Botswana: Court of Appeal

IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT LOBATSE

_CACLB-010-08

In the matter between:

BEAMA PUBLISHING (PTY) LTD 1^ST APPELLANT EMANG BOKHUTLO 2^ND APPELLANT

AND

JOSEPH MAKATI RESPONDENT Mr. B. Nthoi for the appellant

_{Mr. I. Bahuma for the respondent}

_{J U D G M E N T}

CORAM: S. A. MOORE Ag. P J. G. FOXCROFT JA C. T. HOWIE JA

_{FOXCROFT JA}

1. The respondent succeeded in an action for defamation in the High Court and was awarded damages in the sum of P50 000 with costs of suit. The appellants, publisher and editor of a newspaper known as “The Voice” which contained the allegedly defamatory words, appealed that decision. The case arose from the publication of an article concerning the damage caused by a

sudden and violent storm to the marquee in which the respondent’s wedding reception was being held.

2. It was alleged in the particulars of claim that -

“4. In the issue of aforesaid newspaper dated Friday

12^th November 2004 and annexed marked “A” the 1^st Defendant published and Second Defendant caused to be printed the following false, malicious and defamatory words concerning the Plaintiff:

4.1 That Plaintiff has speculated that a storm which blew up his wedding tent was a work of witchcraft.

4.2 That Plaintiff had said he believed evil forces were responsible for the storm.

4.3 That his marriage had met with

disapproval from his and the bride’s family.

4.4 That Plaintiff believes in local medicine and had consulted a traditional doctor prior to his wedding.

4.5 That Plaintiff had said he blames the storm on bad feeling over a previous relationship with a woman from Kanye with whom he has a child.

4.6 That Plaintiff had called the mother of his child a witch.

5. The above stated words referred to in paragraph

4.1 to 4.6 above and used in the aforesaid newspaper dated 12^th November 2004 were circulated to embarrass the Plaintiff and lower his dignity and reputation in the eyes of right thinking members of the society and were so understood by the readers of The Voice Newspaper to mean that:

5.1 The Plaintiff a Christian believes in witchcraft.

5.2 The Plaintiff’s marriage was not blessed by his parents and his wife’s.

5.3 The Plaintiff has low regard for the mother of his child to the extent that he calls her a witch.

5.4 That Plaintiff a Christian is a staunch

believer in witchcraft to the extent that he consults traditional doctors.

5.5 That the Plaintiff’s is a hypocrite in that he portrays himself as a Christian whereas he is a believer in witchcraft.

6. By reason of the foregoing, the good social standing, honour, integrity, respect of the Plaintiff was substantially lowered in the eyes of the public, as a result the Plaintiff has suffered damages in the sum of P500 000.00 (Five Hundred Thousand Pula).”

3. Defendants (the appellants) denied that the words uttered were “false, malicious and defamatory”. They further denied the allegations in paragraph 6 of the Plaintiff’s Particulars of Claim, adding that the words complained of “were uttered by the Plaintiff to the Defendants’ reporter at an interview with the Plaintiff.” Paragraph 6 of the Particulars of Claim was also denied.

4. The offending newspaper article in the The Voice contains most of the story written by Mr. Moses Maruping entitled “Wedding Horror” and listed in the First Schedule to the Discovery affidavit of the plaintiff as an “unedited article” by Moses Maruping. The printed article reports that “the groom” (plaintiff) suspected evil forces at work but that he was not altogether surprised as his “proposed marriage had met with disapproval from the two families”. He was

also quoted as saying “as a Motswana man who strongly believes in local medicine I had sought consultation with a traditional doctor who warned me that my wedding would be characterized by tears and sorrow”. The article went on to attribute to the plaintiff statements to the effect that the episode resulted from bad feeling over a failed relationship with

“a woman from Kanye with whom he had a baby boy.”

5. It is noteworthy that the newspaper article did not refer to any religious belief held by the plaintiff. Nor is there any imputation that the plaintiff as a Christian is a hypocrite since a Christian would not believe in witchcraft.

6. In November 2004, a letter of apology, written by the newspaper reporter responsible for the article, was handed to the plaintiff but not published in The Voice.

7. The minutes of a pre-trial conference on 23 August 2005 reveal that the issues before the court were -

“1. Whether the words published by the 1^st and 2^nd

defendants are defamatory.

2. Whether the plaintiff is entitled to damages.” It is trite that a statement is defamatory if it

“is one which injures the person to whom it refers by lowering him in the estimation of reasonable persons of ordinary intelligence or right-thinking members of the public generally.”

LAWSA (1^st Reissue) Vol. 7, para 246 cited with approval in Kgafela v Maoto [1992] BLR 256 at 263 (CA).

8. In the Kgafela v Maoto decision, SCHREINER JA went on to repeat the well-established rule that at the initial stage of determining whether words bear a meaning which is per se defamatory, the meaning intended by the person publishing them or the meaning which hearers or readers attribute to those words is irrelevant. It is an objective question whether the words are capable of lowering the esteem in which the person referred to is held “amongst people generally.”

