Savy v Affif & Anor (CS 99/2015) [2019] SCSC 702 (21 August 2019);

Headnote and Holding: 

Defamation: the test for truth and fair comment in a defamation claim; damages; the appropriate amount for damages to be awarded where the claim was made against someone in a public office should not have a chilling effect on criticism against acts of persons while in public office.

ANDRE J

Introduction

           

  1. The question for determination in this matter is whether Mr Ahmed Afif(“First Defendant”), a prominent political figure in Seychelles, defamed Mr David Savy (“Plaintiff”), the former Chairman and Chief Executive Officer(“CEO”) of Air Seychelles and well-known businessman.
  2. The alleged defamation occurred in 2015, when Mr Afif presented and made remarks at a public meeting. Mr Savy claims that the remarks and presentation were understood to be about him, and were intended to defame him. He has sought damages to the sum of Seychelles Rupees One million SCR 1,000,000 against Mr Afif for the alleged defamation.
  3. For the most part, the factual background surrounding this claim is uncontentious. The Plaintiff was the CEO of Air Seychelles from 1997 till 2011. This was publicly known.
  4. On 6th September 2015, political party Lalyans Seselwa held a public meeting at the International Conference Centre (“ICCS”), Bois de Rose. Mr Afif was then the Secretary-General of the party. The meeting was attended by amongst others, Mr Patrick Pillay, William Herminie, Clifford Andre of the party. Members of the public were also in attendance.
  5. During the meeting, Mr Afif gave a power-point presentation with five slides. These slides contained statements in Creole and had on some of them, pictures of the Plaintiff and of aeroplanes of Air Seychelles. He showed these slides, and made remarks about them in Creole.
  6. Mr Afif has contested the translation of the contents of the slides, and the contents of his comments on the slides. He has, however, not presented his own translations and has instead placed it upon the Plaintiff to prove their veracity.
  7. He started by saying “Pran zot letan parske lalyans i konnen pou dir zot in pran sa larzan. Kontinyen rode.” Translated: Take [your] their time because Lalyans knows that they [you] have taken that money. Continue to look.
  8. He then presented the slides. The first contained a photograph of Mr Savy with a Dr Rajiv Bissessur and the word “koripsyon” was written in black on top of the image. The word “Koripsyon” translates to “Corruption”.
  9. In relation to this slide, Mr Afif said the following in creole:

«Koripsyon pa fini la. Zot rapel nou ti annan nou en zoli lakonpannyen ki apel Air Seychelles, ki ti pou nou? I nepli pou nou. Nou demann zot enn ti kestyon, ki mannyer an 2009, ki mannyer zot ti perdi 5.4 milyon Ero an 2009? Be ler nou demann sa kestyon, parske nou fyer nou pei e nou rapel ki zot ti vinn kot gouveernman e zot dir ek gouvernman pret zot 255 milyon roupi.»

  1. According to the Plaintiff, the English translation of these words are:

Corruption does not stop here. You remember we had a nice company which was called Air Seychelles, which was ours? It is no longer ours. We asked them a small question, how come in 2009, how come they lost 5.4 million Euros in 2009? We asked them that question? When we asked them that question, because we are proud of our country and we recall they come to the Government and said to the Government, lend them 255 million rupees

  1. Another slide contained the words ‘Ankor Koripsyon’ (translated, “More Corruption”) at the top, with a picture of an Air Seychelles aeroplane and the following bullet points that: “governman ti fer kadoDe san senkann-senk milyon (S.R.255,000,000) sibvansyon; Ekivalan senk mil senk san (S.R. 5,500) dan pos sak travayer Seselwa; ti dir pa bezwen rode kot nal mal”. These statements translate to “the Government gifted SR 255 million as subvention. Equivalent to SR 5 500 from the pocket of each Seychellois worker. It was said there was no need to enquire where it went wrong!
  2. He said the followingin reference to this slide:

«Wi nou bann zanmi, zot ti demann pret zot 255 milyon Roupi aloz zot in defons en trou dan zot bidze. Ler i demann prete ek governman savedir in  demann ek zot parskek zot ki pey larzan ki donn gouvernman tou lemwan. Si ou kalkile desan senkann senk (255) milyon roupi I annan 46,000 travayer sesel, sakenn de zot travayer in n donn Air Seychelles senk mil senksan (5,500) roupi. Sakenn zot in donnen, mon dir donnen pa prete akoz la I pa pe ran. I pa pe rann. Savedir en mwan zot saler zot in pran zot in vid dan entrou. E ler nou demande, be myse ou’n pran en mwan nou saler be esplik nou akoz oun pran e n mwan nou saler? Ler nou demande zot dir pa bezwen rod kot  nal mal. Sey aranz bato anfen avyon me Selman pa demande kot nal mal. Be nou dan lalyans Seselwa nou anvi zot konnen kot nal mal. Mon kwar I enportan zot konnen kot nal mal.» 

  1. The English translation:

Yes my friends, they asked to borrow 255 million Rupees because they had created a hole in their budget. When it asked to borrow from the Government it means it has asked to borrow from you because you pay money to the Government every month. If you calculate 255 million rupees there are 46,000 workers in Seychelles, each one of you worker has given to Air Seychelles 5500 Rupees. Each one of you has given. I say given not lend because it is not paying back. It is not paying back. This means one month of your salary you have taken you have thrown it down a hole. And when we asked, but Mister, you’ve taken one month of our salaries? When we asked they say there is no need to enquire where it went wrong. Try to fix the boat, well the plane but do not ask where it went wrong. But we in Lalyans Seselwa we want to know where it went wrong. I believe it is important that you know where it went wrong. I believe it is important that you know where it went wrong.

  1. Another slide contained the words “Ankor koripsyon” and the bullet points stating“lwe avyon ek ILFC ; De ti asiz permanan lo koltar; ILFC ti anmas dis mil dolar ($10,000) par zour lo sak avyon”. These words translate to: “More Corruption.....leased five aeroplanes from ILFC. Two sat permanently on the tarmac. ILFC collected $10 000 per day on each aeroplane.”
  2. This slide had a pictureoffive Air Seychelles aeroplanes parked on the tarmac at what seems to be the Seychelles International Airport at Port Larue. The first Defendant said the following in relation to this slide:

« Mon montre zot sa portre pou vwar pou dir an sa lepok nou ti annan nou senk avyon, tou le senk i la. Zot nepli la. Akoz ti annan senk avyon? Akoz zot tip e lwe sa senk avyon. Me toultan ti annan zis de avyon ki ti pe fer lerop, trwazyenm avyon ti al Moris, Sengapour ek Sid Afrik e de a vyon ti reste park lo sa koltar Pointe Larue. Sa  de avyon ki ti reste park ti pe kout sa pei 10 mil dolar par zour par avyon. 20 mil dollar par avyon ti pe asize lor sa koltar pa pe ganny en sou akoz i pa anvole. Eski i difisil pou nou konpran si ou annan de masin pe asiz ater ven mil (20,000) dolar par zour preski de san senkant (250) milyon roupi par zour, kid an en semen oun depans ou 1.8 milyon roupi, ou pa pou anfonse vitman ou pou ariv de san senkann senk (255), e ler ou per fer tousuala lekel ki pe ganny larzan? Ou perdi ou. Be sa boug ki lwe ou avyon ki per fer larzan parske li xis is assize I park son avyon lo ou koltar in anmas ven mil (20,000) dolar par zour. Se sa enn bann rezon ki sa lakonpannyen to fayit. »

  1. Translated:

I show you this photograph to show that during that time we had five aeroplanes, all five are here. They are no longer here. Why were there five aeroplanes” Because they were leasing five aeroplanes. But at all times there were only two aeroplanes which went to Europe, a third aeroplane went to Mauritius, Singapore and South Africa and two aeroplanes which remained on the tarmac at pointe Larue. The two aeroplanes which remained parked was costing the country ten (10) thousand dollars per day per plane. Twenty (20) thousand dollars per aeroplane which remained on the tarmac not earning a cent as it was not flying. Is it difficult for us to understand that if you have two engines which remain on the ground, twenty (20) thousand dollars per day, nearly two hundred and twenty thousand million Rupees per day, that in one week you’ve spent 1.8 million Rupees, would you not sink quickly for you to reach 255, and when you are doing all of this, who is losing money? You are the one losing. But the guy who is leasing you the aeroplane is making money because he sits down he parks his aeroplanes on your tarmac and he collects twenty thousand (20,000) dollars per day. This is one of the reasons that this company went bankrupt.

