Herminie v Dugasse (CS 107/2019) [2020] SCSC 583 (8 August 2020)

IN THE SUPREME COURT OF SEYCHELLES ~ -----------------------I~e~~~~ Reportable es 107/2019 PATRICK HERMINIE (rep. by Frank Elizabeth) and DIETER DUGASSE (rep. by Clifford Andre) Plaintiff Defendant Neutral Citation: Patrick Herminie v Dieter Dugasse ([case number] es 97/20 II) [2018] sese 874 ([judgment date] 28 September 2018). Vidot J Defamation [date] os- August 2020 Before: Summary: Heard: Delivered: Judgment in favour of the Plaintff ORDER RULING VIDOTJ Background [1] The Plaintiff sues the Defendant for defamation of his person and claims the sum of Three Million (SR3,OOO,OOO. OO)with interest and cost as compensation. He also prays for a prohibitory injunction that would prevent publication of a similar manner by the Defendant in respect of the Plaintiff. The publication appeared as a post on facebook profile of Dawoud Dugasse. It IS averred that the Defendant operates under that pseudonym. l-- 1:'[2":!]_---. L-T_._.h.e_offensive-words were-published-tegether-with-a pictUie of the J>tainttffanOlle President of the Republic. These words were; "De boug ki resposab vre lakoz methadone, lekel kinn vreman anmenn heroin dan sesel pou detri tou sa zenn lekel ki responsab si ozordi napa zenn pou travay se pa lot ki sa de boug, 2020 zot Ie reste opouvwar danny doom ou fer sa pep riy ou frer, fer tou sa ki ou anvi 2020 ou pou out. Pep Seselwa pale ou, troun Uganda laba wa plant pwason:" It is averred that the words complained of were defamatory of the Plaintiff in their natural and ordinary meaning. In English the words are translated to mean; "Two guys who are responsible for the real cause of methadone, who really brought heroin into Seychelles and destroy all the youths who is responsible if today there is no youth to work there is no other than these two guys, 2020 they want to stay in power dannydoom you make the people laugh at you brother, do all you want 2020 you will be out. The Seychellois do not want you, return back to Uganda where you will plant fish" Since these words were written just above a picture of the President the Republic and Plaintiff. The latter therefore alleges that he is one the two guys referred to in the post [3] The defendant filed a statement of defence that included several pleas in limine However, on the date for Pre trial Review, established pursuant to Practice Direction No. 3 of 2017, the Defendant and his Counsel were absent. At that point this Court had the option of entering judgment on behalf of the Plaintiff, but chose to set the case for ex parte hearing. On the date set for ex-parte Counsel for the Defendant appeared late in Court when the Plaintiff had almost completed making his deposition. Instead of asking for permission to cross examine the Plaintiff he asked that the Court vacate the ex-parte order, a demand that the Court declined. The Law [4] Defamation occurs when there is publication to a third party of words or matters containing imputation against the reputation of an individual. Such published statement must be such that it would cause someone to think less of the individual to whom it refers. In essence as per Gatley on Libel and Slander, Eighth edition, publication is necessary to establish a case of defamation and provides; "No civil action can be maintained for libel and slander unless the word complained of has been published. The material part of the cause of action in libel is not in the writing but in the publication. " The same sentiment is echoed in Talma v Henriette [1999] SLR 108, SCSC 12 (28th October 1999) where Perera J said; "it is a pre-requisite that for any defamatory statement to be actionable, there should be publication, a some third person, in the sense that the words complained of were brought to the knowledge of is a person other than the person defamed. If the plaintiff that proves facts from which it can be inferred that the words were brought to the knowledge of some third person, he would have established a prima facie case. " [5] The law of defamation strikes a balance between individual rights and freedom of speech. In Pillay v Regar Publications (Pty) Ltd & Ors, Perera J had the following to say; 'The law of defamation, however, tries to strike a balance between an individual's right to have his reputation protected and freedom of speech which implies the freedom to expose wrong doing and thus to damage reputation. " Therefore, in essence a defamatory statement is one which injures the reputation of another by exposing them to hatred, contempt or ridicule, or which tends to lower them in the estimation of the right thinking members of the public generally by making them shun or avoid them, or causing them to be regarded with feelings of hatred, contempt, ridicule, fear dislike or disesteem; See Regar Publications v Pillay SCA 3/1997, ICL40 and Talma v Henriette (supra) At the end of day, the law against defamation seeks to protect a person's inherent right to enjoy peace of mind, free of violence to his person, harm against his character for moral or social standing claimed by him, to res ect and esteem rs-maY---l1Gld-aga-illSt~--- him, and against humiliating and degrading treatment. There is a corresponding obligations on all others to refrain from infringing that right; see Talrna v Henriette (supra) [6] The law of defamation in Seychelles is based on English law, but not all English cases are applicable due to specific provisions of the Constitution regarding freedom of expression and right to access to official information; see Lalanne v Regar Publications (2006) SLR 101. Article 1383 (3) provides that "The provisions of this Article and of Article 1382 of this Code shall not apply to the civil law of defamation which shall be governed by English law. " To succeed in a case of defamation