9. Mr. Nthoi, who appeared for the appellants, submitted that the words contained in the article were not capable, objectively regarded, of bearing a defamatory meaning, and that the hearing of evidence in the court a quo was inappropriate. While Mr. Nthoi was right to submit that an innuendo should have been pleaded, he also conceded that there had been no objection to the leading of evidence by the plaintiff in support of his claim. The wording of paragraph 5 of the Particulars of Claim is cast in language which is

generally used where an innuendo is being alleged, and where the understanding of readers is required to establish the innuendo. The trial certainly appears to have proceeded on that basis, and the plaintiff’s Christian belief (specifically Roman Catholic) loomed large in the evidence and the judgment of the court a quo.

10. The plaintiff testified as to his position as managing director of a building and road construction firm named C. N. Construction and to his membership of the Roman Catholic Church. As a Christian, he did not believe in witchcraft and when a strong wind uprooted the tent in which his wedding lunch was to be served, he did not believe that witchcraft was at work. He also denied being interviewed by any journalist at the wedding reception, or at any later time. A few days later, he had received a telephone call from a friend asking him about the events at his wedding, and telling him about the newspaper article. Other friends also telephoned him saying that they had heard of the wedding events.

11. The plaintiff stressed in evidence that he had said nothing about witchcraft since

“according to my religion, we do not believe in witchcraft.”

He had also not suggested that his wife’s family had disapproved of his marriage, and he had not consulted a traditional doctor. He had also not called the mother of his child, born of the earlier relationship, a witch. He testified that this false allegation had led to difficulties in exercising his custody rights to the child, since the child’s mother would ask him where he was taking “a witch’s child.” Since publication of the article, his relationship with his in- laws had become strained, and they were reluctant to include him in ceremonies at home since they feared he might tell the newspapers that “they are witches”. He then dealt at some length with problems at his church where he had been asked why he still took the Holy Communion when he believed in witchcraft. He had eventually gone to the priest to deny the false story in the article. His business had also been affected, since people feared him. This evidence, which was not challenged, illustrates that allegations of witchcraft are taken seriously in Botswana, as in many other African countries. This is borne out by the passing of the Witchcraft Act, Cap 9:02 enacted in 1927. Section 2 of this Act provides –

“Any person who imputes to another the use of non- natural means in causing any disease in any person, animal or thing, or in causing injury to any person or property, or who names or indicates another as a wizard or witch, or who by means of pretended supernatural power indicates anyone as being responsible for, or the cause of, any injury to any person, animal or thing, shall be guilty of an offence

and liable to a fine not exceeding P100 or, in default of payment, to imprisonment for a term not exceeding three years.”

12. In Gobudilwe v Shaobuye & Another [1993] BLR 56, the defendants’ cattle had ventured on to the plaintiff’s field and later died. The defendants accused the plaintiffs of witchcraft and called them witches. MOKAMA CJ, in holding these words to be defamatory, held at p 610 D that -

“Any Motswana would know that there is a difference between a witch-doctor and a witch. The former is called “ngaka” and the latter is called “moloi”. A witch- doctor usually advertises his skills and commands and demands respect for his special skills as a traditional doctor, erroneously called a witch-doctor. But a “moloi” or a witch is regarded as a despicable and a dangerous person who never admits to being one. He is hated, feared and nobody wishes to associate or to be seen to be associated with him/her and relatives of a witch are also shunned.”

The learned Chief Justice went on to say that the purpose of an award of damages in a case of this nature is to vindicate the plaintiffs and to punish in some measure the defendants. He added –

“It is difficult in fact to separate the vindictive and the compensatory element in damages for defamation. In this case I would like to vindicate the two plaintiffs and punish the defendants for defaming the two women. I therefore award P2 000 for the plaintiffs.”

13. The plaintiff’s wife gave evidence supporting his belief that her parents now treated him with suspicion. According to the

plaintiff’s wife her parents had said that the plaintiff had published something that was not true in the newspaper. She was not cross- examined.

14. Mr. Moses Maruping, a reporter for The Voice and the author of the offending article testified that he had attended the wedding, finding that a tent had collapsed and that there was general disorder. He introduced himself to the groom (respondent) as a reporter for The Voice and the respondent agreed to the interview. After the interview, the respondent gave him the telephone number of the wedding photographer, suggesting that he should arrange to get wedding photographs from him. Later, the respondent promised to bring him photographs himself and a meeting took place at the President Hotel where the respondent gave him about 20 photographs. After publication of the article in The Voice he received a call from an unhappy respondent who said his relatives were unhappy, and asked for an apology “contradicting the story” so that he could “take the apology or so as to appease the unhappy bride and family.” The respondent had later received a letter of apology and retrieved his photographs. It was common cause that the letter of apology was never published.

15. Under cross-examination, the witness did not start well. He soon conceded that he had first interviewed others before talking to the respondent. Some questions followed dealing with editorial licence and the true price of the wedding cake which had been spoiled by the wind. Of more relevance to the issues, he was asked why the respondent had not been challenged on his evidence that he had not given the reporter any wedding photographs. He also insisted that he had written the letter of apology on the request of the respondent and that he had been untruthful in the letter of apology “in the spirit of ‘Botho’.”