  1. Another slide contained the words, “Vann tiket ek dalon”: “Lafrans sesel pour Euro 280 oubyen S.R. 4200 ek dalon enkli klas biznes; dalon I revann pour Euro 800) oubyen 12,000”. These words translate to: “Selling tickets to friends … France to Seychelles €280 or SCR4200 to a friend including business class….Friend resells for €800 or SCR12000.”
  2. The First Defendant said this in relation to the slide:

«Mon pa pou koz bokou lor la. Mon pou donn zot en ot lekzanp akoz sa lakonpannyen to desann. Pa sa. Zot tip e vann tiket ek zot dalon. Eski zot ti konnen pou diri ler I tip e perdi larzan Air Seychelles ti pe vann en tiket ek son dalon kat mil desan (4200) roupi sorti lafrans pou vinn Mae kat mil Desan (4200) roupi. Sa dalon i en reseler, i vann sa tiket 12,000 Roupi ek kliyan, kliyan i pey 12,000. Air seychelles i anmas 4,200 Ruopi en boug i pran 8,000 roupi i met dan son pos. Avyon i antre plen, plen debarke sorti lafrans, deborde, lakonpannyen i fayit malgre avyon i plen. Se sa ki Air Seychelles ti pe pas ladan. Mwan mon pe dir ek zot, lekel ki responsab tousala. Sa boug kin lwe ou avyon parske sa boug ki lwe ou avyon, ki ganny li zis ek nou 20 mil dollar par zour ozordi sa lakonpannyen ki li I ti travay avevk in kite I form son prop lakonpannyen e ozordi i vo 3.7 milyar dolar. Pa zis pou nou petet in fer dil lezot landrwa.»

  1. The translation in English:

I will not talk a lot about that. I will give you another example as to why the company went down. Not that. They were selling tickets to their friend. Did you know that when it was losing money Air Seychelles was selling a ticket to his friend Four Thousand Two Hundred (4200) rupees to travel from France to Mahe. Four Thousand Two Hundred (4200 rupees. That friend is a re-seller, he sells tickets twelve thousand (12,000) rupees tote to that, the clients pay twelve thousand (12,000) rupees, Air Seychelles collects four thousand  two hundred (4200) rupees a guy pockets eight thousand (8000) rupees. The aeroplane comes in full, full form France, the company goes bankrupt despite the aeroplane is full. This is what Air Seychelles was going through. I am asking, who is responsible for all of that? Who benefited from all of this? This guy who leased you the aeroplanes because they guy who leased you the aeroplanes is the one who receives only form us twenty thousand (20,000) dollars per day. Today he has left the company that he worked for and created his own company and today he is worth 3.7 million dollars. Not only from us maybe he did other deals elsewhere.

  1. The following slide contained the words “The Good Life SR 1 paran”. It also showed Mr Savy in the picture with one Mr. Sunil Shah at the latter’s home on Round Island. The slide also contained a copy of the first page of the lease agreement between Trinity Estate(Pty) Ltd and the Government of Seychelles and the following words in that lease was encircled with a black mark: “an annual rent of Seychelles Rupees One only”. The first Defendant said this in relation to this slide:

“Nou zanmi ki li i ti ansarz sa lakonpannyen kin fer koule li pe enjoy ek son dalon, zwazo menm nik, kinn ganny en zil ki in lwe ek li par gouvernman en roupi (S.R.1) par mwan, zot lo sa zil ki zot pe gete la. Si zot pa oule kwar la son lis kot inn pey en roupi (S.R. 1) par mwan.»

  1. The English translation:

Our friend who was in charge of that Company which he sank, he is enjoying with his friend, birds of the same feathers, who has got an island that has been leased to him by the government one (1) rupee per month.

  1. He also said:

“Kin arrive finalman zot in vann nou byen. Nou nepli annan nou laprid, nou kip e pey det parske sa bann zans kanntmenm zot in dir zot pe donn nou en goudmen nou kip e pey sa bann det, zot pa pe peye. Nou nou’n perdi control, nou’n perdi nou dignite. Lo nou moto zot a war toultan no dir i enportan pou nou annan nou dignite, me dan sa ka nou’n perdi nou dignite. Ozordi sa lakonpannyen i ankor pe perdi larzan. Se pa mwan ki pe dir. Monn met website ki zot kapab al lo lal. Zot a war ekzakteman ki lemon i panse lo Air Seychelles. i pe perdi larzan ziska ozordi. Sa rapor ki monn mete ti 2015 siporte par fron moniter enternasyonal.”

  1. Translated:

What has happened finally, they sold our property. We no longer have our laprid, we are the ones paying the debt, those people despite saying they are giving us a helping hand, we are the ones paying all these debts, they are not paying. We have lost control, we have lost our dignity. In our moto you always see we always say it is important for us to maintain our dignity, but in this case we have lost our dignity. Today this company is still losing money. It is not me who is saying this. I have shown the website which you may access. You will see exactly what the world thinks on or Seychelles. It is losing money until today. The report I have shown is 2015 supported by the International Monetary Fund.”

  1. The Plaintiff, Mr Savy felt that these remarks were defamatory, and on 12thOctober 2015, he lodged a Plaint in this Court, seeking, as mentioned, compensation of Seychelles Rupees One Million (SCR 1,000,000/-) from the First Defendant.

The Plaint

  1. In his Plaint, he claimed that in addition to the presentation at the meeting, the First Defendant also maliciously published or caused to be published, a video of the First Defendant publishing the allegedly defamatory words at the public meeting, by placing it on YouTube. This video was accessed by a large but unquantifiable number of people who understood Creole.
  2. In his view, the words that the First Defendant said were understood by all to refer to him (the Plaintiff). He was also referred to in two pictures. The words mentioned were published simultaneously with the publication of the photographs. Large numbers of persons who heard the words would reasonably have understood them to be referring to the Plaintiff.
  3. He stated in his Plaint that the words used by the First Defendant were defamatory in their natural and ordinary meaning, alternatively, by innuendo. They were intended to convey that the Plaintiff has committed corruption in the manner he managed Air Seychelles Ltd; that he is a corrupt individual; that he sold tickets at a low price to his friend so that his friend could make a profit by selling the tickets at a higher price to the detriment of Air Seychelles Ltd; that he abused his position as Chairman and CEO of Air Seychelles Ltd and took decisions that were not in its best interest; that he was responsible for Air Seychelles facing financial troubles or going bankrupt; and that he is corrupt and dishonest like it is alleged Sunil Shah is, whom the Plaintiff is close friends with.
  4. In his Plaint, he also included the Second Defendant Laylans Seselwa as having procured and participated in the publication of the words. But, he later withdrew the claim against the Second Defendant when it issued a public apology.
  5. As regards the YouTube clip, he alleged that this was still available on YouTube at the time that he filed his action.
  6. He complained that the words caused him hurt, distress and embarrassment in his profession and office. Lamenting that he was brought into public scandal, abhorrence and contempt as a result of this publication by the Defendants, and his reputation seriously damaged. Thus, he was entitled to SR 1,000,000 from the Defendants, jointly and severally, along with interests and costs of the suit. With the Second Defendant no longer a party, the claim persists only against Mr Afif.

The Defence

  1. Mr Afif filed a statement of defence on12thJanuary 2016 and essentially admitted making the statements and publications at the public meeting. But, he raised several defences. He stated that the words used were, in his view, true in substance. Alternatively, they were opinions expressed which by nature cannot be true or false. He stated that the comments were made in the public interest. That it was not malicious or defamatory. Instead, these were matters of purely public interest, he said them in good faith and without any malice.
  2. Heclaims that the information that he shared at this public meeting was information thatthe public had a right to know. He had been requested to carry out an audit report on Air Seychelles. This report was presented to then-President James Alix Michel, in the Plaintiff’s presence and that of Minister Joel Morgan. He had recommendedthat the Financial Forensic Investigators be called in, but this request was denied and the report (that he had done) was shelved.
  3. He denied that the words bore or were understood to bear or were capable of bearing the meaning alleged by the Plaintiff. He denied that they were false and malicious. Or that they were defamatory. The words used were, in his view, true in substance. Alternatively, they were opinions expressed which by nature cannot be true or false. They were a fair comment upon a matter of public interest, said in good faith and without malice. They pertained the conduct of the affairs of Air Seychelles, a public company under the leadership of the Plaintiff for over 15 years.
  4. He denied that the translation of his comments regarding the slides was accurate, and placed the Plaintiff to the proof of this.
  5. He denied that the publishing, display and exhibiting of the slides bore or were understood to bear the meaning alleged by the Plaintiff, i.e., that he was a corrupt individual, and responsible for the financial meltdown Air Seychelles faced.
  6. He has also rebutted the translation of the contents of the slide, stating that these were not accurately translated.
  7. With regards to the audiences’ appreciation and understating of the comments and presentation, he denied that these were understood to bear the meanings alleged.
  8. He denied posting the video of his presentation and commentary on YouTube, and denied the allegation that this was accessible to a large unquantifiable number of persons who understood Creole.
  9. He denied that the two pictures in the slides referred to the Plaintiff, and that the Plaintiff was specifically referred to by virtue of the publication of the words which were published simultaneously with the publication of the photographs. He also denied that a large number of persons who heard the words would reasonably have understood them as referring to the Plaintiff.
  10. The First Defendant denied that the words complained of were defamatory of the Plaintiff in their ordinary meaning, or by innuendo. Particularly, they did not mean, and could not be understood to mean that the Plaintiff had committed corruption in the manner that he managed Air Seychelles Ltd; that he is a corrupt or dishonest individual; that he sold tickets at a low price to friends so that they could make a profit to the detriment of Air Seychelles Ltd; that he abused his position as the Chairman and CEO and took decisions which were not in the interest of Air Seychelles Ltd; that he was responsible for Air Seychelles’ financial meltdown or going bankrupt; or that the Plaintiff was corrupt and dishonest like his close friend, Sunil Shah was alleged to be.
  11. In regard to the above, he insists with his defence that the presentation and comments were true in substance. Alternatively, they were opinions expressed which by nature cannot be true or false, and made in the public interests. That it was not malicious or defamatory. Instead, these were matters of purely public interests, he said them in good faith and without any malice. He insisted that the information that he shared at this public meeting was information that the public had a right to know.
  12. He denied any knowledge that the video of the presentation was, at the time of instituting the Plaint, still online for public viewing.
  13. Lastly, he denied that the Plaintiff suffered any serious damage to his reputation or that he suffered hurt, distress and embarrassment in his profession and office. He denied that the Plaintiff has been brought into public scandal, abhorrence and contempt as a result of the publication. Thus, the Plaintiff was not entitled to the damages and costs that he has claimed.

