MUTEMBA v ZAMBIA NEWSPAPERS LTD AND ANOTHER (1972) Z.R. 107 (H.C.

HIGH COURT

SCOTT, J.

7TH APRIL, 1972

(CIVIL CASE NO. 139 OF 1970)

Flynote

Tort - Defamation - Libel - Innuendo - Natural and ordinary meaning of words which are not defamatory -
Burden on plaintiff to show extrinsic facts which cause words to convey defamatory imputation.

Headnote

This was an action by the plaintiff against the defendants for damages arising out of the publication by
the defendants of matter which the plaintiff claimed was defamatory to him.

Held:

Where in their natural and ordinary meaning words are not defamatory the plaintiff has the burden of
showing that there are extrinsic facts, known to a person to whom the words were published, which
would cause the words to convey the defamatory imputation on which he relies to a reasonable person
with that knowledge.

For the plaintiff:M.Folotiya, of Folotiya and Co.

For the defendant: J.H.Jeffrey, of D.H.Kemp and Co.

Judgment

SCOTT, J: This is an action by Andrew Bwalya Mutemba (as plaintiff) against Zambia Newspapers Ltd (1st
defendant) and Kingstons (Zambia) Ltd (2nd defendant) for damages arising out of the publication by the
defendants of a defamatory article about the plaintiff in the Times of Zambia dated the 8th January,
1970.
On the 6th January there had been a report, carried on the front page under full headlines reading
'District Governor reveals grim secret of Luanshya farmhouse - oathing shock'. The report started off:
'Luanshya's District Governor, Mr Matthew Nkoloma, disclosed at a UNIP meeting at Chaisa Hall in
Luanshya yesterday that a farmhouse in the district was being used by members of a certain tribe for
taking oaths.' It continued reporting Mr Nkoloma as saying 'that oathing was being organised by people
in top positions . . .' and 'the people masterminding the oath-taking came to Luanshya at weekends and
holidays to organise secret meetings aimed at destroying Zambia', and as calling 'on people to watch out
for GRZ ministerial cars coming to Luanshya at night'. This issue of the 6th January had an inset
photograph of Mr Nkoloma. On the 8th January, 1970, the newspaper carried the banner headlines
'UNIP BACKS NKOLOMA ON OATHING', and the report commenced 'Luanshya East UNIP constituency
fully backs disclsures made by District Governor Mr Matthew Nkoloma that a tribe has been taking oaths
at a farmhouse in the district' and in part read 'These activities by certain Ministers started a long time
ago, and we know of all their moves.' Inset to the left of this front page report was a photograph under
which the caption read 'Pictured yesterday at the opening of the National Assembly . . . Mr Nkoloma
(left) with Mr Andrew Mutemba, Minister of State for Education.' In fact the person on the left of the
photograph was not Mr Nkoloma but Mr Jose Monga; Mr Mutemba was at that time Minister of State
for Education.

The plaintiff by his pleadings claims the article and photograph were falsely and maliciously printed and
published and 'the inclusion of the photograph of the plaintiff in the article which referred to the
activities of certain Ministers was deliberately done and the defendants by innuendo meant and were
understood to mean that the plaintiff was connected with oath-taking in and around Luanshya, the
plaintiff's own Parliamentary Constituency' and by associating the plaintiff with oath-taking lowered the
plaintiff's image.

The defendants deny that the words complained of bore, were understood to bear or are capable of
bearing the meaning alleged.

Where in their natural and ordinary meaning the words are not defamatory the plaintiff has the burden
of showing that there were extrinsic facts, known to a person to whom the words wore published, which
would cause the words to convey the defamatory imputation on which he relies to a reasonable person
with that knowledge.

It is for the judge in the first place to determine upon the evidence adduced whether the words are
reasonably capable of being understood in the meaning ascribed to them in the innuendo, taking into
account the manner and the occasion of the publication and all other facts properly n evidence.
The publication of the 8th January was not an article, it was a report of what various people had said. I
have to ask myself whether, there being knowledge of the facts that the plaintiff was a very high official
in UNIP,a Minister of State, and elected for the Luanshya Constituency which he visited from time to
time, the inclusion of his photograph, with the caption under it, together with the accompanying report
were reasonably capable of being understood to mean that the plaintiff was connected with the subject
matter of the report, namely the oath-taking.

It is without any hesitation that I hold that the words of the caption, looked at with the photograph, are
not reasonably capable of the innuendo meaning sought to be ascribed to them by the plaintiff, because
it is not an uncommon practice to show a photograph of one person, to whom reference is made in a
report or an article, in the company of another who has nothing to do with the subject matter, and if
that other happens to be a public figure it is not unreasonable or in any way suggestive to say who he
happens to be. It would be quite unreasonable to look at the headlines and at the photograph and jump
to the conclusion that both the persons in the photograph, or at any rate meant to be in the photograph,
were associated with the matters reported or discussed. Nor would a reasonable person leap to the
conjecture that the publisher of the newspaper was deliberately suggesting to the reader that Mr
Mutemba, being a Minister, must be or could be one of the Ministers referred to. One is bound to red
the text of the report and the words of the caption. There is no mention at all in the text of Mr
Mutemba, of the Minister of State for Education, or of the Member for Luanshya. The caption says quite
clearly that the photograph shows Mr Nkoloma (wrongly and I accept mistakenly) about whose alleged
statements the report was concerned: it says he was pictured the day before at the opening of the
National Assembly and the person next to him there was Mr Andrew Mutemba. It is quite unreasonable
to read any more into that because the presence of Mr Mutemba at the Assembly could have no relation
to the reported oath-takings. No association or connection could reasonably be found from this
juxtaposition of photograph and report without something more. There are many Ministers, there are
many people in top positions, and there is no proved extrinsic fact showing that the plaintiff had foreign
financial backing and only went there at weekends and holidays. There was no link which a reasonable
person ould fairly find to connect the plaintiff with the oath-taking: the reported allegation was
sufficiently vague as not to point a finger at any particular person or persons so that they could

be identified, and the report as published on the 8th January, 1970, did not focus attention on the
plaintiff as such a person. If anything, he was being associated with the accuser, Mr Nkoloma, not the
accused. It is, of course, understandable that Mr Mutemba was displeased, annoyed and upset; he was
perfectly entitled to be when such allegations were being made about his constituency, but as they were
not, in my opinion, even by innuendo, reasonably capable of being construed as referring to him he
could not have suffered defamation of character by virtue of this publication.

Judgment is therefore given for the defendant with costs to be agreed or in default of agreement to be
taxed.
Judgment for the defendant