Zambia Publishing Co Ltd v Simon Mwansa Kapwepwe (SCZ Judgment No. 44 of 1974.) [1974] ZMSC 122 (12 December 1974)

ZAMBIA PUBLISHING CO LTD v SIMON MWANSA KAPWEPWE (1974) ZR 294 (SC) SUPREME COURT (CIVIL JURISDICTION) DOYLE CJ, BACON DCJ AND GARDNER JS 12th DECEMBER 1974 SCZ Judgment No. 44 of 1974. Flynote Tort - Libel - Politician - Imputation of tribalism - What amounts to - Imputation of payments by foreign government - Imputation of weakness. Tort - Libel - Failure to apologise - Whether ground for award of exemplary damages. Tort - Libel - Actual damage - Whether necessary to prove. Tort - Libel - Jest - When actionable. Tort - Libel - Words defamatory in their ordinary meaning - Words alleged to bear defamatory innuendo - What must be proved in each case - Evidence as to what was understood by the words - Whether necessary or admissible. Headnote (DOYLE CJ) The appellant appealed against an award by the High Court of a sum of K30,000 for libel, being K15,000 compensatory damages and K15,000 exemplary damages. The alleged libel was contained in a cartoon published in the appellant's newspaper. The respondent alleged that by the said cartoon and the words therein contained the appellant meant and was understood to mean that the respondent was organising his political party on tribalistic lines and that the respondent was receiving, or was due to receive, money from a government alien and unfriendly to Zambia and to mean that the respondent was dishonest and immoral. The defence was a broad denial that the cartoon or words complained of referred or were understood to refer to the respondent, and a denial that the cartoon or the words bore or were understood to bear any of the meanings alleged or any other meaning defamatory of the respondent. The defendant pleaded further that the cartoon and words were published in jest and were so understood by the persons to whom they were published. Held: (i) (per Doyle, CJ and Gardner, J S, Baron, DCJ, dissenting). The statement that "UNIP women are victimising my tribesmen followers" implies that the UNIP women are rightly attacking these followers for being tribalistic and that the plaintiff is a tribalist. (ii) In the prevailing political climate in southern Africa, to suppose of a leading political figure in Zambia that he is in receipt of funds from the government of South Africa is calculated to lower him seriously in the eyes of right-thinking members of the society. (iii) It is not defamatory to say of a politician that he is a weak man. (iv) (per Doyle, CJ) Where no apology is asked for and the writ is issued without any approach to the defendant, and where some of the publication might not be libellous, failure to make an apology is not conduct which warrants an award of exemplary damages. (v) (per Baron, D C J) Before the failure to apologise can be advanced as a ground for the award of exemplary damages it must be shown that the defendant has acted in contumelious disregard of the plaintiff's rights. The defendant's decision in all the circumstances to forgo the benefit of s. 12 (1) of the Defamation Act, Cap. 70, and not to apologise was not "in contumelious disregard of the plaintiff's rights". (vi) (per Baron, D C J) It is not necessary for a politician, of whom a statement has been published which is likely to damage him politically, to prove that he has in fact been damaged or that he is likely to be so damaged in the future; the law presumes these consequences. (vii) (per Baron, D C J and Gardner, JS) If a man in jest conveys a serious imputation he jests at his peril. Words obviously intended as a joke are not actionable, but serious imputations of fact lying behind the superficially jocular may well be. (viii) (per Baron, D C J) Where words are alleged to be defamatory in their ordinary meaning it is necessary to prove only that they were published, while if words are alleged to bear a defamatory innuendo it is necessary to prove only the extrinsic facts known to one or more of the persons to whom the words were published, which would cause the words to convey the defamatory imputation. In either case evidence as to what a witness understood the words to mean is unnecessary and probably inadmissible. Cases cited: (1) Ley v Hamilton (1935) 153 LT 384. (2) Attorney-General v Kapwepwe,1974 ZR 207 (3) Hough v London Express Newspaper (1940) 3 All ER 31. (4) Donohue v Hayes (1831) Hayes (Ir. Ex.) R 266. 10 (5) Flint v Lovell (1935) 1 KB 354. (6) Cassell v Broome (1972) 1 All ER 801. (7) Rookes v Barnard (1964) 1 All ER 367. (8) Times Newspapers Zambia Ltd v Kapwepwe,1973 ZR 292. Legislation referred to: 1. Defamation Act, Cap. 70, s. 12 (1). 