Heuff v Mbewe (ZR 111 (SC)) [1965] ZMSUB 2 (17 August 1965)

HEUFF v MBEWE (1965) ZR 111 (SC) SUBORDINATE COURT EVANS SRM 17th August 1965 Flynote and Headnote [1] Civil procedure - Privilege - State privilege for official documents sought by one party: See [7]. [2] Criminal procedure - Privilege - State privilege for official documents sought by one party: See [7]. [3] Evidence - Privilege - State privilege for official documents in case in which private party is suing the State: In a case in which a private party is suing the State a stronger showing of injury to the public interest is necessary to uphold the privilege than in a case in which the State is not a party. [4] Evidence - Privilege - State privilege for official documents in case in which State has no direct interest - burden of proof: If the judge is in doubt as to whether a State interest jus�fies the withholding of documents, he must uphold the State's objec�on. [5] Evidence - Privilege - State privilege for official documents in case in which State has no direct interest - in general: A document need not be produced by the State, either on discovery or at trial, if the head of a Government department personally examines the documents and cer�fies in good faith and on reasonable grounds (which he must state) that disclosure of the document is contrary to public policy. [6] Evidence - Privilege - State privilege for official documents - limited publica�on does not destroy privilege: A limited publica�on of a document (i.e., not to the public at large but rather to a few people concerned with the public issue at stake) does not destroy the State's claim of privilege. [7] Evidence - Privilege - State privilege - procedure for determining whether privilege applies: If State privilege is claimed for documents sought to be produced, the court can call for the documents and inspect them itself in order to verify the State's reasons for wishing them to be withheld. [8] Evidence - Privilege - State privilege - 'public interest' defined: The State's need for complete and candid informa�on in order to prevent or setle trade disputes is the type of 'public interest' that can support State privilege for documents. [9] Evidence - Privilege - State privilege for official documents - secondary evidence inadmissible if privilege upheld: If a claim of State privilege is upheld, no secondary evidence as to the contents of documents is admissible. 1965 ZR p112 EVANS SRM Cases cited: (1) Robinson v State of South Australia (No. 2) [1931] AC 704; [1931] All ER 333. (2) Duncan v Cammell Laird and Co. Ltd [1942] AC 624; [1942] 1 All ER 587. (3) Ellis v Home Office [1953] 2 QB 135; [1953] 2 All ER 149. (4) Broome v Broome (Edmundson Cited) [1955] 1 All ER 201; 99 SJ 114. (5) Grosvenor Hotel, London, Re (No. 2) [1965] Ch. 1210; [1964] 3 All ER 354. (6) Wednesbury Corporation v Ministry of Housing and Local Government [1965] 1 All ER 186; [1965] 1 WLR 261. (7) Beaton v Skene (1860) 5 H.& N 838; 2 LJ Ex. 430. (8) Smith v East India Co. (1841) 1 Ph. 50; 11 LJ Ch. 71. (9) Wadeer v East India Co. (1856) 8 Dc. GM & G 182. (10) Hennessy v Wright (1888) 21 QBD 509; 57 LJQB 530. (11) Home v Bentinck (Lord) (1820) 2 Brod.& Bing. 130; (1820) Digest (Repl.) 387, 4162. Cunningham for the prosecutor A O R Mitchley, for the accused Skinner, Attorney-General, for the State Judgment Evans SRM: In this case, N J Mbewe (hereina�er called 'the accused') is being privately prosecuted for libel, contrary to sec�on 168 of the Penal Code, by Roeland Herman Heuff (hereina�er called 'the prosecutor'). The alleged defamatory mater was published in a leter (hereina�er referred to as 'the leter') writen by the accused in his capacity as Ac�ng General Secretary of the Na�onal Union of Commercial and Industrial Workers (hereina�er called 'the Union') on the 10th July this year to the Permanent Secretary to the Ministry of Labour and Social Development and copied to the General Manager' Chilanga, the Lusaka Area Secretary of the Union, and to the Union's Branch Secretary at Chilanga. The prosecutor served a subpoena duces tecum upon the said Permanent Secretary, requiring him to produce in court the leter and certain other correspondence. The subpoena, I am told, was drawn in wide terms, and it caused the Minister of Labour and Social Development (hereina�er called 'the Minister') to file an affidavit claiming State privilege and therefore objec�ng to the produc�on of the leter and other documents listed in the schedules to his affidavit. The Atorney-General appeared for the State, which, he stressed, has no other interest in these proceedings. Messrs C. J. I. Cunningham and A. O. R Mitchley of Counsel appeared for the prosecutor and accused respec�vely. Mr Mitchley did not, of course, take any part on the ques�on of State privilege. I am sa�sfied, upon the authori�es, that the Minister's objec�on has been taken in proper form, and Mr Cunningham so conceded. 