Kaisi v The Registered Trustees of Blantyre Adventist Hospital (Civil Cause 439 of 1994) [1996] MWHCCiv 15 (19 February 1996)

- ·- -- - ---··- ------- - IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY BETWEEN KAISI - and - PLAINTIFF THE REGISTERED TRUSTEES OF BLANTYRE ADVENTIST HOSPITAL .................................. DEFENDANT CORAM: TEMBO, J Tembenu, Counsel for the Plaintiff Nampota, Counsel for the Defendant Mchera, Official Interpreter Manjolo, (Mrs) Court Reporter J U D G M E N T this case occurred Kaisi is an employee of the Registered Trustees of Blantyre Adventist Hospital. By August, 1993, Kaisi had worked at the hospital for eighteen years. Events relating to 1993, when Kaisi was in August, It is alleged that on 13th engaged as a pharmacy clerk. August, 1993, when Kaisi worked during a night shift, a substantial quantity of ampicillin capsules went missing from the pharmacy. Kaisi was a suspect. His house was then searched by the police in the company of some senior members of the staff of the hospital. No ampicillin capsules were found arising from the search. Subsequently, a meeting was including Kaisi, were held at which all pharmacy staff, the Blantyre addressed by a senior member of staff of Adventist hospital. The objective of to ascertain and identify who, among the pharmacy staff, might None was have stolen the ampicillin allegedly stolen. from his identified. Being a suspect, Kaisi was suspended employment for two weeks and then reinstated. the meeting was employers. Meanwhile, Kaisi has brought this action against his false imprisonment and defamation. He also claims costs for this The Registered Trustees of Blantyre Adventist action. Hospital are denying both they have asked the court to dismiss Kaisi 's claims with costs. the claims. claiming Instead damages for is He ' . i i' Kaisi Adventist Hospital are following facts: and the Registered Trustees of Blantyre the in agreement with regard to that Kaisi is employed by and at the _.. H_I G-H-• _C_C_H_J_.__.•~-1· . ._18RAR~· . ' - 2 - in from that the doors the pharmacy. to the pharmacy were opened and Blantyre Adventist Hospital, which is situated the City of Blantyre; that on 13th August, 1993, Kaisi was employed then he worked during a night as a pharmacy clerk; shift. That there were three work shifts for staff in the pharmacy at the Blantyre Adventist Hospital, namely, 7 am to 1 pm; 1 pm to 7 pm and 7 pm to 7 am the following day. That, twenty four hours each the pharmacy was open for business day of the week, month and year. That, when on duty in the to the pharmacy, by pharmacy, a pharmacy clerk held a key which locked. During the day, pharmacy clerks supply drugs to nurses as that nurses collect the per prescriptions of doctors and the other hand, at night, drugs pharmacy clerks supply such drugs to nurses in the hospital (patient's ward), either upon an express phone request being made to a pharmacy clerk or during a routine visit to the hospital which a pharmacy clerk to make once is required every three hours, to find out what nurses require. When drugs are issued by a pharmacy clerk to a nurse, either in the drugs the hospital or at supplied is entered and maintained in a book set apart for a pharmacy clerk that purpose. the drugs are supplying to signify supplied signs or initials against each entry the drugs specified against her that the nurse signature or for written handover notes at the commencement of each work However, out o f practice, verbal assurances are shift. the pharmacy clerk knocking off, that the drug offered by situation or position in the pharmacy is in order. is entered by the nurse A record the drugs and the pharmacy, There are no requirements record of initials. received to whom On a to and have tookover performed initially then, handed over to Florence Bwanali. been Kaisi worked during a night shift on 13th August, from pm reported for duties at 7 1993. He He knocked off at 7 am on 14th August, Florence Bwanali. That 1993, and, night shift was by Fumulani, who did not report for that night shift because she had to attend a funeral of her relative who had passed away earlier that day. Kaisi was He was sent for and upon accepting to work the night shift, he did had verbally so as assured Kaisi at the commencement of both his shifts, on 13th and 14th August, 1993, in the pharmacy was in order. On 14th August, 1993, Kaisi had taken over from Florence Bwanali at 1 pm and he knocked off at 7 pm. Next, Kaisi reported on duty on 16th August, 1993, at 1 pm and he knocked off at 7 pm. Thereafter, Kaisi reported found on duty, on duty on 17th August, 1993, at 1 pm. He then, Sapha, Apuleni and Florence Bwanali. By 2 pm, both leaving behind Sapha Bwanali and Apuleni had knocked off, and Kaisi. that the drug position Florence Bwanali indicated above. then off duty. the Administrator, Banda Assistant Matron and Nkhwazi, Personnel Manager, came to the pharmacy. by had earlier been collected