Zambia Red Cross Society v Bwalya (Appeal 3 of 2017) [2017] ZMSC 181 (7 March 2017)

IN THE COURT APPEAL FOR ZAMBIA (cid:9) HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: APPEAL NO. 003/2017 /7oI CzI1 (cid:9) ZAMBIA RED CROSS SOCIETY APPELLANT AND LUCY BWALYA RESPONDENT CORAM: Chisanga JP, Mulongoti and Sichinga, JJA On 7th March, 2017 For the Appellant: (cid:9) Mr. H. A. Chizu, Messrs Chanda Chizu & Associates For the Respondent: (cid:9) N/A JUDQMENT I (cid:9) It CHISANGA, JP delivered the Judgment of the Court Cases referred to: 1. Chief Nalubamba and Another vs Mukumbuta (1987) Z. R. 75 2. Kakungu Musiwa vs Moses Chanda (1985) Z. R. 244 3. Somerville vs Hawkins (1851) 10 CB 583 4. Nevill vs Fine Art and General Insurance Company (1897) AC 68 5. Times Newspaper Zambia Ltd vs Wonani (1983) 131 6. Zambia Daily Mail Limited vs Banda (1999) ZR 203 7. Mumba vs Zambia Publishing Company (1982)ZR 54 8. Kalonga and Printing company Limited vs Chisamanga (1988/89) ZR. 9. Kapwepwe vs Zambia Publishing company Limited (1986) ZR 1 ii A. (cid:9) (cid:9) 10. Fullani vs New castle Chronicle (1977) 1 WLR 651 at 654 11. Hough vs London Express (1940)2 K. B. 507 at 515 12. Horrocks vs Lowe (1975) A. C. 135 at 149 150 13. Royal Aquarium & Summer and Winter Garden Society Limited vs Parkinson (1892) 1 Q 431 at 441 14. Toogood vs Spyring 1. C. M. & R 181 15. Watt vs Longsdon (1930) 1 KB 130 16. Adam vs Ward (1917) AC 309 17. Robert vs Bass (200) HCA 57212 C. L. R 1 18. Moulds vs Fergusson (1939) 40 SR (NSW) 19. Clark vs Molynex (1877) 3 QBD 237 at 247 20. Jenoure vs Delmege (1891) AC 73 at 79 21. Stuart vs Bell (1890) 2QB 431 Other works referred to: 1. Clerk and Lindsell on Torts, at page 1003 2-. Gatley on Libel-& Slander loth Edition, Sweet & Maxwell 2004 P 29 3. Gatley on Slander & Libel opct, page 380. (cid:9) It The appellant is a statutory body created by an Act of Parliament, namely the Zambia Red Cross Society Act CAP 307 of the Laws of Zambia. At the material time, Mr. Charles Mushitu was General Secretary of the Red Cross, while Mr. Kelvin Chiposwa was the National President and Board Chairperson. Ms. Lucy Bwalya, the respondent, was employed by Tasintha as a Programmes Officer. She was at the same time a board member of National Voice for Albinism. Mr. Charles Mushitu was chairperson of that board. J2 Mr. Mushitu was suspended on account of mismanagement of the Red Cross and this got to the ears of the co-operating partners and founders of the Red Cross Society. Among them was Netherlands Red Cross Africa Office, Kenya Red Cross Society and the former President of International Red Cross Society. On 17th March 2011, a board meeting was held by Red Cross and one of the items discussed was Mr. Mushitu's suspension. Mr. Kelvin Chundu informed the meeting that Mr. Mushitu had given a Zambia Red Cross Society vehicle, a Toyota Land cruiser registration No. ABJ 7612 to Ms. Lucy Bwalya. The meeting resolved to dismiss Mr. Mushitu as a result, for that and other reasons. Those in attendance included the Secretary General for Kenya, and Mr. Adupu who had travelled to Zambia on a fact finding mission as media reports on Mr. Mushitu's suspension had attracted the attention of those co- operating partners. A letter of dismissal was consequently sent to Mr. Mushitu. The letter of summary dismissal read in part as follows: 21st March 2012 Dear Mr. Mushitu RE: (cid:9) SUMMARY DISMISSAL FOR GROSS MISCONDUCT It has come to the attention of the Board of Governance that sometime towards the end of the month of October 2011 and early November 2011 you instructed Mr. Sydney Chituta the Finance and Administration Manager to cause to be delivered to you motor vehicle Toyota Land cruiser registration No. ABJ 7612 together with the white book, purporting that you wished to use it to travel to Namibia. J3 The motor vehicle ended up in the hands of a lady of your acquaintance, Ms. Lucy Bwalya formerly of Tasintha, residing in PHI residential area of Lusaka. You retrieved this motor vehicle from Ms. Lucy Bwalya when the creditors were threatening to employ Court Bailiffs to seize the National Society's property. The Board has strongly disapproved this action. It has noted with grave concern that there was no written authority allowing the removal from headquarters, the property of the national society for the purpose of giving the same to Ms. Lucy Bwalya for her personal use. The Board therefore views this action as gross misconduct on your part (cid:9) This letter was copied to the cooperating partners of the Red Cross Society. It was later revealed that the vehicle was not in fact given to Ms. Lucy Bwalya by Mr. Mushitu, but was given to Trans-Atlantic Trading as collateral for a loan purportedly given to the Red Cross at Mr. Chiposwa's instance, the National President and Chairperson. It was Mr. Chiposwa himself who showed the letter - of dismissal t 6 Ms. Lucy Bwalya, who in turn confronted Mr. Mushitu over the allegations. Slie decided to commence an action for damages for detamation as a result. Upon conducting a trial, the learned trial judge opined that the communication in question was privileged, as the persons to whom it was circulated had a right to be informed, as the position held by Mr. Mushitu was an executive one. The learned judge however found that malice had been proved, in that the plaintiff was named carelessly as the information was not verified. The judge awarded Ms. Bwalya K10,000 in damages. The appellant was dissatisfied with that decision, and appealed on these grounds: J4 1. The lower court misdirected itself in both fact and law when it held that the plaintiff had proved that she had been defamed. 