2. R S C. Order 82, rule 3. H Reilly, Jaques & Partners, Ndola, for the appellant. AP Annfield, Peter Cobbett - Tribe & Co., Lusaka, for the respondent. JUDGMENT BY DOYLE CJ This is an appeal by the defendant against an award by the High Court of a sum of K30,000 for libel, being K15,000 compensatory damages and K15,000 exemplary damages. The alleged libel was contained in a cartoon published in the defendant's newspaper on the 18th September, 1971. This libel consisted of a somewhat unflattering drawing of the plaintiff dressed in national costume and being subjected to a barrage of eggs and vegetables from a number of children and women, two of the latter of whom were depicted bare-breasted. Emerging from the plaintiff's mouth were the following observations: (a) "Ken, UNIP women are victimising my tribesmen followers"; (b) "Ken, Vorster has not paid me yet"; (c) "Oh, Ken they want to ban my Party"; (d) "Oh, Oh, Ken why has thou forsaken me?" The cartoon was entitled 'The Tribal Chief". The particulars in the statement of claim stated in substance: (a) that the reference to the plaintiff as a "Tribal Chief" and to the victimisation of his tribal followers was an allegation that the plaintiff was encouraging tribalistic feelings in Zambia to the detriment of the unity of the country; (b) that the reference to non-payment by Vorster was an allegation that the plaintiff was in collusion with a foreign government, namely, South Africa, which said government was an avowed enemy of Zambia, and furthermore that the words alleged that the plaintiff and/or his political party were receiving funds from the Prime Minister and/or the Government of South Africa, which receipt was contrary to the law of Zambia; (c) that the plaintiff was a man of weakness who had to rely upon the good offices of his political opponents in order to survive. Having rehearsed at length a number of general propositions to be found at a glance from Gatley on Libel, the learned judge dealt with the case in the following words: "In this case the plaintiff was maliciously defamed and the right-thinking members of our society who read the publication must have thought that Mr Kapwepwe was a sort of demon who was bent on biting the hand that was feeding him i.e. to say fighting against his own Government. This is a serious aspersion. So far that is an analysis and an appraisal of this case as a guide - line to award of damages that I am now going to make. The damages are as follows: Compensatory damages K15,000 Exemplary damages K15,000 TOTAL K30,000 25 It is plain that the learned trial judge gave no detailed examination to the nature of the libels. His summary of the libel is not what was pleaded nor did he correctly apply the rule relating to exemplary damages, namely that when the compensatory damages have been assessed it is necessary to consider whether these damages are sufficient in themselves or whether the circumstances are such as has required the court to mark its disapproval of the defendant's conduct by some greater award. Indeed, there are references in his judgment to a claim for general and exemplary damages which seems to indicate that he thought it was his duty to fix both such damages in all cases. I regret that I have to say that I find the judgment of the learned trial judge of little assistance to me. Fortunately, there was no conflict of evidence as the defendant called no witnesses, and this court is accepted by the parties for all material purposes as being in as good a position as the trial court to assess the damages. The plaintiff gave evidence and called one witness. On the allegation of libel referring to the weakness of the plaintiff, the plaintiff in his evidence stated that the gist of this was that he was a weak man in that he could not, without assistance from the President, stand on his own carrying on his party. His witness appeared to suggest that the injury, in his words, lay in that they suggested that the plaintiff was a puppet without principles. The meaning must of course be derived from the words not from what a particular witness may think. I must confess that I do not consider that the words in their ordinary meaning or by any innuendo can bear the meaning suggested. If a party is to be banned that hardly denotes that the leader of that party or the party itself is inefficient or weak or that its leader is a puppet without principles. I do not consider that these words have been proved to be libellous. On the allegation of tribalism, it may again be noted that Mr Ngandu, a Bemba chief, called as a witness for the plaintiff, far from proving any damage from the allegation seemed to think that the damage suffered was not by the plaintiff, who was not a chief, but by the members of his chiefly family. However, it is not Mr Ngandu's view of the words which should determine whether they are libellous. The words in the cartoon did not expressly state that the plaintiff is a tribalist nor that he is tribalistic in the sense put forward by the plaintiff. They did not expressly state that the plaintiff or his followers were attacking anyone. In fact, they imply that it is UNIP women who were attacking the plaintiff's tribalist followers. It is common knowledge that it is the policy of the Government, in the interests of creating