CONJWAYO & ORS v MNANGAGWA & ORS 1992 (2) ZLR 171 (H)

Flynote

Civil procedure — pending civil case — court has no power to order dismissal of pending civil case if litigant in contempt — can only refuse to hear case until litigant has purged his contempt

Criminal law — contempt of court — civil action and criminal appeal case pending — whether real risk that judges hearing these cases would be prejudiced by what had been done — litigant in pending civil case entitled to interview the witnesses of the other side and actions in so doing were not calculated to prejudice the outcome of trial

Delict — injuria — invasion of privacy — requirements of action for injuria and limitations on right to protection

Intellectual property — copyright — who holds copyright in film made about a person in absence of contract with that person

Headnote

The four applicants were all being held in a maximum security prison. Three of them had been convicted in the High Court of murder and had been sentenced to death. Their appeals against their convictions and sentence had yet to be heard by the Supreme Court. The third respondent had previously instituted civil proceedings against three of these men. He was suing them for damages for injuries he had received in a car bomb explosion. The hearing of this civil action was still pending. A film company from the United Kingdom had been commissioned by a television company in the United Kingdom to make a film about South African destabilisation in Southern Africa. The third respondent was to be in this film. The company sought and obtained permission from first respondent, the Minister of Justice and the second respondent, the Director of Prisons to interview the four applicants in prison and to film the interview. When this filming was done the questioner at the interview was the third respondent. After saying that he was no longer interested in pursuing his civil claim against the applicants, he interviewed each of the men about their role in South Africa's destabilisation campaign. This questioning was filmed by a film crew who had been allowed to set up their equipment in the prison interview room. The men answered some questions but declined to answer certain questions. Short extracts of the responses to questions at this filmed interview were incorporated into the film made by the film company, which film was later screened on British television.

The four men brought an action in the High Court in which they sought a declaratory order against the three respondents that

• their actions constituted contempt of court as they would prejudice both the pending criminal appeal and the pending civil action being brought by the third respondent;
• their actions constituted a wrongful invasion of their privacy; and
• copyright in the filmed interview belonged to the applicants and that the film must be handed over to them.

They also sought - dismissal of the third respondent's pending civil action against the applicants on the grounds either of his contempt or that he had abandoned his claim;

• an interdict restraining the respondents from committing any further invasions of the applicants' privacy and from screening the film containing the interviews with the applicants.

There was a dispute as to whether the applicants were put under pressure to participate in the interview. The applicants claimed that they were not told in advance about this interview. They were simply taken into the interview room at the prison and were confronted by the third respondent. They did not freely participate in this interview because they were under constraint and had also been given false promises of release. The respondents maintained that the men had been free to refuse to participate in the interview and that no pressure had been placed upon them to participate.

Held, that the onus was on the applicants to prove that they were entitled to the various remedies sought by them.

Held, regarding the contempt of court issue, that where the basis of the contempt is an alleged prejudice to a pending criminal or civil case caused by publication of material, it must be proved that the person who published the material intended to prejudice the pending case and that his action created a real risk that that the outcome of the case would be prejudiced in the sense that it would create the risk that there would not be a fair trial of the case. No contempt of court was committed in the present case because:

1. There was no real risk that a fair trial of the criminal appeal would be prejudiced as the appeal would be decided on the basis of the transcript of the evidence in the High Court trial.

2. There was no real risk that the screening of the film would prejudice the fair hearing of the civil case. Even if perchance the High Court judge who was to hear that case happened to have seen the television film in question it would be highly unlikely that he would be so influenced by this that this would jeopardise the chances of a fair hearing. Judges can certainly be credited with being more critical than to accept and to be influenced by whatever they see or read.

3. The third respondent had not committed a contempt in relation to the civil case because a litigant in civil proceedings is entitled to interview the other side's witnesses in order to gather evidence in support of his claim, although on ethical grounds he should notify the other side of his intention to do so. Even if the witnesses were interviewed in order to obtain evidence in support of the third respondent's impending civil claim against the applicants, which was denied by the third respondent, the third respondent did no more than what the law allows him to do and thus his actions were not calculated to prejudice the outcome of the trial.

4. The first and second respondents had no interest in the impending cases and therefore could not have been seeking to prejudice the outcome of those cases.

5. If the subjects who were filmed had expressly or impliedly consented to the publication of this film, there could be no contempt but this issue was in dispute and it could not be settled on the papers placed before the court.

Held, as regards the application to have the impending civil claim by the third respondent dismissed, that it had not been proved that he had abandoned his claim and, even if the third respondent's actions did amount to contempt of court, the court had no power to order the dismissal of the action on the basis of his contempt; the only power it had was to order that the contempt be purged by the litigant before his claim was heard.

Held, as regards the issue of invasion of privacy, that an invasion of privacy can constitute an injuria for which damages can be sought. In order to constitute an injuria the act complained of must be intentional, wrongful and a violation of a right. Although persons have a right to the protection of their privacy, this right is subject to limitations and the court must decide whether the particular intrusion upon privacy was contrary to contemporary boni mores. As the applicants had been catapulted into the public limelight and had clearly participated in the interviews no injuria was established in the circumstances. As there was no injuria, the respondents could not be interdicted from committing further invasions of privacy.

Held, as regards the copyright issue, that, unless there is a contract between the subject and the photographer, copyright lies with the photographer. In addition, as the film was already outside the country, the court could not make an order which would simply be a brutum fulmen.