Corruption scandal: High Court rebuffs Sattar on injunction against Malawi newspapers

By Staff Writer:

High Court Judge Mike Tembo declined to grant an injunction to business mogul Zuneth Sattar and his partner Ashok Nair against Nation Publications Limited and Blantyre Newspapers Limited, restraining them “from publishing any story to do with or touching on the search and seizure that the Anti-Corruption Bureau executed on the claimants as the said matter is still under investigations and in court and may potentially defame the claimants to unestablished levels”.

In his determination, Justice Tembo said on November 18, 2021 in Blantyre that the facts as gathered from the sworn statements of counsel for the claimants show that on October 5, 2021, the Anti-Corruption Bureau (ACB) officers went to the claimants’ offices at Ocean industries with a warrant of access, search and seizure which was obtained before the Chief Resident Magistrate Court at Lilongwe.

“The warrant was meant to access evidence that had to do with Xelite Stripes Ltd, Xavier and Mallachite FZE Companies, the allegation being that the claimants obtained contracts from the Malawi Police Service and the Malawi Defence Force using these companies by bribing politically exposed persons.

“The 1st claimant is also being investigated in respect of the same allegations in the United Kingdom where he currently resides. Counsel made an application on behalf of the claimants before the Chief Resident Magistrate Court to have the search and seizure warrant set aside but that application was dismissed and the Court gave the Anti-Corruption Bureau authority to deal with the seized items as part of their investigations in a manner it deems fit,” said the Judge.

To date, noted Justice Tembo, the ACB has not finalized its investigations as to whether the alleged offence was indeed committed by the claimants or not. Meanwhile, he said, the claimants have been getting incessant phone calls from journalists employed by the defendants asking for details regarding the contracts in issue and whether indeed the claimants did bribe politically exposed persons to be awarded the contracts in issue.

“The claimants assert that it is obvious that these journalists want this information in order for them to write stories to be published in their respective papers, being Nation Newspaper, Weekend Nation and Nation for the 1st defendant, and Daily Times, Malawi News and Sunday Times for the 2st defendant.

“The claimants asserted that the publication of any story touching on the allegations at hand before the Anti-Corruption Bureau has completed its investigations may be prejudicial to these investigations and in fact end up being defamatory of the claimants.

“And that should the defendants be allowed to proceed with their intention to public about the allegations levelled against the claimants, the claimants stand to lose their personal and business reputation should it turn out that they are innocent of the allegations,” reads the judgement in part.

Justice Tembo said it is against this background that the claimants sought the order of injunction and make the usual undertaking to pay damages should it turn out that the injunction is wrongly sought and granted.   

The claimants made submissions on the application at hand which this Court has considered in arriving at its decision herein.

 “This Court is aware of the applicable law on interlocutory injunctions as submitted by the claimants. The court will grant an interim injunction where the claimant discloses a good arguable claim to the right he seeks to protect. The court will not try to determine the issues on sworn statements but it will be enough if the claimant shows that there is a serious question to be tried,” he explained.

“The result is that the court is required to investigate the merits to a limited extent only. All that needs to be shown is that the claimant’s cause of action has substance and reality. Beyond that, it does not matter if the claimant’s chance of winning is 90 per cent or 20 percent.

“If the claimant has shown that he has a good arguable claim and that there is a serious question for trial this Court, then next has to consider the question whether damages would be an adequate remedy on the claimant’s claim,” said the Justice, citing various court authorities and precedents,” he said.

Press freedom

Justice Tembo said the Constitution places a premium on freedom of speech and freedom of the press. As such this Court will not, willy-nilly, gag free speech or freedom of the press on the allegation of defamation.

“This Court wishes to stress that an interim injunction can only be granted in this matter against the alleged potentially defamatory matter if this Court is satisfied that a plea of justification must fail.

“In the present case, there is no allegation that the defendants want to make false publications against the claimants. From the facts, all the defendants’ journalists have done is to seek to get a comment from the claimants about the ongoing investigation by the Anti-Corruption Bureau,” he said.

Justice Tembo said the fears of the claimants on these facts do not meet the threshold for granting an injunction that would gag free speech and a free press.

“The public interest in the reporting by the press on the matters herein outweigh the personal interests of the claimants that they seek to protect by injunction at this stage. At this stage, there is no allegation of falsehood at all as against the defendants to warrant the curtailing of free speech and press freedom.

“At this point in time, it is impossible to say that the defendants would be unable to prove at trial that what they want to report on in this matter is true or justified. The plea of justification cannot be dispelled at this point in time,” ruled the Judge.

“Having considered this application, this Court does not think there is a basis for curtailing the public interest to be served by the media reporting on the subject matter of this application. In the foregoing circumstances, the application for injunction made by the claimants without notice to the defendants is accordingly declined,” the Judge concluded.

Sattar arrested in UK

Last month, Britain’s anti-corruption authorities, alongside the ACB in Malawi arrested Malawian-born businessman Zuneth Sattar, alongside several associates in the United Kingdom and Malawi, in a joint operation that further saw several homes and offices, both in Britain and Malawi, raided.

The arrests started on Tuesday morning, following a three-year-long investigation by Britain’s National Crimes Agency (NCA) into Sattar’s suspected corrupt dealings with Malawi government.

The investigation focuses on the businessman’s dealings with both the Peter Mutharika administration and the current Lazarus Chakwera administration, with senior officials for both tenures facing possible legal peril, according to the Investigative Platform.

Under the UK anti-corruption laws, UK citizens and residents can be prosecuted for corruption abroad and the agency had previously frozen Sattar’s UK bank accounts which resulted in a court battle.

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