The Evidence

  1. In addition to his own testimony, the Plaintiff called two witnesses namely Mr. Richard Young and Mr. Emile Belmont. The first Defendant testified on his own behalf. The evidence of the Plaintiff sought to show that the allegations against him were false, and thus defamatory. The First Defendant, on the other end, led evidence that the comments were substantially true, alternatively, that this was a fair comment that was necessary to share with the public as they had a right to this information.
  2. The Plaintiff testified that he was 58 years of age, self-employed resident in Seychelles. He held several positions on national and international boards. For example, locally he sat on the boards of Sky Chef, SCAA and the Institute of Early Childhood Development and was treasurer of Seychelles’ Children’s Home Foundation. Internationally, he was the chairperson of the leading African aircraft leasing company. He also sat on the Emirates RIET, which is a trust.
  3. He had been in the aviation industryfor his entire career. He started off as a pilot and later took the position of Chief Pilot with Air Seychelles. Thereafter, he moved into management as the Director of Operations. He was then asked to take the position of CEO of Air Seychelles in 1997, first on an interim basis. He held the CEO position for almost fourteen years.
  4. As regards the public meeting and the comments leading to the action, he was not present at the public meeting, but was told about it and it was covered in the media. It was also posted on YouTube, and was still there on 21stMay 2018 under the name of Lalyans Seselwa ICCS. The particular portion thereof that concerned Air Seychelles was seven minutes and twenty-eight seconds long.
  5. As to the substance of what the first Defendant said, the Plaintiff testified that the allegation that there were aircraft leased at USD 20,000 per day was false. In this regard, he stated that the airline had five aircrafts in 2010. Each operating its own specific route. One of the aircrafts was a backup one and was leased at an extremely low rate because ILFC or Boeing was unable to deliver a 787 in time. They leased this for USD 10,000 per month. Another one was USD 110,000 per month, and had lease agreements to this effect. He stated that Mr Afif having been on the board at that time, knew this. He denied that Air Seychelles had two planes during the period 2009 and 2011 which were sitting on the tarmac while Air Seychelles paid USD 10,000 per day in lease instalments. He testified that the most expensive lease rate paid was USD 496,000 per month for the aircraft that did the European routes (the 767-300).
  6. The aircraft that was alleged to be sitting unused on the tarmac, was doing five rotations per week to Paris. The spare aircraft, which cost USD 10,000per month was used to replace the others when these had to undergo maintenance for four or two weeks per year. It would have cost in the region of USD 200,000 for one rotation from Paris to Seychelles and back.
  7. He denied that there were any planes sitting, unused, on the tarmac from 2005 to 2011. The Plaintiff’s counsel attempted to place before the Court, certain invoices from 2010 which spoke to the leased aircraft. The first Defendant’s counsel objected, on the ground that the first Defendant had not referred in his slides to 2010, but had specifically referred to 2009. Thus, the invoices were irrelevant since they did not relate to 2009.
  8. He then presented into evidence, the lease agreement of the two aircraft(767-200 and Sierra 7 ILF). The ILF was USD 10,000 per month but it had started at USD 75,000 in August 2009 for seven months, and then at USD 95,000 for two months, USD 83,000 for one month and then USD 10,000 for the duration of the lease. The first Defendant was a member of the Air Seychelles board at the time. He was the Principal Secretary of Finance and had access to the lease agreements. He knew that the leased aircraft did not cost USD 10,000 per day.
  9. The second plane, the Sierra 7 SEZ had an agreement that commenced on 9thFebruary 2009. For the first six months, it cost USD 100,0000 per month. From six to twelve months, USD 105,000, from thirteen to eighteen months, USD 110,000, from nineteen to twenty-four months, USD 125,000.
  10. The Plaintiff also presented invoices, which made reference to a 2008 agreement. The First Defendant’s counsel, Mr Andre, objected to the presentation of the invoices because his client had referred to 2009 in his presentation. The Plaintiff explained that the reference to 2008 in the invoice was as a result of a delay in the 787 that Air Seychelles had in their development plan. The invoice, in his view, supports the view that they were billed the amount in the agreement. The Court ruled that the invoice dated 28thSeptember 2010 and written ‘in pursuance of the agreement dated 25thJune 2008’ was admissible. This invoice was accepted as Exhibit (P2).
  11. He testified about Air Seychelles’ performance during his tenure as CEO. The company enjoyed a great profit over the years 1998 to 2007. It experienced its first loss in the year 2008 to 2009 in the amount of €2.7 million. And €5.3 million for 2009 – 2010. In total, the company made a profit of €17 million and a loss of approximately € 9 million while he was at the helm. It was his view that overall, the company made profits during his term.
  12. The Court also accepted the uncontested USB with the presentation and comments into evidence.
  13. With regards to the content of the slides and the comments at the meeting, especially regarding the losses suffered by Air Seychelles. He conceded that Air Seychelles did loose €5.4 million in 2009. This was during a year that he was CEO. But the impression created here by the first Defendant was that he (the Plaintiff) was responsible for bringing the company down to this loss. The slide also spoke about SCR 225,000,000 bailout from Government. He stated that this money was for the payment of deposits of the aircraft on the 787 and the twin otters. Air Seychelles needed to renew its fleet and since the Government was the sole shareholder, Air Seychelles needed to turn to it for the share capital.
  14. With regards to the losses suffered, he testified that there were many factors that contributed to this. Such factors included fuel prices escalating in 2009 from USD 70 to USD 140 per barrel. This was a record high in aviation history. Fifty-five percent of the total cost of the airline was out of the control of the company and nothing could be done about that. They could not hedge the fuel prices like they had in the past. There was also an aircraft that had been damaged in Paris, causing it to be inoperative for approximately six months.
  15. He further testified that the SCR 225,000,00 injection from the Government was the first that Government had to do since his reign in 1997. Thus, he took offence to the suggestions made by the first Defendant regarding this money since Air Seychelles’ turnover had ranged between USD120 millionand USD150million per year. Further, Air Seychelles had contributed freely to Seypec projects and SMB for no consideration.
  16. The money was used to purchase two domestic aircrafts each at USD 7 million. Each had a pre-deposit amount of USD 3.5 million.He testified that it was normal for state-owned companies to get bailed out by the government and there was nothing untoward about Air Seychelles getting funds from the government. This was the normal course of business for airlines. But the way in which the first Defendant framed it in his slides and comments, made it seem as if the Plaintiff was taking SCR 5,500 from every Seychellois worker’s pocket to give to Air Seychelles. This he found prejudicial.
  17. In relation to the slide and statement that he was selling tickets to friends, he testified that he believed that when the first Defendant spoke of ‘friends’, he was referring to Air France. He explained that Air Seychelles and Air France had entered into a joint venture in 1997. Air Seychelles sold two-way tickets to Air France for SCR 8400 and not SCR 4200 as suggested by the first respondent. Air France then, of its own accord, resold these tickets at higher rates. There was an option to resell back to Air Seychelles if the blocks were not filed timeously. He believed that this joint venture saved Air Seychelles in 1997 and allowed it to be profitable thereafter. This was a mechanism used to ensure that all the seats were filled. Air Seychelles had a mandate to promote tourism and make money toward the economy. Having a joint venture was important.
  18. He also explained that Air France sold the tickets on business class at higher rates than SCR 12, 000 because the average ticket from Seychelles to France was €800, which were called publish fares. There were also inclusive fares, where tour operators included accommodation and transfer fares in certain circumstances. So it was misleading of the First Defendant to say that Air Seychelles was settling for €280 while they resold for €800. As mentioned, it was double of 280, as it was returned. It was unfair to say that this arrangement constituted corruption.
  19. He again rebuffed the claim that there were any aircraft that sat, unused, on the tarmac. And the allegation that these were costing USD 10, 000 per day, calling this a ‘blatant lie’.
  20. With reference to the claim that his friend, Mr Sunil Shah, had leased an island for SCR 1 he agreed that he was good friends with Mr Shah from years ago. He did not know how much Mr Shah paid for the lease, but was aware that he had taken the lease over from Mrs Doris Kalei. But he did not know how much he paid for the lease of Round Island.
  21. In his view, the suggestion in the slide was that he and Mr Shah, who were pictured together in the pool, were in cahoots in that he was making it possible for Mr Shah to enjoy a lease of SCR 1 for an island. He felt that the suggestion ‘dirtied’ his name.
  22. With regards to the sale of Air Seychelles to Etihad Airways, he stated that this sale happened when he had already left Air Seychelles.
  23. He stated that while he was at Air Seychelles, three internal audits were done including by the Ministry of Finance when the funds were sought from the Government. Ernst &Young Paris also conducted one when economic reforms were done. The audits came back clean. When the Ministry of Finance was unsatisfied, an American firm called GRA came to do a forensic audit which gave Air Seychelles a glowing report for its ability to hold its own against the competition from the Gulf carriers.
  24. He testified that the very first slide contained the word ‘Koripsyon’ right at the top with his picture on it has caused him great grief – as did the suggestion that he was corrupt in the other slides. He was not a corrupt individual and to be labelled as such has affected him negatively, and also affected his relations with others and with family. He felt that some people now looked at him differently and some abandoned him. He had to explain himself to many people and caused him many sleepless nights. That this was done to him by a colleague further exacerbated things. Mr Afif was a fellow board member and a senior government official and former official in the Ministry of Finance.
  25. He explained that the First Defendant’s publication of the slides and comments affected him greatly. The decision to leave Air Seychelles was a hard one because of differences between him and board members. These allegations against him harmed his reputation that he took time to develop over the years. He became depressed and had to take medication. His name was tarnished for political gain, and since he is not a politician, the only recourse he has is through the Courts. These allegations still persist on social media causing further distress.