a stable and united nation, to discourage the emphasis on tribal differences. It is, of course, not libellous to say of a politician who is in opposition to the Government, that he attacks the Government. At the time of the libel Zambia was not a one - party state and the plaintiff was the leader of an opposing party. It has been truly said in relation to opposition parties that it is their duty to oppose. Intrinsically there is nothing wrong in supporting one’s own tribe or clan. Pride of tribe, pride of clan and pride of family are natural and everyday feelings. What is worthy of condemnation and is, quite apart from Government policy, condemned in Zambia, is the use of such feeling to introduce dissension and division in the nation. I am fully satisfied that an accusation of tribalism without qualification is now generally accepted in Zambia in this pejorative sense, and that such an accusation would tend to lower the person so accused in the public esteem and so is libellous. The question is whether the words can be construed to mean such an accusation. I have no doubt that the cartoon was an attack on the plaintiff. Although the words referred to an attack by UNIP women on the plaintiff's tribal followers, the implication to me seems clear enough. It is that the UNIP women are rightly attacking these followers for being tribalistic and that the plaintiff as their leader is a tribalist in the pejorative sense to which I have referred. I can see no other reason why this cartoon should drag in this reference to the tribe of the plaintiff. I consider that this head of libel has been proved. The last head alleges that the plaintiff has been in collusion with the Prime Minister of the South African State and that he has been receiving funds from him and that such receipt is contrary to the law of Zambia. No attempt was made in evidence and no submission was made to show what law was contravened by the mere receipt of money by the defendant from a foreign state of government. My researches have not disclosed any such law, and I do not consider this innuendo to have been proved. I am, however, satisfied that the words do mean that there had been some intercourse between the plaintiff and the South African Prime Minister, and that the plaintiff expected to receive money from the South African state. I do not consider that the words can reasonably be construed to go any further than that. However, in the state of feeling which exists between Zambia and South Africa, I consider that the ordinary man in the street would not consider it honourable for a Zambian politician to correspond and receive funds from the South African Government, even if these funds were merely to be directed to the legitimate pursuit of the receiver's political aims. I consider that if such a course of conduct were proved against a person it would diminish him in the public esteem and therefore that to accuse him of such a course is a libel. I am satisfied that in this respect the plaintiff was libelled. The question then arises as to damages. As is so common in the courts of Zambia, the evidence called is the minimum. It goes without saying that the more relevant evidence that is called the easier becomes the task of the court and the plaintiff's claim must to some extent be judged by the amount of evidence which can and is produced. I do not, however, overlook the well - known words of Lord Atkin in Levy v Hamilton, where he said: "It is precisely because the real damage cannot be ascertained and established that the damages are large. It is impossible to track the scandal, to know what quarters the poison may reach. It is impossible to weigh at all closely the compensation which will recompense a man or woman for the insult offered or the pain of a false accusation." It follows that one must deal with damages in such a case as this with a very broad approach. In a recent series of cases which have come before the courts in respect of another libel on the present plaintiff, the libel proved was an allegation that the plaintiff was engaged in treasonable activities against the State. That libel was not only disseminated by the newspaper published by the present defendant but also in another daily newspaper, on television and over the radio. In those cases, the total award made for compensatory damages was, in all, K30,000. That total award was accepted by the court of appeal in Attorney- General v Kapwepwe as not being one with which this court could interfere. With that view I would not disagree, although for my part had I been the trial judge I might have awarded somewhat less. In the present case the libel is very much less serious and has had a very much more restricted scope. I consider that the amount awarded by the trial judge for compensatory damages is entirely excessive. I would award a sum of K7,500 as compensatory damages. As to exemplary damages, while such damages are often appropriate in the case of newspaper publications, it