IFEX - News from the international freedom of expression community
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ALERT UPDATE - MOZAMBIQUE

11 March 2002

Libel case against "Metical" reporter postponed

SOURCE: Media Institute of Southern Africa (MISA), Windhoek

**Updates IFEX alert of 17 January 2002. For background information on the
Cardoso case, see alerts of 22 May, 15, 12 and 5 March, 22 February and 22
January 2001, 20 December, 28, 24 and 23 November 2000**

(MISA/IFEX) - On Monday 11 March 2002, the libel case pursued by businessman
Nyimpinhe Chissano, son of Mozambican President Joaquim Chissano, against
journalist Marcelo Mosse and the now defunct newssheet "Metical", was
postponed.
This is the fifth time that the case has been postponed.

The case was to have been heard in the Maputo First Urban District Court on
Monday 11 March. However, the judge announced that a protest lodged by the
defence with a higher court, the Maputo
City Court, has been successful. This means that before the libel case can
be
heard in the lower court, the higher court must decide on a series of
irregularities alleged by the defence, which could render the whole case
null
and void.

The urban district judge, Wilson Djambo, previously admitted the appeal by
"Metical" lawyer Lucinda Cruz, but ruled that the appeal could only be heard
after the trial. Since her appeal was on grounds of law, Cruz argued that it
must be dealt with first. She therefore lodged a protest with the Maputo
City
Court, which gave its ruling on the afternoon of Friday 8 March.

BACKGROUND:
The libel case arises from articles published in early 2001, not only in
"Metical", but also in the weekly South African newspaper "Mail and
Guardian"
and the Portuguese weekly "Expresso".

However, despite the fact that the main allegations never appeared in
"Metical"
but in other organs, the newspaper and Carlos Cardoso's two children, the
eldest
of whom is just twelve years old, continue to face legal action. The two
children have become liable for what was published in the newspaper and any
libel damages would come out of the estate left to them by their murdered
father.

On 27 December 2001, thirteen months after Cardoso's murder on 22 November
2000,
"Metical" closed down as a result of the defamation suit. The suit stems
from
allegations that Chissano Jr was in possession of cocaine at the time of his
arrest by the South African police. Chissano Jr and his lawyer Antonio
Balate
vigorously denied the charge.

"Metical's" only reference to the incident was an article which quoted the
president's press attaché as denying any involvement by the president's
office
in paying bail to release Chissano Jr from a
brief spell of detention in South Africa. This allegation, in fact, first
surfaced in the "Mail and Guardian", in an article under the by-line of a
South
African journalist. It was then repeated in
"Expresso", in an article bearing Mosse's by-line.

Chissano Jr has asked for libel damages of 1.8 billion meticais (approx.
US$75,000).

Cruz and Mosse's lawyer, Helder Matlaba, have pointed to a number of
procedural
irregularities in the case. First, they say that the charge sheet drawn up
by
Balate was delivered a day late - and, since Mozambican law is strict about
time
limits, this alone should have been enough for the case to be thrown out.

Second, since Mosse is facing a criminal charge, a private prosecution is
not
sufficient. The public prosecutor's office must also be involved - the
public
prosecutor may support the private charge sheet, may press different
charges, or
may give the opinion that no crime has been committed.

In fact, the public prosecutor has not said anything. This course of action
is
not permitted. The most serious irregularity is the attempt to hold
"Metical"
responsible for articles published in South Africa and Portugal. The defence
argues that "Metical" has no editorial control over what appears in other
newspapers and can only be sued for what appeared within its own pages.

As for "Expresso", a Portuguese lawyer sent a denial to the newspaper which
was
published in full under the Portuguese right of reply legislation.

"Expresso" has not been dragged before any Portuguese court, though that
possibility does remain open. No date has yet been fixed for the Maputo City
Court to hear the appeal against the procedural irregularities in the
prosecution case.

Under Mozambican law, there are two forms of libel. One is "difamacao"
(defamation), which deals with specific accusations said to be untrue.
However,
Chissano Jr and his lawyer have not opted to use this.

Instead, Mosse and "Metical" have been charged with the much vaguer crime of
"injuria" (affront). According to the definition of this crime, libel takes
the
form of indeterminate accusations, such as claims that the offended person
is a
criminal, a bandit, a scoundrel, and so forth. The key difference is that in
defamation cases the accused can opt for the defence that what he wrote is
true.
But in cases of affront, there is no possibility of such a defence.

Active legal proceedings are only underway against "Metical", the smallest
of
the three newspapers that contained the offending articles.

In 2001, Chissano Jr announced his intention to sue the "Mail and Guardian".
However, foreign citizens who have no assets in South Africa must make a
deposit
to cover legal costs in cases such as this. In July, the "Mail and Guardian"
demanded a deposit of 100,000 rands (approx. US$9,800) from Chissano Jr.
Since
then, the newspaper has not heard from him. However, it is still possible
for
the case to be pursued in the South African courts.

For further information, contact Zoe Titus or Kaitira Kandjii, Regional
Information Coordinator, MISA, Street Address: 21 Johann Albrecht Street,
Mailing Address; Private Bag 13386 Windhoek, Namibia, tel: +264 61 232975,
fax:
+264 61 248016, e-mail: [email protected] or [email protected],
Internet:
http://www.misa.org/

The information contained in this alert update is the sole responsibility of
MISA. In citing this material for broadcast or publication, please credit
MISA.
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