action, the Plaintiff must prove that- (a) The statement is defamatory; (b) It has been reasonably understood to refer to the plaintiff; (c) It has been published to a third person (d) It damages the reputation of the subject; and (e) That the intention is done intentionally or fault of such wanton disregard of facts or with malicious intention. This was the position adopted in Esparon v Fernez [1980] SLR 148 and Pillay v Regar Publications (supra) The usual defence to be advanced in cases of defamation would be fair comment and that of justification. If the impugned words are proved to be true and do not materially injure the plaintiffs reputation then the Plaintiffs suit cannot be maintained; see Andre Kilindo v Jean-Francois Ferrari [1993] SLR 86. However, on the other hand it was held in Joynt v Cycle Trading Publishing Co. [1904] 2 KB 292, that fair comment justify a defamatory statement which is untrue infact. " A defamatory statement is presumed to be false, unless the defendant can establish that it is truthful. ~ ~Awna~~------------------------------------------------------------------ [7] The burden of establishing that the Plaintiff has been defamed by the article that has been published on the balance of probabilities lies with the Plaintiff. In Christ v Kurtz (SCA 24/2012) (2014) SCCA 43 (12 December 2014), it was held that "whether the hearings are heard inter-partes or ex-parte, the principle remains the same as far as the Plaintiff is concerned: he who asserts must prove. This is trite law founded in article 1315 of the Civil Code of Seychelles which requires that the person who demands the performance of an obligation shall be bound to prove it. It is not the law that where there is an ex-parte hearing a plaintiff is relieved of his duty to prove his case. " As above stated this case was heard ex-parte [8] Firstly, there is no doubt that the article was indeed published. It appeared on Facebook as evidenced by exhibits PI and P3. That article appeared under the face book profi Ie of Dawoud Dugasse and not Dieter Dugasse. However, it was established to absolute certainty that Dawoud Dugasse is indeed Dieter Dugasse. The Plaintiff produced a pen drive of a video extract in which the Defendant admits that the two persons are one and the same (exhibit P2) and extract of the facebook account of Dawoud Dugasse (exhibit P3) with profile picture which is exactly as the person in exhibit P2. The facebook post clearly makes reference to the Plaintiff. The post was even accompanied by a picture of the President and the Plaintiff and reference to "sa de boug" ( these two guys) is clear reference to the people captured in the picture. [9] The post was published with the intention of reaching as many people as possible as such social media platform is utilised by many people. I believe that it did reach many people. In his statement of defence the Defendant denied that the facebook page was his and even accused the Plaintiff of fabricating the same. The evidence does not support the Defendant's averments. I am certain that the post was intended to denigrate and embarrassed the Plaintiff. That act was malicious and despicable and with intention to cause harm to the Plaintiff's reputation. The allegations were indeed very serious, naming the Plaintiff as a drug trafficker. This is not in any way substantiated. The Plaintiff is mandated with the treatment of drug use and abuse in Seychelles and the fight to eradicating drugs in the country. The post was an attempt.--to---cast--clottbt--as-tuhis competence and as someone who is corrupt; who is involved in drug trafficking, something which is in direct contlict with the mandate he is given. This is a very irresponsible act that was designed to prevent the fight against drugs in Seychelles. [10] I find that the Plaintiff has established a case of defamation against the Defendant on the balance of probabilities. Quantum [11] The Plaintiff has made a claim of SR3,00,000.00. However, he adduced very limited evidence that would warrant ajudgment in that slim. He stated that as a result of that post people were calling him expressing concern as he is "the forefront in the fight against heroin". He states that since he was called an "importer" that affected him extensively. He claims that it affected his integrity as someone who is opposed drug trafficking. [12] The Plaintiffs reputation was indeed tarnished and the post was, as I said before malicious and had the intent harming the Plaintiff. However, the Plaintiff did not show to this court the extent of harm caused. Maybe, it would have been helpful to have face book responses to the post produced. That would have assisted in understanding the level of harm that the Plaintiffs reputation suffered as a result of the post. [13] I hereby enter judgment for the Plaintiff in the sum of SR50,000.00 with interest and cost. I also issue a prohibitory injunction against the Defendant prohibiting him from publishing any such posts or articles in respect of the Plaintiff, unless its truth can be established. Conclusion [14] Every citizen of this country is grated the freedom of expression as guaranteed by Article 22 of the Constitutional. However, the exercise of that right has to be accompanied with responsibility Article 22(2) provides derogation in the exercise of that right as is · . necessary in a democratic society and in sub-article (2) (b) provides for derogation for protecting reputation, rights and freedoms or private lives of persons. ~ __ ----I[t-Jl-.5j----F-inalIy,+note--witirsatTsfacrn:rn-tnat as IS normally the case, Mr. Elizabeth, Counsel for the Plaintiff, filed detailed and commendable written submission. He produced a well researched paper pertaining to the law of defamation in this jurisdiction. Signed, dated and delivered on 07th August 2020 .~\ 7