Zwambila v Wafawarova [2015] ACTSC 171

Zwambila v Wafawarova [2015] ACTSC 171 - ACTSC 2015 case summary — Zoe

[47]

ZIMBABWE'S Ambassador to Australia, Ms Jacqueline Zwambila, yesterday allegedly stripped naked in front of three male embassy officials after accusing them of leaking information to The Herald newspaper in Harare.
Ambassador Zwambila was selected by MDC-T leader Mr Morgan Tsvangirai as one of his party's nominees for top diplomatic postings within the spirit of the Global Political Agreement and inclusive Government.
Foreign Affairs Secretary Ambassador Joey Bimha yesterday could neither confirm nor deny receiving such reports, saying he was waiting for a full report from Canberra.
"We are not in possession of the facts. Because of the time differences between the two countries, we have not yet received the details of that matter.
"We will only comment after receiving a full report," Ambassador Bimha said.
The Herald newspaper was reliably informed that Ambassador Zwambila yesterday summoned three officials - Mr Moses Chikanyairo, Mr Givemore T. Nyanzou and Mr Felix Nyamupinga - to her offices at around 10 am Australian time, 1am (Zimbabwe time).
She interrogated them on who had given The Herald the embassy's website link.
The website in question was launched in Australia, apparently for international readers only and for the purposes of advancing MDC-T interests in Canberra.
Following the launch, Ambassador Zwambila posted an article claiming that sanctions imposed on Zimbabwe were not hurting ordinary people.
She was reportedly shocked to see excerpts of the article in The Herald on Wednesday.
When quizzed, the three embassy officials denied leaking any information.
At this point, the ambassador allegedly shouted in Shona: "Manje hamundizivi. (You don't know me well). Ask... (name of a minister mentioned) and he will tell you what I am capable of doing. Nhasi ndinoda kukubvisirai hembe. (Today I am going to strip naked in front of you)."
The sources said she then proceeded to remove her clothes and stood in front of them in her bra and panties.
The three officials left the office in embarrassment.
Australian staff at the embassy - including Ambassador Zwambila's driver, a receptionist and a cleaner - reportedly saw the officials beating a hasty retreat from her office.
When contacted for a comment from her Australian base yesterday, Ambassador Zwambila switched off her phone on learning that the call was from The Herald in Harare.
After that her phone went unanswered.
MDC-T's secretary for international relations, Professor Eliphas Mukonoweshuro, yesterday distanced his party from Ambassador Zwambila's behaviour.
"She is a Government appointee. Diplomats representing Zimbabwe are not trained by the party... The Ministry of Foreign Affairs is the better authority to talk to," he said.
The website article reproduced by The Herald that drew Ambassador Zwambila's ire read in part: "These measures (illegal sanctions) have been revised annually, most recently in February 2010.
These measures do not hurt ordinary Zimbabweans, nor do they affect humanitarian assistance or legitimate business. The EU does not have any economic sanctions against Zimbabwe."
The website oddly had Australia's coat of arms on the top right hand corner, making Zimbabwe probably one of the few - if not the only - countries that has an embassy giving such prominence to its host.
Before publication of The Herald's story, the website (www.katheti.com/zimembassy) was accessible.
However, by yesterday evening it appeared to have been pulled with a message on the host site saying: "The page you are looking for might have been removed, had its name changed, or is temporarily unavailable."
It was hosted by a company called Blue Host.
Ambassador Zwambila is not new to controversy. On several occasions, she opposed the State's position on sanctions.
In April this year she called for partial lifting of sanctions with a bias towards Government ministries run by MDC-T ministers.
Ambassador Zwambila was posted to Australia in October last year.

[80]

I first became aware of the article titled "Envoy strips naked in front of staff" published in The Herald newspaper ("the Article") on the evening of 11 November 2010. At that time, I had returned home from a diplomatic engagement, and as I usually did, sat at my computer to review the Zimbabwean news bulletins.
Because the article appeared on the morning of 12 November 2010 in Harare, and given the time difference of eight (8) hours between Harare and Canberra, I am able to say the article was published approximately three (3) hours after the alleged incident had occurred.
My initial reaction to the article was one of deep upset, surprise and distress. The assertion that I was capable of stripping naked in front of my colleagues in anger was abhorrent to me, not only because the allegations were shocking, but also because such allegations have particular cultural significance in Zimbabwe (see paragraphs 17 and 18 below).
The alleged statements of fact about my conduct in the Article were not only untrue, but particularly hurtful because, in over 13 years of working in politics, I had diligently worked to gain respect and the reputation of being worthy of the position of my country's ambassador.
Beginning shortly after the Article was published and for several months afterwards, I received numerous email correspondence, Facebook messages and telephone calls from various friends, colleagues and associates including diplomats from other nations, who referred or directed me to the Article. During the conversations, callers invariably asked me "Is it true?" It was distressing and highly embarrassing to have repeatedly to deny the allegations made in the article.
As a result of the contact outlined at paragraph 12 (above), it became obvious that the Article had been seen by many people I respected both personally and professionally, and with whom I had spent many years developing relationships. I realised the Article had also been made available to a huge audience, most of whom I did not know, and whom I would never have the chance to meet to set the record straight. The thought that I had no hope of clearing my name with most people who read the attack on me has caused me great hurt and distress. It has reduced my self-confidence and self-esteem significantly, and caused me to question everything that I did in my role as Ambassador. I was also distressed because I felt the article tarnished my family name, and I felt concerned about the ramifications the Article may have for my family members in Zimbabwe and elsewhere. In African culture, a family's reputation is sacrosanct, and I felt keenly that the contents of the article had called our reputation into question.
Over time, I became increasingly distressed that my colleagues, family and friends would change their view of me, as a result of the Article. I felt my professional reputation, built up over 13 years of working in politics and 20 years working in public roles, had been irreparably damaged.
In addition to my personal reaction to the Article, I had to deal with the reaction of the Secretary for Foreign Affairs, who on or around 15 November 2010 requested by letter that I report to Head Office in Harare for consultations over the alleged incident. I travelled to Harare on or around 22 November 2010.
In the event, I was not reprimanded for the alleged incident and remained in my role as Ambassador, but I was caused to be fearful that such would happen. In Zimbabwe upon my return there, I was in a state of great anxiety and distress. I was concerned that I would be unable to continue my political career.

