Mehluleli Dube v Al Jazeera Media Network

### Preamble
1
HH 451-24
Case No HC 6156/23
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MEHLULELI DUBE

versus

AL JAZEERA MEDIA NETWORK

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 23 February 2024 & 11 October 2024

Opposed Application – Attachment Ad Confirmandam Jurisdictionem

Mr T L Mapuranga, for the applicant

Mr T Manjengwa, for the respondent

MUSITHU J: The applicant approached this court for the attachment of the respondent’s property for purposes of confirming the jurisdiction of the court in a defamation claim he intends to institute against the peregrini respondent. To that end, he seeks the following relief:

“IT IS ORDERED THAT: -

The application for an Attachment to confirm the jurisdiction of this Court in the intended suit between the Applicant and the Respondent be and is hereby granted.

The Sheriff of Zimbabwe be and is hereby authorised to attach and take into his possession the property of the Respondent at Rooms 102 and 103 of the Rainbow Hotel at Rainbow Towers, Harare, 86 Belmont Court Flats, 83 Prince Edward Street, Harare and 683 Beeston Avenue, The Grange, Harare.

The costs of this application shall be costs in the cause in the action to be instituted by the Applicant.”

Background and the applicant’s case

The applicant was formerly employed by Fidelity Printers and Refiners as Head of Gold Operations from 1989-2022.  He claims to have left employment with a with a good track record and solid relations with the former employer.  The respondent is a foreign based media institution which conducts its operations via various media platforms. The respondent provides a satellite television service in Zimbabwe through a company called Multichoice under its DSTV platform channel 406.

The applicant claims that between 23 March 2023 to 14 April 2023, the respondent released a documentary series titled ‘Gold Mafia’ with four extensive and intrinsically related episodes. The respondent claimed that the documentary was a product of two years of undercover investigations into gold trading activities by some prominent people in Zimbabwe. The applicant further claims that the series was an instant hit accumulating over 12 million views on multiple platforms. The purpose of the documentary was allegedly to expose the smuggling of gold occurring in Zimbabwe and the individuals involved in the illegal gold trade.

Episode 2 of the ‘Gold Mafia’ series titled ‘Smoke & Mirrors’, particularly at timestamp 33:10-33:42, implicated the applicant as having corruptly signed off licenses for purchase and sale for one Kamlesh Pattni to facilitate the smuggling of gold. In return, the applicant is alleged to have received a monthly payment of US$3 000.00 for his services. This episode had over 2.8 million views, which number gradually increased daily attracting over twenty-four thousand likes and four thousand five hundred comments.

The applicant claims that his implication in gold smuggling had done considerable damage to his image and reputation amongst his peers, family, the people of Zimbabwe and the world at large. This was because the series had a large viewership arising from the respondent’s popularity. The damage was continuous as the material remained posted on the respondent’s page and copies of the episodes had been made by third parties and circulated elsewhere.

On 15 May 2023, the applicant’s legal practitioners wrote to the respondent seeking proof of the allegations made against the applicant. The respondent did not respond to the communication, prompting the applicant’s legal practitioners to dispatch a letter of demand via email on 24 May 2023.  The respondent later responded to the latest email from the applicant’s legal practitioners but claimed to be unaware of the earlier communication. The parties failed to reach an amicable settlement prompting the filing of the present application.

The applicant intends to sue the respondent for defamation damages in the sum of US$2,000,000.00, emanating from what he calls falsehoods that were broadcast by the respondent in the said series.

According to the applicant, the respondent runs a bureau office at the Rainbow Towers, Harare where it keeps multiple items of its trade such as laptops, computers, printers and state of the art cameras. The respondent also employs one Harugumi Rocabella Mutasa who resides at 683 Beeston Avent, the Grange, Harare, and keeps a laptop belonging to the respondent.  The respondent’s local deputy editor and camera man is one Tafadzwa Gabriel Chisvo who resides at 6 Belmont Court Flats, 83 Prince Edward, Street Milton Park, Harare.  Chisvo is alleged to have in his possession assets in the form of state-of-the-art laptops, cameras and photographic equipment belonging to the respondent. The estimated value of the equipment was US$100. 000.00.

It is that equipment that the applicant wants attached in order to confirm the court’s jurisdiction as well as to ensure that any judgment that may be granted by the court would be executable.

The Respondent’s Case

The opposing affidavit was deposed to by Phillip Rees in his capacity as the respondent’s Director of Investigative Journalism. He confirmed that the respondent sublets room 102 at Rainbow Towers from the Rainbow Tourism Group Limited. The room was used as an editorial room, by the respondent’s employees. He denied that the respondent used room 103 as alleged by the applicant.  He averred that the respondent was neither incorporated nor did it have its principal place of business in Zimbabwe.

