Media reports of unlawful home ‘invasion’ by private investigators amount to defamation – Eswatini supreme court

18 June 2021 · Carmel Rickard

The Supreme Court of Eswatini has delivered judgment in a most extraordinary defamation case. It concerns the raid on a private home by operatives of a firm of private investigators. They broke into the house where they found a couple asleep, naked, in bed. Then they took distasteful photographs and video as the two people tried desperately to cover themselves. The firm said that they had been hired by the then minister of justice, who was, at the time, involved in a dispute with the man of the couple. But the media that published the first story about the ‘illegal raid’ on the house approached the story as though the couple had been caught doing something unlawful – which they were not. The supreme court has now confirmed the defamation finding of the high court, but has reduced the damages that must be paid.

Read judgment

It is difficult to decide what is the most shocking element of this story. Each new paragraph seems to show another, more alarming, piece of the picture.

It concerns the raid of a private home, in the middle of the night, during October 2014. Five people, employed by a firm that carries out private investigations, broke in and took photographs and video material of the couple there who had been asleep, naked, in bed.

The man is an MP; the woman a member of the Master’s office at the Supreme Court.

‘Unlawful invasion’

Someone told the Times of Swaziland about what the supreme court would later call an ‘unlawful invasion’, and the paper then carried the story with stark photos and headlines including this: ‘MP, Judicial officer caught in bed’.

The next, truly shocking, element of the story is that the former minister of justice, a political opponent of the MP photographed in such a humiliating position, was said by the private investigators to have hired the firm to ‘track the two’.

One of the photographs was particularly distasteful. According to the Supreme Court, it was a ‘shocking picture’ of the woman involved ‘cowering under a blanket’.

‘Raid’

The two people who were targeted by the ‘raid’ subsequently brought a defamation claim against the newspaper and the journalist who had written the story.

They, in turn, attempted to persuade the court that the story had actually been intended to show how bad the firm of investigators had been, and to expose the ‘reprehensible behaviour’ of those who carried out the ‘raid’, allegedly on the instructions of the minister. But the court rejected this version.

The couple concerned told the high court of the ‘inhuman, traumatic and degrading treatment’ they experienced at the hands of the intruders who broke into the woman’s house and took pictures of them against their will. There was no doubt that the media involved knew that the ‘evidence’ given them by the company that carried out the raid was ‘unlawfully obtained’, said the court.

Anguish

Despite the fact that the two were committing no crime, the publication used words in the articles that suggested the contrary. The paper described the couple as having been ‘caught’ and ‘busted’ in bed, words that implied ‘that this was some form of unlawful activity’.

The high court dismissed the defence put up by the media, found the couple had been defamed and duly awarded damages. Here’s the next shocking fact of the story, however: the high court awarded the man twice the amount of damages awarded to the woman.

On this aspect the supreme court was adamant. Judge Rob Cloete wrote for a unanimous court that he failed to understand why the man was given double the award of the woman. ‘Surely there has to be equity and equality in matters of this nature. In fact, from a psychological point of view, [she] would have suffered a greater anguish given that she is unmarried, has a right to full privacy in her own home and would have been traumatized by the photograph of her cowering under a blanket. I intend to rectify that misconception in the award ….’

‘Unreasonably high’

The newspaper and journalist involved appealed against the high court finding that they had defamed the couple, and judgment in that appeal was delivered last month.

The three supreme court judges who considered the appeal, agreed that the couple had been defamed, and that a damages award had to be made. But they also agreed that the award was too high: the high court had ordered the man to be paid E350 000 and the woman E175 000

Criticising litigants who approached the courts with demands for unreasonably high damages, the supreme court re-examined the award amount in this case.

Distressing

The court said that among the factors that made the case against the newspaper worse was the fact that there was apparently no attempt to apologise to the couple. The publication had a wide readership and the information it published was unlawfully obtained. It was thus the ‘duty’ of the paper not to publish the information ‘and specially the extremely distressing photographs’.

Publication had not been ‘reasonable’ and the court dismissed the attempt to argue that the stories had been intended to show the ‘reprehensible actions’ of the investigation firm.

Publishing the story had in fact been in breach of the newspaper’s own code of ethics and the articles were ‘not in the public interest’. Moreover, the woman was subjected to a horrific experience and the photograph of her cowering would have had a last effect on her.

Careers

In mitigation, on the other hand, the careers of neither of the couple seem to have suffered as a result of the publicity, ‘although the mental anguish would certainly remain’.

Having considered all these and other factors, the court decided that the couple should be awarded E150 000 each.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.