[152]

[68] Once the distinction between jurisdiction as a "threshold requirement" and choice of law is appreciated, it will be seen that there is no obligation upon either party to plead foreign law in order to render a claim or cross-claim justiciable. If, however, either party seeks to rely on foreign law, rules of court and general principles of pleading may oblige the party to plead the relevant foreign law. As is said in Bullen & Leake & Jacob's Precedents of Pleadings:

"Where a party relies on foreign law to support his claim or as a ground of defence thereto, he must specially plead the foreign law relied on in his statement of claim or defence, as the case may be, and he should give full particulars of the precise statute, code, rule, regulation, ordinance or case law relied on, with the material sections, clauses or provisions thereof. A mere allegation that an instrument depending on foreign law is null and void is too vague."

...

[69] Two particular questions arise respecting the pleading of foreign law in tort actions.

...

[70] The first question is whether it is necessary for the plaintiff to plead the foreign law in order to establish a cause of action. The answer preferred by Dicey is in the negative. In Walker v W A Pickles Pty Ltd, Hutley JA explained101:

"An action of tort may be brought in New South Wales courts irrespective of where the facts founding the action may have occurred, even if they occurred in a place where there may be no law at all: see Mostyn v Fabrigas. A pleading of a cause of action in tort which did not allege that the facts occurred in any particular law district would be formally valid. On the basis that the utmost economy is enjoined by the rules, it would seem to me that pleading of a foreign element in the initiating process in a claim in tort can never be necessary. ...

This approach is reinforced by the principle that foreign law, which is, except between the States and the Territories of the Commonwealth, a fact, is presumed to be the same as local law; and a fact presumed to be true does not have to be pleaded: See Supreme Court Rules, Pt15, r10(a).

On the other hand, if the defendant seeks to rely upon a foreign lex causae, then, in the ordinary way, it is for the defendant to allege and prove that law as an exculpatory fact.

[240]

MR WAFAWAROVA: High-handed, oppressive, insulting and contentious behaviour of defendant. I think that needs to be - I don't even know what "oppressive" means in this case. Insulting or insulted. I don't even know what "contentious" is, but that whole last bit of - I think it's just meant to try and sensationalise and try to push a point over damages, but actually put in the evidence what I meant by (indistinct) all the problems that we have had with the plaintiff are mainly to do with citation that was wrong. I (indistinct) it is arrogance (indistinct) ignore correction that this is not my name and just do not my name and just do not do a simple thing as just correcting that in the court. So I thought they were arrogant and it is nothing to do with me being high-handed, oppressive, insulting. That's just ridiculous.

HER HONOUR: Sorry, your point on [paragraph 21 of counsel's submissions] is that all the problems in this matter relate - have related to the wrong description of your name?

MR WAFAWAROVA: No. Describing my behaviour as that.

HER HONOUR: Sure, yes, but

MR WAFAWAROVA: Yes. My argument is that (indistinct) we had and sending back the messages in the case of the bankruptcy case was all to do with a name. If I was just being uncooperative I wouldn't have bothered photocopying things and trying to give - they even brought in the message that he saw my licence and then he said, "Don't worry about the passport. I've seen that." So it was all to do - because it was just a reaction because I've done this more than once, and therefore the (indistinct) have not disgraced them.

I (indistinct) just plain arrogance that somebody would keep giving a name that does not belong to you. I thought it would be a simple matter of saying, "Okay, what's your correct name? We'll go by that." But instead (indistinct) listing what is on the web site and so on. For whatever reasons, I don't know. Then that might be - I'm now being described as high-handed, oppressive, insulting, contentious. I think that's just out of order.

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Zwambila v Wafawarova [2015] ACTSC 171 (10 July 2015)

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Cases Cited (9)