MUSAKWA v RUZARIO 1997 (2) ZLR 533 (H)

Flynote

Delict — actio injuriarum — defamation — privilege — qualified privilege — communication to permanent secretary of ministry — complaint of misconduct by magistrate — defence of qualified privilege raised — when necessary for defendant to establish truth of statement as well

Headnote

In an affidavit to the Secretary of Justice and the Commissioner of Police the defendant alleged that the plaintiff, a magistrate, had solicited a bribe. In an action for defamation, the defendant raised the defence of qualified privilege.

Held, that where the defence of qualified privilege is raised it is not necessary to establish that the defamatory statement is true. Dicta in the case of Ruzario v Modus Publications (Pvt) Ltd HH-111-97 suggesting the contrary are not a correct reflection of the law. The degree of truth in the defamatory statement is only relevant to the issue of whether the bounds of privilege have been exceeded or the statement was motivated by malice.

Held, further, that the statement had been published on a privileged occasion. The defendant had a duty to publish the statement, or a legitimate interest in doing so, and the recipients had a similar duty or interest to receive the information.

Held, further, that where the defendant has established that the statement was made on a privileged occasion, the onus is then on the plaintiff to prove that the defence of privilege does not apply because the statement was motivated by malice or the bounds of the privilege have been exceeded.

Held, further, that the plaintiff had failed to establish that the defendant had abused the privilege and had acted from malice. The defendant had acted on the basis of a genuine suspicion and had communicated his suspicion to the appropriate authorities.

Claim dismissed.