While admitting that its employees had in their possession laptops and cameras which they used in carrying out their duties, the respondent contended that these were tools of trade, that they moved around with locally and internationally. The employees did not keep the equipment at room 102 Rainbow Towers, although they may have done so at some point prior to the applicant’s application. On the day that the application was served at room 102, the respondent’s employees were not at room 102.

The respondent acknowledged the existence of the Grange and the Milton Park properties in Harare but averred that these belonged to its employees Harugumi Mutasa and Tafadzwa Chisvo. It averred that the applicant had failed to describe or distinguish the equipment at these addresses that he claimed belonged to the respondent. He had also failed to do the same in respect of the equipment he claimed was at the Rainbow Towers.  The respondent averred that the applicant had failed to positively identify the equipment that he claimed the respondent owned at these addresses. The respondent averred that its employees were not prohibited from owning laptops, cameras and photographic equipment and keeping them at their homes.

The respondent admitted producing and publishing the documentary. It however denied that the publication had defamed the applicant. It insisted that the references to the applicant in the publication were true and his inclusion in the publication was for the public benefit. The applicant’s former employer performed a public function and accordingly the way that function was performed was in the public interest. The publication was substantially true in every material part. In the alternative, the respondent averred that it had reason to believe in the truth of the statements made in the publication and took reasonable steps to verify their correctness. It was therefore reasonable for the respondent to make the publication in the circumstances. The respondent denied that the applicant executed his duties professionally and that he left his ex-employer with a good track record.

It further contended that this court could only exercise jurisdiction over a peregrine under limited circumstances where there was submission to jurisdiction or where the judgment rendered could be effective. The respondent averred that it was not submitting to the jurisdiction of the court over the intended defamation suit. It further averred that this court did not have jurisdiction to adjudicate over the applicant’s intended claim because the respondent was domiciled and resident in Qatar.

The respondent submitted that in applications of this nature, the applicant had the onus to positively identify the property which was in the court’s jurisdiction that belonged to the respondent. The applicant had made generic averments regarding the existence of laptops and cameras and speculated that these could be at any of the places mentioned. The respondent denied keeping its equipment at any of these addresses and an order for the attachment of any property at this location would not be competent as it was based on speculation. The order sought had the effect of casting the net of the property so wide such that it could not be said to have described the property belonging to the respondent. The applicant had failed to describe the property with sufficient clarity to enable the court to grant the relief sought. The court was urged to dismiss the application with costs on a higher scale.

The Answering Affidavit

The applicant denied that any order to be granted by the court would not be effective, contending that the cause of action arose in Zimbabwe by virtue of the publication of defamatory material in Zimbabwe. The respondent owned equipment in Zimbabwe comprising of cameras and laptops amongst other editing equipment. The applicant averred that the law did not require him to give full description of each item of property owned by the respondent in Zimbabwe, no its specific value. It was enough that sufficient admissions were made on critical matters.

The applicant denied that his application had the effect of casting the net too wide as he had identified the office of the respondent in Zimbabwe where the respondent admitted it held items of property. Some of the equipment was kept at the employees’ addresses identified. The identification of the equipment and its location was sufficient for an application of this nature.

The Submissions

Mr Mapuranga for the applicant submitted that the requirements of an application of this nature as set out in Stanmarker Mining (Private) Limited v Metallon Corporation Limited, had been satisfied. In that matter, the factors to be satisfied in an application of this nature were set out as follows: a prima facie cause of action against the defendant; that the defendant is a peregrinus and that the defendant is within the area of jurisdiction of the court or that the property in which the defendant has a beneficial interest is within that area.

Counsel submitted that the above requirements had been satisfied herein as it was common cause that the respondent ran a bureau office in Harare, it owned equipment valued at around US$100.000.00, which was kept at the bureau office as well as two other identified addresses. That equipment could be easily attached by the Sheriff. It was further submitted that the application ought to succeed as the respondent had made certain admissions and had not specifically denied certain averments that were made.

Mr Mapuranga further submitted that there was no requirement in the law that the applicant provides the specific location of the property and its value. According to counsel, the issues concerning the modalities of how execution would be made by the sheriff if an order was granted were not relevant at this stage of the proceedings.

Lastly, Mr Mapuranga moved for an amendment to para 2 of the draft order so that it identified the property that the applicant wanted attached, which was made up of laptops, computers, printers, cameras and photographic equipment belonging to the respondent.

In response, Mr Manjengwa for the respondent submitted that the question to be decided was whether the respondent had any property capable of attachment firmly established in Zimbabwe to confirm jurisdiction. Counsel submitted that the equipment owned by the respondent and used by its employees was not kept in Zimbabwe. The employees moved around with the equipment as they went about their duties. The court had to eliminate the possibility of the equipment being elsewhere.  That possibility meant that the equipment was not firmly established in the jurisdiction of the court.