from Blantyre Police Station by By 3 pm on that day, 17th August, 1993, Koester, the joined Investigation Department policemen, who three Criminal They were - 3 - from the hospital Koester and Nkhwazi. Kaisi was collected from the pharmacy for a search to be conducted at his house for the ampicillin capsules allegedly missing (pharmacy). traditional housing They all boarded a vehicle to Mbayani estate and upon arrival Kaisi opened the door to his house. the search party carried out a vigorous and Thereafter, All of thorough search for the drugs allegedly missing. Banda them, except Banda, were was assigned the search party found. After the expiry of about three hours, The none of the ampicillin allegedly missing were found. the entire search party, then, returned to the hospital by same vehicle which it used earlier on. The policemen asked Koester if they could take Kaisi to the police station along with so. Thereafter, Kaisi was suspended from his employment for two weeks, after which he was reinstated. in the exercise. the police not the drugs which recording involved task of Koester them. told the to do On Sunday morning, 1993, Doctor Mataya addressed a meeting of all pharmacy staff in order to them, might have stolen ascertain and the ampicillin capsules allegedly missing. the pharmacy staff was identified or confessed as having stolen the drugs. identify who, among 22nd August, None of On and the other hand, Kaisi the Registered Trustees of Blantyre Adventist Hospital are not in agreement in regard to the following facts: Kaisi states that on the night of 13th August, 1993, when he performed a night shift, the Matron had visited the pharmacy whilst Kaisi had left for the hospital to deliver IV labels. On his return to the that she had pharmacy, he met the matron who had been a the pharmacy. the matron pharmacy clerk on duty at any particular time, too holds a key to the pharmacy. At that time Kaisi says that the matron had carried a basket. He, however, did not, and could not tell, the contents of the basket. that besides told him states Kaisi into to for that Koester the pharmacy to collect Kaisi In regard to the events on 17th August, 1993, when Koester came the conduct of a search at Kaisi 1 s house at Mbayani traditional in housing state, Kaisi stated the following: the company of the pol icemen, Banda and Nkhwazi, cal led to come out of the pharmacy as follows:" Mr Kaisi, Kaisi come out, it has been reported to me that you have stolen in regard to a meeting of ampicillin capsules.". pharmacy staff which Doctor Mataya addressed on 22nd August, 1993, Kaisi stated before this court that Doctor Mataya had in paragraph used 9 of his statement of claim, namely that, 11 I have called all of you, the 13th August, pharmacy workers 1993, Mr Kaisi stole some drugs from the pharmacy. Now, Mr Kaisi what I want you to do is just to admit that you stole the drugs. Do not tell us about what happened on Friday, when you were on night duty, just admit that you stole the drugs. If you give us any other statement, I will take you to the police for you to be locked up and I, Doctor Mataya, the words particularized inform you that on Further to ensure up to will go with you (punished).". That, attended by Sapha, the meeting was Apuleni, Fumulani, Mangwiza, Bwanali, Mulandu and that then there were also unspecified number of unknown out patients who had come to the pharmacy to receive medicine. That even the out patients had heard Doctor Mataya speak out those words. that you locked are to that a to prepare an lot of medicinal products On the part of the Registered Trustees of Blantyre Adventist Hospital, Mrs Mataya, matron, vehemently denied ever having gone the night of 13th the pharmacy on August, 1993, as alleged by Kaisi; that on her part she had indeed instructed Florence Bwanali inventory including ampicillin capsules following of selected drugs, rumours from Blantyre the street market within Adventist Hospital were found on the City of Blantyre. That on 13th August, 1993, she was suspicious when she had seen Kaisi at the pharmacy when he was off duty. That she, therefore, asked Florence Bwanali indicated to prepare an that evening. above, before likewise, the Florence Bwanali was further instructed to do That the following morning, upon the exercise had missing of six jars, each containing a thousand ampicillin capsules. The record book for drugs issued or supplied from the pharmacy indicated that no ampicillin cupsules had been issued or supplied to any nurse by Kaisi during the whole of the period of Kaisi 's night shift on 13th August, 1993. taking over from Kaisi. in inventory of the selected drugs as the alleged disclosure of she handed over to Kaisi resulted to Koester by that Koester had Thereafter, a report was made the matron, respecting the alleged missing drugs. Koester and the police to Doctor Mataya agreed to enlist the help of conduct a search for those drugs at Kaisi I s house. On his