By Teddy Musonda
Law of Torts- Defamation – Qualified Privilege
This is an analysis of the Court of Appeal judgement of Abraham Lodewikus Viljoen v Mwamba Musambo and Stanbic Bank of Zambia [2022], delivered by Ngulube, JA. on 13th June 2022. The case centres on defamation and the defence of qualified privilege, to that effect, this piece of writing will provide the facts of the case, and the Court’s findings, point out significant points of the case and conclude by criticising the Court’s analysis and holding.
BRIEF FACTS
The genesis of the matter is in the joint venture for farming that the appellant entered into with the Billis brothers, whereby the appellant and his son would provide expertise, while Mr. Billis would be in charge of all the operations of the joint venture. At the request of Mr. Billis, the appellant made a formal application on behalf of Billis Farms, to the second respondent requesting for financial assistance. The first respondent then responded by email informing Mr. Billis that the financing could not proceed because the bank had issues with his business partner, the appellant, having obtained a facility for his personal business which was not settled. Mr. Billis was further told that if financial assistance was granted to Billis Farm, the appellant would instead use the funds to service his personal company’s debt.
The appellant commenced an action against the respondents alleging that the words sent to Mr Billis were defamatory of him. The respondents raised a defence of qualified privilege. The High Court was of the view that the words were indeed defamatory of the appellant, however, it allowed a defence of qualified privilege holding that the email sent to the appellant’s partner was sent under circumstances that warranted qualified privilege, thus ruling in favour of the respondents. Aggrieved, the appellant appealed to the Court of Appeal.
ARGUMENTS BEFORE THE COURT OF APPEAL
On one hand, the appellant’s contention was that the words that the first respondent sent to Mr Billis caused Mr Billis to no longer trust him as the words in the email could lower the appellant’s reputation in the estimation of right-thinking members of society as they gave the impression that the appellant could not be trusted with money, which rightly fits the definition of defamation. They further contended that a defence of qualified privilege could not stand because the first respondent’ statement that if financial assistance was granted to Billis Farm, the appellant would instead use the funds to service his personal company’s debt spoke to malice and bad faith on the part of the first respondent thus negating a defence of qualified privilege.
On the other hand, the first respondent claimed that because the information was from the credit department of the second respondent, she was obligated to inform Mr Billis of why the loan facility was unsuccessful, and as such, the information was covered by qualified privilege. Therefore, all communication was made in line with that duty hence rebutting any evidence of malice and bad faith.
LEGAL ISSUES
1. Whether or not the first respondent’s email to Mr Billis was made in qualified privilege?
2. Whether or not the first respondent acted with malice and in bad faith thereby negating a defence of qualified privilege?
HOLDING
About the first legal issue, the Court of Appeal (COA) began by providing circumstances in which qualified privilege applies, the COA stated:
“A communication is said to be so privileged if it is made by a person in discharge of some duty, whether public or private, of a legal, moral or social character or having an interest to be protected to a person who has some interest in receiving it, or to a person honestly believed to have a duty to protect that interest.”
The COA held that the first respondent being the medium of correspondence between Mr. Billis and the second respondent, was performing her duty when informing Mr. Billis why the loan facility was denied. Therefore, the COA found that the email sent to Mr. Billis was made under qualified privilege.
Making reference to the second legal issue, the appellant’s contention was that the first respondent acted with malice and in bad faith when she mentioned that the appellant would use the loan facility to service his personal loan, thus this negated a defence of qualified privilege. The COA was quick to dismiss the appellant’s contention and held the view that the appellant did not succeed in proving malice merely because the respondents stated that he would use the funds that would be loaned to Mr Billi's company to service his personal company’s debt.
[the COA however did not go further with providing an elaborative exposition on what guided this position- the author provides a critique below]
SIGNIFICANCE
This ruling only brings out a few significant points which are simply reaffirmations of the position on law.
The COA confirmed the application of a defence of qualified privilege to defamation cases: A defence of qualified privilege applies to statements made in one’s performance of legal, moral, or social duty to a receiver with a corresponding interest. Essentially, where one passes information in the performance of a duty, to a receiver who has an interest in the said information, such a circumstance is one where a plea of qualified privilege applies, this could be information passed in the public interest, or to an individual who has sufficient interest in the information.
CRITICISM
The author criticizes the Court’s finding that the respondent did not act maliciously and in bad faith to negate a defence of qualified privilege.
As earlier mentioned, a defence of qualified privilege is a valid one however, it is not absolute, this is to say, it does not suffice as a defence merely that the defendant passed information while in their performance of a duty to a receiver with a corresponding interest. The Supreme Court on several occasions has provided a test for satisfying a defence of qualified privilege: the most recent on the subject is the case of Moving Unit Video Television (T/A Muvi TV Limited) V Francis Mwiinga Maingaila (2019 SCZ 18), the Supreme Court per Mumba Malila, JS, as he was then, citing with approval the House of Lords case of Reynolds v Times Newspaper (2001 2 AC 127), stressed that two essential elements ought to be established for the defence of qualified Privilege to be successfully raised, which could be paraphrased as (i) that the information passed or published as a whole must be in public interest; and (ii) the information passed or published was done responsibly or professionally.
