The Lusaka High Court has confirmed an order of injunction earlier granted to businessman Harry Valden Findlay, restraining NDC leader Chishimba Kambwili from defaming him through drug dealing accusations.
High Court judge Elita Mwikisa observed that if freedom of speech was left unrestricted, it might have serious consequences on the liberties of the individual in a democratic dispensation.
She added that if Kambwili was not restrained, Findlay may suffer irreparable injury or serious mischief.
In this matter, Findlay has sued Kambwili in the Lusaka High Court for accusing him of being a drug dealer and using the Presidential jet to traffic drugs.
Findlay, who is seeking among other claims, damages for libel and slander and an order of injunction to restrain Kambwili by himself, servants or agents from uttering any defamatory remarks concerning him, lamented that his reputation and character as a renowned businessman had been damaged as he had been labeled a drug dealer and trafficker.
On September 25 this year, judge Mwikisa granted Findlay an ex-parte order of injunction restraining Kambwili from uttering any defamatory remarks against him.
And in her ruling on Findlay’s application for an order of interim injunction delivered in chambers recently, justice Mwikisa confirmed the order of interim injunction earlier granted to Findlay and awarded him costs to be taxed in default of agreement.
She said she was of the belief that if Kambwili was not restrained, Findlay may suffer irreparable injury or serious mischief due to 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. It is against this background that I am inclined to believe that if the defendant (Kambwili) is not restrained, the plaintiff (Findlay) 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,” Judge Mwikisa said.
And on Kambwili’s argument that the purported words complained of were a fair comment on issues that were already in public domain, judge Mwikisa agreed with Findlay’s lawyer that there was no evidence on record to show the basis upon which the fair comment was made in relation to the words complained about.
She added that she was of the considered view that the defences relied upon by Kambwili had no realistic prospect of success at trial.
Justice Mwikisa said she was satisfied that Findlay had shown that Kambwili’s defence of justification and fair comment had failed because Kambwili had not adduced reasonable evidence to that effect.
She found that Findlay would suffer irreparable injury than Kambwili, if Kambwili was not restrained because no reasonable member of society would like to associate or do business with a person labeled as a drug dealer and trafficker.
“I find that the balance of inconvenience therefore, lies with the plaintiff because no reasonable member of society would like to associate or do business with a person labeled as a drug dealer and trafficker. The plaintiff therefore, will suffer irreparable injury than the defendant herein, if the defendant is not restrained and if the uncertainty of whether the utterances were defamatory is resolved in favour of the plaintiff after the determination of the main matter,” ruled justice Mwikisa.
She granted leave to appeal.