TIMES PRINTPAK ZAMBIA LIMITED 1ST DEFENDANT
TIMES OF ZAMBIA 2ND DEFENDANT
Before the Hon. Mr. Justice A.M. Wood in Chambers at Lusaka this 9th day
of August 2011
For the Plaintiffs: Ms. L. Kalunga of Messrs. Ellis & Company For the
Defendants: Mr. Justin Musonda - In house Counsel
RULING
1. Shell & BP Zambia Ltd v Conidaris and Others (1975) ZR 74
2. American Cyanamid Company Ltd v Ethicon Ltd (1975) A.C. 396
3. Turnkey Properties v Lusaka West Development Company Ltd and
Others
4. Harton Ndove v National Educational Company of Zambia Limited (1980) ZR184
5. Couson v Couson (1887) 3T.L. 846
6. Michael Chilufya Sata v Times Newspapers Zambia Limited 201 O/HP/225
7. Michael Chilufya Sata v Wallen Simwaka, Rabecca Chileshe and Zambia
Daily Mail 2011/HP/577
Works referred to:
1. Order 29/L/1 7A RSC
2. Halsbury's Laws of England Volume 28, paragraphs 167 and 168 3. Gatley
on Libel and Slander, 8th Edition pages 639 -645
Legislation referred to:

1. Section 91 (1) and (2) of the Representation of the People Act 1949 2.
Order 27 rule 4 of the High Court Rules
This is an application by the 1st Plaintiff against the Defendants
pursuant to Order 27 rule 4 of the High Court Rules Cap. 27 of the Laws of
Zambia for an order of interlocutory injunction restraining the Defendants
from continued publication in its newspaper the Times of Zambia stating
that the Plaintiffs and the Patriotic Front have received funding from
Afghanistan and Taiwan and similar stories on the grounds deposed to in
the affidavit in support.

I must state at the outset that although there are two Plaintiffs, the
affidavit in support is sworn by the lst Plaintiff. It is not a joint
affidavit and the 2nd Plaintiff cannot therefore be said to be a party to
this particular application for an injunction as it is not sworn on his
behalf and in any event there is no power of attorney to do so.

The affidavit in support of the 1st Plaintiff states in paragraph 4 that on
6th and 7th July, 2011, the Defendants published in its Times of Zambia
newspaper articles entitled "PF gets Afghan, Taiwanese cash for Lusaka
Land" and "Sata Condemned Over US$45 million Taiwan Funding" respectively.

The said articles were false as the Patriotic Front had not received any
funding from Afghanistan or Taiwan for the 2011 General Elections. At no
time had the Patriotic Front resolved to send unemployed youths or any
Zambian to Afghanistan, Sudan or any war torn country. The 2nd Plaintiff
had refuted his authorship of the e-mail referred to in the newspaper
article and had referred the matter to the Zambia Police Service for
further investigation and prosecution. The articles were a deliberate ploy
to sway voters from voting for the Patriotic Front in the 2011 General
Elections. The Defendants had almost on a daily basis continued to repeat
the publication of the articles.

The Defendants opposed the application for an injunction. According to the
affidavit in opposition sworn by Eastean Chongo in his capacity as editor
of the Defendants, the lst Plaintiff was president of one of the
opposition political parties in Zambia and a well known public figure. The
I st Plaintiff's conduct of national and/or public affairs was subject to
public comment and the general public were entitled to and had a general
right to comment upon. That the Defendants published the articles
complained about in the discharge of a public duty to the general public
by way of dissemination of information of a public nature.

The information contained in the articles complained of was given to the Defendants by known and reliable sources that the 1st Plaintiff knew as well and had previously interacted with and/or dealt with and the sources included
individuals and various organisations. Prior to the publication of the
alleged defamatory articles, the Defendants had contacted the 1st
Plaintiff for his reaction and/or comment. The Defendants denied that they
had been repeating the publication of the article on a daily basis, but
they had as a public duty, been making publications of public views or
comments on matters of public interest concerning the lst Plaintiff and
other public figures.

He stated in his affidavit that the legal rights of
the general public should not be infringed on or invaded by the 1st
Plaintiff. There was no irreparable damage or injury which would be caused
to the lst Plaintiff as libel was an actionable wrong for which
recoverable damages were a proper remedy as opposed to an injunction. The
relief being sought by the 1st Plaintiff could be determined on the merits
in the normal cause of trial.

