Africa-Press – Mauritius. In the Q&A below, Lex clarifies the legal aspects of civil or criminal defamation, its prosecution and defence in our Courts. The claims filed by the PM against Mr Roshi Bhadain, and the counter-claims of the latter may lead to the PM being called to the box for cross-examination by the defence team on the Angus Road affair.
It is also known that the ICAC has been investigating this case for a while now and its stand regarding that inquiry could be revealing if not determinant. By LEX * What are defamation cases?
Defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and the same being published and/or spoken deliberately, intentionally, knowingly, with an ulterior motive and malice.
It’s defined in the Criminal Code as follows: (1) Any imputation or allegation of a fact prejudicial to the honour, character or reputation of the person to whom such fact is imputed or alleged is a defamation.
(2) Any imputation or allegation concerning the honour, character or reputation of a deceased person is a defamation where it is calculated to throw discredit on or be hurtful to the feelings of the family or relatives of the deceased.
* Has a time limit been set in our statute books to file a defamation case? Our law of defamation is based on article 1382 of the Civil Code and is a personal action.
The limitation period for a personal action is 10 years under the Civil Code. But who would wait that long to sue for defamation? * Who can file a defamation case?
The person who feels that statements made misrepresent facts and contain false allegations and are made with the intention to denigrate and affect his reputation.
In 2008 the Supreme Courtsaid in a case “Where an allegation or imputation of fact which amounts to a “faute” has caused prejudice to someone, that person may claim damages from the person liable for that “faute” – … It has been constantly held by our Courts that a defamatory statement was always presumed to have been made with malice («intention de nuire»).
* What is the standard of proof in a defamation case?
The standard of proof in a defamation case is what is known as the civil burden, and it is proof on a balance of probabilities as opposed to the standard in a criminal case which is one of proof beyond a reasonable doubt.
* Is there a distinction between libel and defamation?
In a case decided in 1976 the Supreme Court stated: The English law of libel is not the law of Mauritius, but guidance may be sought from the English authorities and case-law on the subject where the principles applicable to any question arising in the action are the same in the French and English systems…
* Is defamation a civil or criminal case? Section 206 of the Criminal Code provides for the offence of outrageagainst public and religious morality and reads as follows:
(1) (a) Any person who – (i) by words, exclamations or threats used in a public place or meeting; (ii) by any writing, newspaper, pamphlet or other printed matter, or by any drawing, engraving, picture, emblem or image, sold or distributed or put up for sale or exhibited in any public place or meeting; or (iii) by any placard or handbill exhibited for public inspection, commits any outrage against any religion legally established, or against good morals or against public and religious morality (‘la morale publique et religieuse’), shall on conviction be liable to imprisonment for a term not exceeding one year and to a fine not exceeding 10,000 rupees.
As regards criminal defamation, Section 288 of the Criminal Code reads: Any person who, by any of the means specified in section 206, is guilty of defamation shall be liable to imprisonment for a term not exceeding one year and a fine not exceeding 5,000 rupees.
So, if a person commits one of the acts as mentioned in section 206 against an individual, he would be guilty of defamation. * How do you prove malice in defamation?
To show actual malice, plaintiffs must demonstrate [that the defendant] either knew his statement was false or subjectively entertained serious doubt about its truthfulness.
The question is not whether a reasonably prudent man would have published, or would have investigated before publishing the statement. * Is an insult defamation?
Insults and epithets are usually not considered to be defamatory because they are emotional outbursts and the intent of the person is to show displeasure or dislike.
* What are possible defences in a defamation case?
A fair and bona fide comment or criticism of the conduct of a public servant in the discharge of his public functions or respecting his character so far as his character appears in that conduct and no further is a defence.
A fair and bona fide comment or criticism of the conduct of any person touching any public question, and respecting his character so far as his character appears in that conduct is also a defence.
Proving then truth of the allegation is also a defence. * Is it worth suing for defamation? Yes, to the extent that the person’s tarnished reputation is vindicated as it were.
On top of that he gets monetary compensation for the harm caused to him and for the distress, physical and emotional he went through. * Are defamation cases hard to win in Mauritian courts?
When it comes to lawsuits, a defamation case can be very challenging. For example, unless you hire an attorney who works on a pro bono basis, this type of lawsuit can be costly.
The reason for this is that to win, there is a lot of fact-finding involved, which often requires the assistance of an expert. * Can a person go to jail for defamation? It is a possibility, but it is rare. Most of the time a person is fined.
* Hon Pravind Jugnauth has lodged a defamation case against his former Cabinet and MSM party colleague, Roshi Bhadain, for allegations regarding the Angus Road case and levelled by the latter more than twelve months back.
He has sued for damages of Rs 50 million. What if Roshi Bhadain raises the issue of public interest for the comments he had made regarding this case? It has been held by the Supreme Court as far back as 1933 that it is a good defence to show that the imputations or allegations complained of are made in good faith and for the public good.
* What’s could be the consequences of Pravind Jugnauth’s case on parliamentary questions relating to the Angus Road issue addressed to the Prime Minister?
With the current climate in parliament, no question will be allowed on that issue on the ground that there is case pending before the court. * Does a case become sub judice as soon as a case is lodged or is it when it’s under trial or being considered by a judge or court?
Views differ. Some believe a case becomes sub judice as soon an action is filed. Others believe that the case is sub judice when it is active in the sense that trial has begun.
However, it is prudent not to comment on a case once it has been filed in court. * What about comments and opinion articles that the press would want to raise or publish in their columns or to be aired on private radios regarding the Angus Road affair?
The case is still being investigated and is not before court. So, articles may be written on it and comments made. * The ICAC has apparently started an investigation into this case since quite some time.
Will this defamation case also have an impact on its investigation? This a very interesting case. In fact, when someone sues for defamation, he avers his good reputation.
Mr Roshi Bhadain will be perfectly entitled to cross examine Pravind Jugnauth on the Angus Road matter and even summon the Director General of ICAC to give evidence on whether the case has been filed or is ongoing. Mr Bhadain will try to prove the truth of his allegations and invoke public interest.
ICAC will have to come to the rescue of the Prime Minister, as it has done before, to come and say that there is no impropriety on the part of Pravind Jugnauth as regards the Angus Road matter and thus buttress the case of defamation.
ICAC will have a key role in the case. * Does the quantum of the damages sought have an impact on the time that it will take for the case to be heard and settled?
Each court has a jurisdiction in regard to the amount of damages claimed. If a person wants a quick decision, he could have claimed lower damages that would allow him to a lower court.
* When is judgement likely to be rendered in this particular case? The case will take the time it will. Look at what is happening to the electoral petitions.