Mbabane: Despite maintaining that the alleged defamatory article written about the former Observer Group of Newspapers MD was not negligent the Supreme Court has ruled in the latters’ favour.
In 2018, the Tibiyo TakaNgwane newspaper published an article under the headline, “EX MD ALPHEOUS NXUMALO IS HIV POSITIVE” and sub-heading “Ex – MD Alpheous Nxumalo declares: “I am HIV positive.”
The newspaper had based its publication on Nxumalo’s video clip testimony in a South African church on a public Television Channel – The Last Hour – Miracle TV, where it was alleged that the former MD had declared his HIV status. However, the clip was believed by the Supreme Court to be referring to the former MD’s wife and not him, contrary to what was published by the Observer.
The Supreme Court, presided by Justices Dr Benjamin Josses Odoki, S.P. Dlamini and Jacobus Annandale, sought to determine whether or not the publication was defamatory, or it was false, negligent, and maliciously published or was unlawful. It also sought to find if whether the article was reasonable or was in the public interest, or whether the article violated the appellant’s right to privacy. Lastly, the court wanted to know if the publication was protected by the right to freedom of the press and if the appellant suffered any damage.
Arguing the first ground of appeal, Nxumalo enumerated how the statements were defamatory of him saying it lowered him in the estimation of the public as it unequivocally described and categorized him as being chronically ill and infected with a chronic illness that has unfortunately been socially stigmatized and associated with sexual promiscuity, infidelity and a failure to practice safe sex and the victims to which are associated with shame and stigma and are marginalized by society as a result.He said as a Christian Evangelist and Preacher, the article has therefore further aroused Ridicule, obloquy, contempt, and has caused him to be shunned, pitied and avoided. The article further imputed very low moral character upon him.
Ruling against the court a quo
In its judgment, the Supreme Court in the court a quo said they had no doubt that the Court had beenburdened, and lacking was the question of whether or not in terms of the law as pronounced therein, the plaintiff was defamed or not.
“It appears to me that both the respondents and the Court a quo misinterpreted or misapprehended the statements made by the appellant during the live broadcast or video clip,” said Justice Odoki, adding that the respondents singled out the appellant as the one who was HIV positive, and that they claimed that he had confessed to the pastor or before the congregation regarding his HIV status.
“I have already stated in this judgment that a careful reading of the live broadcast or video clip as a whole does not support the respondents’ claim that the appellant was referring to himself and not to his wife,” said the Honorable Judge. He said the pastor, who was present in the congregation readily understood the appellant to be referring to his wife, and any reasonable person would have understood the statement to mean so.
The Judge acknowledged that it was also submitted by the respondents that the publication was reasonable because they took steps to verify the correctness of the statement in the video clip from the appellant who did not deny the statement that he was HIV positive. “In my view the response given by the appellant –that matters relating to sickness are private and not for public consumption was reasonable,” said the judge, while adding that the respondent should have taken more caution in publishing the statement since it was highly sensitive and private.
The Judge also considered the respondent’s breach of the EswatiniJournalists Code of Ethics, particularly article 19 which stipulates in part: “It is recognized that the actions of the media have real consequences on the people’s lives. This is more so in the area of reporting on HIV and AIDS where harmful reporting may result in negative implications for the people concerned and promote stigma and discrimination. Reporting HIV and AIDS is a special area that requires separate guidelines for reporting on the epidemic. This guide aims at implementing the Swaziland National Association of Journalists Code of Ethics as well as in-house codes and provides a standard of reporting HIV and AIDS.”
The said Code of Ethics in Article 19.2 also recognizes the right to privacy and confidentiality, and emphasises that in the context of reporting on HIV and AIDS, the HIV status of an individual is private unless indicated otherwise.Article 19.3, of the Code states that the name or photograph of an individual with HIV should not be published without the person’s consent.
“In considering the test of reasonableness or unreasonableness of the publication, it is also necessary to take into account the professional ethics governing the publication of such statements as there is a need to balance the media’s rights to inform the public on matters of public interest and the need to protect the individual’s right to dignity and privacy,” stated the judge, adding that in this case the respondents failed to strike the right balance by publishing the article.
“For the reasons I have already given, this ground must succeed with the result that the appeal must be allowed,” said the Judge, stating that as the Court a quo did not assess the quantum of damages, the Supreme Court was not in a position to consider the issue which the appellant could not address in his heads of arguments.He said, accordingly, the case must be remitted to the Court aquo to assess the quantum of damages and that the appeal is allowed with the appellant awarded costs.
“The decision of Court a quois set aside and substituted with an order that the plaintiff’s claim succeeds.The case is remitted back to the Court a quo to hear and determine the quantum of damages to be awarded to the appellant,” ruled the judge.