2. The court below erred in law and contradicted itself by finding that the dismissal letter in issue was circulated or communicated by the defendant to PW2, its board members and co-operating partners and was privileged communication which did not amount to communication to outsiders, but on the other hand found that the plaintiff had been defamed. 3. The Court below erred in law by awarding the plaintiff general or compensatory damages. Heads of argument were filed on behalf of the appellant. It was submitted therein that the Respondent did not call witnesses to independently prove that she had beendefamed. All the vitnesses called by the respondent were part of the appellant organization, and had initially received the communication complained of by virtue of their positions in the appellant society. In that connection, reference was made to Chief Nalubamba and Another vs Mukumbuta1 where the court stated that a party is required to plead all the material facts on which he means to rely at the trial. If the plaintiff succeeds on findings of fact not pleaded by him the judgment will not be allowed to stand. According to learned counsel, the mere reading of the e-mail by the respondent and other interested persons, and the fact that she was saddened and J5 emotionally disturbed or psychologically affected as the statement was not true was not enough to prove defamation as pleaded. The respondent did not prove that she had been ridiculed or shunned by any member of the general public. The alleged emotional disturbance or physiological effect or distress was not also proved, as only a general statement was made. The respondent's opposing arguments on ground one are that a libelous statement was made by the appellant in the letter in question, and that statement was made without any justification and due diligence, as the evidence led by the witnesses reveals. The vehicle was handed over to another person as collateral. The 'reliable source', Kelvin Chundu, in fact apologized to Mr. Mushitu for the false statement that he made to the meeting. Reference was made to the Defamation Act CAP 68 of the Laws of Zambia, as 'S well as Kakungu Musiwa vs Moses Chanda2 and it was submitted that libel is actionable per se and no proof of damage is necessary. The appellant's arguments on ground two are that having found as a fact that the communication in question was made to interested parties, thus privileged, the court should not have found in favour of the respondent. Support for this view is said to be Clerk and Lindsell on Torts, at page 1003, where the learned authors state that a person exercising privilege is entitled to introduce third parties where that is reasonable. Somerville vs Hawkins3 was referred J6 CO I (cid:9) to in further support. Our attention was equally drawn to Nevill vs Fine Art and General Insurance Company4, where it was in effect held that where the statement complained of has reference to the privileged occasion and therefore comes within it, the only remaining issue is that of malice and where no malice is proved the plaintiff was not entitled to succeed due to absence of evidence of malice. Learned counsel also referred to page 1004 of Clerk and Lindsell on Tort, where the learned authors state that it has also been decided that where there is an imputation against two persons jointly, so that the misconduct charged against one cannot well be explained without introducing the name of the other, if circumstances exist which made the communication privileged as regards one person it will be privileged as regards both. It was learned counsel's further contention that' even if the statement made turned out to be false, privilege will not be defeated as long as the author of the statement honestly believed it to be true, and made it without malice. Reliance was in that connection placed on Times Newspaper Zambia Ltd vs Wonani5, and Zambia Daily Mail Limited vs Banda6. On ground two, the arguments advanced by the respondent are that malice was proved against the appellant. According to the respondent, Mr. Chundu stated that he was only told by his wife who was also only told by a Mrs. Phiri, a workmate of the respondent at Tasintha programme. Additionally, PW4 did J7 request the select committee headed by Elias Mutale, who was the appellant's legal adviser at the time, to investigate the matter before any disciplinary measure could be taken. Therefore, the argument proceeds, the naming of the respondent was maliciously done. It was argued in addition that the Times of Zambia vs