1965 ZR p113 EVANS SRM [1] I am informed that this is the first occasion on which State privilege has been claimed in a court in Zambia, and I think therefore that it will be convenient first to deal with the relevant law, for the undisputed exposi�on of which I am indebted to the learned Atorney-General. For ease of reference, I now list the relevant authori�es, most of which were quoted to me, and I shall refer to them later by shortened names: Robinson v State of South Australia (No. 2) [1931] All ER 333; Duncan v Cammell Laird and Co. Ltd [1942] 1 All ER 587; Ellis v Home Office [1953] 2 All ER 149; Broome v Broome (Edmundson cited) [1955] 1 All ER 201; Re Grosvenor Hotel, London (No. 2) [1964] 3 All ER 354; Wednesbury Corporation and Others v Ministry of Housing and Local Government [1965] 1 All ER 186. I conclude from the authori�es that the law is, subject to the effect of the recent Grosvenor Hotel case, correctly stated in paragraph 73 on pages 53 - 4 of Volume 12 of the 3rd Edi�on of Halsbury's Laws of England, from which the following is an extract: ' A document need not be produced for inspec�on, either on discovery or at the trial, when objec�on is taken by a minister, who is the poli�cal head of a government department, that disclosure of the document is contrary to public policy or detrimental to the public interest or service. The privilege may apply to documents in the possession of a private individual as well as to documents in the possession of the Crown. Privilege can atach irrespec�ve of where a document originates or in whose custody it reposes provided that it has properly either emanated from or come into possession of some servant or agent of the Crown. The privilege is that of the Crown and can only be claimed and waived by the authority of the minister and not by the authority of the person to whom the document relates. Secondary evidence may not be given of documents for which this privilege is established.... [A]nd the opinion has been expressed that the same principle must apply to the exclusion of verbal evidence which, if given, would jeopardise the interest of the community.' That is a brief statement of the law, and I now amplify it, principally by quo�ng from the leading cases. I am sa�sfied that the law rela�ng to State privilege in Zambia is the same as that in Scotland and in countries of the Commonwealth, with the law of which (in this regard) English law has recently been brought into line by the recent cases, in the Court of Appeal, of the Grosvenor Hotel and Wednesbury Corporation. In the Duncan v Cammell Laird case [1942] 1 All ER 587, in the House of Lords, Viscount Simon, L. C., said at page 588: 1965 ZR p114 EVANS SRM ' This ques�on is of high cons�tu�onal importance, for it involves a claim by the execu�ve to restrict the material which might otherwise be available for the tribunal which is trying the case. This material one party, at least, to the li�ga�on may desire in his own interest to make available, and without it, in some cases, equal jus�ce may be prejudiced.' The ques�on for determina�on by me is whether the State can and should be compelled to produce in evidence in this court, in a criminal case between third par�es and in which the State is said to have no interest, documents which have come into the Minister's hands in the discharge his official du�es. It was held in Duncan v Cammell Laird that an objec�on to the produc�on of documents duly taken by the head of a government department should be treated by the court as conclusive, but, at any rate since Robinson's case in the Privy Council in 1931, the posi�on has been otherwise in Commonwealth countries, and I am sa�sfied that, in Zambia, the law is that the objec�on of a Minister should not be conclusive, and that the posi�on is as stated by Lord Denning, M. R, in the Grosvenor Hotel case [1964] 3 All ER 354, at pages 361 and 362: ' If the court should be of opinion that the objec�on is not taken in good faith, or that there are no reasonable grounds for thinking that the produc�on of the documents would be injurious to the public interest, the court can override the objec�on and order produc�on. [2] [3] [4] It can, if it thinks fit, call for the documents and inspect them itself so as to see whether there are reasonable grounds for withholding them . . It is rare indeed for the court to override the Minister's objec�on, but it has the ul�mate power, in the interests of jus�ce, to do so.' In the present case, the Minister is objec�ng to produc�on of a class of documents (which includes the leter), in respect of which the judges in the Grosvenor Hotel case said that the Minister should describe the nature of the class and the reason why the documents should not be disclosed. In the Wednesbury Corporation case [1965] 1 All ER 186, in which the same judges confirmed the views they had expressed in the Grosvenor Hotel case, Lord Denning said, at page 190: ' We have had all the arguments over again, and I stand by all that I said in Re Grosvenor Hotel, London (No. 2). ... I repeat that, in a case where a Minister claims privilege for a class of documents, he must jus�fy his objec�on with reasons. He should describe the nature of the class and the reason why the documents should not be disclosed, so that the court itself can see whether this claim is well taken or not. The very descrip�on of the documents in the class may itself suffice, as, for instance, confiden�al reports on officers in the Army. There it is obvious that candour is necessary and that the documents should not be disclosed; but if it be not obvious, then reasons should be given. The Minister should consider every class of documents on its merits, and only withhold them when he is sa�sfied that candour can only be secured by complete confidence.' 