16. The Court a quo took a dim view of the admission by the reporter that he had not actually seen some of the things which he had described in his article. For example, he had not seen “the proud and beaming” groom or the “turbulent and raging storm” but was relying on informants. The learned judge a quo regarded this practice as indicative of a “less than candid man.” In my view, this is common practice among newspaper reporters, as is their habit of paraphrasing words attributed to an interviewee, and is not in itself proof of dishonesty. In dealing with the witness in his judgment, the learned judge a quo begins with journalistic style and ethics, goes on to the false apology furnished and concludes

that the reporter “cannot be trusted to tell the truth and I do not believe that what he told the court is the truth.”

17. There can be no quarrel with the finding that the respondent is a Roman Catholic and that he does not believe in witchcraft. Nor with the finding that he is a well known businessman. The learned judge a quo erred, with respect, in finding that the article had suggested that

“he, a Christian, who attends the Roman Catholic Church believed in witchcraft, that is, not merely its existence, but that it is capable of having caused the chaos that prevailed at his wedding.”

No, such suggestion that he is a Christian, attending the Roman

Catholic Church, appeared in the article. The article does contain the statement that

“the bride and groom were also running around in a state of shock as their day of supposed bliss turned to horror. In a later interview with the newspaper they talked of their frustration and speculated that the whole episode could be the work of witchcraft.”

18. According to the article, Mr. Mpho Maifala, an usher at the wedding, believed that

“the storm could have been the work of witchcraft as there had been rifts between the bride and the groom’s families over the marriage.”

Another unidentified guest wondered about the possibility of black magic. To say that another “speculated” or “believed” that witchcraft or black magic might be at work is not, in my view, defamatory. The constitutional right to freedom of speech ought to prevail in such a situation. Reverting to Gobudilwe v Shaobuye, supra, it is also not defamatory to say of another that he believes in local medicine and consulted a traditional doctor or “ngaka,” often erroneously called a witch doctor. Such a person commands respect for his special skills. To call someone a witch or “moloi” is serious, and renders one liable, apart from a defamation suit, to criminal prosecution under the Witchcraft Act.

19. What was established by the respondent at the trial was that the article had stated that he had blamed the whole episode on bad feeling over a failed relationship with a woman whom he had called a witch. In effect, the newspaper had said that he, respondent, had committed a criminal offence under the Witchcraft Act, by calling his estranged lover a witch. The effect of this had been for him to experience difficulty in exercising rights to custody of the child. The reporter had no doubt defamed the respondent in causing it to be reported that he had called his ex-girlfriend a witch, and he made no attempt to justify this statement in his evidence. This word was defamatory in its primary meaning and

required no evidence to establish any secondary meaning which it may have derived from special circumstances. The reporter did refer to the ex-girlfriend but only in the context of being informed of a quarrel between the respondent and a jealous woman, and of custody difficulties experienced by the respondent.

20. In the Gobudilwe case, supra, the sum of P2 000 was awarded for accusing the plaintiffs of witchcraft and calling them witches, the allegation being that they had bewitched crops eaten by cattle which had thereafter died. Such an allegation could have had serious repercussions, having regard to the fear of witches referred to above. Similarly, a man who is said to have called his ex- girlfriend a witch, thereby committing a criminal offence, is no doubt lowered in the estimation of ordinary readers of a newspaper. Some reaction to that statement has already been experienced by the respondent. If he had not brought this action to vindicate his reputation, more dire consequences might have followed. The woman named as a witch could have been set upon and he could have been blamed for this. Finally, he could have been set upon himself or denigrated for calling her a witch. At the same time, excessive damages are not to be encouraged. The emphasis should be on compensation of a plaintiff “not making an example of him”.

[LORD REID in Cassell & Co. Ltd v Broome [1972] UKHL 3; [1972] AC 1027 (HL) at

1089 B-C].

As SCHREINER JA said in this Court in Kgafela v Maoto, supra at p 268 E.

“… there is much to be said for the view that defamation actions should not be encouraged by the award of unnecessarily large amounts by way of damages.”

In my view, the respondent was entitled to bring this action against both appellants to establish the rightness of his cause. However, the sum awarded was arrived at on an incorrect view of the published article. The sum of P7 000 would, in my view, be an adequate award of damages to compensate him for the wrong suffered at the hands of the appellants.

22. In the result, the appeal succeeds to the following extent:

(a) the appeal against the finding that appellants had defamed the respondent is dismissed with costs but the award of damages is reduced to P7 000.

(b) the appellants are ordered to pay to respondent, the one paying the other being absolved, the sum of P7000.

(c) the appellants having had substantial success on appeal in respect of the quantum of damages are awarded the costs of the appeal to this Court.

DELIVERED IN OPEN COURT AT LOBATSE ON THURSDAY 30 JULY

_2009.

J. G. FOXCROFT JUSTICE OF APPEAL

_{I AGREE}

S. A. MOORE

ACTING JUDGE PRESIDENT

_{I AGREE}

C. T. HOWIE JUSTICE OF APPEAL

Salbany Torto Attorneys – Legal practitioner for the appellants

Mack Bahuma Attorneys – Legal practitioner for the respondents