Wonani case does not assist the appellant at all, as the source of information in the present case was not reliable. Therein lies the distinction between the two, according to the respondent. Turning to ground three, it was submitted on the appellant's behalf that the defence of qualified privilege having been established, general or compensatory damages were not awardable. It was further argued that no tangible evidence was advanced to prove the alleged mental distress and anguish. Being saddened on reading a letter not addressed to her does not entitle the It (cid:9) Is (cid:9) C respondent to general or compensatory damages which were neither specifically pleaded nor assessed. It was learned counsel's alternative argument that in the event the award of compensatory or general damages is found to be justified by this court, the sum of K10,000 was excessive as it was not supported by any evidence. Support for this argument was said to be Mumba vs Zambia Publishing Company7, and Kalonga and Printing Company Limited vs Chisamanga8. J8 The respondent countered this argument by stating that libel is actionable per se, and no proof of damage is required as held in Musiwa vs Chanda2, and section 5(1)(9) and (b) of the Defamation Act. It was further submitted that the award was fair, in line with Kapwepwe vs Zambia Publishing Company Limited9. When the matter was called for hearing, learned counsel for the appellant placed reliance on the heads of argument. The respondent, filed a notice of Non Appearance, and did not appear. We have considered the arguments tendered in support of and in opposition to the appeal. It is well established that the tort of defamation consists in the publication, without justification or excuse, of that which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule. The questiQn that arises on qn allegation of defamation is whether the words would It lower the plaintiff in the estimation of his fellows, who in the absence of special circumstances are right thinking members of society generally. Of cardinal importance to the successful prosecution of a claim founded on defamation is proof that injury has been inflicted to a claimant's reputation as a result of the publication complained of. This is on account of the principle that in English law, the basis of the tort is injury to reputation. It thus requires to be proved that the statement complained of was communicated to someone other than the person defamed. Zambia applies the common law of England in this area. We note that in Scottish law, defamation includes injury to the feelings of the ig person defamed as well as injury to reputation. So an action can be brought when a statement is communicated only to the person defamed. Care must therefore be taken when considering the elements that require to be proved in an action for defamation in this jurisdiction. The mere reading of communication by the person defamed, as a result of which the person is saddened and emotionally disturbed or psychologically affected cannot give rise to damages for defamation on the present state of the law. We thus agree with the appellant's argument in that respect. One of the issues that arose for determination by the learned high court judge was whether the respondent was indeed defamed, and she found that the respondent was defamed. That this was so is borne out by the evidence on record, To allege that - a person has allowed a vehicle belonging to an organiation to be parkçd at their home by another for their use, is clearl defamatory, as it imputes complicity to dishonest conduct. In determining whether the words complained of have besmirched a person's reputation, the question to be asked is, "what overall impression have the words complained of made on the trier of facts?" In Fullam vs New Castle Chronicle10, Lord Denning MR as he then was said the following on the point: "In considering a question of this kind, we have to ascertain not exactly the sense in which the words were understood by the hearers, but in what sense they would be reasonably understood." _;_ We thus agree with the finding that the words communicated bore a defamatory meaning, and the learned trial judge cannot be faulted in so finding. The words complained of were published to the board members and cooperating partners as found by the learned trial judge. So it was to those persons that the defamatory statement was published, including PW4. Lord Goddard's words in Hough vs London Express 11 are apt. "If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation and may even know it as untrue." On this persuasive authority it appears that although PW4 knew for a fact that the motor vehicle was not parked at the respondent's residence, she was nonetheless defamed to him. This is because an imputation need have no actual -effect on a person's reputation, for it to be defamatory. The law only looks tb the tendency oran imputation to'defame a person." Even if the words communicated are not believed by the audience, a cause of action arises. See Gatley on Libel & Slander 10th Edition, Sweet & Maxwell 2004 P 29. The appellant's