1965 ZR p115 EVANS SRM It has repeatedly been said by the judges in the decided cases that the court will treat with the greatest respect any affidavit in proper form in which it is claimed on behalf of the Execu�ve that a document or class of documents ought to be withheld from produc�on and that, if it is said that the produc�on of a document is detrimental to the public service, then it is a very strong step for the court to overrule that statement. This was emphasised by Salmon, LJ, in the Grosvenor Hotel case regarding privilege ataching to communica�ons to a Minister, in par�cular to communica�ons made under statutory obliga�on. An applica�on to the Minister to appoint a conciliator under sec�on 6 of the Industrial Concilia�on Ordinance (Cap. 26) is not, I think, strictly a communica�on made to him by virtue of a statutory obliga�on, but it is akin to it because the said sec�on prescribes the statutory procedure for the appointment of a conciliator. The court's task here is to weigh in the balance two compe�ng interests: on the one side, the public interest, averred by the Minister, in the proper func�oning of the public service; on the other side the interests of jus�ce as between the par�es in this case. This is no light task. I refer to further quota�ons from which I derive some help. On page 594 of the report of the Duncan v Cammell Laird case [1942] 1 All ER 587, Viscount Simon quoted the following words from the judgment of Pollock, CB, in Beaton v Skene (1860) 5 E. & N 838, at 854: 'The administra�on of jus�ce is only a part of the general conduct of the affairs of any state or na�on, and we think is (with respect to the produc�on or non-produc�on of a state paper in a court of jus�ce) subordinate to the general welfare of the community'. In the Duncan v Cammell Laird case [1942] 1 All ER 587, Viscount Simon said at page 595: 'A�er all, the public interest is also the interest of every subject of the realm, and while, in these excep�onal cases, the private ci�zen may seem to be denied what is to his immediate advantage, he, like the rest of us, would suffer if the needs of protec�ng the interests of the country as a whole were not ranked as a prior obliga�on'. On the other hand, Morris, LJ, said in Ellis's case [1953] 2 All ER 149, at page 161: '[W]hen considering the public interest and what might be " injurious to the public interest". . . it seems to me that it is to be remembered that one feature and one facet of the public interest is that jus�ce should always be done and should be seen to be done', but I here observe that Ellis was suing the Crown, which is not the posi�on here, and [5] it must surely be more prejudicial to the interests of jus�ce to uphold the privilege, and thereby possibly defeat a plain�ff's claim, when the State is the defendant, than it is when the State is not a party. As I have said, the Minister's affidavit is in proper form, and I am sa�sfied that, in accordance with the authori�es, the Minister has personally examined the relevant documents, given his reasons for objec�ng to produc�on, and has stated the nature of the injury which he considers would be done to the public interest if they were disclosed. His affidavit is on record and I think the material parts of it may be summarised as follows. The leters and correspondence 1965 ZR p116 EVANS SRM listed in the first schedule, including the leter, comprise an applica�on to the Minister and other leters writen in connec�on therewith, to exercise the statutory discre�onary power vested in him by sec�on 6 of the Industrial Concilia�on Ordinance, where a trade dispute exists or is apprehended, to appoint a conciliator. The documents listed in the second and third schedules concern the like subject. For the purposes of these proceedings, Mr Cunningham has indicated that he would be content for the court to uphold the Minister's objec�on in regard to all the listed documents with the excep�on of the leter. The State's conten�on is that the leter forms one of a class of documents which ought to be privileged from produc�on on the grounds of public interest because the communica�ons sent to and from the Minister's Ministry were furnished for his informa�on and guidance in the performance of his du�es under the said Ordinance and because their u�lity in this respect might be prejudiced if they were furnished by persons in the knowledge that informa�on contained in them might be disclosed to other persons or used for the purpose of legal proceedings and because such knowledge would prejudice the candour and completeness of the communica�ons. [6] As its �tle implies, the said Ordinance is concerned with concilia�on, and I agree with the Atorney-General's submission that the Minister should have the fullest, freest and most complete informa�on in order to exercise his statutory func�ons and that they are maters of public interest in that the preven�on or setlement of exis�ng or apprehended trade disputes are maters for the Minister to consider in the interests of the country as a whole. As to prejudice to the candour and completeness of communica�ons being a mater of public interest and cons�tu�ng a ground for protec�ng documents from produc�on, several cases have been decided, for example, Smith v East India Co. (1841) l Ph. 50, and Wadeer v East India Co. (1856) 8 Dc. G. M.