LUSAKA High Court Judge Sharon Newa has dismissed a case in which the National Pension Scheme Authority (NAPSA) had sued ADD leader Charles Milupi and News Diggers Media Limited over a publication that allegedly accused it of corruption and mismanagement of members’ funds.
Justice Newa said in her ruling that a corporate body cannot commit the offence of corruption, although its officers can and therefore, no cause of action had been revealed on which NAPSA could attach liability on Milupi and News Diggers.
She therefore dismissed the action for want of a cause of action with costs to News Diggers, to be taxed in default of agreement.
In this matter, NAPSA had sued ADD president Charles Milupi and News Diggers Media Limited, seeking damages for libel and malicious falsehood over a publication that allegedly accused it of corruption and mismanagement of members’ funds.
The said publication was published on June 23, last year and was headlined ‘The NAPSA, AVIC deal stinks of corruption’.
But ruling on the application by News Diggers for an order to dismiss the action for not disclosing the cause of action and that NAPSA, being a public body was not entitled to sue for defamation on allegations of corruption, justice Newa stated that it was not in contention that NAPSA was a body corporate.
She stated while a corporation may sue for defamation, it cannot do so where the claim relates to corruption as body corporate cannot commit corruption, in line with the Anti-Corruption Act No 3 of 2012, as well as the authorities relied on.
Justice Newa further stated that even if the torts of defamation and malicious falsehood were separate torts with different elements that needed to be established to prove them, the fact that the claims relating to defamation and malicious falsehood in this matter were anchored on allegations of corruption by NAPSA, a body corporate, the action cannot be sustained.
“This is because a body corporate cannot commit the offence of corruption, although its officers can. That being the position, no cause of action has been revealed to which NAPSA can attach liability on the defendants. In line with Order 18/19/2 of the Rules of the Supreme Court of England, 1999, which provides that if a statement of claim does not disclose a cause of action, an opportunity to amend may be given, unless there is reason to suppose that the case cannot be improved by amendment, and as the case cannot be improved by amendment, as a body corporate cannot commit corruption, the second ground of the application equally succeeds,” she said.
Judge Newa therefore dismissed the case and awarded costs to News Diggers.
“The action is accordingly dismissed for want of a cause of action with costs to the second defendant, to be taxed in default of agreement,” she ruled.
Judge Newa however, granted leave to appeal.
News Diggers had asked the court to dismiss the matter for not disclosing the cause of action, and further argued that NAPSA being a public body was not entitled to sue for defamation on allegations of corruption.
“The plaintiff being a public body and performing government functions is not entitled to bringing any action for defamation or malicious falsehood on allegations of corruption,” it stated.
But NAPSA, through its senior procurement manager Justine Mwiinga, argued that like any other corporation, NAPSA may sue to protect its corporate image and reputation.
He stated that NAPSA was independent of government and performed all acts and decisions that any other company may by law undertake or perform.
Mwiinga stated that as a demonstration that the company makes and operates independently, it joined several other corporate entities in assisting government in its efforts to contain the Covid-19 pandemic when, on March 23, 2020, it donated K1,000,000 to government as part of its corporate social responsibility.
However, News Diggers, through its News Editor Mukosha Funga argued that the National Pension Scheme policy falls under the National Social Security Policy set by government through the Ministry of Labour and Social Security.
The media house insisted that NAPSA could not sue for defamation because it was a government institution.
Funga submitted that the donation of K1,000,000 worth of supplies by NAPSA to the Ministry of Health to help in the mitigation and containment of COVID-19 did not make the authority independent of government.
She added that by way of example, the Zambia Revenue Authority (ZRA) equally made a donation of K1,000,000 to the Ministry of Health and the same did not make ZRA independent of government.
“As regards the claim for malicious falsehoods, and particularly in Zambia, our submission is that the plaintiff may sue on false and malicious accusations relating to issues other than corruption. Corruption is statutorily defined in Zambia and the statute does not provide for commission of corruption by corporate and public bodies,” stated News Diggers.
In June, 2019, News Diggers! reported that a NAPSA evaluation committee for the development of River View Park project in Lusaka recommended the awarding of a construction tender to AVIC at the “corrected bid sum of US $25,707,782.26” against the contractor’s offer to do the work at the bid sum of US $21.6 million.
The committee stated that the extra US $4 million, which was added to the bidding price, was meant to cater for contingencies and cost escalation as well as Value Added Tax (VAT).
The development triggered public anxiety, forcing ADD president Charles Milupi to demand answers from NAPSA, arguing that it was not for the evaluation committee to put in contingencies as contingencies were included by contractors in the bidding cost.
In their initial reaction, NAPSA, through its head of corporate affairs Cephas Sinyangwe said any aggrieved party questioning the awarding of the controversial tender to AVIC International for the construction of the Twin Palm River View Park should appeal using the laid down procedure.