  26. In cross-examination, he testified that in addition to fuel prices contributing to the loss of €5.4 million, there was also competition from other airlines like Emirates and Etihad following the adoption of the open sky policy. However, he agreed that the financial statement for 2009 showed that fuel prices were at €43.5 million and at €28.5 for 2010.
  27. He agreed that the slide which concerned the €5.4 million headed ‘Corruption’ did not mention his name but stated that his picture was there, and in the various other slides like the one on Round Island. It was his view that it would be naïve to say that the First Defendant was not referring to anyone but him as the CEO of Air Seychelles. The inference was inescapable.
  28. With the next slide titled ‘Ankor Koripsyon’ which had no picture of him, he explained that he took offence to it because he was the CEO of Air Seychelles. He conceded that his name was not mentioned.
  29. With regards to the suggestion that SCR 5500 was taken from each taxpayer to make the SCR 225 million bailouts, which he testified was misleading, he was asked whether this amount was not paid by the taxpayers. He disagreed with this.
  30. Although he was adamant during his examination that no aircraft sat unused on the tarmac during his reign, he testified in cross-examination that the programme during that time was that there would very rarely be two aircraft for very long durations like for more than two days. He reiterated that there were no permanently unused aircraft. Because they had flights to run. Two aircraft were used to substitute any of those that required maintenance for two to four weeks. He testified that due to the schedules of the flights, it would have been impossible to have two permanently grounded flights. Counsel for the First Defendant, however, took issue with the fact that the Plaintiff did not have any documentary evidence, like schedules, to show that these two crafts were operated. He only had his oral testimony to this effect, which in his view was not sufficient.
  31. In so far as the slide which contained the sale of tickets to friends’ allegation, it was put to him that his name had not been mentioned as the person selling tickets to friends. The Plaintiff insisted that his picture there gave the impression that he was the one selling tickets to friends.
  32. He was asked why Air Seychelles lost money on the Joint Venture. He explained that this was a result of the Ministry of Finance not allowing it to hedge the fuel, as they had done in the past. This venture covered the Paris route. And they were unsuccessful in getting a renewed agreement with Air France. They did not have any say over how much more Air France charged for these resold tickets. In his view, they had sold the tickets to Air France at a fair price in accordance with the codeshare agreement. He reiterated that the slide referred to €280, whereas this was only the one-way fee charged. The return was double of this amount.
  33. With regards to the slide that spoke of the lease of aircraft from Mr Hazy, it was put to him that there was nothing defamatory in that. He testified that the suggestion was that Mr Hazy was receiving USD 20,000 per day from Air Seychelles. He felt that this impugned his character, since he ‘is Air Seychelles.’ Counsel for the Plaintiff put it to him that he was not in fact Air Seychelles. He disagreed with this.
  34. With reference to the picture of the Plaintiff and his friend Mr Shah at Round Island, and the alleged SCR 1 lease of the island, he agreed that he did not have any lease with the government of SR 1. Counsel thus suggested that the slide could not be defamatory to him. The Plaintiff disagreed, stating that terms used therein – regarding a ‘good life for SCR 1’ – were defamatory of him.
  35. He agreed that he did not form part of the last slide, which showed Etihad and Air Seychelles.
  36. He rejected Counsel’s suggestion that the slides and presentation were never about him. Rather, that it was about showing the demise of Air Seychelles – which actually happened. That the presentation was not meant to defame him.
  37. The second witness for the Plaintiff was Mr Richard Young. He worked as a pilot with the Plaintiff and had been friends with him for over 30 years. He testified that he was aware and saw the YouTube video with the first Defendant’s presentation in 2015. He testified that he was shocked by it, but that he was also confused and annoyed by it.
  38. He said that after he first watched it, he did not know what to make of it and was still confused. But he later spoke with Mr Savy and he brought it up. Mr Savy assured him that the allegations therein were false.
  39. In cross-examination, he testified that he found and viewed the YouTube video by himself. He stated that due to the video, he lost confidence in Mr Savy as a friend and colleague. He also stated that he saw Air Seychelles in a different light after this. He said that despite his name not being mentioned, the slides had his pictures which is why his opinion of Mr Savy changed – raising questions about his integrity. He stated that he was aware of the losses that Air Seychelles suffered in 2009, and was affected by them as an employee. However, the loss did not automatically result in Mr Savy being corrupt.
  40. The last witness called was Mr Emile Belmont, a mechanic and friend of Mr Savy’s since 1980. He described Mr Savy as someone who he respected. He also watched the video of 2015 and was shocked by it. He called Mr Savy to ascertain their veracity. Mr Savy was also shocked at the video. He felt different toward Mr Savy and lost confidence in him. And although they resolved things, he still had some lingering questions because he could not believe that this was the same person he knew.
  41. Under cross-examination, he mentioned that what he saw in the video included the photograph of Mr Savy and Mr Shah in the swimming pool which affected him. When asked how he considered that photo to be defamatory, he explained that these suggestions that Mr Savy was corrupt affected him because he knew Mr Savy. When it was put to him that Mr Savy was not mentioned, he stated that he heard something in the video about the CEO of Air Seychelles. What was said in the video created doubt in his mind about whether Mr Savy took money off Air Seychelles. He assumed that Mr Savy was responsible for the losses suffered by Air Seychelles. He did not know Mr Savy to be a thief. He denied coming before a Court to assist Mr Savy because they were old friends.
  42. Mr Afif began his evidence. He was, at the time of his evidence, the deputy speaker of the National Assembly. He admitted that on 6thSeptember 2015 he made a presentation and comments around Air Seychelles. He stated that what he said were statements of facts and was not intended to be malicious. He said that Air Seychelles lost €5.4 million in 2009, that the Government paid it SCR 225 million which is the equivalent of SCR 5500 from each worker of Seychelles. He stood by these comments.
  43. He was questioned about the Air Seychelles Financial Statement for the period ended 31stMarch 2010, which was entered as Exhibit (D1). In terms of this statement, the ‘ILFC’ collected USD 10,000 each day from each plane. He explained how he arrived at this figure. The total paid in respect of rentals for air crafts amounted to €13, 517,000. This was paid for five aircraft in 2009. He divided this figure by 365 days. He then divided this amount by 5. And the applied the conversion rate at that time. This amounted to approximately USD 10,000. This, he said, was a statement of fact and not malicious.
  44. He then looked at the lease agreement between Air Seychelles and ILFC which was entered as Exhibit (D2). In terms of this document, the rent was USD 535,000 per month for a duration of four years – April 2007 to January 2010. Dividing this amount by 30 days adds up to USD 18,000, which is more than his estimated USD 10,000.
  45. With reference to the suggestion that tickets were sold to Air France for €240 for friends including for business class, he looked at the code-sharing agreement which was entered as Exhibit (D3). He referred to page three thereof, where the one-way seats, excluding government taxes for the period March to May 2011 for Seychelles Charles de Gaulle was set at €280. On the top of that column it said ‘for each seat C or Y in Euro, C is business class and Y is economy.
  46. He testified that he had not mentioned any names in relation to this, but merely made the point that it was €280 irrespective of the class.
  47. He then made reference to another lease agreement dated 10thNovember 2008 between Air Seychelles and the ILFC in respect of Boeing 767/219 ER.
  48. He stated that he did research concerning market rates between Seychelles and Paris for January to July over different airlines. The documents he prepared was accepted as Exhibit (D5). The rates for Seychelles Paris varied from €821 to €1278. The lower rates were for economy class. Emirates was selling for €744 and Qatar for €604.
  49. In his view, the reference to €280 was based on the agreement. And this is what he was referring to in his presentation.
  50. With regards to the picture of the Plaintiff and Mr Shah at Round Island, and the allegation that Mr Shah paid SCR 1 for his lease of the island, he testified that the agreement which was publicly available showed that the annual rent was SR 1In his view, there was nothing malicious in having the picture of the Plaintiff and Mr Shah in tandem with the SR 1lease agreement.
  51. He stated that he was not malicious in his statements, as they were based on facts. He did not make any attack on any individual. His objective was to show that the company was running at a loss and operational decisions were being taken that were not right. He said he did not intend any malice. His view was that the claim for SCR 1 millionwas ludicrous.
  52. Under cross-examination, Mr Afif testified that to some extent, he knew the workings of Air Seychelles since he was also a board member at some point. He was also part of the Ministry of Finance and at that time, they received six-monthly reports from public enterprises like Air Seychelles.
  53. He was asked what he meant by his reference to ‘corruption’ and ‘more corruption’ on the slides, since his testimony was that he did not mean anything malicious by it. He explained that corruption, in his view, meant something not running according to the norm. It was put to him that corruption has a malicious meaning to it. His response was that he did not direct the statement at a person, but he was suggesting that something had gone wrong.
  54. When it was suggested to him that by placing the Plaintiff’s pictures next to the heading, he was impugning his character he disagreed with this. He explained that his intention in putting the picture of the two individuals was to relate the company with Mr Savy because he was often on TV representing Air Seychelles. He was seen as the face of Air Seychelles. He put a picture which had Air Seychelles planes at the background and the persons in charge of the institution.
  55. With regards to the SCR 255 million that Government assigned to Air Seychelles, he testified that this money was received in 2009 while Mr Savy was at the institution. He disagreed that it was received after he had already departed as CEO, stating that Air Seychelles had asked for an injection of SCR 75 million. This was part of the SCR 225 million.