part, Koester denies that he had said the words which Kaisi stated the pharmacy to collect Kaisi for a search at Kaisi 's house. Koester told the Court t hat he merely explained that Kaisi was suspected of having stolen drugs during the night shift on 13th August, 1993, for which suspicion police men had been invited to assist in the conduct of a search for those drugs at Kaisi 's house. Koester finally observed that Kaisi readily cooperated in the whole exercise. said when Koester came to On his part, Doctor Mataya denied ever having said the words attributed to him by Kaisi, as having been said at the meeting of al 1 pharmacy staff which Doctor Mataya had addressed on Sunday, 22nd August, 1993. Doctor Mataya's own the version of what he had said at that meeting was in effect that he had as ked al 1 pharmacy workers, attendance at the meeting, to 1 et him know them were aware of the whereabouts of the alleged missing drugs; That if any of them had confessed having stolen those drugs, the matter would have ended there and then; that if none of them elected to do so, he would refer the matter the police . He did not specifically refer to Kaisi that Kaisi was the thief. However, Doctor Mataya also stated that he if any of to then to - 5 - the pharmacy during had said that if any other person had without permission entered the night when Kaisi was on duty, and that if arising from such intrusion the drugs had the been stolen, then, Kaisi would be responsible as he was officer on duty in the pharmacy at that time. Several other witnesses who the Registered Trustees of Blantyre Adventist Hosp ita l also supported the versions of the Doctor Mataya 1 s alleged defamatory words said to have been spoken by Doctor Mataya and Koester. and Koester's testified testimony regarding for Let me pause here. foregoing are facts of I must determine the this case, upon which and by which claims made by Kaisi against the Registered Trustees of Blantyre Adventist Hosp i tal. Kaisi is claiming damages for false imprisonment and def~mation. The to the Let me returned claim of first deal with the search party had therefore, was ob 1 i ged false imprisonment. It is a fact that Kaisi was under arrest on 17th August, 1993, from the moment he was called out of the pharmacy to join Koester and the other members of a search party. The arrest lasted the entire period of the search the hospital until when from Kaisi's house. Kaisi was during that period not free to go anywhere else or to do anything as he pleased, but had to be at his house with the search party. He, in order to facilitate the execution of a search warrant which It is the Koester and Nkhwazi ha d procured from the police. evidence of both Kaisi the Registered Trustees of Blantyre Adventist Hospital that the period in question was estimated to be about three hours only. Unyolo, J., then as he was, Southern Bottlers (unreported) observed Limited Civil Cause No. 707 of 1989 that what constitutes an arrest or is well settled. He cited a classic definition of imprisonment which appears in Termes de la Rey, namely- to be present at his house the case of Chiumia imprisonment at the whole of - V - and law in 11 Imprisonment is no other thing but the restraint of a in the open field, or in man 1 s liberty, whether it be in a the stocks, or the street or in man 1 s own house as well as the man all places to be a prisoner so long as he hath not his liberty fully to go at all times to all places wither he will without bail or mainprise or otherwise. 11 in the common gaole; and restrained the cage, is said so in in • in the case of Sindi Villiera, J, then as he was, - V - D Ross and Company Limited 10 Malawi Law Reports at page. 274, applied this classic definition of that case, Villiera, J held that the plaintiff was not a free . further . the Judge was person the satisfied to compel plaintiff, in that case, to go where he was required. It was further observed by Villiera, J that had the plaintiff refused or resisted, actual force would have been used to I would like wise think that compel compliance on his part. to go wherever he wanted, that no actual imprisonment. force was used In - 6 - had Kaisi resisted or refused the search party, actual force could have been used by the three policemen to compel Kaisi 's compliance, in that regard. join to The the referred the Police at instance of Koester imprisonment of Kaisi, to above, was effected by and Nkhwazi, employees of the Registered Trustees of Blantyre It was conceded by Koester and Doctor Adventist Hospital. Mataya that they had intended to search Kaisi 's house, for in fact obtained police assistance. which they, eventually, The a matter has been imprisonment, where law of false reported to the police, provides that the Court must decide whether the defendant or his agents or his servants merely stated the facts to the police or whether they made a charge against the plaintiff. Thus, it is settled law that if the