& G. 182, both referred to at page 592 of the report of the Duncan v Cammell Laird case [1942] 1 All ER 587, and this reason for non-disclosure was one of the grounds for the Court of Appeal's not overriding the Minister's objec�on in the Grosvenor Hotel case [1964] 3 All ER 354, in which at page 359, Lord Denning said: ' It [the Minister's affidavit] does not tell us why disclosure would be injurious to the public interest. But in the course of the discussion, the Atorney-General gave the reasons why. It was not because the disclosure of any of the contents of the documents would be injurious to the public interest. The Atorney-General told us that if we, the judges, saw the documents, we would not see anything in them which would be injurious to the public interest. The reason for non-disclosure was because in this class of document it was necessary to secure freedom and candour of communica�on. The Minister had to take his decision on the best advice and with the fullest informa�on. He could get it only if those giving advice or informa�on, or receiving it, could rest assured that it was confiden�al and would not be disclosed in any future li�ga�on. Hence all communica�ons with or within the Ministry should be 1965 ZR p117 EVANS SRM privileged from produc�on, even though the disclosure of their contents would not in themselves be injurious to the public interest.' In the same case, Harman, LJ, quoted at page 365 from the judgment of Lord Lyndhurst, L. C., in the Smith v East India Co. case (1841) 1 Ph. 50, these words from page 54: ' Now, it is quite obvious that public policy requires . . . that the most unreserved communica�on should take place between the East India Company and the Board of Control, that it should be subject to no restraint or limita�ons; but it is also quite obvious that if, at the suit of a par�cular individual, those communica�ons should be subject to be produced in a court of jus�ce, the effect of that would be to restrain the freedom of the communica�ons, and to render them more cau�ous, guarded, and reserved.' Again, in the Grosvenor Hotel case, Salmon, LJ, referred to the fact that candour and freedom of expression might be impaired if the relevant documents could be ordered to be produced, and con�nued at page 368: '. . . accordingly their produc�on would be so much to the prejudice of the public interest, that, however per�nent they might be to the issues in an ac�on, they ought not to be produced'. Upon all the authori�es and having perused the Minister's affidavit and heard Counsel, I am sa�sfied that the claim for State privilege is well founded in law, but I have further to consider whether to inspect the documents and uphold the objec�on, properly weighing the compe�ng interests. Mr Cunningham is pressing for produc�on of the leter only, but I do not think that I can regard it in isola�on because I am sa�sfied that it is one of a class of documents to which reference has repeatedly been made. I see no point in inspec�ng the original of the leter, because I have seen the copy of it on the record. It is exhibited to the prosecutor's sworn complaint and, whilst that copy is not evidence, I know its alleged contents and I shall, for the purposes of this ruling, assume that that copy is an accurate one. Certainly, as Mr Cunningham submited, the leter forms the basis for this prosecu�on and, without its proper admission in evidence, it would appear that this prosecu�on might fail. Do the interests of the prosecutor in clearing his name, and the interests of jus�ce in the prosecu�on and possible punishment of the accused for allegedly publishing defamatory mater outweigh the public interest, and the possible injury thereto? This ques�on permits of no ready or easy answer. [7] If I am in doubt, I should uphold the Minister's objec�on. This is, I think, clear from the authori�es. Lord Blanesburgh in Robinson's case [1931] All ER 333, said at page 342: '. . . the judge in giving his decision as to any document will be careful to safeguard the interest of the State, and will not in any case of doubt resolve the doubt against the State without further enquiry from the Minister'. I see no point in any such further inquiry from the Minister in this case, in view of the contents of his affidavit and of the Atorney-General's submissions. 