Mr Manjengwa further submitted that the transitory nature of the equipment militated against granting the order sought. This was because the court had to be certain that the property was within the jurisdiction of the court at the time of granting the order. Reference was made to the case of Chirongoma v TDG Logistics and Another, wherein that point was made. While admitting that the value of the property was not material, counsel still argued that the applicant had made generic statements regarding the exact number of laptops and cameras. There was therefore a risk that the court would grant an order that was a brutum fulmen.

The Analysis

The attachment of the property of a peregrinus serves the dual purpose of founding or confirming the jurisdiction of the court as well as satisfying the judgment which may be granted by the court if the claim against the peregrinus succeeds. The exercise of jurisdiction by this court, founded on the attachment of property is set out in s 15 of the High Court Act which provides as follows:

“15 Exercise of jurisdiction founded on or confirmed by arrest or attachment

In any case in which the High Court may exercise jurisdiction founded on or confirmed by the arrest of any person or the attachment of any property, the High Court may permit or direct the issue of process, within such period as the court may specify, for service either in or outside Zimbabwe without ordering such arrest or attachment, if the High Court is satisfied that the person or property concerned is within Zimbabwe and is capable of being arrested or attached, and the jurisdiction of the High Court in the matter shall be founded or confirmed, as the case may be, by the issue of such process.”

Section 15 permits the High Court to exercise jurisdiction founded on the arrest of a person or the attachment of any property, and in doing so it may permit the issuing of process within a stipulated period, for service within or outside Zimbabwe without ordering the actual attachment of such property or the arrest of any person.  But for it to exercise that discretion the court must be satisfied that such person to be arrested or the property to be attached must be within be within Zimbabwe.

In their book, The Civil Practice of the High Courts of South Africa, authors Herbstein and Van Winsen commented on the object of attachment to found jurisdiction as follows:

“Although the object of attachment is generally two-fold, in that it founds or confirms jurisdiction and provides security for the satisfaction of the debt, the attachment will nevertheless be ordered even if the second object cannot be served thereby. It has long been accepted that the fact that the article sought to be attached is of very little value is no reason for refusing the attachment. In Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd the Appellate Division accepted that the practice of the South African courts is to authorise property of a trifling value to be attached, even though the claim far exceeds that value, provided that it has some saleable value.”

In Tembo v PCJ Motorways the court held that an incola applicant seeking an order for attachment of property to found jurisdiction is required to show the following;

a)  that the cause of action arose in this jurisdiction.

b)  that he has a cause of action against the respondent.

c)  that the claim sounds in money.

d)  that property sought to be attached is within the jurisdiction and is capable of attachment.

The court further stated that once these requirements were found to exist, then all that an applicant was required to prove was a prima facie case against the respondent. The Tembo v PCJ Motorways judgment was concerned with an application for the attachment of the respondent’s buses to found jurisdiction. The applicant had sustained injuries in a road traffic accident involving one of the respondent’s buses. The respondent was a foreign registered bus company with no known assets in Zimbabwe. The court declined to grant the order for the attachment of the buses, reasoning that:

“Attachment of vehicles that travel in and out of a jurisdiction poses problems. Before a court issues an order for attachment to found jurisdiction, it must be satisfied that the property sought to be attached is within the jurisdiction and capable of attachment. The difficulty with attaching vehicles that frequent a jurisdiction and are temporarily in and out of the country is that one is never certain of their whereabouts. For a court to grant an order for attachment to found jurisdiction it must be satisfied that there is property which is capable of attachment at any one time. The property must be firmly located in this jurisdiction.”

In the judgment, the court cited with approval, the views of the court in Clan Transport (Pvt) Ltd v Government of the Republic of Mozambique, where the applicant sought an order for the attachment of the respondent’s vehicles ad confirmandam jurisdictionem following a road traffic accident involving the applicant’s and the respondent’s vehicles. The applicant’s vehicle was extensively damaged in the accident, and the applicant intended to institute an action claiming costs for the repairing of its vehicle. The respondent had no known assets in this jurisdiction.  The applicant wanted an order for the attachment of ‘any vehicle, belonging to respondent and found within Zimbabwe…’. In para 11 of its founding affidavit, the applicant had made the following averments:

“11. Respondent has assets temporarily and from time to time within Zimbabwe in the form of vehicles travelling from Mozambique to various parts of Zimbabwe on respondent’s affairs, largely to collect goods purchased by respondent…”

The court declined to grant an order for the attachment of the respondent’s vehicles, observing that it was unclear at what point the respondent’s vehicles would be within the jurisdiction of the court for purposes of attaching them.

The idea that pervades in most of the authorities, which reflects on the common law position is that the property that an applicant wants attached must be ascertainable and found in the jurisdiction of the court. The Tembo v PCJ Motorways and the Clan Transport cases involved foreign cross border vehicles that frequented the country and exited on transportation business. These cases can be distinguished from the present case on the basis that the respondent herein confirmed that it operates a bureau office which is situated at the Rainbow Towers.  A bureau office is responsible for collecting or distributing news or information in the context of the respondent’s services.