defendant made a charge against the plaintiff on which it , became the duty of the police to act, then, the Court must find defendant the Court will not find defendant liable if the defendant merely gave information and the police acted according to their own judgment. See case of Hauya - V - Cold Storage Co. limited Civil Cause No. 274 of 1987 and also case of Saulos1 and Paketi - V - Bata Shoe Co. (Malawi) limited Civil Cause No. 568 of 1987. Unyolo, J., in the Case of Chiumia stated that a charge or the determination whether a defendant made merely offered factual information to be considered with matter; look at religious care. the what the reporter said, but also the manner reporter has acted - in determining whether such reporter merely gave information or whether he procured or directed to effect an arrest. the evidence had Thus, the Court should not only in which into account a factor to be taken liable for false the pol ice was imprisonment. the pol ice that all But, to a to In his indicated testimony then, also that it was for Kaisi, Nkhwazi that stated Koester had told the police, at the police station, that Kaisi had stolen drugs at the Blantyre Adventist Hospital the police that and there was sufficient p r oof that Kaisi had stolen the drugs. That is why the police had produced a search warrant only in respect of a search to be conducted at Kaisi 's house. In fact, when the police in the company of Koester and Nkhwazi had arrived at the Blantyre Adventist Hospital, they went straight to the pharmacy where Koester only called Kaisi to come out of intended search ensued I, therefore, have no doubt that the police accordingly. had merely acted on the charge made by Koester at the police It is interesting to station that Kaisi had stolen drugs. note that at the end of it the pol ice found necessary to seek Koester's views if in fact the police had, then, to take Kaisi along with them to the police station. The police did so, even if the results of the search had clearly shown, and that the police then well knew, that no ampicillin capsules had been found after a thourogh search. the fact that the police were This merely acting on the instructions of Koester. Indeed, when Koester had told the police not to take Kaisi along with in my view signifies the pharmacy and the search, the - 7 - As indeed the police it would have been perfectly within to in fact left Kaisi at Blantyre Adventist them, hospital. take So, were Koester to have said Yes him, the police would have in fact done so. The police were not acting, or did not act, according to their own judgment. If they were, their discretion to have taken Kaisi the police for further investigations. But they only could have responded to the they did not on orders or charges made by Koester, hence their own pursue the the investigations further. to response of Koester upon that police inquiry, I imagine that by that time it ought to have been clear to Koester and his Koester colleagues that a mistake might have been made. must, therefore, have seen the need for first making sure that some of the other drugs found at Kaisi 's house ought first to have given to steal drugs from the hospital, that is, before they could later handover Kaisi it indeed eventually turned out to be, all those other drugs which the search party had found at Kaisi's house were all sufficiently evidenced by official receipts of Blantyre Adventist hospital to the effect that Kaisi had bought those drugs and paid for them in the ordinary or regular way. On his part, Koester had told the Court that he merely informed the pol ice of the fact that a theft had occurred at the I prefer the version hospital and that Kaisi was suspected. of Nkhwazi on this point as it is more probable, especially when viewed in the light of the entire conduct of the search party, and the search. into the police custody once more. them a clue that Kaisi used the reaction of the pol ice at the end of As This Accordingly, Kaisi stated that about three hours had elapsed from the time he was arrested to the time when he was let free, the search at his thus at the hospital upon return point all. house. I find that during the whole of that period, Kaisi was not at liberty to do what he pleased. Although actual force was not used, it is my considered view that search at his were Kaisi house, or to attend thereat, actual force would have been used by the policemen. to have resisted or disputed refused from been not has at a for Counsel the Registered Trustees of Blantyre Adventist hospital has submitted that, even if I find that the Registered Kaisi had suffered from false Trustees should not be held they the Criminal acted Procedure and Evidence Code. as follows- liable for it, in that That section provides accordance with imprisonment, section 33 of in 11Any private person may arrest any person who a cognizable offence, or whom he his view commits reasonably suspects of having committed a felony or