argument that the respondent did not prove that she was defamed is unsustainable on the foregoing exposition of the law. It was the learned trial judge's view that the words were communicated on a privileged occasion, as the persons to whom the letter of dismissal containing defamatory matter was availed were persons with the right to know about the ill -I issues that concerned Charles Mushitu, an executive officer. The learned judge was on firm ground in so holding. It will, however, that be seen the protection afforded to a publisher of defamatory matter on a privileged occasion at common law does not depend upon the extent to which the maker of the statement has made proper investigations: once the occasion is held to be a privileged one, the issue is whether the defendant acted honestly, that is, without malice, and not whether he behaved reasonably or took due care. See Gatley on Slander & Libel opct, page 380. According to the said learned authors, where words are published on an occasion of qualified privilege, the mere proof that they are untrue is not malice, not even evidence of malice. Malice may be found even if the defendant does not know the statement is untrue if he is recklessly indifferent whether it is true or false, as was stated by Lord Diplock in Horrocks vs Lowe-12. This is "subjective recklessness," as one cannot be indifferent to a risk of which one is not conscious of. Lord Diplock, in Horrocks vs Lowe, supra authoritatively stated the law pertaining to malice in so far as qualified privilege is concerned. The learned authors of Gatley on Libel and Slander summarise it as follows: "(1) Improper motives J12 .1 (a) There is some special reason of public policy for giving immunity in all cases of qualified privilege. If the maker of a statement uses the occasion for some other reason he loses the protection of the privilege. (b) The defendant is entitled to be protected unless some dominant improper motive on his part is proved. (c) Knowledge that a statement will injure the claimant does not destroy the privilege if the defendant was using the occasion for its proper purpose. (2) Absence of honest belief. (a) If it can be proved that the defendant did not believe that what he published was true, that is generally conclusive evidence of express malice, "for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another." The burden of proof, at least where conduct extraneous to the privileged occasion is not relied on, is not a light one. (b) If the defendant publishes untrue matter recklessly, without considering or caring whether it be true or not, he is treated as if he knew it to be false, but carelessness, impulsiveness or irrationality in arriving at a belief is not to be equated with indifference to truth. (c) There are exceptional cases where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue: he is not then malicious. (1) Positive belief (a) Positive belief in the truth of what is published will usually protect the defendant unless he can be proved to have misused the occasion. Judges and juries should be slow to draw the inference that he had misused the occasion, and the defendant's desire to use the occasion for its proper purpose must be shown to have played no significant part in his motives if malice is to be found." It is also pertinent to examine a few other cases so as to see how the Courts had approached the question of malice in cases before Horrocks vs Lowe12. Royal Aquarium & Summer and Winter Garden Society Limited vs Parkinson13 is one such case. That case was an action for slander upon the plaintiffs in the way of their business. The statement complained of was made J13 by the defendant at a meeting of the London County Council, of which he was a member, when the question before the meeting was whether a licence for music and dancing should be granted to the plaintiff. The defendant expressed a very strong opinion that it should not be granted, and used very strong language. He said he had been to the aquarium and seen an indecent performance, between two figures dressed as male and female. It turned out that the figures were not dressed as a male and female but as two males, so that the story of gross indecency was nothing but the defendant's own imagination. It was stated by Lord Esher MR on appeal regarding the issue of privilege and malice as follows: Therefore though what is said amounts to a slander, it is privileged, provided the person who utters it is acting bonafide and not maliciously; but I do not think that that way of expressing the rule is quite exhaustive or correct. I think the question is whether he-is using the occasion honestly or abusing it "... If a person from anger or some other wrong motive has allowed his ,mind to get into such a state as to make him cast aspersions on other people, recklessly whether they are true or not it has been held, and I think rightly held, that a jury is justified in finding that he has abused the occasion. Therefore the question seems to me to be whether there is evidence of such a state of mind on the part of the defendant. It has been said