is certainly not the rule that all newspaper publications must attract them. In the instant case the libel, while serious, is not by any means of the worst category. No apology was ever asked for and the writ was issued without any approach to the defendants. In a case where some of the publication might not be libellous, the defendant would be in difficulty, and I do not consider that his failure to make an apology in the circumstances is conduct such as warrants an award of exemplary damages. Equally I do not consider that the nature of the libel in itself warrants such an award. Had the plaintiff apologised it might well have mitigated the amount which was awarded as compensatory damages, but in my opinion the learned judge erred in holding, without reason, that this was a case for such damages. Accordingly, in my view, this appeal should be allowed and the award made to the plaintiff should be set aside and the award of K7,500 compensatory damages should be substituted. The costs of the appeal should go to the appellant. JUDGEMENT BY Baron DCJ: This is an appeal from a decision of the High Court in which the respondent, to whom I will refer hereafter as the plaintiff, was awarded K15,000 as compensatory damages and a further K15,000 as exemplary damages for the publication by the appellant (the defendant) of a cartoon alleged to depict the plaintiff and alleged to contain, by innuendo, certain defamatory statements. Paragraphs 1, 2 and 3 of the statement of claim read as follows: 1. The Plaintiff was at all material times a politician and the leader of the United Progressive Party and the Defendant is and was at all relevant times the proprietor, publisher and printer of the Zambia Daily Mail which has a wide circulation throughout Zambia. 2. On page 7 of the issue of the said Zambia Daily Mail of the 8th September, 1971, the Defendant falsely and maliciously printed and published of the Plaintiff and of him in the way of his profession a cartoon of the Plaintiff depicting the Plaintiff as, inter - alia, 'The Tribal Chief' (sic) and as saying inter - alia: (i) 'Ken, UNIP women are victimising my tribesmen followers: (ii) 'Ken, Vorster has not paid me yet'; and (iii) 'Oh, Ken, they want to ban my Party'. 3. By the said cartoon and the words therein contained the Defendant meant and was understood to mean that the Plaintiff was organising his political party on tribalistic lines and that the Plaintiff was receiving or was due to receive money from a Government alien and unfriendly to Zambia and to mean that the Plaintiff was dishonest and immoral. PARTICULARS PURSUANT TO RSC ORDER 82. RULE 3 (1) The Plaintiff repeats paragraph 1, herein; (2) The Plaintiff refers to his depictment aforesaid as the 'The Tribal Chief' and repeats sub-paragraphs 2. (i) and (iii) herein; and (3) The Plaintiff repeats sub-paragraph (ii) herein of and avers that it is common knowledge that the Prime Minister's name in the South African Government is 'Vorster'. In further and better particulars, the plaintiff set out the alleged innuendos in the following terms: (i) By referring to the Plaintiff as 'Tribal Chief' and stating 'Ken, UNIP women are victimising my tribesmen followers', the Defendant alleged that the Plaintiff was encouraging tribalistic feelings in Zambia, to the detriment of the unity of the country. (ii) By publishing the words 'Ken, Vorster has not paid me yet', the Defendant alleged that the Plaintiff was in collusion with a foreign government namely South Africa, which said government is an avowed enemy of Zambia. Furthermore, the said words allege that the Plaintiff and/or his political party were receiving funds from the Prime Minister and/or the government of South Africa which is contrary to the Laws of Zambia. (iii) By publishing the caption 'Oh Ken, they want to ban my party', the Defendant has depicted the Plaintiff as a man who must rely upon the good offices of his political opponents in order to survive." The defence was a broad denial that the cartoon or words complained of referred or were understood to refer to the plaintiff, and a denial that the cartoon or the words bore or were understood to bear any of the meanings alleged or any other meaning defamatory of the plaintiff. The defendant pleaded further that the cartoon and words were published in jest and were so understood by the persons to whom they were published. The plaintiff gave evidence and called one other witness. The plaintiff's evidence was directed to showing that he was a politician and had been a political figure of considerable standing in the country, and that he was not a tribal chief. The other witness, a member of the Bemba royal family, also told the court that the plaintiff was not a tribal chief. These two facts were the extrinsic facts which the plaintiff considered it necessary to plead and prove in terms of RSC Order 82, rule 3 before he could succeed on the basis of a "true" innuendo. In addition, the plaintiff gave evidence