Court name
Supreme Court of Zimbabwe
Case number
SC 3 of 2003
Civil Appeal 28 of 2002

Matabeleland Zambezi Water Trust v Zimbabwe Newspapers Ltd and Another (28/02) (SC 3 of 2003, Civil Appeal 28 of 2002) [2003] ZWSC 3 (19 January 2003);

Law report citations
Media neutral citation
[2003] ZWSC 3













REPORTABLE
(3)


Judgment
No. SC 3/03


Civil
Appeal No. 28/02








MATABELELAND
ZAMBEZI WATER TRUST v





(1)
ZIMBABWE NEWSPAPERS (1980) LIMITED


(2) THE
EDITOR OF THE CHRONICLE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & ZIYAMBI JA


HARARE,
JANUARY 20, 2003








R
M Fitches
,
for the appellant





R
Moyo
,
for the respondents





CHEDA
JA: This appeal is against the refusal of the High Court to grant
the following order –






IT IS ORDERED THAT



1. The respondents be and are
hereby ordered and directed to supply in writing to the applicant’s
legal practitioners, within seven
days of the date of issue of this
order, the following –







(a) all the names, (and)
positions held within the applicant, of employees, officials and
trustees of the applicant who are alleged
to have acted in a
fraudulent or dishonourable or negligent manner, or any other manner
which is inconsistent with the aims and objectives
of the applicant,
and which conduct is the subject of the articles and editorials set
out in Annexures ‘A’ to ‘F’, inclusive,
annexed to this
application;







(b) the dates and places and the
description of alleged acts of misconduct set out in Annexures ‘A’
to ‘F’ inclusive, and
the names of the alleged perpetrators of
the aforesaid alleged misconduct.






2. In the event that the two
respondents fail to comply with paragraph 1 above, the first and
second respondents shall be held
to be in contempt of court and pay a
fine of $10 000.00 a day until they comply with the provisions
of paragraph 1 above.







3. That the two respondents pay
the costs of this application.





After
hearing submissions by the appellant’s counsel, we dismissed the
appeal with costs, without hearing the respondents’ counsel,
and
said our reasons would follow. These are the reasons.






The above
order was sought by the appellant following a series of articles in
the newspaper called “
The
Chronicle
”,
which is edited by the second respondent.






The first story was published on
27 October 1999 with the heading “MZWT loses thousands to
fraudulent claims”. The first
part of the story read:





“Tens
of thousands of dollars have been allegedly looted from the
Matabeleland Zambezi Water Trust by officials who make fraudulent
claims particularly after foreign trips, it was learnt recently.”





This
was then followed by more details on the story, which covered two
half columns on the front page and a quarter of the centre
page.





The
following day, 28 October 1999, a further article appeared on
the front page headed “MZWT Board to hold urgent meeting
on
claims”. On p 4 of that paper there was a Comment Column
headed “MZWT should probe claims”. The comment urged the
appellant to investigate the matter by carrying out an audit.





On
29 October 1999 the paper carried another story headed “MZWT
urged to tick off contempt officials”. The first part
of the
story read:





“The
Matabeleland Zambezi Water Trust has been called upon to purge itself
of officials suspected of pilfering the Trust’s funds.”





When
the matter came to the High Court the respondents opposed the
application. The editor of the newspaper, Mr Stephen Mpofu,
the
second respondent, who made an affidavit on behalf of the two
respondents, pointed out that the articles were directed, not at
the
Matabeleland Zambezi Water Trust (“the Trust”) itself, but at the
officials and employees of the Trust, and that none of
the articles
ever pointed at the Trust as being corrupt. He pointed out that the
report of the then Mayor of Bulawayo was also
to the same effect.
The second respondent denied any defamation of the Trust itself and
said it had never been alleged that the
Trust was corrupt and
therefore its reputation had never been damaged.





