WORDS UTTERED ON HICHILEMA WERE FAIR COMMENTS, TAYALI TELLS COURT.
ECONOMIC and equity party leader Chilufya Tayali says the words he uttered against UPND president Hakainde Hichilema that he corruptly benefitted from the privatisation exercise by stealing public assets and stripping citizens of their benefits were justified and were of fair comment, made in good faith without malice on a matter of public interest.
This is in a matter where Hichilema has sued Tayali demanding K100 million as damages for libel.
Hichilema wants an interim injunction restraining Tayali whether by himself, servants or agents from further publishing or causing to be published or broadcast the defamatory words or anything similar against him.
During at press briefing on November 15, 2020, Tayali accused Hichilema, as a transactional advisor to the MMD government during the privatisation process, of stealing among other assets, a house in Chelstone belonging to ZIMCO and depriving a Mr Jere the said property as the sitting tenant and former employee of the said company.
Tayali said that Hichilema should not be aspiring for the presidency but should be in jail, claiming he had gathered evidence from people whom Hichilema allegedly kicked out of employment when he privatised the companies they used to work for without giving them their benefits.
“There is one house, plot no. 77/A/609 on Polar Avenue in Chelstone… it was offered to Mr M. Jere and he actually paid for it through SP Mulenga who were the lawyers. Now what happened thereafter, mysteriously that house was bought by Mr Hakainde Hichilema for K31,000…how did Mr Hakainde Hichilema buy this house? He never worked for ZIMCO. I found out that Mr Norman Mbazima who was the core liquidator of ZIMCO offered the house to Mr Hakainde Hichilema depriving a former worker of ZIMCO. Mr Mbazima from there ended up being the deputy chairman of Anglo American and it is believed that Anglo American is on of the biggest sponsors of Mr Hichilema and the UPND,” Tayali alleged.
He further alleged that Hichilema who was a managing partner for Grant Thornton failed to declare interest when he allegedly acquired Farm no.1924 in Kalomo, Southern Province, which was mortgaged to Lima Bank limited, when Grant Thornton liquidated the said bank.
ayali claimed that Hichilema was not clean, was a criminal and he did not want to contest the 2021 elections with criminals.
But Hichilema in his statement of claim contended that the defamatory words in their natural and ordinary meaning were pregnant with innuendo under the guise of a report to the law enforcement officers and the said words meant or were calculated to mean that he (Hichilema) was a criminal who deserves to be in jail, a corrupt person of questionable integrity and character and was guilty of offences relating to the affairs if ZIMCO, the liquidation of Lima Bank by selling its assets when in fact not.
Hichilema said reports to the law enforcement agencies were made in confidence and secretly to protect the presumption of innocence and reputation of the suspect and to avoid jeopardising investigations but, Tayali made noise and sensationalised his allegations against him by going to the media to secure a verdict of guilty from the court of public opinion and subjecting him to ridicule, scandal and odium.
He said the defamatory words by Tayali were false and published maliciously because he has never been convicted of any criminal offence warranting him to be in jail or to be prevented from vying for public office as President of Zambia.
Hichilema said he has never taken pecuniary advantage of the affairs at ZIMCO, including but not limited to him buying a house no. 609/A/77 Polar road, Chelstone, as the property was legally sold to him 20 years ago.
He denied acting as a receiver, manger or liquidator of Lima Bank (in liquidation) as alleged by Tayali neither did he acquire farm no. 1924 Kalomo through the said bank but that he bought it from the heirs of the estate of the late Samson Siatembo and the matter was currently before court.
Hichilema said particulars of malice were that he was a highly popular presidential candidate and Tayali is a struggling leader of an insignificant political party that attempts to gain popularity by disparaging him.
He stated that Tayali’s allegations that he was speaking from an informed position with credible evidence was calculated to lend credence to the defamatory words and create an impression in the minds of the public that they were true when not.
Hichilema contended that his reputation had been seriously damaged and he has suffered hatred, ridicule, contempt, distress and embarrassment.
He said his reputation has been lowered in the estimation of right thinking members of the Zambian and global community given his international repute as an astute businessman and leader of the largest opposition political party aspiring for public office.
But Tayali in his defence said that the words complained of were not pregnant with innuendo under the guise of a report to the law enforcement officers neither were they calculated to mean that Hichilema was a criminal, a corrupt person of questionable character and was guilty of offences relating to the affairs of ZIMCO and the liquidation of Lima Bank by selling its assets.
He said no law required an individual to report matters to law enforcement agencies in confidence as proposed by Hichilema.
Tayali stated that there were unanswered questions regarding the Poplar Avenue property and farm 1924 in Kalomo.
He denied asserting that Hichilema should be barred from contesting the 2016 elections because he had been convicted of a felony before.
“The plaintiff has never acted as receiver, manager or liquidator of Lima Bank but the same is misleading, as a search at the principal registry showed that the subject matter in cause no.2020/HP/128 relates to Farm no.609 and stand 9 Block 40, Garden township in Lusaka at the suit of Finca Zambia ltd and not farm no.1924, Kalomo,” Tayali said.
“The defendant did not twist any facts and he will aver that there are indeed some questions related to Hichilema’s acquisition of the said properties.”
Tayali argued that nothing stops him from expressing himself on matters of public interest and the words complained of were not defamatory but statements of truth and were incapable of causing him to be hated, brought into ridicule, contempt and distress.
The defendant said particulars of fair comment were that Hichilema was an employee of Grant Thornton during the liquidation of Lima Bank.
The EEP leader claimed that when the liquidation was concluded, money was transferred to Grant Thornton for paying property transfer tax and the initial payments for property transfer tax could only have been made with the approval of Hichilema.
Tayali said Hichilema was privy to the dealings of the co-liquidators Edgar Hamwele and Christopher Mulenga.
He further alleged that documentation connected to the acquisition of farm no.1924 in Kalomo district bears notable inconsistencies which Hichilema has failed and refused to explain as the administratrix of the estate of the late Samson Siatembo denied assigning the said farm to Hichilema and maintains that it was procured fraudulently.
Tayali explained that he was merely expressing his opinion when he said Hichilema should be in jail for corruptly acquiring the properties in question.
He confirmed saying that he did not want to be on the ballot with criminals because he made the said open statement inviting law enforcement agencies to ensure that everyone aspiring for presidency do not have a criminal record with no specific reference to Hichilema.
Tayali further argued that Hichilema was not entitled to any of the reliefs sought.