designed to prove that the cartoon would be recognised by reasonable persons as referring to him. Up to this point the evidence of the complainant and his witness was relevant and admissible. However, both the plaintiff and his witness went on to say what they understood the various aspects of the cartoon to mean and they were cross - examined on this evidence. The matter was not argued before us, and I take it no further than to suggest that such evidence is unnecessary and probably inadmissible. Where words are alleged to be defamatory in their ordinary meaning a plaintiff needs only to prove that they were published; while if words are alleged to bear a defamatory innuendo it is necessary to prove no more than the extrinsic 45 facts known to one or more of the persons to whom the words were published, which would cause the words to convey the defamatory imputation. In neither case is it relevant for the court to hear what a witness understood by the allegedly defamatory statement. This matter is referred to in Hough v London Express Newspaper where Slesser, L J , said this at page 34: 5 "The only question remaining in the present case is this. There were called by the plaintiff, perhaps unnecessarily, two witnesses who, among other matters, spoke to the meaning which the passage complained of represented to their minds . . . The burden on the plaintiff is to give evidence of special circumstances which would lead reasonable persons to infer that the words were understood in a defamatory meaning, provided that such circumstances were known to those persons to whom the words were published: Capital & Counties Bank v Henty ( (1882) 7 App. Cas. 741). Greer, L J , said in Tolley v Fry (JS) & Sons Ltd 15 ((1931) AC 333), at p. 480: ' The evidence required is evidence of special facts, causing the words to have a meaning revealed to those who knew the special facts, but not revealed by the words used in the absence of such knowledge. It is not proof of a special fact in this sense merely to call a number of people to say that they understood the words in a defamatory sense; they would have to prove some fact known to them which would be sufficient to entitle any reasonable man with such knowledge to interpret the words in a defamatory sense.' " I have consequently ignored the verbal evidence as to the witnesses' understandings of the cartoon. Before us it was not seriously argued that the cartoon was not intended and understood to depict the plaintiff; although the learned trial judge did not specifically so find it is clear that he was satisfied that the cartoon was so intended and understood, and I equally am satisfied on this score. It is convenient to deal first with the allegation that the words " Oh, Ken, they want to ban my party" depicted the plaintiff as a man of weakness who must rely upon the good offices of his political opponents in order to survive. Even if, which I doubt, the words are capable of bearing this innuendo, I do not regard them as defamatory. If every politician who was accused of weakness were to be entitled to damages for defamation the situation would be truly absurd. It does not emerge from the judgment in the court below whether the learned judge found this aspect of the cartoon to be defamatory, but if he did, he was in my view wrong. Before us a good deal of the argument on the merits was directed to the allegation that, by referring to the plaintiff as "Tribal Chief" and appending the caption "Ken, UNIP women are victimising my tribesmen followers", the defendant alleged that the plaintiff was encouraging tribalistic feelings in Zambia to the detriment of the unity of the country. In my view the cartoon cannot reasonably be read in this sense; the plaintiff is depicted as complaining that UNIP women (not, be it noted, women of any one tribe but the female members of the Government Party) are victimising those of his followers who belong to his particular tribe. I cannot see what there is about this suggestion that can be said to be defamatory. If a political commentator were to say that the plaintiff draws his support largely, or even exclusively, from one particular tribe, this could not in my judgment be held to be a defamatory statement. It might be said that to depict the plaintiff as complaining of victimisation of his followers by women puts him in a somewhat ridiculous light, but this is not the issue. It was pleaded that the caption was understood to mean that the plaintiff was a tribalist in the sense that he was encouraging tribal divisions; I cannot accept that to say a of man, whether or not it be true, that he is a tribal chief, or that he draws his support from a particular tribe, is to suggest that he is encouraging tribal divisions or that he is organising his support on tribal lines, nor can I accept that such an innuendo can be drawn from a suggestion that he is complaining about victimisation of his "tribesmen followers". In my judgment, therefore, this aspect