The
second respondent said there was no duty on the respondents to do the
applicant’s work for it, as it could investigate for
itself and
that the appellant seemed to be on some fishing expedition. He said
it would not be in the public interest or the interest
of justice for
him to be ordered to divulge the information sought.





When
its application was dismissed, the appellant appealed on the
following grounds, which I deal with in turn –






1. THE
LEARNED JUDGE IN THE COURT
A QUO
ERRED IN LAW IN FINDING THAT SECTON 20(1) OF THE CONSTITUTION OF
ZIMBABWE DID NOT CREATE A RIGHT OF ACCESS TO INFORMATION






This
is not a constitutional case. The above section falls under
Chapter III, which is the Declaration of Rights and is headed
“Protection of freedom of expression”. The section deals with
freedom of expression and freedom to receive or impart ideas
without
interference. In short, where there is a right to receive certain
information, it is that right which should not be interfered
with.
The one who claims under the section should first of all establish
such right, then show that such right is being interfered
with.





In
this case that right has not been established. The section does
not, in my view, cover a situation where one can approach and
demand
information from another party.





The
right to demand information can arise but under different
circumstances, which I will deal with as it falls under the next
ground
of appeal.






2. THE
LEARNED JUDGE ERRED IN FACT IN FINDING THAT THERE WAS NO POINT IN
GRANTING THE RELIEF SOUGHT BY THE APPELLANT AGAINST THE RESPONDENTS
BECAUSE THE APPELLANT HAD NO CAUSE OF ACTION AGAINST THE SAID
EMPLOYEES, WHEREAS THE APPELLANT HAD MADE IT CLEAR THAT AS A PUBLIC
BODY IT NEEDED TO INVESTIGATE THE ALLEGATIONS OF SLEAZE MADE AGAINST
IT AND THEREAFTER IF NECESSARY TAKE WHATEVER ACTION WAS NECESSARY





Firstly,
the appellant is demanding from the respondents information which it
has in its records. The appellant would know which
of its officials
have travelled outside the country, and it should be easy to trace
even their travel claims.





Secondly,
it is the appellant which indicated to the respondents that it did
not intend to sue, thus raising the question as to
what the
information was required for.





Thirdly,
it was pointed out that there was no allegation against the Trust,
but against its officials and employees. The appellant
has not
indicated what cause of action it has, but has not ruled out any
action.





Fourthly,
even under circumstances where a party intends to sue, it cannot
start by demanding information in order to found a claim
against its
opponent. The court cannot order the other party to provide
information that will open it to legal action by the party
asking for
information. The court can only make an order for disclosure where
action has been commenced and the suing party needs
the information
during the pleadings under the Rules on requests for further
particulars. It is also permissible to seek disclosure
of
information but the authorities seem to limit this to cases where the
party actually intends to take action. A number of South African
authorities deal with this point –





In
Stuart and Ismael
1947 AD 328, it was stated in the headnote that:





“The
power of a Court to order a person in possession of the necessary
information to disclose the names of persons for the purposes
of an
action which the applicant intends to bring exists when justice would
be defeated without such a disclosure and is not confined
to cases
where information is required of the names of members of an
unincorporated body.”





The
decision of the court which had granted an order under the above
circumstances was upheld.





In
Priday v Thos. Cook &
Son (SA) Ltd
1952 (4)
SA 761, VAN WINSEN J stated at p 764:





“I
was, however, unable to find any authority for the proposition that
one person is entitled to obtain the production for inspection
of the
books and documents of another, and in which he has no proprietary
interest, in circumstances where litigation is neither
pending
between such persons nor even certain to eventuate.”





I
consider that the principle of disclosure is the same in the above
case as in the case before this Court.





In
Singer Manufacturing
Company v Kilov and Ano

1959 (3) SA 215 the case is summed up in the headnote which reads:





“A
person who
bona
fide
wishes to sue a
partnership but does not know the names of the partnership with
certainty may request any known partner or other
person who is known
to be connected with the business, to reveal the names. If the
partner or other person refuses, the Court will
order him to give the
names and to pay the costs occasioned by his unwarranted refusal.”





