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High Court orders Kambwili to pay Findlay costs for defamation

THE Lusaka High Court has sustained the injunction granted to Lusaka businessman Valden Findlay restraining NDC leader Chishimba Kambwili from defaming him.

High Court judge Elita Mwikisa in her order of injunction ruled that freedom of speech if left unrestricted might have damaging consequences on the liberties of an individual in a democratic dispensation.

In this matter, Findlay has sued Kambwili for defamation of character for alleging that he was a drug dealer, taking advantage of the presidential trips and the presidential plane to courier drugs.

The businessman is seeking damages for libel and slander and an injunction to restrain Kambwili from publishing the said defamatory words or any similar words.

Findlay had urged the court to confirm the ex-parte order granted to him restraining Kambwili and his agents from defaming him as the latter had failed to support his defence of fair comment.

He said the NDC leader had lamentably failed to produce any public documents, which he relied upon when he accused him of being a drug Lord.

Judge Mwikisa on September 25 this year restrained Kambwili from uttering defamatory words against Findlay through an ex-parte injunction, granted to the complainant.

When the matter came up for inter-partes hearing, Findlay argued that a defendant seeking to rely on the right to free speech must ensure that what he says about the plaintiff is supported by material evidence and ensure that no wrong act is done in the process of issuing statements against him.

Findlay urged the court to confirm the ex-parte order of injunction because Kambwili, having admitted to the words complained of as being fair comment, had failed to support his defence of fair comment.

“The defendant, as admitted in his affidavit in opposition, has lamentably failed to produce even a single thread of evidence to substantiate this reliance on the defenses of justification and fair comment. The defendant has failed to produce public documents that he relied upon to say the words he uttered against the plaintiff on September 9,” Findlay said.

But Kambwili asked the court to dismiss the ex-parte injunction against him, insisting that he was merely stating facts that were already in public domain, which could not amount to defamation.

Kambwili said the words complained of were fair comment from his reasonable observations.

He said many queries had arisen in the public domain as regards the relationship between the President and Findlay.
He said the purported statements were made as a request to the President to give an explanation about the relationship.

The NDC leader said that it was true in substance and fact that Findlay was once detained by law enforcing agencies for drug related offences during the reign of first Republican president Dr Kenneth Kaunda.

“It is true in substance and fact that transcripts stemming from the cross-examination of Vicky Goswami, who is currently in detention in the United States of America where he and the notorious Akasha brothers were extradited from Kenya by the DEA to face charges for various drug related crimes, vehicle theft and murder stated that the plaintiff was part of the syndicate of drug dealers in Southern Africa,” Kambwili said.
“It is true in Substance and in fact that the President of Zambia and Findlay have been seen together during official state functions and have also been seen together on both local and international trips.”

In his response, Findlay said despite being written to on September 12 by his advocates, Kambwili did not bother to respond or justify his statements but went on to issue further injurious statements against him.

“The behavior of the defendant in this sequence of events demonstrates bad faith on his part and warrants this court granting an injunction to restrain him from causing further injury to the plaintiff until a final determination of this matter,” he said.

In confirming the order, judge Mwikisa said if Kambwili was not restrained, Findlay might suffer irreparable injury or serious mischief due Kambwili’s utterances.

“If freedom of speech is left unfettered, it may have dire consequences on the liberties of the individual in a democratic dispensation where the rule of law is respected by its citizenry or general populace,” judge Mwikisa said.

“It is against this background that I am inclined to believe that if the defendant is not restrained, the plaintiff may suffer irreparable injury or serious mischief, due to the utterances made by the defendant which may ultimately have a propensity of damaging the plaintiff’s reputation and standing in society as well as his business interests.”

She indicated that she was satisfied that Findlay had proved that Kambwili’s defense of justification and fair comment had failed because he did not adduce reasonable evidence.

Justice Mwikisa ordered that Findlay would suffer irreparable injury if Kambwili was not restrained because no reasonable member of society would likely associate or do business with a person labeled as a drug dealer and trafficker.

She also directed the NDC leader to pay costs to Findlay.

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