The respondent did not deny that it keeps laptops and cameras in the bureau office, although at the time of service of the present application, its employees were not at room 102 Rainbow Towers. The nature of the equipment that the applicant wants attached is the same type of equipment that would be used in a bureau office.

To succeed in an application of this nature, the applicant is also required to establish that prima facie a cause of action exists against the respondent. Commenting on the requirement of a prima facie case, authors Herbstein and Van Winsen, had this to say:

“The requirement of a prima facie cause of action is satisfied when there is evidence which, if accepted, will disclose a cause of action. The mere fact that the evidence is contradicted will not disentitle the applicant to the remedy, even when the probabilities are against him or her. …”

Attached to the applicant’s founding affidavit was a draft of the summons and declaration summarising the claim that the applicant intends to institute against the respondent. The alleged defamatory material was carried in Episode 2 of the documentary series whose production and publication the respondent admitted. The applicant averred that the material published in the documentary was understood to mean that the applicant: was responsible for corrupt, unlawful and unethical gold sales by a gold smuggler identified as Pattni; derived some benefit from the illegal activities by being paid US$3, 000.00 per month; undertook such illegal activities in his capacity as the Head of Gold Operations at Fidelity Printers and Refiners; was the signing authority for the provision of licenses which were then used for the illegal purchase, selling and smuggling of gold.

The applicant avers that the respondent’s conduct of publishing the said material, in the context of the television documentary series, was wrongful and defamatory in that the material was intended to mean and was understood by viewers to mean that: he was a corrupt person who abused his official position to facilitate the smuggling of gold; he was a major player in gold smuggling and money laundering; he was dishonest and part of the gold mafia that was smuggling gold out of the country.

The respondent did not deny the production and publication of the documentary, which the applicant contends was defamatory. The respondent denied that the material was defamatory of the applicant. It goes a step further to allege that the references to the applicant in the publication were based on the truth, and the respondent had taken steps to verify the correctness of the allegations. It further averred that the publication was for the benefit of the public. In determining the application, this court is not required to interrogate the merits or demerits of the intended claim or the defence. It is only required to determine whether on the face of it the publication is potentially defamatory. The court’s view is that the alleged defamatory statements which are attributed to the respondent, and which the respondent does not dispute for reasons stated above establish a prima facie cause of action. If those statements turn up to be false, then the court will have to deal with the propriety of the defences available to the respondent.

The parties must be allowed to have their day in court for the determination of their competing rights and the testing of the veracity of the allegations made against the applicant. An application of this nature undoubtedly requires the court to balance the competing rights of the parties herein. Section 69(3) of the Constitution guarantees the citizen’s right of access to the courts for the resolution of their disputes. Section 61 on the other hand engrains freedom of expression and freedom of the media. That freedom is however qualified by 61(5)(c), which excludes the malicious injury to a person’s reputation or dignity.  In my view, to give effect to these rights, the court must be more inclined to yield to a position that allows the parties to approach the courts for the full ventilation of their competing rights. Doing otherwise, would leave an aggrieved party without a remedy.

The respondent is an internationally acclaimed news organisation with a global viewership. One would have expected that given the significance of the documentary, and the respondent’s global stature, the respondent would have readily submitted to the jurisdiction of this court even in the absence of an attachment of property to found or confirm the jurisdiction of the court. It is also in the public interest that the truthfulness of the allegations carried in the documentary, which attracted public interest, be tested in court of law. See Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd.

The court has already noted that what differentiates the present matter from the authorities referred to by the respondent’s counsel is the presence of the respondent’s bureau office in the country. It has not been denied that the bureau office houses the equipment that the applicant wants attached to confirm the jurisdiction of the court. It was also not disputed that the equipment in the bureau office belongs to the respondent. The court would confine the attachment order to the equipment at the respondent’s bureau office and not the equipment that may be at the residences of its employees, since it was not denied that they may have equipment of their own. No connection was established between the equipment at the employees’ residences, if any, and the respondent. In his answering affidavit, the applicant did not dispute the respondent’s averment that it sublets room 102 at the Rainbow Towers.

Resultantly it is ordered that:

The application for an attachment to confirm the jurisdiction of this Court in the intended suit between the applicant and the respondent be and is hereby granted.

The Sheriff of Zimbabwe be and is hereby authorised to attach and take into his possession the respondent’s laptops, computers, printers, cameras and photographic equipment at the respondent’s bureau offices at the Rainbow Towers Hotel, Harare.

The costs of this application shall be costs in the cause in the action to be instituted by the applicant against the respondent.

Gill, Godlonton & Gerrans, applicant’s legal practitioners

Wintertons, respondent’s legal practitioners