who has been proclaimed as an offender under section 10 6 II • in no cognizable offence. There is proof a On the part of the Registered Trustees, that Kaisi committed had .:: - 8 - it is contended that any body could have entertained a reasonable belief and suspicion that Kaisi had committed theft. therefore perfectly in order that Kaisi was so arrested and imprisoned for the purpose of ascertaining whether the belief was true or not. further contended it was that It is In the Case of Sindi. at page 275 of He further noted that the 1 iberty of the individual the report, Villiera, J had noted that the plaintiff had been arrested and the defendant had a strict duty to justify the arrest. is so in valuable that the law requires that private individuals the position of the defendants have to prove that a felony has been committed and that there is reasonable suspicion that the person arrested is responsible. Nothing short of In conclusion, he noted that mere that test will suffice. suspicion that an offence has been committed will not do if in fact no offence has been committed. Villiera J. had then applied the proposition of law enunciated in the judgment of Isaac, C. J. in the case of Walters - V - W. H. Smith and Son Ltd. (1914) 1 K. B. at 607, as follows- that felony for which it appeared the very basis upon which the defendants they were thought, and "In this case, although in justified indeed the person who had thinking, that the plaintiff was in fact that they committed the theft, it turned out were wrong. the they gave The plaintiff into custody had not in fact been committed, they must therefore, and, rest any defence of the wrongful in this case. Although I arrest of another fails them am quite satisfied not only they acted with the matter but were genuinely perfect bona fides convinced after reasonable in inquiry that they had fact discovered the perpetrator of the crime, it turns be out established for which they gave the plaintiff into custody; they have failed to justify in law the arrest, and there must, therefore, be judgment for the plaintiff.". they were mistaken, the crime had been it cannot committed lawful excuse for that that that and in saw the plaintiff the arrest or in such a case an offence must It is correct that a defendant justify in a case of false imprisonment may imprisonment by showing that the defendant had seen the plaintiff commit a cognizable offence, in fact In the instant Case, the Registered Trustees be committed. of Blantyre Adventist hospital do not assert that they in fact at all. Consequently, this is not applicable. Further, a defendant can justify an arrest or imprisonment of another by showing that he had reasonably suspected the arrested person to have committed a felony. In that respect, I would entirely agree with the views of Villiera Jin the Sindi Case that mere that an offence has been committed will not susp1c1on suffice for the required defence. It is my considered view that in the instant case there was nothing more than a mere suspicion, which led the management of Blantyre Adventist the offence commit - 9 - had indeed that a the matron, was in that he was off duty. I hold such a view? Mrs Mataya, hospital to occasion the false imprisonment of Kaisi. Why do the prime mover of the events that led to the false imprisonment to my of Kaisi. Her evidence is, therefore, quite crual determination whether the staff of the Registered Trustees of Blantyre Adventist hospital reasonably suspected Kaisi of having committed the felony of theft. Mrs to the effect that she had on 13th Mataya' s testimony was August seen Kaisi at the pharmacy when he ought not to have That about the same been there time she had heard some lot of medicinal rumour products from Blantyre Adventist hospital were found on the Consequent street market within thereupon, an she including ampicillin capsules. inventory of selected drugs, Let me not, as I have already done so in the narration of the facts, that there was no requirement of written handover notes at the hospital upon commencement of work shifts in she instructed Florence to keep the matter to the pharmacy. that scheme of herself and eventually upon stolen investigations, ampicillin drugs, and Doctor Mataya, who without any other action being taken on their part invited the police for the conduct of a search at Kaisi 's house. Mrs Mataya was said to keep a key to the pharmacy. At the assertion made by Kaisi, which allegation was not denied by Mrs Mataya or indeed the other witnesses of the Registered Trustees of the Blantyre hospital. asked Florence Bwanali the City of Blantyre. that Kaisi same had to Koester she established least that was the basis of to prepare reported the and '' she verify the accuracy of I have already noted, Looking, at what Florence Bwanali did, the taking of inventory of the selected drugs at the instance of Mrs an the Mataya, a lot of questions arise for answers. How was the exercise done? Did she