  56. He explained that the losses suffered by Air Seychelles to the tune of €5.4 million in 2009were as a result of a loss of revenue in fare collections, and the costs incurred in having five big aircraft while two were not flying regularly but had to be paid for. When asked what the impact of the global recession of 2007 and fuel prices may have been on Air Seychelles, he agreed that fuel prices peaked astronomically. He conceded that this would have affected the costs at Air Seychelles. When it was put to him that he was one of the individuals at the Ministry of Finance who objected to the continued hedging of prices for fuel, he disagreed, stating that he could not recall objecting to this since the matter was never raised with him directly.
  57. It was also put to him that when he said Air Seychelles ran at a loss, what he meant was that the people who were running it was not running it properly. His denied this, saying that he only presented facts concerning the company’s state of affairs.
  58. Counsel for the Plaintiff also suggested to Mr Afif that in the past, Air Seychelles had made profits with Mr Savy at the helm. But that Mr Afif nitpicked at the losses because he wanted to defame Mr Savy and those assisting him in running the company. Mr Afif denied this, stating that he was merely highlighting a problem that was grave and where the problem lay so that people would be aware and would hopefully do something about this.
  59. He was also asked why he had not told those in attendance about the factors that may have contributed to the losses. His response was that to his mind, the airline was going under because of bad decisions on revenue and expenses on leasing too many aircraft with very little returns. He felt that his account to the public was accurate, and did not need to be ‘broken down’.
  60. Asked why he had not mentioned, in his presentation, the fuel hikes and the breakdown of the airline in Paris as factors which were beyond the management’s control, he responded that these were not beyond management’s control. When fuel prices change, provision is usually made for this in the agreements which allow fares to change to make good on fuel prices. But in the Air France agreement, this was not provided for. The price remained at €280 despite the hikes in fuel. The damaged plane did not need to have any impact because insurance would cover that. It would have had no bearing on profits or losses because insurance would cover that.
  61. He denied that the intent of his presentation and use of the word of corruption meant that Mr Savy or management was corrupt. He explained that the manner in which the events happened was corrupt. It should not have happened in the way it did. It did not follow the norm.
  62. He was asked why, if he believed that Mr Savy was corrupt, he did not pursue a comPlaint at the Anti-Corruption Commission. He stated that he did not file a comPlaint because he believed it would be prudent to use the instruments at his disposal like the National Assembly to prove that there were acts which were corrupt. He reiterated that his use of the word meant not following the norm not bribery or anything of the nature for which the Commission was set up for.
  63. It was put to him that he used the word corruption in an attempt to rile up the public. His response was that the public ‘know something is wrong’.
  64. Asked about the two allegedly unused aircraft that were left on the tarmac he responded that he meant that the two crafts were mostly grounded but could be swapped. It was not two specific aircraft because the schedules of flights differed. But at most times, or at all times, two planes would be grounded. Essentially, only three planes were used at a given time and two remained grounded. But there were no specific ones grounded, since they were used on a rotative basis.
  65. In his view, Air Seychelles could have done with just three planes. It was then put to him that the two planes were there to make up for the delay in delivery of the 787 Dream liner. His response was that he did not know what the relationship was between the latter craft and the two.
  66. With regards to the lease amounts on the rented aircraft, he testified that what he had referredto during his presentation, was the average costs, and not the actual costs. He explained that he did not know of any political going to a rally and explaining costs in detail. He was merely speaking about the average cost per day.
  67. With regards to the code-sharing agreement between Air Seychelles and Air France, he reiterated that in his view, Air Seychelles was selling the ticket below the market value. Asked what he meant by saying tickets were sold to friends, he stated that Air Seychelles was, prior to 2009, in partnership with Air France and then went into a code-sharing agreement. The partnership meant that they sold tickets together and shared the revenue. The friend, in this instance, was their partner. In 2009, the arrangement was stopped and became a codeshare in terms of which Air Seychelles shared its code with Air France. So, ‘he was the friend’.
  68. He rejected Counsel’s assertion that at the rally, what he was referring to a friendship with a corrupt element. He stated that he was referring to the fact that Air France was a partner of Air Seychelles and a friend of Air Seychelles. The tickets were undersold to this friend, which is why Air Seychelles went under. He stated that he never mentioned Mr Savy’s name. He wanted the crowd to understand the facts and explain why the airline was in financial distress with hefty losses.
  69. It was also put to him that the suggestion that the tickets were sold to Air France at SCR 4200 and resold by Air France at SCR 12,000, which meant there was a pocketing of SCR 8000 was problematic and wrong. He said that he did not see anything wrong with this, as these were facts. Further, that it was the person who leased the aircraft who benefited. Because whether tickets were sold or not, he still collected his lease amount. ‘We are the losers because we sell to our friends and the other guy who benefits from this is the guy who bought a cheap ticket at 280 and sells it at 800’.
  70. He denied that he was misdirecting the public by telling them that Air Seychelles was selling tickets at SCR 4200. Asked why he did not say that the sale was SCR 8400, as the return, and that by only stating the single trip amount, he was inciting the crowd and impugning the characters of Mr Savy and others, he disagreed stating that he chose two scenarios. There were two products Air Seychelles was selling – the economy and business class tickets. Both these were undersold. Economy at 280 one way and 560 return. In those days, the cost was€800 to Europe. The minimum for business class was €2000 return. Air France bought it for €560. He wanted them to understand that there was something seriously wrong with this.
  71. Counsel suggested to him that he was sensationalising at the rally, by choosing intentionally not to contextualise what was happening at Air Seychelles since the entire world was then undergoing an economic crisis. He disagreed with this suggestion.
  72. Asked what the reaction of the crowd was, he said that he could see their shock and disbelief. He denied, as Counsel suggested, that he had misled the crowd.
  73. With regards to the slide with Mr Savy and Mr Shah and the extract of the lease to Round Island suggesting that Mr Shah only paid SCR 1, it was put to him what he had said in the presentation that ‘our friend who is in charge of that company, which he sank, he is enjoying with his friend…who has gotten an island that has been leased to him by government for SCR 1per month’, was reference to Mr Savy. His response was that he never mentioned Mr Savy’s name. He said that he was referring to the picture where he was in. He stated that he had, at the start of his testimony, mentioned that Mr Savy was the face of Air Seychelles and he was there when Air Seychelles sank.
  74. He agreed that the crowd was angry but stated that the anger was directed at the government for allowing management and board to run the company at a loss for five years costing the taxpayers and people hardship. Whereas there were people who were living well, which is why he used the phrase ‘good life’. He was not referring to anything done directly by Mr Savy. He was in charge of Air Seychelles but he (Mr Afif) never pointed the finger at Mr Savy directly.
  75. He testified that Mr Savy left the board in early 2011, where he was asked to leave the board later on since there was a dislike for issues that he was raising.
  76. With regards to the statement Mr Afif made about the selling of Air Seychelles and incurring huge debts at the expense of losing Seychelles’ dignity as a country, it was put to him that this was imputed to Mr Savy, that he was responsible for the loss of the country’s dignity.
  77. He responded that this was not what he meant. He was referring to the shareholders and the government of Seychelles which was responsible for the activities of the airline. Mr Savy was the CEO.
  78. He denied that he was inciting hatred toward Mr Savy during his presentation, stating that he had no personal agenda against Mr Savy.
  79. He denied that he had said Mr Savy was corrupt and managed Air Seychelles in a corrupt manner. He never mentioned his name. He was speaking of the company and the decisions by the company which were wrong and caused Air Seychelles to sink.
  80. He denied that he had implied that Mr Savy had abused his position and had taken decisions which were not in the best interests of Air Seychelles. Air Seychelles’ board took decisions that were wrong. Mr Savy along with a group of others, principally the board, was responsible for this.
  81. He also denied the suggestion that he meant that Mr Savy and Mr Shah were birds of the same feather – corrupt individuals. He meant that they were friends and worked together as friends.
  82. It was put to him that he was raising his own political platform at the expense of Mr Savy and inciting the crowd. He responded that he was not inciting the crowd. He was merely speaking and wanted people to listen. To understand what was wrong and the need to change this. He did not imply that anything needed to be done against Mr Savy. He would have named him if this was the intention. He only used the pictures of Mr Savy because he was the face of Air Seychelles. People could relate him to the management.
  83. He disagreed that his use of the word corruption was wrong. He believed that what happened at Air Seychelles was wrong. He wanted people to see what was going on. Later on while Air Seychelles was running at a loss, the government kept telling people that it was making a profit. He went on to show that this was false.
  84. He stated that he used the word corruption to mean that things were not being done according to the norm. When he joined the board, he got the sense that thing was wrong, but was asked to leave before he could get to the bottom of things. This is why he said it is corrupt.
  85. He was asked whether he was still engaging in his business at the time that he addressed the crowd, and whether this did not constitute a conflict of interests. He responded that he was still in his business, they were pursuing a license for a new airline. But he felt it was material enough for him to go out and say this. Since this was a public company which concerned public money.
  86. Finally, he denied the suggestion that he was stitching together a narrative which he presented as facts to suit his own objectives which ended up slandering Mr Savy.
  87. He reiterated in re-examination that he did not use the word corruption to imply anything untoward against Mr Savy, and that the object of the presentation was merely to highlight the wrong decisions by the management at Air Seychelles that ultimately caused it to go belly up.