See
also
Cerebos Food
Corporation v Diverse Foods SA (Pty) Ltd and Ano

1984 (4) SA 149.





All
these authorities have two things in common, that is, the person must
be in need of, and does not have, the information, and
the
information must be required for purposes of bringing an action
against a certain party. The information cannot be sought on
a
fishing expedition.





In
this case the appellant does not intend to bring any action against
anyone. It has clearly said so. In addition, to that,
it has
already argued that when an audit was carried out no wrongdoing was
established against its officials or employees.





The
question that arises is “What is the information required for”?
The appellant does not intend to bring any action against
its
officials or employees. While it submits that it needs the
information in order to deal with its officials or employees, I
do
not consider that the principles that compel such information to be
given cover administrative actions.





It
is not in the interest of justice to order disclosure in this case,
since there is also the hidden danger that publication of the
names
of the persons concerned would open the respondents to an action for
defamation by the persons who will have been named who
would also
rely on the statement by the appellant that no wrongdoing was
established against them.





It
does not assist the appellant at this stage to suggest that it might
consider suing. It should not have taken a position so
prematurely
if the possibility of suing still existed. It is not clear how the
appellant can turn against its own finding that
there was no
wrongdoing by its officials.






3. THE
LEARNED JUDGE ERRED IN LAW IN NOT FINDING THAT BECAUSE –



(A) THE ALLEGATIONS MADE
AGAINST THE APPELLANT BY THE RESPONDENTS WERE DEFAMATORY (AND)



(B) THE APPELLANT, PRIMA
FACIE
, HAD A
CAUSE OF ACTION AGAINST BOTH RESPONDENTS AND/OR ITS EMPLOYEES OR
OFFICIALS


THE
RESPONDENTS HAD A COMMON LAW DUTY TO DISCLOSE THE INFORMATION THE
APPELLANT SOUGHT





Part
of this ground of appeal has been covered in ground two above, save
to add that the respondents merely blew the whistle about
the
activities of the appellant. There is no defamation of the
appellant. If any action for defamation was to be raised, it can
only be by the officials and employees concerned, that is, if they
were named. There is no common law duty to disclose as claimed
by
the appellant. Reporting dishonest activities of the appellant’s
officials is different from “taking part in the
tortious
conduct” of another party. Accordingly, the duty to assist the
appellant does not arise at all.






4. THE
LEARNED JUDGE ERRED IN FACT IN FINDING THAT THE DISCLOSURE SOUGHT WAS
FOR THE PURPOSES OF GRATIFICATION OF CURIOSITY AND NOT FOR
THE
PURPOSES OF VINDICATING RIGHTS






I
have already pointed out that the appellant said it had found no
wrongdoing on the part of its officials and employees and did
not
intend to sue. The learned judge was therefore entitled to come to
that conclusion in the absence of any other reason for wanting
the
information. The appellant cannot be wanting to discipline its
employees when it has already told us it found no wrongdoing
on their
part.






5. THE
LEARNED JUDGE ERRED IN FACT IN FINDING THAT THE APPELLANT DID NOT
BELIEVE THAT ITS RIGHTS WERE VIOLATED BY EMPLOYEES






It
is not clear here which employees are referred to. If it is the
respondents’ employees, I have already dealt with the fact
that the
appellant was not defamed. If it is the appellant’s employees,
the appellant has already openly defended them against
any
wrongdoing. It cannot again be heard to say they violated its
rights.