also of the cartoon is not capable of the defamatory innuendo 15alleged, and on this issue I disagree with my learned brothers. I turn now to the caption, "Ken, Vorster has not paid me yet" Apart from the submission that the cartoon and words were published in jest and were so understood by the persons to whom they were published, Mr Reilly, on behalf of the defendant, did not seriously argue that the caption was not defamatory. The law is clear that "if a man in jest conveys a serious imputation he jests at his peril" (Donaghue v Hayes [4]). As Gatley on Libel and Slander, 6th Edition, says at paragraph 35, note 23: Words obviously intended only as a joke are not actionable, but serious imputations of fact lying behind the superficially jocular may well be. " In my new this statement is particularly apt in the present case. Each of the imputations contained in this cartoon was a serious imputation presented in jocular form, but I am quite satisfied that they cannot be said to be words obviously intended only as jokes. Nor do I consider that the succeeding portion of the note in Gatley, to which I have just referred, is of assistance to the defendant; the note points out that even if the cartoon is defamatory the limits of permissible criticism in political life are wide. I respectfully agree with the learned author of Gatley; however, to impute that a leading political figure in Zambia is receiving funds from the Prime Minister or the Government of South Africa in my view goes far beyond any acceptable "limits of permissible criticism in political life". Mr Annfield did not seek in argument to support the allegation in the innuendo (which it was not really necessary to plead since the meanings alleged are supported by the caption itself) that the receipt of funds by the plaintiff or his political party from the Prime Minister or the Government of South Africa was contrary to the laws of Zambia, and I proceed on the basis that it was not. Nevertheless, the implication in the cartoon was most serious in view of the prevailing political climate in southern Africa. To suggest of the plaintiff, for many years a leading political figure in the country, that he was in receipt of funds from a government whose political philosophy is diametrically opposed to ours, and which can justifiably be described as an ideological enemy, is calculated to lower him seriously in the eyes of right - thinking members of the society. In the result I am satisfied that the caption in question is defamatory and that it goes beyond what a politician can reasonably be expected to suffer without complaint as part of the hurly - burly of political life. The learned trial judge awarded as compensatory damages a sum of 5 K15,000. As I have indicated, the judgment does not say whether in arriving at this figure the learned judge was awarding damages in respect of all three aspects of the cartoon; if he was, he took into account one matter which was not defamatory, while if his award was based only or substantially on the imputations which have been held to be actionable, then an appellate court should not interfere unless the award is considered to be utterly unreasonable or an entirely erroneous estimate of the damages to which the plaintiff is entitled (Flint v Lovell [5], at page 360; Attorney-General v Kapwepwe [2], at page 10). Without doubt, the assessment of damages in a libel action is among the most difficult tasks with which a court can be faced. As Lord Atkin said in Ley v Hamilton: ". . . it is impossible to weigh at all closely the compensation which will recompense a man or woman for the insult offered or the pain of a false accusation." And Lord Hailsham in Cassell v Broome said, at page 825e: ". . . the whole process of assessing damages where they are 'at large ' is essentially a matter of impression and not addition." As I have said, the implication in the cartoon was most serious in view of the prevailing political climate in southern Africa. No tangible consequences were shown, in the sense of an effect on the plaintiff's political career or whether his subsequent detention could in any measure be attributed to the libel; there was reference to these matters in the evidence, but there was, in my view, totally insufficient evidence to form the basis of any findings on these lines, and in fact the judge made none. On the other hand, it is not necessary for a politician, of whom a statement has been published which is likely to damage him politically in the eyes of right - thinking men, to prove that he has in fact been damaged or that he is likely to be so damaged in the future; the law presumes these consequences. And it is precisely because one cannot know, in Lord Atkin's words, where the poison will reach, that the damages are at large. To use the traditional expression, doing the best I can, and taking into account the nature of the libel, the plaintiff's standing in the community, the injury to his pride and to his feelings