Analysis and findings on the evidence

  1. For the most part, Mr Afif conceded to saying what was stipulated in the presentation. His bone of contention is that this was not said against Mr Savy the individual. Rather, he had used Mr Savy’s pictures because he was the face of Air Seychelles and the persons in the crowd related him with Air Seychelles. His version was consistent that he meant to highlight the wrong decisions by the company, which led to its demise.
  2. He was also adamant, throughout, that the information that he presented was factual. First, that Air Seychelles rented out two aircraft at the average sum of USD 10,000 per day. That two aircraft sat on the tarmac, unused on a rotation basis. Air Seychelles suffered a loss of €5.4 million in 2009. That the Government bailed it out at SCR 225 million, which translates to an amount of SCR 5,500 out of the pocket of each working Seychellois. That it had a codeshare agreement with Air France in which it undersold the flights at SCR 4,200. That while this was ongoing, Mr Savy as the face of Air Seychelles was friendly with Mr Shah, who he (Mr Afif)considered a questionable SCR 1. And that Air Seychelles went belly up, costing the country its dignity.
  3. Mr Savy’s evidence attempted to show, firstly, that the allegations were against him and intended to defame him, and that they were false. His evidence effectively was that his pictures were used, and the commentary by Mr Afif could be read and was understood by the crowd to mean that he was the one who undersold tickets to friends, that he was responsible for paying USD 10 000 per day on the rental of an aircraft, while two aircrafts were unused. Further, that he was associated with, and enjoying a good life with persons of questionable character who got leased an island for SCR 1 from Government. That he was responsible for causing Seychelles to go under, and sold to Etihad. That Air Seychelles suffered a loss of €5.4 million in 2009 and got a bailout from government to the detriment of Seychellois taxpayers. Essentially, he was a corrupt person and that he committed corruption in his operation of Air Seychelles. He attempted to show that these allegations were false.
  4. His testimony regarding the underselling of tickets to friends, as suggested by Mr Afif, was that this sale, according to a codeshare agreement, was a standard method of conducting business which was profitable in the past. He also tried to highlight the point that the alleged friendship was indeed a business arrangement, in terms of which there was a valid contract. That it was not his arrangement, but an arrangement between two businesses – Air Seychelles and Air France.
  5. It was not contentious, during the proceedings that the tickets were sold to Air France at SCR 4200 for a single trip whereas Air France resold the tickets at a much higher rate of €800. But, what was contentious was Mr Afif’s statement implying in the presentation that the SCR 4200 was the entire trip, while this was not so.
  6. This was borne out by the evidence, and Mr Afif accepted that the amount of SCR 4,200 was for a single trip.
  7. With regards to the statement that two aircraft sat on the tarmac, unused, Mr Savy’s evidence was that this was untrue. Mr Afif’s evidence was to the effect that at any given time, two aircraft were unused while only three were operative. However, Mr Savy also testified that there was a spare aircraft, which cost of USD 10,000 per month, which was used to replace the others when these had to undergo maintenance for four or two weeks per year. He later testified that two aircrafts had been secured to stand in for the delayed 787 that was yet to be delivered.
  8. From this, it appears that there was, at the very least, one or two aircraft that were used intermittently.
  9. With regards to the allegation that Air Seychelles paid USD 10,000 per day for leased aircraft, and that the two leased aircraft came to USD 20,000 per day, Mr Savy’s evidence was that the two aircraft were USD 10 000 and USD 110,000 per month respectively. He stated that it ended up at USD 10,000 per month for one, but it had started at USD 75,000 in August 2009 for seven months, and then at USD 95,000 for two months, USD 83,000 for one month. Whereas the other one vacillated between USD 125,000 and 105 000 over a few months, to settle on USD 110,000. Further, the most expensive lease rate paid was USD 496,000 per month for the aircraft that did the European routes (the 767-300).
  10. Mr Afif’s response to this was that he had averaged the amounts, including costs paid in respect of other leased crafts. By his calculation, the amount per day was higher than USD 10 000.
  11. Mr Afif did not, in his presentation, inform the crowd that he was averaging the cost. He thought that this was inconsequential, since the amounts in any event came to more than USD 10 000 per day.
  12. It seems factual, and it seems on Mr Savy’s own version, that the amounts for the leases exceeded USD 10 000 per day, Mr Afif’s comment was to the effect that the two aeroplanes which remained parked were costing the country ten (10) thousand dollars per day per plane. And that:Twenty (20) thousand dollars per aeroplane which remained on the tarmac not earning a cent as it was not flying. Is it difficult for us to understand that if you have two engines which remain on the ground, twenty (20) thousand dollars per day, nearly two hundred and twenty thousand million Rupees per day, that in one week you’ve spent 1.8 million Rupees, would you not sink quickly for you to reach 255, and when you are doing all of this, who is losing money? You are the one losing. But the guy who is leasing you the aeroplane is making money because he sits down he parks his aeroplanes on your tarmac and he collects twenty thousand (20,000) dollars per day. This is one of the reasons that this company went bankrupt.
  13. But Mr Afif stated it, as a fact, that USD 10 000 was lost per day for the two planes. He did not state here that this was the average that he was presenting. It might be that he was suggesting that this was the average. But what he stated, as a fact, was that the leased planes cost USD 10 000 per day.
  14. The difference in the choice of wording may result in a splitting of hairs. The evidence, of both the Plaintiff and Mr Afif, revealed that Air Seychelles expended more than USD 10 000 on leased aeroplanes.
  15. In so far as the statement that Air Seychelles received a bailout of SCR 225 million from government, and that this cost Seychellois workers each SCR 5,500, Mr Afif’s statement was to the effect that ‘they had created a hole in their budget.’ In the context, ‘they’ meant Air Seychelles. Further, stating ‘this means one month of your salary you have taken you have thrown it down a hole. And when we asked, but Mister, you’ve taken one month of our salaries? When we asked they say there is no need to enquire where it went wrong. Try to fix the boat, well the plane but do not ask where it went wrong. But we in Lalyans Seselwa we want to know where it went wrong. I believe it is important that you know where it went wrong. I believe it is important that you know where it went wrong.
  16. Mr Savy felt that this was impugned to him, as it went with the narrative that he was responsible for the ‘hole’ in the budget. His testimony was that the information that each Seychellois worker paid SR 5,500was misleading. Mr Afif’s cross-examination on this point focused primarily on when the money was paid to Air Seychelles, rather than who it came from. The suggestion by counsel for the Plaintiff was that the money only came when Mr Savy had already left. So it was accepted that this sum was paid to Air Seychelles by Government. This may be taken as an objective fact.
  17. The contentious part then is the reason why it was paid. Mr Afif’s statement suggested that it was because a hole had been created in the budget, and that something had gone wrong with the management of the operator. And the question whether in saying this, Mr Afif was impugning the character of Mr Savy. Mr Afif was consistent in his version that this was not meant to suggest that Mr Savy had caused the loss.
  18. The comment was said in the context of the words‘Ankor Koripsyon’ (translated: “More Corruption”) which was written at the top, with a picture of an Air Seychelles aeroplane and the following bullet points that: “governman ti fer kadoDe san senkann-senk milyon (S.R.255,000,000) sibvansyon; Ekivalan senk mil senk san (S.R. 5,500) dan pos sak travayer Seselwa; ti dir pa bezwen rode kot nal mal”. These statements translate to “the Government gifted SR 255 million as subvention. Equivalent to SR 5 500 from the pocket of each Seychellois worker. It was said there was no need to enquire where it went wrong!
  19. It followed the first slide, which had theword Koripsyonandhad a photograph of Mr Savy with a Dr Rajiv Bissessur. The word “Koripsyon” translates to “Corruption”.
  20. In relation to that slide, Mr Afif said the following:

«Koripsyon pa fini la. Zot rapel nou ti annan nou en zoli lakonpannyen ki apel Air Seychelles, ki ti pou nou? I nepli pou nou. Nou demann zot enn ti kestyon, ki mannyer an 2009, ki mannyer zot ti perdi 5.4 milyon Ero an 2009? Be ler nou demann sa kestyon, parske nou fyer nou pei e nou rapel ki zot ti vinn kot gouveernman e zot dir ek gouvernman pret zot 255 milyon roupi.»

  1. Translated:

Corruption does not stop here. You remember we had a nice company which was called Air Seychelles, which was ours? It is no longer ours. We asked them a small question, how come in 2009, how come they lost 5.4 million Euros in 2009? We asked them that question? When we asked them that question, because we are proud of our country and we recall they come to the Government and said to the Government, lend them 255 million rupees.

  1. It was established during the evidence that Air Seychelles did suffer a loss of €5.4 million.So his statement of this to the crowd was, objectively, one of fact. But Mr Savy’s evidence on this was that the costs of fuel and the refusal by the Ministry of Finance to allow hedging, as well as the global economic crisis were all factors that contributed to this. His evidence was that Mr Afif, as a member of the board, was aware of these factors and ought to have communicated this to the crowd. And that in failing to allude to the impact of these, he created the impression that the loss was purely a result of mismanagement, and especially that he (Mr Savy) had mismanaged the company.
  2. On his part, Mr Afiftestified that the loss of €5.4 million in 2009 was as a result of a loss of revenue in fare collections, and the costs incurred in having five big aircraft while two were not flying regularly but had to be paid for. He however accepted that the global recession of 2007 and fuel prices would have affected the costs. He did not see any purpose in mentioning these factors that may have contributed to the losses. Becauseto his mind, the airline was going under because of bad decisions on revenue and expenses on leasing too many aircraft with very little returns. He felt that his account to the public was accurate, and did not need to be ‘broken down’.
  3. Nevertheless, in his evidence, he felt that these decisions could be impugned to the management at Air Seychelles, and not specifically at Mr Savy.
  4. He was at pains, throughout his evidence, to try to show that the reference to corruption meant that things had not been done in the norm. He did not ascribe to it a meaning that exists in Anti Corruption legislation. He also insisted that his use of Mr Savy’s pictures in some of the slides was because Mr Savy was the face of Air Seychelles. That people related him with Air Seychelles. And that he was the CEO, and thus part of the management. He ascribed what went wrong with Air Seychelles to Air Seychelles and the management thereof, not to Mr Savy.
  5. He was challenged on this stance by Counsel for the Plaintiff, who put to him that the intention was to impugn Mr Savy’s character; to present him to the crowd as a corrupt person. One who associated with persons of questionable character, like it was alleged Mr Shah was. In this regard, Counsel made reference to the slide with contained the picture of Mr Savy and Mr Shah,and the words “The Good Life SR 1 paran”, of the two in a swimming pool on Round Island. The slide also contained a copy of the first page of the lease agreement between Trinity Estate (Pty) Ltd and the Government of Seychelles and the following words in that lease was encircled with a black mark: “an annual rent of Seychelles Rupees One only”.
  6. Mr Afif’s comment on this was that ‘our friend who was in charge of that Company which he sank, he is enjoying with his friend, birds of the same feathers, who has got an island that has been leased to him by the government one (1) rupee per month.
  7. Despite Mr Afif’s denials that his choice of words, selection of pictures, and presentation impugned Mr Savy’s integrity, an objective view of thewords, and the presentation thereof support the view that he did place Mr Savy at the centre, and suggest that his actions in the management of Air Seychelles, which according to him had corrupt elements, led to the demise of Air Seychelles.
  8. This is clear, especially when one regards the words ‘corruption’ and ‘more corruption’ with the accompanying words and pictures. As well as the slide which mentioned at that our friend who was in charge of that Company which he sank, he is enjoying with his friend, birds of the same feathers, who has got an island that has been leased to him by the government one (1) rupee per month.
  9. The question arising is whether attributing these losses and bad decisions on Mr Savy, amounted to defamation of his character. Particularly, since the objective facts are that Air Seychelles did suffer losses, that it did get a bailout from Government of SCR 225 million, that it did lease aircrafts at an averaged amounts above USD 10 000 per day, that at least two aircrafts did not fly frequently, that as a result of significant losses, it had to be taken over by a different aircraft.
  10. In other words, does the truth of the state of Air Seychelles excuse Mr Afif’s statements or attribution of these on Mr Savy? The short answer to this is that it does not.
  11. The truth of the state of affairs at Air Seychelles could have been said without reference to Mr Savy. In the circumstances of this case, Mr Afif’s defence to the claim was that the statements were substantially true, and that he shared this in the public interest. That was what he led in evidence, and his alternative defence that it was purely his opinion was not ventilated at all. So he was left with his truth defence.
  12. To succeed in this defence, he was to bring evidence to the fore that Mr Savy had caused the losses and was responsible for managing the company in a corrupt manner, and that this corruption led to the demise of Air Seychelles.
  13. His explanation that Mr Savy was the face of Air Seychelles was thin and in contradiction with some statements that he made in the slides. He especially said: It is trite that our friend who was in charge of that Company which he sank, he is enjoying with his friend, birds of the same feathers, who has got an island that has been leased to him by the government one (1) rupee per month. This is the context of Mr Savy’s picture.
  14. He could not deny that those in attendance understood what he was saying.
  15. But does what he said in relation to Mr Savy amount to defamation?

Legal analysis

  1. As a departure point, the Constitution recognises the right of everyone to dignity (Section 16) and privacy (Section 20). These rights are intrinsic in any individual and an infringement thereof often goes to the core of a person’s humanness.
  2. At the same time, the Constitution also guarantees freespeech (Section 22). Free speech includes holding opinions and seeking, receiving and impartingideas and information without interference. The importance of the right to freedom of expression cannot be gainsaid.  Freedom of expression is integral to a democratic society for many reasons. It is constitutive of the dignity and autonomy of human beings. Without it, the ability of citizens to make responsible political decisions and to participate effectively in public life would be stifled.[1]
  3. Further to this, political freedom is also recognised in Section 23. Since this comPlaint arose within the context of a political meeting, all these provisions are implicated. It may also be necessary to remind ourselves, at this stage, of what Lord Bridge of Harwich said in Hector v Attorney-General of Antigua and Barbuda [1990] 2 AC 312 at 318:

“In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office.”