that anger would be such a state of mind; but I think that gross and unreasoning prejudice, not only with regard to particular people but with regard to a subject-matter in question would have the same effect. If a person charged with the duty of dealing with other people's rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion." J 14 W (cid:9) 0' Resolving the question whether the defendant's mind had fallen into a state of unreasoning prejudice leading to recklessness whether what he stated was true or not, his Lordship found that the defendant was the only one who took the figures to be male and female and inconceivably stated that the performance was indecent. His lordship was of the view that the expressions used by the defendant tended to show that he was not acting simply from consideration of his duty in the matter, but had allowed his mind to get into such a reckless state of prejudice that he was regardless of the interests of other persons, and whether what he was saying was true or false. In an old case, Toogood vs Spyring14 cited in Watt vs Longsdon15 the facts were that a tenant of a farm complained to the agent of the landlord, who had sent a workman to do repairs, that the workman had broken into the tenant's cellar, got drunk oh the tenant's cider, and spoilt the work he was sent to do. he workman sued the tenant. Parke B explained' privileged occasibns as follows: "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within narrow limits." uS In Watt v Longsdon15, untrue statements made to the chairman of the company concerning Watt were held to be privileged, as there was a duty on Longsdon to do so. Further it was found that Longsdon believed the truth of the statements in Browne's and his own letter. Longsdon did not make any enquiries, but sent the letter containing defamatory matter, to the chairman of the company. In Adam v Ward16, Lord Dunedin said: strictly speaking, it is the occasion on which a statement is made that is privileged, and the phrase that such and such a statement is privileged would be more accurately, though perhaps more clumsily expressed by saying that, the statement having been made on a privileged occasion, malice cannot be implied from defamatory expressions therein but must be proved as a real fact." Facts in the said case were that, the plaintiff, formerly an army officer, had in 1906, togçther with some other officers, been ',removed from his command as a result of reports submitted to the Army Council by General Scobell. In 1910 as a Member of Parliament he made a speech in the House in which he accused General Scobell of sending in reports which contained wilful and deliberate misstatements of facts which deceived those in authority. General Scobell, as he was compelled to do by King's Regulations, referred these charges to the Army Council. The Council after investigating the charges issued to the press a letter written to General Scobell. The letter vindicated General Scobell and contained statements which indicated that the plaintiff himself had been properly removed from his command in the army. In an action for libel brought J16 : (cid:9) by the plaintiff against the Secretary of the Army Council who had issued the letter to the press, the defendant did not dispute that the language of the letter was defamatory of the plaintiff but pleaded privilege. It was held on appeal by the House of Lords that the defence of qualified privilege availed the defendant. Lord Dunedin said the following in arriving at that conclusion: "I am accordingly of the opinion that privilege attaches to the statement here complained of; that no malice can be implied, and that to succeed the plaintiff must prove express malice. As to express malice, all the learned judges, including the trial judge, are agreed that there is absolutely no evidence, either extrinsic or intrinsic, of malice on the part of the defendant, Sir Edward Ward." In Knapp v McLeod17 (1926, 58 0. L. R. 605; [1926] 2 D. L. R. 1083, defendant, a member and office-holder in a church, told another member and officer-holder- that the minister had committed adultery with plaintiff. Plaintiff argued that although the o'casion was privileged, any reference to her was outside the privilege. A judgment for plaintiff, on the ground that reference to plaintiff was not privileged, was reversed on appeal by a majority (3:2), who held that the statement regarding plaintiff was relevant. Roberts vs Bass18 is a later case. In that case, the appellants were found at trial to have injured the respondent by the publication of false and defamatory matter in the course of a State election in South Australia and ordered to pay damages. The decision of the trial judge was upheld by the full court of the Supreme Court of South Australia, except that the amount of the damages J 17 awarded against the fist appellant was increased. The appellant appealed to the High Court of Australia. We should state here that the High Court of Australia decides cases of Special Federal significance including challenges to constitutional validity of laws and to hear appeals by special leave