MOHAMED S.A.Y.A.R. & ORS v AUSTIN K.L.

2019 SCJ 61

THE SUPREME COURT OF MAURITIUS

Record No. 107363

In the matter of:-

Shakeel Ahmed Yousuf Abdul Razack Mohamed

Plaintiff

v.

Kathi Lynn Austin

Defendant

AND

Record No. 107364

In the matter of:-

1. Yousuf Abdul Razack Mohamed

2. Mohammad Zakir Mohamed

Plaintiffs
v.

Kathi Lynn Austin

Defendant
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JUDGMENT

The above 2 plaints with summons (“the plaints”) have been consolidated so that a
single judgment will be delivered and a copy thereof filed in the other record.

All 3 plaintiffs are suing the defendant for defamation. They are members of the
same family and are barristers by profession. They aver that they are persons of good
character and reputation.
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The defendant is the Executive Director of an organisation known as ‘Conflict

Awareness Project’ registered in the United States of America. She drew up a report dated
July 2012. Large extracts of the report have been reproduced in the plaints.

It is averred in the plaints as follows: in her purported report, the defendant has
wickedly, falsely and maliciously portrayed the plaintiffs as criminals involved in arms
trafficking in concert with the Russian mafia. She has accused them of perverting the course
of justice and of exerting undue political influence on local authorities. She has also accused
plaintiff Yousuf Abdul Razack Mohamed (“plaintiff No.2”) of failing to comply with the ethics of
the legal profession.

The defendant’s report has been extensively published in the local press and aired in
the local and foreign media. It is biased, false and speculative. It has tarnished the
character, honour and reputation of the plaintiffs in their private and professional capacity.

All 3 plaintiffs gave evidence in support of the averments in the plaints. They also
adduced documentary evidence, including local press cuttings reporting on the contents of
the defendant’s article.

On the other hand, the defendant has left default. It is worth noting that on the sitting
of 14 September 2017, there was a request for postponement from the defendant on medical
grounds and on the ground that the services of Mr. Millar QC had been retained to appear for
her. The postponement was granted as the learned Judge designated to hear the case was
laid up. It was, however, made clear that no further motion for postponement would be
entertained, be it on account of the absence of the defendant or her Counsel.

The cases were then fixed for merits on several dates, namely the 5, 6, 7, 11 and 12
September 2018. On 5 September 2018, however, neither the defendant nor Mr. Millar, QC,
was present. There was no explanation forthcoming to explain their absence. In fact, on that
day, Mr. V. Teeluckdharry, of Counsel, and Mr. Senior Attorney Gujadhur, who were
appearing for the defendant, were allowed to withdraw for lack of further instructions. The
plaintiffs then proceeded to make out their case.

On the unchallenged and unrebutted oral and documentary evidence adduced by the
plaintiffs and the defendant having left default, I find that they have established their case on
a balance of probabilities. The defendant has been given ample opportunity to defend
herself and to put her case but she has failed to avail herself of such an opportunity.
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The remaining issue to be determined is the quantum of damages to be awarded to

the plaintiffs. Learned Counsel for the plaintiffs has prayed for the award of exemplary
damages. A perusal of the most recent awards in defamation cases reveals that the Courts
have consistently awarded damages in the sum of Rs.300,000 (vide Neewoor v
Burrenchobay [2017 SCJ 22], Dayal v Advance Publications (Mauritius) Co Ltd [2017
SCJ 94], Jyoti’s Clinic Ltd v Le Mauricien Ltd [2018 SCJ 113] and Cinemax Ltd v Le
Mauricien Ltd [2018 SCJ 139]).

In Bunwaree v La Sentinelle [2012 SCJ 84], the learned Judge awarded the sum of
Rs.300,000 as moral damages to the plaintiff for defamation, taking into account that he was
a Minister, a Member of the National Assembly for numerous years and a well known
cardiologist and that the defendants had made a serious veiled allegation in a newspaper of
very wide circulation. In Honourable Cuttaree v Valayden [2006 SCJ 222], the defendant
was ordered to pay Rs.200,000 as damages for having made a highly defamatory allegation
against the plaintiff at a press conference, which was later published in the press.

In Francois v Le Mauricien Ltd [2005 SCJ 94], the defendants were ordered to pay
Rs.100,000 as damages for having published a defamatory article against the plaintiff who
was a former Minister and Member of the National Assembly. In Honourable J.B. David v
Le Mauricien Ltd [2005 SCJ 54], the plaintiff, who was a Minister at the material time, was
awarded the sum of Rs.200,000 for a defamatory newspaper article. In Honourable Boolell
v Dedans [2003 SCJ 160], the Court awarded damages in the sum of Rs.100,000 to the
plaintiff for a defamatory newspaper article.

In the present cases, the plaintiffs have explained how the defendant’s article has
negatively affected their professional careers and personal and family lives. They have been
falsely linked to arms trafficking and to the Russian mafia. The matter received wide publicity
in the local press and media and was also taken up in foreign media. It raised considerable
public interest. In this age of Internet, anybody clicking on the plaintiffs’ names would come
across the defendant’s article which was still online. The article has tarnished their character
and reputation and seriously affected their practice as barristers both locally and
internationally. It has also reduced their chances of obtaining an international job. It is still
causing them harm and prejudice.

Plaintiff Shakeel Ahmed Yousuf Abdul Razack Mohamed was a Member of the
National Assembly and a Minister at the time the defendant’s article was published. The
article caused him a lot of harm politically with Parliamentary Questions being asked and his
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political opponents making use of it. Plaintiff No.2 has been a Minister, a Deputy Speaker, a
Member of the National Assembly and an ambassador.

I bear in mind that the defendant’s article has made allegations of a serious nature
against the plaintiffs. The defendant has not offered any apologies and has in fact left default
although she had indicated that she would defend herself.

Having regard to all the circumstances of the present cases and the case law
regarding the award of damages in defamation cases, I order the defendant to pay to each
plaintiff the sum of Rs.400,000 as damages, which I consider to be fair and reasonable. With
costs.

D. Chan Kan Cheong

Judge

21 February 2019

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For Plaintiffs in both cases : Mrs A. Ragavoodoo, Attorney-at-Law

Sir Hamid Moollan, QC together with
Mr D. Basset, SC, Mr A. Domingue, SC and
Mr K. Namdarkhan, of Counsel