  1. Thus, there may be certain legally prescribed limitations to the right to free speech, including the protection of the reputation, rights and freedoms or private lives of persons.
  2. There are several provisions in the Seychelles Civil Code(“the Code”) which protect a person’s privacyand dignity, and make a breach of these through defamatory statements sanctionable by the Courts.
  3.  For instance, Article 9(1) of the Code enjoins the Court to protect persons’ rights to privacy and confidential information, unless there is a legal reason not to do so. And Article 1383 of the Code recognises defamation as a valid tort, which is governed by the English defamation laws as at the time of the Code.
  4. Defamation can be defined as the intentional and unlawful publication of defamatory matter by someone about another person. Whatever has been published must be shown by the victim to have caused damage to his reputation. The publication must therefore have caused the victim to suffer prejudice to his reputation and/or social standing and/or have caused him to endure ridicule.[2]

[177]    InEsparon v Fernez and anor(1980) SLR 148, the law of defamation of Seychelles was             summarised as follows by Sauzier J:

“Under article 1383 of the Civil Code of Seychelles, defamation is governed by the principles of English Law. The following are the relevant principles for this case:

1. A man commits the tort of defamation when he publishes to third-person words containing an untrue imputation against the reputation of another.

2.....

3. A man, stating what he believes to be the truth about another, is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive.”

[178]    In Pillay v Pillay (CS 15/10) [2013] SCSC 68 (16October 2013), the Court summarised the elements for a claim of defamation. The Court stated that a Plaintiff must prove that: (a) a false statement or accusation was made against them; (b) that impeached her character; (c) damaged her reputation; (d) because it was published to a third person; and (e) it was done intentionally or with fault.

[179]    The statements or accusations must have an effect. Thus in Regar Publications v Pillay SCA3/1997 and Talma v Henriette (1999) SLR 108, it was said that a defamatory statement is one injuring the reputation of another, as it exposes them to hatred, contempt, ridicule or lower them in the estimation of right-thinking members of society.(Reference to Latour v Maillard(CS 120/2011) [2016] SCSC 54 (02ndFebruary 2016) para 17.

[180]    There are a number of defences or justifications that can be raised against actions for defamation. The first one is that what was published was substantially true and that it was in the public interest to know it. It is not possible to rely only on the fact that the publication is substantially true. It must also be in the public interest. It is fairly easy to see that this defence might logically be used to justify publication concerning a prominent politician or public figure.[3]

[181]    Another defence that could be used is that of fair comment. For this to be successful there are a number of requirements and the first of these is that the publication is a commentary and not mere statements of the objective facts. It must also be a bona fide and honest expression of the commentator’s opinion, relevant to the facts or proved to be true. Furthermore, the comments must have been fair and not amount to a one-sided tirade that is maliciously made against the person who is the subject of the commentary. The comment must have been made in the public interest.[4]

[182]    In Pillaycase, it was said that the Defendant may justify the statements by raising any of these defences: (a) that the statements are true; (b) that it is fair comment; or (c) absoluteprivilege, where the statement was made in Parliament or they were fair reports of allegations in the public interest and qualified privilege, where it is determined that the freedom of expression outweighs the protection of reputation, but does not amount to the granting of absolute immunity.

[183]    The Court has also held that a defamatory statement is presumed to be false unless the Defendant can prove its truth. (See Pillay above, para 30).And as in any civil matter, the proof is on a balance of probabilities. (See:Bastienne v Ernesta & Another (CS 108/2016) [2018] SCSC 663 (11July 2018) para 29).

[184]    In the present context, the Defendant has offered the defences that the alleged defamatory statements are true and in the public’s interest, and were fair comment

[185]    The burden of proving the truth and public benefit rests on the Defendant. (See:Bastienne v Ernesta & Anor (CS 108/2016) [2018] SCSC 663 (11 July 2018) para 34). There is no onuson the Plaintiff to prove the falsity of the published statement. Similarly, to succeed with a defence of fair comment, the onus rests on the Defendant.

[186]    There are a number of requirements that he must meet. The first is that the publication is a commentary and not mere statements of the objective facts. It must also be a bona fide and honest expression of the commentator’s opinion, relevant to the facts or proved to be true. Further, the comments must be fair and not be a one-sided tirade that is maliciously made against the person who is the subject of the commentary. The comment must have been made in the public interest.[5](See:Pillay v Regar Publications (Pty) Ltd & Ors (1997) SLR 125).

[187]    In the present case, the burden was on the First Defendant to show that the statements against the Plaintiff were true. Alternatively, that this was a fair comment.

[188]    As regards fair comment, Lord DenningLondon Artists Ltd v Littler [1969] 2 QB 375, [1968] 1 WLR 607, [1968] EWCA Civ 3, [1969] 2 All ER 193held that:

            ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make a fair comment.’

            The case further held that the comment must be based on facts which are true or protected by privilege. It was cautioned that the defence of fair comment on matters of public interest is not to be defined too closely.(See also:Kemsley v Foot [1952] A.C. 345)whichhighlighted that for an opinion to be fair comment it must be based upon facts.There, the Court also highlighted the difficulties in distinguishing an allegation of fact from an expression of an opinion.

[189]    Judged against the present case, it is clear that the statements made by Mr Afif were not based on facts which are true. His own version was that he was not accusing Mr Savy of corruption or corrupt activity. So implying this in his presentation was not factual.

[190]    As regards the defence of substantial truth, the First Defendant did not need to show that every single characteristic of the statement made was true, merely that it is substantially true. (See: Alexander v North Eastern Railway Co [1865] 6 B & S 340).

[200]    As mentioned, the First Defendant has not shown that the comments made in relation to the Plaintiff are substantially true. He has on his own version stated that there was no intention to impugn any corruption on Mr Savy.

[201]    In the circumstances, the First Defendant has failed in his defences.

            The Damages

[202]    The Plaintiff has claimed SCR 1 million in damages on the basis that the statements and presentation by Mr Afif have damaged his reputation significantly and that he has suffered ridicule, hurt and embarrassment in his profession as a result.

[203]    He brought evidence of two persons, his close friends, who testified that their view of him changed after they saw the presentation. They had worked with him before. They both had some reservations about his character after the presentation.

[204]    The Plaintiff has also testified that his wife and children, as well as other persons lost faith in his reputation after this publication. He also testified that he was well known as a businessman and that he held certain offices both locally and internationally.

[205]    It is worth noting that at the time that the incidents happened at Air Seychelles, Mr Savy was a public official. He was then occupying a public office as the CEO and Chairman of Air Seychelles. Thus, his conduct in that office was subject to scrutiny by the public, and as such, criticism in a democracy of a public office is anticipated especially where the institution has suffered financial harm. Such criticism must be encouraged, provided it is within legal remit.

[206]    Thus, by occupying that position, Mr Savy had opened himself up to public comment and criticism. The fact that the criticisms may not have been factual does not negate the fact that he held public office. And the fact that the comments by Mr Afif were made at a political rally cannot be ignored either. It is in the nature of politics that public officials who may hold office in an incumbent government may have their integrity attacked. But, this must obviously be done within legal bounds.

[207]    In these circumstances then, Mr Savy cannot be treated as a private individual who at no stage had a public office. His claim for SCR 1, 000,000 is grossly exaggerated. Despite the publications, he currently still is on the boards and holds esteemed positions in important institutions, and going about his business successfully. The harm done to his reputation by the comments is not within the realm of SR 1, 000,000/-.

[208]    An appropriate award is SCR 50, 000/-. While it is important to try and ensure that persons in the political arena do not make unsubstantiated claims against public officials, it is essential that awards of damages not be excessive so as to have the chilling effect of inhibiting healthy criticism. In a young democracy like Seychelles, it is necessary for public officials to be held to account through public debate and censure, to ensure transparency and accountability. But it is still important to caution the makers of unsubstantiated and damaging claims.

 

Conclusion

[209]    In the result, the following orders are made:

            (i)         The Plaintiff’s Plaint is granted;

            (ii)        The First Defendant is to pay to the Plaintiff a sum of Seychelles Rupees Fifty       Thousand SCR.50,000/- in damages;

            (iii)       Costs of the suit to be paid by the First Defendant.

 

Signed, dated and delivered at Ile du Portonthe 21st  day of August2019.

 

 

 

____________           

ANDRE J

 

[1]Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002) para 21.

[2]Practice Collection: Company Administration, Juta's/Company Secretarial Practice/Part D Meetings/Chapter 18 Procedural aspects relating to meetings/18.5  Defamation at 17-18.

[3]Practice Collection: Company Administration, Juta's/Company Secretarial Practice/Part D Meetings/Chapter 18 Procedural aspects relating to meetings/18.5  Defamation at 17-18.

[4]Ibid.

[5]Ibid.