PTC v MODUS PUBLICATIONS (PVT) LTD 1997 (2) ZLR 492 (S)

Flynote

Delict — actio injuriarum — defamation — plaintiff- statutory corporation — Posts and Telecommunications Corporation — whether can sue for c defamation in its corporate name

Practice and procedure -locus stands — statutory corporation — whether has locus standi to sue for defamation

Headnote

The Posts and Telecommunications Corporation, a statutory corporation, sought to sue a newspaper for defamation. The trial court held that as the corporation is an organ of the State, it did not have locus standi to sue for defamation. Dismissing the appeal:

Hold, that although trading and non-trading corporations can normally sue for defamation, for policy reasons corporations that are part of the governance of the country are not entitled to sue for defamation. The main policy reasons for denying to State organs the right to sue for defamation are these:

• (1) State bodies should be open to public criticism. As part of the general right of freedom of expression, the public should have the right freely to criticise the activities of these State bodies.

• (2) The State should not be able to stifle or silence criticism by mounting defamation actions against its critics using State funds, derived from its subjects, to finance such actions. The State's normal remedy in such a case is a political one and not by way of litigation. Such State bodies are not, however, wholly deprived of a remedy in the event of scurrilous attacks upon their reputations. They have the right to bring actions for economic loss resulting from injurious falsehood, in our law referred to as malicious making of false statements. Unlike an action for defamation, where the onus lies on the maker of the defamatory statement to prove the truth of his assertions, with malicious falsehood, the onus of proof lies on the body complaining of the loss to prove the falsity of the statement. As this matter is adequately covered by the common law. it is not, therefore, necessary to rely on the constitutional provisions relating to freedom of expression.

Held, further, it is not wise or desirable to attempt an exhaustive definition of the category of artificial persons which should be denied the right to sue for defamation because they are State organs, because concepts and techniques of government are developing and changing 'Me law in this regard has to be developed on an incremental basis. However some of the criteria that are to be taken into account are:

• whether the statutory body has any discretion of its own and, if it does, what degree of control the executive exercises over that discretion;

• whether the property vested in the corporation is held by it for and on behalf of, the Government;

• whether the corporation has any financial autonomy;

• whether the functions of the corporation are government functions;

• whether, if the body is not a statutory trading corporation, it performs governmental functions either at a local or national level; and

• whether, if the body concerned is, at least largely or effectively, a monopoly providing what are generally regarded as essential services traditionally provided by government, it would be contrary to public policy to muzzle criticism of it.

Held, further, that applying these criteria to the Posts and Telecommunications Corporation, the Corporation is an organ of the State and thus has no locus standi in judicio to sue in this matter.