actually physically count all containers, did they were full or empty. if Certainly, it is unclear if Mrs Mataya herself had actually like-wise verified the exercise done by Florence Bwanali. Certainly, Koester and Doctor Mataya did not attempt to verify the situation before they involved the the requirement by Mrs police. As, Mataya that the matter be confined to herself and Florence Bwanali, when Bwanali and herself were interested persons in the management of lot to be said about their respective innonce at all, if indeed a theft of In view of all this, I do not the drugs had been committed. for hold suspecting that a loss of drugs had occurred and that Kaisi ought to have been the suspect. The circumstances of the case of Chiumia are clearly distriguished from those of the instant case, the position in that case that a stock take was formally carried the plaintiff and out by that other stores clerks were exercise the team found a shortage of K2,200.00. team thereupon, started all over again assisted by the Company's. Assistant Accountant just to be sure they had not made a mistake. Again they came up with the same result. The the Stores Controller, the end of The in which At reasonable basis it clearly was the pharmacy, there was the view involved. leaves a regard. that that in As a - . .. ... - 10 - plaintiff and his colleagues were then asked to explain how indeed done before the the shortfall came about. This was There was nothing of matter was referred to the police. It was basically the rumour that sort in the instant case. Mrs Mataya at doubtful had I do not hold investigating the rumo ur by Mrs Mataya. No. that that Kaisi had Indeed, not even the fact committed the offence of theft. that any drugs, including ampicillin capsules, had missed from the pharmacy. reasonable suspicion there was attempts heard some and any In the circumstances, the Registered Trustees of Blantyre Adventist hospital vacariously liable for false imprisonment. I must hold On damages, counsel for the plaintiff has drawn my attention to a number of case authorities of this court. I will only refer to the case of Wasili - V - Clan Transport awarded civil cause No. I K1,000.00 for Since then, to-date, the value note that that was therefore, of the Kwacha has dep r eciated severalfold. award Kaisi false for imprisonment he suffered. 506 of 1981, where imprisonment lasting two the court to three hours. sum of KS,000.000 I, damages in 1981. as a Kaisi has also claimed damages for defamation. The · separate occasions by Koester in claim is based on alleged defamatory statements said to have been made on and Doctor that regard Mataya. It seems to me should fail, in that the evidence adduced before me does not the evidence has support established that Koester and Doctor Mataya indeed made oral in my view, were incapable of bearing any statements which, defamatory meanings, due regard being had to the natural and ordinary meanings of those statements. Such must more so be the case as no innuendo had been pleaded. that Kaisi I s claim the contrary, the claim. On v The law on this point is well settled. - Daily Telegraph Limited Before a question of libel or slander is submitted to the jury, the court must be satisfied that the words complained of are capable of the defamatory meaning ascribed to them. That is a matter for the Court. Thus, whether the words are capable of defamatory meaning is for the judge to decide. See Lewis (1963) 2 All England Law - Reports page 151. In that case the defendant published an article which stated that the Fraud Squad of the city of London Police were the investigating plaintiff's company. The trial judge had put the question to the jury if they found for the plaintiff or defendant, and, judge did not first if for the plaintiff, how much? give a direction to the Jury that those words were incapable of bearing a defamatory meaning ascribed the plaintiff. The House of Lords confirmed the decision of the court of Appeal for a retrial on the basis that the learned trial judge had left the question to the Jury if they found for the plaintiff or defendant without a direction that the words complained of were incapable of the extreme meaning the affairs of them by The to ··, ' ,. - - to say that that which had been rejected, by their Lordships, namely, the natural and ordinary meaning of those words did not convey actual guilt of fraud. Lord Hodson said that it may be defamatory an offence, but it does not carry with it that that person has committed the offence, for this must surely offend against the ideas of justice, which reasonable persons are supposed if an to entertain. ordinary sensible man was capable of thinking that wherever inquiry there was guilt, it would be there was a police almost about to accurate in his opinion ordinary sensible man would not anything; think so. further observed suspected of Lord Hodson information impossible someone that give is to me to all testified Regard