Ms Kalunga submitted that the lst Plaintiff had shown that he had a clear
right to the relief he was seeking. He had shown his wish to contest in
the 2011 General Elections and as such the continued publication of
defamatory articles by the Defendants such as the ones shown in the
statement of claim could not be adequately atoned for by damages as they
sought to tarnish and scandalise his image and reputation which was
important in so far as seeking elections was concerned.

The Defendants had failed to show that there was any truth or
justification in the continued publication of the articles. The Defendants
had also shown a continued likelihood of publishing these and similar
articles by stating in paragraph 8 of the affidavit in opposition that
they had a public duty making publications of public views or comments on
matters of public interest concerning the lst- Plaintiff and other public
figures.

She further submitted that the right to public expression and
information as provided under Article 20 of the Constitution must be
balanced with the right to the protection of an individual's reputation as
provided under article 20 (3) (b). She also relied on the cases of Shell &
BP Zambia Ltd v Conidaris and Others (1) and American Cyanamid Company Ltd
v Ethicon Ltd (2) in support of the application for an injunction. She
submitted that unless the defamatory publications were stopped, the
Plaintiffs would suffer irreparable injury and loss in that the lst
Plaintiff would lose the opportunity of ascending to the office of
President in Zambia which was an opportunity which rarely presented itself
in one's lifetime. Such a loss could not be adequately compensated by way
of damages.

The libel in this matter was atrocious and inflicted the most serious
injury to the Plaintiffs as it was wholly unjustified and was deliberately
calculated to denigrate their character. The exhibits attached to the
affidavit clearly confirmed the Defendants' unequivocal determination to
impair the Plaintiffs' political prospects in the forthcoming general
elections.

Mr. Musonda on behalf of the Defendants cited the case of Harton Ndove v
National Educational Company of Zambia Limited (3) and submitted that
before granting an injunction it must be shown that there is a serious
dispute between the parties and the Plaintiff must show on the material
before Court that he has any real prospects of succeeding at the trial. He
then referred the Court to Order 29/L/1 7A RSC which provides as follows:

"The court's power to grant interlocutory relief in defamation cases seems
to be guided by two associated notions, one of high principle and one of
principle and practicality. The first is the importance of protecting the
individual's right to free speech. The second is an acknowledgement that
the court should not save in the clearest case, usurp the jury's role by
restraining at an interlocutory stage publication of a statement that the
jury might later find to be no libel or true or otherwise defensible. Thus
it has been held that in defamation proceedings interlocutory relief to
restrain defamation is not ordinarily granted where there is a defence or
claim of justification unless the plaintiff can show that it is plainly
untrue. Normally, neither the motive of the defendant in making the libel
threat, nor the threatened manner of publication, nor the potential damage
to the plaintiff provides an exception to this rule."

He submitted that the Defendants had a defence to the action and should
not be restrained from its duty of disseminating information of a public
nature to the general public. Doing so would deprive the general public of
information which was of public interest. He was therefore opposed to the
injunction being granted at this stage.

In reply Ms Kalunga submitted that an injunction could be granted if the
Plaintiffs could show that the libelous publication was untrue. The
Plaintiffs had shown that the publications complained of were not true.
The onus was on the Defendants to prove on a balance of probabilities that
the defence of truth was substantiated. The Defendants had not stated who
the reliable sources were nor had they exhibited any tangible proof that
the information was given or that such sources existed. They had also not
shown how they had contacted the l st Plaintiff.

A perusal of the defence shows that the Defendants have pleaded qualified
privilege. According to paragraph 168 of Halsbury's Laws of England Volume
28, it is well settled that no injunction will be granted if the Defendant
states his intention of pleading a recognised defence, unless the
Plaintiff can satisfy the Court that the defence will fail. When qualified
privilege or fair comment is to be pleaded, an injunction may nevertheless
be granted if the Plaintiff can satisfy the Court on the issue of malice.
Paragraph 167 of the same volume of Halsbury's states that:

"An injunction will be granted only if the plaintiff can satisfy the court
that any jury would say that the matter complained of was libelous and
where, if it did not so find, the court would set aside its verdict as
unreasonable. It is for the plaintiff to show that the words are
defamatory, false and where relevant, published with actual malice.

