Court rebuffs Ernest Mtawali
The Malawi Supreme Court of Appeal has overturned the High Court ruling in a defamation case involving Football Association of Malawi (FAM) and former Flames coach Ernest Mtawali.
The Supreme Court ruling followed a November 2017 High Court judgement in favour of Mtawali in the case that saw him suing FAM and its vice-president James Mwenda for defamation.
In its judgement, the High Court had stated that FAM and Mwenda were found liable in defamation because “there was enough proof that the published words disparaged Mtawali’s reputation”.
However, FAM appealed to the Supreme Court of Appeal in September 2018, on the basis that the High Court erred in judgement by awarding the former national football team coach general and special damages over broadcast and published articles, in which Mwenda, as FAM technical sub-committee chairperson, reportedly alleged that Mtawali was fired due to “lack of planning and managerial skills and, to some extent, discipline”.
In the 44-page verdict, the Supreme Court of Appeal judges on Tuesday said FAM and Mwenda have not been found guilty because there was not enough evidence to prove that Mwenda indeed said the alleged defamatory statement per the published articles in The Nation, Zodiak Online and BBC.
The judgement reads in part: “It is pertinent to observe that the observations of the court below [High Court] in relation to the defence of justification, are premised on what the first appellant [Mwenda] is alleged to have said to Mr. Garry Chirwa [who wrote the article on the back page of the The Nation dated June 28 2016].
“However, there is considerable uncertainty as to what exactly the first appellant [Mwenda] said to Chirwa and, therefore, whether what was said was defamatory at all…[The High Court] entered in the realm of speculation because we do not know what exactly the first appellant told Chirwa, who as indicated earlier, was not called to testify on what he was told.”
It also stated that: “It is immaterial whether or not the publisher of the defamatory words or statement was authorised to do so.”
In spite of that, the Supreme Court has ordered that each party in the case, which entered as civil appeal number 40 of 2018, should bear own costs of appeal.
FAM and Mwenda’s lawyer in the case Patrick Mpaka said the latest outcome “essentially finds that what FAM and Mr. Mwenda have consistently been saying all along-that the there was nothing defamatory about stating facts as they are and that FAM and Mr. Mwenda did not publish the words which Mr. Mtawali was complaining of”.
He said: “Coming from the final Court of Appeal, it vindicates FAM and settles the matter with finality.”
FAM general secretary Alfred Gunda yesterday asked for a questionnaire, which he had not yet responded to at press time.
On the other hand, Mtawali’s lawyer Zwelithini Chipembere was not available for comment on the latest judgement while Mtawali refused to comment.
Mtawali’s one-year contract expired in July 2016 and FAM did not extend his contract. At the time, Mtawali registered four wins, a draw and three losses.