from Federal, State and Territory Courts. It is the highest court in the Australian Judicial system. Turning to Robert vs Bass-z 8, the appellant had pleaded qualified privilege. Lord Diplock's dictum in Horrocks vs Lowe12 had been referred to by the full court on appeal. Discussing qualified privilege, it was stated thus: "An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and activates the making of the statement is called express malice. The term "express malice" is used in contrast to presumed or' implied malice that at common law arises on a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice ("malice") is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff. In Browne v Dunn (1893) 6 R 67 at 72,) Lord Herschel LC said that "malice means making use of the occasion for some indirect purpose." Early in the history of the law of qualified privilege - which did not come into the common law until the end of the 18th Century - Lord Campbell CJ said that malice was "any indirect motive, other than a sense of duty" (Dickson vs Earl) similarly, in an action for slander of title, Parke B (Brook vs Rawl (1849) 19 L. JEx at 115 said that "acting maliciously means acting from bad motive." 'If the occasion is privileged', said Brett U (Clark vs Molyneux 1877) 3 QBD 237 at 247, 'it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason.' In Horrocks vs Lowe12 the leading case on malice Lord Dip lock said: J18 il "So the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. 'Express malice' is the term of art descriptive of such a motive." The High Court of Australia went on to state that improper motive in making the defamatory publication must not be confused with the defendant's ill will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was activated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement -made on an occasion of qualified privilege was untrue is ordinarily -. conclusive evidence that the, publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence of the publication must also show some ground for concluding that the ill will, lack of belief in the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, J19 - (cid:9) - w- (cid:9) and provides no ground for inferring that the publication was actuated by an improper motive. Thus a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false or defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication. These statements were premised on Moulds vs Fergusson19, Horrocks vs Lowe12, Watt vs Longsdon15 among others. 'I The Court went on to state that there is no basis in principle or authority for treating knowledge of falsity or lack of honest belief as a separate head or, equivalent to malice. They further observed that nothing in Lord Diplock's speech in Horrocks vs Lowe12 supports treating the defendant's knowledge or lack of belief as a separate head or equivalent to malice. Indeed, Lord Diplock expressly said that if it is proved that the defendant did not believe that what he or she published was true, it was "generally conclusive evidence" of improper motive. J20 .1 .1 -I 'I The Court expressed the further view that in exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge. When a person deliberately refrains from making enquiries because he prefers not to have the result, when he willfully shuts his eyes for fear that he may learn the truth, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring." In less extreme cases, the court further explained, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive. This is particularly so when the re4lessness is assqpiated with unre.soning prejudicç on the part of,,-the defendant. The Court referred to Royal Aquarium and Summer & Winter Garden Society vs Parkinson13 where Lord Esher MR said that a person who allows his mind to fall into such a state of unreasoning prejudice and communicates defamatory matter on a privileged occasion as a result of prejudice abuses the occasion, and malice would stand proved as a result. The Court observed that fifteen years earlier, as Brett U, Lord Esher MR had said in Clark vs Molynex20: J21 I "If it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive." The High Court of Australia went on to state the following: "In Lord Dip lock's speech in Horrocks, there are passages that standing alone suggest mere recklessness or indifference to truth and falsity is sufficient to constitute malice. But we do not think that Lord Dip lock was intending to change the law, as was laid down by Lord Esher MR in the above quotations. In fact, in Horrocks, Lord Dip lock referred to Lord Esher MR's judgments in these cases as correctly stating the law. Furthermore, Lord Dip lock introduced his discussion of "recklessness" by saying that if the defendant "publishes untrue matter recklessly, without considering or caring whether it be true or not, he is in this as in other branches of the law, treated as if he knew it to be false. This statement makes it clear that Lord Dip lock was using the term "reckless" in the sense of "willful blindness" as explained by this Court in Crabbe (1985) 156 cLR 464 at 