In addition, he must prove that there is reason to believe that publication
or further publication of the words is threatened or intended, and that if
it takes place he will suffer injury of such a nature that damages would
not be an adequate remedy. As with all interlocutory injunctions, the
court will require an undertaking by the plaintiff as to damages."
It was held in Couson v Couson (4) that:

"To justify the court in granting an interim injunction it must come to a
decision upon the question of libel or no libel before the jury have
decided whether it was libel or not. Therefore the justification was of a
delicate nature. It ought only to be exercised in the clearest case where
any jury would say that the matter complained of was libelous and where
the fury did not so find, the court would set aside the verdict as
unreasonable."

From the affidavit of the lst Plaintiff it is clear to me he is standing
as a Presidential candidate on the Patriotic Front ticket in the 2011
general elections. He stated in his affidavit that the articles were false
because the Patriotic Front had not received funding from Afghanistan or
Taiwan for the 2011 general elections and that at no time had the
Patriotic Front resolved to send unemployed youths or any Zambian to
Afghanistan, Sudan or any war torn country.

The 2nd Plaintiff had refuted
his authorship of the e-mail referred to in exhibit "MCS 1" and had
reported the matter to the Police. The articles were a deliberate ploy to
sway voters from voting for the Patriotic Front in the 2011 general
elections.

The Defendants' opposition to the application for an injunction was based
on the need to disseminate information of a public nature to the general
public because the 1st Plaintiff was a well known public figure. The
information the Defendants were relying on was given to them by known and
reliable sources. The Defendants denied that they had been repeating the
publication of the article.

From the authorities cited above it is clear to me that when a court is
dealing with injunctions relating to defamation cases, the application for
an injunction is not only considered on the basis of the principles laid
down in American Cyanamid Company Ltd v Ethicon Ltd (1), Shell and BP
Zambia Limited v Conidaris and Others (2) and Turnkey Properties v Lusaka
West Development Company Ltd and Others (5) namely that the Plaintiff must
establish that he has a good arguable claim to the right he seeks to
protect, that there is a serious question to be tried or that the
possibility of damages being an adequate remedy should always be
considered.

In defamation cases, there is need as Hamaundu J., held in
Michael Chilufya Sata v Times Newspapers Zambia Limited (6) (Unreported),
to take into account overriding considerations such as the protection of
the individual's right to freedom of speech as enshrined in Article 20 of
the Constitution Cap 1 of the Laws of Zambia and the reluctance by the
Court to restrain at an interlocutory stage a statement that it might
later find to be no libel or which the Defendant might successfully
defend. The Court must therefore balance the competing interests of the
individual and the need for the general public to be informed on matters
of public interest.

I take judicial notice of the fact that general elections will be held
next month and that the 1st Plaintiff is a leader of one of the opposition
parties in the country and has indicated his desire to stand as a
Presidential candidate on the Patriotic Front ticket. The 1st Plaintiff
has shown that he has a good arguable claim to the right he seeks to
protect and that there is a serious question to be tried. I am of the view
that the lst Plaintiff has satisfied the requirements of paragraph 167 of
Halsbury's and Order 29/LI7 A of the Rules of the Supreme Court.

He has also shown that the Defendants intend to continue publishing similar
articles. Paragraph 8 of the affidavit in opposition is an admission on
the part of the Defendants that they intend to continue publishing
articles in connection with the articles being complained as public views
or comments on matters of public interest concerning the 1st Plaintiff and
other public figures. He has shown that as one of the aspiring candidates
for the highest office in the land, damages would not be an adequate
remedy. There is also strong prima facie evidence that the articles
complained of are untrue.

In passing, I concur with Kabuka, J., when she recently held in the case
of Michael Chilufya Sata v Wallen Simwaka, Rabecca Chileshe and Zambia
Daily Mail (7) (Unreported) that there was need for some form of mechanism
to provide guidelines.

In England, by Section 91 (1) and (2) of the
Representation of the People Act 1949 it is enacted that "Any person who,
or any director of any body or association corporate which, before or
during an election, shall, for the purpose of affecting the return of any
candidate at the election, make or publish any false statement of fact in
relation to the personal character or conduct of the candidate ... may be
restrained by interim or perpetual injunction by the High Court ... from
any repetition of that false statement or of a false statement of a
similar character in relation to the candidate and, for the purpose of
granting an interim injunction, prima facie proof of the falsity of the
statement shall be sufficient."

The application for an injunction is granted as prayed pending the trial
of this action or until further order. Costs to the 1st Plaintiff.
DELIVERED IN CHAMBERS AT LUSAKA THIS 9TH DAY OF AUGUST 2011