6. THE
LEARNED JUDGE ERRED IN FACT IN FINDING THAT THE APPELLANT COULD
OBTAIN THE INFORMATION IT SOUGHT FROM THE RESPONDENTS THROUGH
ITS OWN
INTERNAL INVESTIGATIONS






In
fact, the appellant has obtained the information from its records.
That is why it is able to say there was no wrongdoing on
the part of
its officials or employees. This is strengthened by an article
published by the respondents, wherein a director of
the appellant, Mr
Eric Bloch, responded to the paper’s stories. The article is
headed “MZWT funds safe in financial houses”.
He stated as
follows in part of that article:





“It
must be stressed moreover that no expenditure has been incurred by
the Company other than fees paid to the Registrar of Companies,
printing of stationery, and a limited amount on promotion of share
subscriptions.





All
monies received are invested in building society accounts and
Treasury Bills funding investment into economic ventures. None
of
the officials of the Trust have any access to the funds.”





In
another part of the same article he says:





“While
I have no knowledge as to the substance or otherwise of the
allegations against the Trust and its officials, they in no manner
pertain to the Company and shareholders’ funds are wholly secure.”





To
sum up, I begin by pointing out that at the hearing of the appeal the
appellant could not even explain what the cause of action
was founded
on when asked.





When
the information was sought, there was no intention to sue the
respondents. According to the appellant’s own report following
an
investigation or audit, there was no wrongdoing on the part of its
officials and employees. Trust funds were invested and were
safe.
The officials of the Trust have no access to the funds. The
question remains unanswered as to what the information is sought
for.





It
was argued that the appellant has a right to the information sought.
The constitutional provision referred to under the Declaration
of
Rights is concerned with the interference with the right to receive
information. It is based on human rights. Even if one
argues that
it applies to the appellant in this case, in order to bring a claim
the appellant must first establish the right to receive
such
information, then prove that such right is being interfered with.
In my view, this means that information is supposed to flow
from a
certain source and the respondents are interfering with that flow of
information to the appellant.





In
this case, that right to the information has not been established.





Refusing
to disclose certain facts or information cannot be held to be
interference.





On
the other hand, it has been argued by the respondents that the
appellant is asking for information which it has in its records.

That is why the appellant has been able to respond and say there is
no wrongdoing on the part of its officials and employees.





The
appellant now suggests that it may sue for defamation. Who is to be
sued for defamation? If the appellant said its officials
defamed it
but it is not aware of their identity, and the appellant needs that
information in order to institute an action, then
the basis of the
request may be understood. But that is not the case here. If the
appellant wishes to sue the respondents it
can proceed to do so
without asking for the names of its employees, and the identity of
the employees would then be sought under
our rules of discovery,
depending on the need to do so. The respondents cannot be asked to
make a disclosure that will make them
open to an action by the
officials and employees since the appellant has already said they did
no wrong.





It
was conceded by counsel for the appellant that the respondents had
not involved themselves in some “
tortious
conduct” against the appellant. So no duty arises to give
information on that basis.





Reference
was made to the case of
Shamuyarira
v Zimbabwe Newspapers

1994 (1) ZLR 445. That case deals with issues that arose during
litigation. It is distinguishable from this case where, according
to the appellant, litigation was not intended at the time of the
court application. I referred earlier to South African
authorities
which dealt with the issue where litigation is intended.





Even
the Zimbabwean authorities of
Shamuyarira’s
case
supra,
and
Irvine v
Serfontein
, Irvine
v de Villiers

1979 RLR 273 deal with these points because there was litigation.





The
fact that the appellant has not taken a clear position whether it
intends to sue or not supports the argument that it is on
a “fishing
expedition”. The appellant cannot even state that it intends to
bring an action, for what wrong, and against which
party.





I
am satisfied that the appellant has not shown that it is owed a duty
of disclosure by the respondents.





Accordingly,
the decision to dismiss its application was upheld, and the appeal
was dismissed with costs.














CHIDYAUSIKU
CJ: I agree.














ZIYAMBI
JA: I agree.














Manase
& Manase
,
appellant's legal practitioners


Coghlan
& Welsh
,
respondents' legal practitioners