470" (emphasis added) 4 (cid:9) The High Court of Australia proceeded to state the following: "Further, mere lack of belief in the truth of the communication is not to be treated as if it was equivalent to knowledge of the falsity of the communication and therefore as almost conclusive proof of malice. The cases contain many statements to the effect that the privilege will be lost if the defendant did not honestly believe in the truth of a defamatory statement made on a privileged occasion (Horrocks vs Lowe). If those statements mean no more than that qualified privilege is lost when the defendant knows or believes the defamatory statement is false, they are in accord with settled principle and authority. But if they mean that the defendant loses the privilege unless he or she has a positive belief in the truth of the publication, it is not easy to reconcile them with basic principle. They are not reconcilable, for J22 example, with the principle that recklessness as to the truth or falsity of a publication short of willful blindness, will not destroy an occasion of qualified privilege unless it appears that the recklessness is accompanied by some other state of mind. A person who is reckless as to whether the statement is true or false has no positive belief in the truth of the statement. Yet as the above statements of Lord Esher MR in Royal Aquarium and Clark Show, recklessness, short of willful blindness, is not enough to destroy the privilege. It must be accompanied by some other state of mind. Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice. As Jordan CJpointed out in Mowlds vs Ferguson19.: "All that the Royal Aquariums case decides is that if a defendant is proved to be affected by a particular prejudice, and is proved to have made a defamatory statement on a privileged occasion, not to serve the legitimate purposes of the occasion but to indulge this prejudice, express malice is made out. In such a case, proof of the prejudice may serve both to explain how the defamatory statements came to be made, and also to justify the inference that it was made for the purpose of indulging the prejudice." The court referred to Jenoure vs Delmege21 (1891) AC 73 at 79, where Lord Macnaghten, giving the advice of the judicial committee said: "The privilege would be worth very little if a person making a communication on a privileged occasion were to be required, in the first place, and as a condition of immunity, to prove affirmatively that he honestly believed the statement to be true. In such a case bona fide is always to be presumed." Robert vs Bass's is of persuasive value to this Court as are other authorities from other jurisdictions, on matters that are similar to those raised in this jurisdiction. The value of the said case arises from the premise that the J23 qualified privilege at common law in defamation cases discussed in the said case is the same in this jurisdiction. English cases have been recoursed and endorsed as articulating the applicable principles. It is therefore not remiss of us to seek and derive guidance from the cited case, falling from the highest court of Australia. That Court articulated the malice that would defeat the defence of qualified privilege, and we are persuaded thereby. This is more so that the authorities that discuss qualified privilege bear out the exposition of that defence and the malice that would defeat it in Robert vs Bass's. It will be seen that Parke B in Toogood vs Spyring supra spoke of the presence of 'actual malice' as necessary to defeat the defence of qualified privilege. In Adam vs Ward, supra, as earlier stated, the defendant made defamatory statements about the plaintiff. It was held that privilege attached to the statement, and no malice could be implied, and there was no express or It (cid:9) I intrinsic evidence proving malice. Observe that is that case, the defendant was not required to make enquiries before communicating matters defamatory of the plaintiff. Stuart vs Be 1122 aptly illustrates the point. In that case, the plaintiff was a valet, and while he and his master were staying at Newcastle as the guests of the defendant, who was a magistrate and the mayor of the town, the chief constable of Newcastle showed the defendant a letter which he had received from the Edinburgh police, stating that the plaintiff was suspected of having J24 committed a theft at a hotel in Edinburgh which he had recently left, and suggesting that a cautious inquiry should be made with the view of discovering whether the plaintiff was in possession of the property. The defendant did not make any inquiry, but just before the plaintiff and his master left Newcastle, he told the plaintiff's master privately that there had been a theft at the hotel, and that suspicion had fallen on the plaintiff; and some days afterwards the plaintiff's master dismissed him from his employment upon the ground that he had been suspected of dishonesty. It was held that the occasion of the communication was privileged, and that in the absence of evidence of malice, the defendant was not liable. In that case too, the defendant was not