being had the evidence before me, the position including the demeanour of all the witnesses, on Kaisi claim for defamation is as follows: Although Kaisi has alleged that Koester had said 11 Mr Kaisi, come out, it has been reported that you have stolen ampici 11 in capsules", the truth seems to be that Koester must have said what he himself told the court as having been said by him. In that regard, Koester was supported by a number of other the Registered Trustees of witnesses who for Blantyre Adventist hospital. the only other witness for Kaisi, did not strike me as a witness of truth on this particular point as he had to be guided or led into On his part, Koester said that saying what he had to say. when collecting Kaisi for to be conducted at Kaisi 1 s house, he simply explained that Kaisi was suspected of having stolen drugs, hence the need for a search to be the policemen at Kaisi 1 s house. As seen from conducted by the expression "suspected of having the case cited above, imply to any imply or ought not to stolen drugs" does not ordinary sensible man that Kaisi was said to be guilty of theft. The natural and ordinary meaning ought to be that he was subjected to mere investigations to collect evidence of the alleged his possible offence or lack of such involvement. in the commission of involvement the search Nkhwazi, In regard to what had been said by Doctor Mataya on 22nd August, 1993, during a meeting of pharmacy staff, Kaisi was all by himself in his assertion that Doctor Mataya had said the words pleaded and particularized in paragraph 9 and 10 of the statement of claim, namely the words that 11 I have called all of you, pharmacy workers to inform you that Kaisi on 13th August, 1993, stole some drugs from the pharmacy. Now, Mr Kaisi what I want you to do is to just admit that you stole the drugs. Do not tell us about what happened on Friday, when you were on night duty; just admit that you If you give us any other statement, I will stole the drugs. take you to the police for you to be locked up and I, Doctor Mataya, wi 11 go with you locked up (punished).". This is the statement which Kaisi alleged in a s ta t e me n t o f c 1 a i m t h a t D o. c t o r M a t a y a h a d m a de a t h i s meeting of pharmacy workers on Sunday 22nd August, 1993. On On his part, Doctor Mataya vehemently denies ever having made such statement. And he was supported by several other to ensure that you are - 12 - in for that testified the effect the officer on duty in attendance at the meeting, witnesses who the Registered Trustees of Blantyre Adventist hospital. Thus, Doctor Mataya's version of what he had said was to the effect that he had asked all pharmacy staff, then to let him know if any of them were aware of the whereabouts of the drugs allegedly missing; That if any of them had confessed having stolen those drugs, the matter would have ended there and then; that if none of them elected to do so, he would refer the matter to the police. That he did not specifically refer to Kais i, except to if any other person had without permission entered the pharmacy during if arising the night when Kaisi was on duty, and further from such intrusion the drugs had been stolen, then, Kaisi would be responsible as he was the pharmacy at that time. Let me note that Doctor Mataya did It does not seem not say that Kaisi wou l d then be a thief. to me that what Doctor Mataya said was capable of bearing any defamatory meaning tending to damage the reputation of It is interesting to note that Doctor Mataya had Kaisi. been this meeting after called therefore , quite conducted at Kaisi's house. probable that then, making an inquiry from all the pharmacy staff and not necessarily from Kaisi only, especially in light of the fact that a search to no conducted at Kaisi's house on 17th August, 1993, was avail. This may also tend to confirm the understanding that when Doctor Mataya had said if some person other than Kaisi the night Kaisi was on duty, had stolen the drugs during not the then, Kaisi would necessarily that Kaisi would himself be called, or held to I am quite sure that an ordinary sensible be, the thief. I accept the version man would view these matters likewise. in that it does of Doctor Mataya as being quite probable make sense in the light of the fact that Kaisi had already, prior to that date, singularly been subjected to a search at his house which the had yielded negative the drugs allegedly missing suspicion that he had stolen from the pharmacy where he worked. is, indeed Doctor Mataya was, search It responsible results already loss, for had to be a the circumstances, Kaisi for defamation in its entirety. In I would dismiss the claim of On the two succeeds half the costs, as Kaisi has indeed succeeded on only one of claims he the defendants, he on his claim for costs only to that extent , namely, costs. had made against PRONOUNCED in Open Court this 19th day of February, 1996, at Blantyre. ~\~ AK T~mbo JUDGE