in an action involving a previous publication in which the reference to the plaintiff was so general that at the time of the publication the ordinary reader could not have immediately identified the plaintiff as being the subject of such publication. The defendant argues that a subsequent publication cannot cure the defect in a previous publication. If that position were to be accepted as correct so argues the defendant, then the court will have taken an unprecedented and novel position. There is no authority according to the defendant for the court to arrive at such a decision. The plaintiff argues to the contrary, namely that a subsequent publication reinforces the previous publication. For the record it is accepted that the Chronicle subsequently published another article in which the plaintiff’s identity was disclosed in full as being the person referred to in the article under present consideration. HB 98/04 Assuming then that the present article does not sufficiently identify the plaintiff and that any summons based on it is for that reason prone to exception, would a later publication explicitly identifying the plaintiff cure the defect inherent in the present publication in respect of which summons has been issued? The plaintiff argues that the defect complained of by way of exception (if any) was cured by a subsequent publication in which his identity was exposed. The article the subject matter of this action was published by the Chronicle on 13 February 2004. The subsequent article was published on 5 March 2004. In the subsequent article the plaintiff was identified in the following explicit terms: “A Bulawayo lawyer Mr Charles Paul Moyo is set to appear in court on 16 March facing a charge of contravening a section of the Posts and Telecommunications Act after he allegedly insulted over the phone a city man who was involved in a case he was handling. Sources say that Mr Moyo (44) who resides at Warnborough Flats in the city centre and works for Majoko and Majoko Legal Practitioners ….” On 17 March the Chronicle published another article in which it reported criminal proceedings against the plaintiff but in addition repeated the assertions made in the two previous publications. This article was supported by a picture of the plaintiff and his legal practitioner. On 18 March 2004 the paper published a cartoon depicting the plaintiff demanding from another man custody of a child he called his and the words “Whose kid is this?” inscribed at the end of the cartoon. Another article appeared in the same newspaper on 20 March 2004 and yet another on 3 April 2004 in which it was imputed that the plaintiff had had an adulterous affair. The last article was published on 7 April 2004 under the title “Lawyer Remanded”. The present exception was heard on 3 May 2004, a month after the last publication of HB 98/04 7 April 2004. Do these subsequent articles have a bearing on the fate of the exception? The plaintiff has relied on the decisions in Ferreira v Sardinha 1917 TPD 477 and Vermaak v Van Der Merwe 1981(3) SA 78 both of which decisions were the subject of comments by J M Burchell in his book The Law of Defamation in South Africa (first Edition) at page 691. The facts in Ferreira v Sardinha 1917 TPD 477 were summarised by HOWARD and THIRION JJ in Vermaak v Van Der Merwe 1981(3) SA at page 82 s follows: “The defamatory statement which figured in that case had been written in a complaints book. It was intended to refer to the plaintiff but did not mention his name or otherwise identify him as the person against whom the imputation was made. Those who read the defamatory complaint did not immediately know that it referred to the plaintiff but were informed soon afterwards that it did so. In the magistrate’s court the plaintiff obtained judgment in his favour. One of the grounds on which the judgment was attacked on appeal was that the defamation was not actionable in the absence of proof that the persons who read the complaint knew, at the time of reading it, to whom it referred..” The learned judges agreed with the decision reached in that case, namely that publication of defamatory words and identification of the person intended to be defamed need not occur contemporaneously. They agreed with De VILLIERS JP when he stated in that case as follows: “I agree with the argument that if a person uses defamatory language in such a way that he leaves it so vague that it may equally apply to a number of persons and he does not do anything by which it can be ascertained who was meant, although he may have intended a definite individual, he cannot be held liable. But if he makes a statement, even confidentially, to some person and it leaks out in that way whom he meant, it makes no difference whether the person who read the defamatory statement knows to whom it refers at the time he reads it or whether he obtained the information afterwards.” HB 98/04 In their judgment in the case before them (namely Vermaak v Van Der Merwe 1981(3) SA) and at page 83, HOWARD and THIRION JJ state as follows: “In our view the law would be deficient in a most material respect if a person who did everything he thought necessary to defame another could escape liability simply because the person to whom he addressed his defamatory statement did not immediately grasp the true significance of what he had been told. If the person addressed discovered the defamatory significance of the statement at a later stage, the defendant should be held liable regardless of the length of the time lapse between communication and understanding.” I agree with the reasoning in that case. I would therefore reject that the summons is expiciable merely on the ground that identification of the plaintiff occurred after the publication complained of and in subsequent publications. It would be absurd to hold otherwise, particularly in this case where the first subsequent publication came barely three weeks after the initial publication. The evidence of such subsequent publication is admissible and can be summoned to support the plaintiff’s case. It was for these reasons that the exception was dismissed with costs. Arising from the same facts, the plaintiff sued the Chronicle newspaper separately under case number HC 703/04 for similar relief. The Chronicle excepted to the summons on pretty much the same grounds as in the above case. The two cases were argued before me in one sitting. For the same reasons I also dismissed with costs the exception raised in that case. Messrs T Hara & Partners defendant’s legal practitioners