Essentially this entails that the defendant in the discharge of their duty to pass or publish information that is in the public interest or to a specific person with an interest in the information must do so while being responsible and meeting all standards of professionalism or reasonableness as the duty would require in the case. It is trite that malice and bad faith negate a defence of qualified privilege, malice is defined as "the intentional doing of a wrongful act and an act done with an improper motive." (Salmond and Heuston, law of Torts, 1992, 20th ed p20), malice in ordinary parlance refers to ill will or ulterior motive. Therefore malice, in tandem with the test provided by the Supreme Court in the case cited above, follows that the defendant would be regarded to have acted with malice and dealt in bad faith if they passed or published information without being responsible and without measuring to the accepted standards of professionalism or reasonableness as the duty required, even though the statement was in the public interest or interest of the receiving person. The underlining point here is that; malice and bad faith manifest as a result of the defendant passing or publishing information in a manner that is not responsible or professional, or indeed passes or publishes information that they did not have a duty to do so.
Turning to the case in case, as earlier stated, the COA did not bother to provide a thorough explanation on the issue, be that as it may, the author submits that the COA erred by holding that the respondent did not act maliciously and in bad faith. It must be noted that the COA failed to apply the test for a defence of qualified privilege to succeed as set out by the Supreme Court on many occasions, which in itself leaves plenty to be desired. Applying the test to the case in casu would have invited the COA to consider the following points: whether or not the words complained of were in the interest of Mr. Billis? And (ii) whether or not the first respondent acted responsibly or professionally in discharging their duty to pass the information to Mr. Bills?
(i) Whether or not the words complained of were in the interest of Mr Billis: About this question, in as much as the first respondent was indeed obligated to inform Mr, Billis why the second respondent could not grant Billis Farms the loan facility, the first respondent by further stating to Mr Billis that ‘the appellant will use the loan facility for his personal debt’, provided an unsubstantiated opinionated statement and thus went over and beyond the obligation to provide Mr Billis with information that was in his interest, only. The first respondent was malicious and in any way dealt in bad faith by passing unsubstantiated (personal opinion-based) allegations about the appellant which strongly suggests having been calculated to lower the appellant’s reputation in the estimation of Mr. Billis.
Emphasis must be placed that the appellant and indeed the author, did/do not dispute that the first respondent communicated to Mr Billis that ‘the loan facility could not be awarded to the farm because the appellant (Mr Billis. Business partner) had an unsettled debt with the second respondent’ was operating under her duty to provide information in the interest of Mr Billis. However, the first respondent’s further words (unsubstantiated for that matter) to say: the appellant ‘will use the loan facility to service his personal debt’ was completely a statement that Mr. Billis had no corresponding interest in thus evidence of malice and/or dealings in bad faith on the part of the first respondent thereby negating a defence of qualified privilege. One would be justified to conclude that the first respondent’s ulterior motive (malice) was to ensure that Mr Billis no longer trusted or retained the appellant as a business partner
(ii) whether or not the first respondent acted responsibly or professionally in discharging their duty to pass the information to Mr Bills: in addressing this point, the law dictates that even though the information passed or published is found to be of public interest or in the interest of the receiving person, the information must be passed in a responsibly accepted manner or professional manner. The duty to pass or publish information responsibly or professionally involves two things; firstly, the need to pass on verified information, secondly, the need to pass on the said information by acceptable legal means. In line with the foregoing, Neither the appellant nor the author disputed/dispute that the first appellant’s words to say: ‘the loan facility could not be awarded to Billis Farms because the appellant had unsettled debt with the second respondent’ was verified information, there was indeed evidence that the information was drawn from the credit department, however, the question to ask is that: were the words to say ‘the appellant will use the loan facility (if granted) to service his personal debt’ verified by the credit department as well? – it would be absurd to think so.
Therefore, the first respondent did not act responsibly and professionally thus going beyond their duty by providing additional information that was unsubstantiated and completely opinion-based that in no way Mr. Billis had a corresponding interest in. The COA was timid in its reasoning, the Court must have considered the foregoing as evidence of malice and dealings of bad faith as the additional information was primarily intended to mutilate the appellant’s character.
There has been persistent criticism of the delivery of judgments by our Zambian Courts, contending that our Courts spend much of their paper restating the facts of the case, restating arguments of Counsel, and restating the law before concluding with providing a decision on the matter in very brief statements that lack profound analysis to support the position taken. The foregoing was made abundantly clear in the case in Casu, where the COA, for instance, pronounced on the second legal issue in just four sentences. The COA having found that the was no evidence of malice by the first respondent should have done justice by further fortifying their position with a profound analysis to support the position it took.
Additional Commentary
This case was delivered in 2022 by the Court of Appeal, we anticipate seeing how the Supreme Court would decide: whether or not the Court of Appeal ruling will be sustained.
This Article is brought to you by:
LEGAL AID INITIATIVE
(University of Zambia)
About the Author:
Teddy Musonda is a third-year law student at the University of Zambia. He is also the current Chief Executive Officer of Legal Aid Initiative.