required to make enquiries before communicating defamatory matter. In Nevill vs Fine Arts and General Insurance Company Limited4, on trial of £ (cid:9) £ (cid:9) £ an action for libel against an incorporated company in respect of a statement contained in a circular composed by the Secretary of the Company and sent by him to certain of their customers, the judge having ruled that the occasion was privileged, the jury found that the statement complained of was in excess of the privilege, but did not find actual malice on the part of the defendant's secretary. It was held that the occasion being privileged, in the absence of a finding of actual malice, the defence of privilege was not rebutted, and there appearing on the facts of the case to be no evidence of actual malice in the J25 : publication of the statement complained of, the action was not maintainable. There, malice was said to be a state of mind. Roberts vs Bass18 leaves no doubt that generally, malice is proved, not by the truth or falsity of the statement intended to be communicated to properly interested persons, but by demonstration of a state of mind that reveals an improper motive. Gross recklessness would reveal malice, and such recklessness should be such as would actuate a person to refrain from making enquiries, for fear that he may learn the truth. This will occur in extreme cases. Clearly, the state of mind is one that balks from learning the truth. In less extreme cases, recklessness with other factors such as unreasoning prejudice which leads a person not to care whether what he states is true or false, will point to malice. it is clear that the state of mind will reveal that the occasion has been used for an improper purpose, to gratify an indirect motive, like anger or prejudice, and not for the reason that renders the communication privileged. In expressing himself on malice, Lord Diplock, in Horrocks supra, acknowledged that Lord Esher MR's judgments in these cases correctly stated the law. He thus did not set out to change the law. As stated by the High Court of Australia, Lord Diplock used the term 'reckless' in the sense of "willful blindness." This is rendered clear by the authorities. J26 .1 i. Turning to the case with which we are presently engaged, the communication was made on a privileged occasion, as earlier confirmed. That privilege can only be defeated by proof of express malice. We thus proceed to consider whether express malice was established by the respondent, as the onus to do so lay upon her. From the submissions, and the evidence led before the trial judge, malice was said to be established on account of failure to verify the correctness or otherwise of the allegation that Charles Mushitu had parked the appellant's vehicle at the respondent's premises. In fact the learned trial judge so found. This was an error and insupportable on the authorities cited above. It is not the law that whenever a person does not verify a statement before communicating it to another with an interest in receiving it, he is guilty of malice that defeats the defence of qualified privilege. Were that the case, the defence of qualified privilege would serve no purpose, as then every publisher of defamatory, matter who did pot verify the truthfulness of what he proposed It to communicate would have no defence, even though the person to whom he published defamatory matter had an interest in receiving that communication. The privilege that attaches in such instances does not depend upon the extent to which the maker of the statement has made proper investigations. Once the occasion is held to be a privileged one, the issue is whether the defendant acted honestly, that is, without malice and not whether he behaved reasonably or took due care. See Gatly on Libel and slander, supra. J27 : The facts of this case reveal that defamatory matter was communicated to persons with an interest in receiving it. Although it was stated that investigations should be made, the failure to do so did not reveal willful blindness. The reality of the matter was that the motor vehicle had indeed been parked at a woman's residence, as collateral for a borrowing by Mr. Chiposwa that was said to be unauthorized. Analogy can be drawn to the cases cited above, where enquiries were not made before communication of defamatory matter. In the present case, there is no evidence that reveals malice in the communication itself, nor was an improper motive such as anger or unreasoning prejudice disclosed. The conclusion that the appellant was careless and reckless was arrived at without due regard to the elements that establish malice in such cases. Our interference with that conclusion is thus inevitable and we hold that no malice was revealed on the evidence, so as to defeat the defence of cjialified privilege. Ground two of the appeal succeeds. That being the case, ground three falls away. The appellant will have the costs of this appeal, to be agreed and in default taxed. F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL A J. Z. MULONGOTI (cid:9) COURT OF APPEAL JUDGE (cid:9) D. L. Y SICH COURT 0 APPE JUDGE J28