and the absence of an apology, and taking into account also that the quantum of damages must be arrived at within the context of Zambian conditions, I am of the view that a proper sum to award as compensatory damages is K5,000. The final two questions are: was the defendant's conduct in this case such that the court should mark its disapproval and punish and deter the defendant; and if so, is the amount I have in mind to award as compensatory damages sufficient for this purpose. As to the first question, the only point seriously argued was the absence of an apology. It is in my view important to distinguish between the effect of the absence of an apology on compensatory damages and the effect of exemplary damages; in the one case the effect is on the loss suffered by the plaintiff, while in the other it may constitute behaviour of the defendant deserving of punishment. By virtue of section 12 (1) of the Defamation Act, Cap. 70, a defendant may plead an apology in mitigation of damages, and in fact there has been no apology, however, reasonable and bona fide the defendant's conduct may have been, the plea is not available. But before the failure to apologise can be advanced as a ground for the award of exemplary damages it must be shown that the defendant has acted in contumelious disregard of the plaintiff's rights. In the case before us the plaintiff did not ask for an apology; he simply informed the defendant that proceedings were to be instituted. As I have said, the defendant, had he chosen to apologise, could have availed himself of section 12 (1) of the Defamation Act, Cap. 70, but equally it was his privilege to decide in all the circumstances to forgo the benefit of the section. In the event, one of the three allegedly defamatory aspects of the cartoon has been held not to be so, and the court is divided as to another; the defendant may have considered it impracticable to furnish a partial apology, or may have believed it had a good defence to the whole action. I do not regard the defendant's conduct in this case as having been "in contumelious disregard of the plaintiff's rights". Finally, and in any event, I am satisfied that an award of K5,000 as compensatory damages is adequate to punish the defendant even if its conduct were deserving of punishment. It is pertinent to draw attention again to Lord Devlin's famous "if, but only if", dictum in Rookes v Barnard, adopted by this court in Times Newspapers Zambia Ltd v Kapwepwe, where I said at page 144 that the court: ". . . should consider first what sum to award as compensation and that this sum should take into account the whole of any aggravating conduct of the defendant, and that only then should [it] turn to consider whether [its] proposed award is sufficient to punish and deter the defendant. " The learned judge did not adopt this approach. Instead, he adopted an approach which this court has held to be wrong, namely to consider compensatory and exemplary awards as two separate awards; and he proceeded to award, in addition to the compensatory award, a further K15,000 as exemplary damages. For the two reasons set out above I am of the view that this award cannot stand. In the result I would allow this appeal, set aside the awards of damages and substitute an award of K5,000. However, my learned brothers take the view that the aspect of the cartoon relating to "tribesmen followers" is also defamatory, and on that basis, I agree that K7,500 is a proper award. I agree also that the defendant's costs of the appeal should be paid by the plaintiff. Judgment Gardner JS: This is an appeal against an award of damages for libel, being K15,000 compensatory damages and K15,000 exemplary damages. The present respondent claimed that the appellant's newspaper had published a cartoon in which he was depicted as saying the following words which were alleged to be libellous. 1. "Ken, UNIP women are victimising my tribesmen followers." 5 2. "Ken, Vorster has not paid me yet." 3. "Oh Ken, they want to ban my party." The cartoon showed a caricature of the respondent entitled "The Tribal Chief". It was claimed in the statement of claim that the reference to tribal chief and tribesmen indicated that the respondent was organising his political party on tribalistic lines. The words "Ken, Vorster has not paid me yet", were alleged to mean that the respondent was receiving or was due to receive money from a government alien and unfriendly to Zambia and to mean that the plaintiff was dishonest and immoral. In further and better particulars, the respondent claimed that the words "Oh Ken, they want to ban my party" depicted the respondent as a man of weakness. The defence was to the effect that the cartoon was not intended to refer to the respondent and that the words did not bear any of the meanings alleged in the statement of claim or any other meaning defamatory of the plaintiff. It was also put forward as a defence that the words were published in jest. The defence of