Landmark defamation ruling clarifies standard for media

25 July 2019 · Carmel Rickard

A Zambian TV journalist has won his defamation case against his own bosses, 10 years after the station carried repeated broadcasts showing his arrest outside the studio for allegedly raping a teenager. The judgment by the country’s highest court gives legal finality to the matter, but also provided an opportunity for the court to re-state the standards by which it will consider a defence against defamation. The case involved a young girl, who claimed she desperately needed overnight accommodation. The journalist offered her space for the night, but the next day she told the station bosses that he had raped her. Without calling him in to ask his side of the story, officials contacted the police and stage-managed his arrest on camera. The court also heard that the girl was taken for a medical examination by another journalist but though the results could have been obtained, the TV station either did not do so, or knew the results – showing the girl had not been raped – and did not mention this in its report on the arrest.

Read judgment

Francis Maingaila’s job as a journalist at Zambia’s Muvi TV got off to a rather more dramatic start than he could possibly have expected. And left him with personal insight into what it is like to be the target of defamation by the media without any right of reply.

He had been working at the TV station for just a couple of weeks when, on 29 July 2009, he offered to help a young girl who pitched up at the studio saying she was ‘stranded’ and desperately needed somewhere to sleep that night. He put her up in the kitchen of his one-bedroom house. Just what happened there, as the Supreme Court would later put it, ‘we could not know’.

Of three things we can be sure, however. First, he was later prosecuted for ‘defilement’ – rape of a minor. Second, he was acquitted. Third, the TV company for which he worked, carried a seriously defamatory report of his arrest. After his acquittal, he demanded an apology from the TV company but without success.

He then asked the High Court to consider his story, claiming he should be awarded damages for libel and mental distress. The high court found in his favour, awarding him K50,000 (just over R55 000) as well as costs.

The company then appealed to the Supreme Court, and it is this judgment – likely to prove a landmark in Zambia’s media law – that has just been delivered.

The TV company argued that the words of the report were a true account of what was happening at the moment the story was aired. It also argued that the High Court had erred when it said Maingaila had not been given a chance to respond: he was in detention at the time of the broadcast and thus could not be asked for comment.

The High Court’s decision was also criticized for rejecting the defence of justification based on a future event, namely Maingaila’s later acquittal.

The Supreme Court pointed out that in fact, a medical report finalized before the arrest, showed that the teenager had not been ‘defiled’, but this was never reported by the TV company even though it could have accessed the report.

The unanimous Supreme Court decision re-stated the ‘crucial importance’ of a free media. The media should ‘not be stifled by highly restrictive defamation laws or judicial interpretation of those laws which unduly oppress … and undermine dissemination of information’.

‘At the same time, the law cannot ignore the fact that the broadcasting media is an extremely powerful agency’, reaching enormous numbers of the public. Should a broadcaster publish defamatory material, ‘the end result is devastatingly harmful to the subject’s reputation. It could irreparably ruin a good name built over years.’

The judges said the High Court had found that the story published was that the journalist had been arrested for immoral behaviour and that he had committed ‘an act of defilement’. But the High Court also found that the broadcast came after the girl was taken by another journalist for a medical examination and after the result of the examination was known, or could have been known, to the police who ‘were working in concert with the (TV station’s) officers’ and thus to the TV station as well. (This is a reference to the close relationship between the police and the TV station, and to the fact that the station’s director had called the police, and set up the situation in which the journalist was arrested on camera.)

The court said the story as broadcast should have indicated that the examination had been carried out and the results should have been mentioned if they were known; if not, this should also have been mentioned. Instead, Muvi TV opted to broadcast the story ‘hoping to find an escape window in the word “allegedly” … used in the news item’.

Overall, the story suggested that the case against Maingaila had gone beyond ‘mere allegations’ and an ordinary viewer would have drawn ‘adverse conclusions’ about him.

In the view of the Supreme Court, there had been a malicious motive behind the airing of the story: the TV station could have got the journalist’s side of the story either before or after he was locked up, but did not; further, it had pre-arranged to film his arrest in front of his colleagues to maximise his embarrassment, and it had also ‘concealed the issue’ of the medical examination.

Together, this meant that only part of the story was disclosed, in circumstances ‘that smack of malice’, and thus the justification defence was not available.

What about public interest? This defence was ‘not a blank cheque’, said the court. It was true that Zambia was suffering from the scourge of child rape and that the matter was one of public interest. But any publication justified on the basis of public interest had to take into account factors listed by the House of Lords as relevant to whether the report amounted to ‘responsible journalism’. The report on Maingaila had failed to measure up to these standards.

The court said it was ‘incredible’ for the TV station to argue that the journalist was in detention and thus unavailable to give his side of the story, and that he could have given his perspective after publication. In fact, he had been available to give his side before and after his detention but was not asked to do so. Given the relationship between the station and the police he might also have been interviewed in detention.

Witnesses for the TV station seriously contradicted themselves on this question. One said he was told that the journalist was interviewed, but none of those said to have interviewed him was called to confirm this. Another witness who said that the journalist had been interviewed but ‘opted to remain silent’, later admitted she was not there and did not know what Maingaila had actually said.

Dismissing the appeal, the Supreme Court found that the trial judge had not rejected the justification defence based on the journalist’s acquittal, but rather because ‘the whole truth as could easily have been ascertained, was not taken into account when the broadcast of the offensive item was made’.

* 'A matter of justice', Legalbrief

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.