1965 ZR p118 EVANS SRM [8] It is also setled law that, if a claim for State privilege is upheld, then no secondary evidence of the contents of a privileged document is admissible, whether writen or verbal - see the above men�oned quota�on from the 12th Volume of Halsbury's Laws of England; Broome v Broome [1955] 1 All ER 201, at pages 201, 202 and 204; and the words of Devlin, J (as he then was), in Ellis's Case [1953] 2 All ER 149, at page 155: '. . . but no secondary evidence can be given of their contents, so that they must be treated, therefore, as being obliterated from everyone's memory'. Mr Cunningham conceded that, if the original of the leter were 'shut out', then the copies which he has would be equally shut out. [9] The accused sent copies of the leter to three addresses. The Atorney-General contends that this circumstance should not deprive the State of the privilege claimed, and he quoted the following part of the judgment of Viscount Simon in the Duncan v Carmmell Lairdcase [1942] 1 All ER 587, at page 589: ' It was urged before us that, whatever the true principles upon which produc�on of documents should be refused on the ground of public interest, some of these documents could not be validly withheld because they had already been produced before the tribunal of inquiry into the loss of the "The�s", over which Bucknill, J, presided, and because some reference was made to them in his report (Cmd. 6190 of 1940). I am not convinced that in all cases a claim, validly made in other respects, to withhold documents in connec�on with a pending ac�on on the ground of public policy, is defeated by the circumstance that they have been given a limited circula�on at such an inquiry, for special precau�ons may have been taken to avoid public injury, and some por�on of the tribunal's si�ngs may have been secret. Moreover, in point of fact, Bucknill, J, does not set out these documents in extenso, and there must be other entries in them which have not been reproduced. The appeal should be determined without being affected by this special circumstance.' The Atorney-General argues that the privilege is that of the State and that, because the author of a document chooses to send copies to a few other people, the privilege should not be lost. However, in Robinson's case [1931] All ER 333, at page 339, Lord Blanesburgh said: 'Lastly, the privilege, the reason for it being what it is, can hardly be asserted in rela�on to documents the contents of which have already been published'. I have been unable to find any other authority upon this par�cular point, and Lord Blanesburgh's comments are not easy to reconcile with what I have already quoted from Halsbury concerning the privilege ataching irrespec�ve of in whose custody the document is. In this context, 'document' includes, I think, a copy in view of the law that secondary evidence of its contents is inadmissible if it is privileged, and I think Lord Blanesburgh was referring to documents whose contents had been revealed to the public at large as opposed to (as in the present case) a few people, none of whom is disinterested in the apprehended trade dispute because one is the prosecutor's superior at Chilanga and the 1965 ZR p119 EVANS SRM others are Secretaries of the Union. In the result I conclude that the privilege is not destroyed by the limited publica�on of the copies in this case. All the above - men�oned cases were civil ac�ons and, in Duncan v Cammell Laird [1942] 1 All ER 587, Viscount Simon said at page 591: 'The judgment of the House in the present case is limited to civil ac�ons and the prac�ce, as applied in criminal trials where an individual's life or liberty may be at stake, is not necessarily the same'. Quite how the prac�ce in civil ac�ons and criminal trials may differ, I have been unable to ascertain. I believe the principles are the same, but it may be that, in a case where the effect of upholding State privilege would be to deprive an accused person of something essen�al to his defence, and so prejudice his life or liberty, then the scales of the balance would be weighted against the State. That, however, is not the case here - what is at stake is the prosecutor's reputa�on and the trial of the accused and although the present case is a criminal one it is in substance an ac�on for defama�on, and State privilege has been established for documents in libel cases for example Hennessy v Wright (1888) 21 QB D. 509, and Home v Lord William Bentinck (1820) 22 Digest (Repl.) 387, 4162. Having given anxious considera�on to this mater, I have come to the conclusion, not without reluctance, that the claim for State privilege should be upheld. Doubtless the prosecutor may seem to be denied what is to his immediate advantage, but that is largely a private or personal considera�on, and the need to try and punish the accused, if he is guilty, is a rela�vely minor considera�on in the interests of jus�ce. This ruling may or may not prevent jus�ce being done as between the prosecutor and the accused (and I have an uneasy feeling that it will not appear to be done), but I regard the need to protect the interests of the country as a whole as paramount to the other interests involved in this case, and I am consequently not prepared to override the Minister's objec�on. The claim for State privilege against produc�on of the documents listed in the Minister's affidavit is upheld. Claim for privilege upheld 1965 ZR p120