justification was not put forward. Before this court it was not seriously argued that the cartoon was not intended to depict a picture of the respondent and, although the learned trial judge did not specifically say so, it can be understood from his judgment that he accepted that the cartoon referred to the respondent and with this I respectfully agree. With regard to the reference to the words "tribal chief" and "tribesmen followers" I do not agree with the argument put forward on behalf of the appellant that the reference to tribe is innocuous. In my view it is deliberately intended to infer that the respondent is tribalistic in the conduct of his political affairs. I am satisfied that the ordinary reader of these words would take them to mean that the respondent was encouraging tribalistic feelings in Zambia to the detriment of the unity of the country. I take into account the fact that in this country tribalism in politics is condemned in the strongest terms and that such tribalism is detrimental to the unity of the country. I would hold that such an accusation would tend to lower the respondent in the public esteem and it is therefore libellous. With regard to the reference to the respondent not having yet been paid by Vorster, I accept that the ordinary meaning of the words used are as set out in the further and better particulars of the statement of claim, namely that the respondent was in collusion with a foreign government which said government is an avowed enemy of Zambia. This is a very serious allegation indeed and I have no doubt whatever that it is libellous. With regard to the words "Oh Ken, they want to ban my party", I cannot agree with the argument put forward on behalf of the respondent 45 that this suggestion that the respondent is weak is defamatory. It is in my view, a legitimate criticism of any politician and these particular words do not constitute or contribute, to the tort of libel. With regard to the defence that the words were printed only in jest, I respectfully agree with the passage referred to in Gatley on Libel and Slander, 6th Edition, at paragraph 35, note 23: "Words obviously intended only as a joke are not actionable, but serious imputations of fact lying behind the superficially jocular may well be." In the particular instance 5 the serious allegations which I would hold to be libellous cannot be regarded as no more than jocular; and the fact that the words appear in a cartoon and not in a serious article in no way detracts from the seriousness of the libel. The learned trial judge appears to have been under the impression that he must award damages in two separate figures under two separate headings, namely compensatory and exemplary; this is not the law as was pointed out by this court in the Times Newspapers Zambia Ltd v Kapwepwe. The damages are at large and in assessing what damages should be awarded in compensation the learned trial judge has not indicated whether he found the whole or part of the sets of words to be libellous. If he found the whole of the words were libellous then, as I have already indicated, he acted on a wrong principle in relation to the words alleging weakness and for this reason this court is entitled to interfere. In any event in my view the assessment of damages in the sum of K15,000 is so high as to be wholly erroneous in this particular case and I would set aside that award of damages. On the record before us this court is entitled to make its own assessment of the damages and in this respect, for those items which I have held in my opinion to be libellous, I would award the sum of K7,500 damages. The learned trial judge also ordered exemplary damages. Nowhere in his Judgment does he give his reasons for finding this an appropriate case to award exemplary damages. On the principles set out in Mayne and MacGregor on Damages, 12th Edition (1961), paragraph 207, in order to merit an award of exemplary damages the conduct complained of must be in contumelious disregard of the rights of the respondent. Even if this factor is present no award for exemplary damages should be made unless the court is satisfied that the amount awarded by way of compensation is insufficient to punish the appellant. It is common cause that no apology was made nor was one requested, but in my view on the facts of this case the lack of apology is not contumelious and there is nothing to show that the appellant did not consider, bona fide, that legally there was no need for an apology; certainly, it did not take advantage of section 12 (1) of the Defamation Act in order to mitigate the damages by publishing an apology. I cannot find that any of its actions are deserving of an award of exemplary damages. In the result therefore I would also set aside the award of K15,000 as exemplary damages; I would order that the awards of damages be set aside and an award of K7,500 be substituted therefor. I would also order costs to the appellant. Appeal allowed. Award of K 7,500 substituted