The Battle: Press Statements by The Source News Agency and Steward Bank

The Press Release from Steward Bank regarding the Raid on The Source News Agency, dated 27th March 2015 and apparently authored by Mtetwa & Nyambirai Legal Practitioners has been placed in the public domain.

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  1. We are surprised that Econet Wireless and Steward Bank through Mtetwa & Nyambirai Legal Practitioner have taken the public route of a Press Release when the issues they raise in the Release are presently pending before courts of law in the form of incomplete court cases.
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  1. Without going into the details of the pending and pertinent court cases; but to avoid the perpetuation of numerous inaccuracies, we wish to set the record straight, only by directly, factually, and specifically responding to the issues raised in the Press Release. Our legal representatives will attend to the legal aspects of the case.
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  1. While Econet Wireless and Steward Bank allege in the Press Statement that confidential information “was stolen,” they do not deign to show how The Source or its reporters are complicit in this alleged theft.
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  1. While Econet Wireless and Steward Bank allege that certain “responsible journalists” afforded them the right of reply and opted not to publish, these companies, whose statement clearly shows they presume to pontificate about the intricacies of good journalism, fail to appreciate the basic principle of editorial independence. Further, pliant journalism has, throughout history, often been confused with responsible journalism by the privileged and powerful who, oftentimes, might have something to hide. The fact that some news outlets opted not to run a story has absolutely no bearing on The Source’s editorial decisions.
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  1. Comment was definitely sought from both Econet Wireless and Steward Bank, as well as from other parties linked to the relevant stories. This fact is evident in the stories in question, one which carries a response issued by Econet and another in which the opportunity to comment was demonstrably given to the firms, who spurned it. This is also clearly backed up by information that has been seized by Econet Wireless and Steward Bank, and in relevant records that are in the possession of The Source.
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  1. The Source respects the rights of all citizens, particularly the right to privacy and banker-client confidentiality. As a duly licenced media house and a member of the Voluntary Media Council of Zimbabwe, The Source is bound by, and subscribes to, the principles of responsible journalism and media accountability.  In that vein therefore, aggrieved parties are encouraged to engage self-regulatory mechanisms to resolve disputes. These have proven to be sensitive not only to Freedom of Expression and Freedom of the Media, but to the concept of privacy and the dignity of the individual as well. Without seeking these available remedies it is hard not to view the draconian actions of Econet Wireless and Steward Bank as a clear attempt to intimidate and cow the media through measures like intrusion into correspondence between journalists and their sources, or between journalists and their lawyers.
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  1. In the context of the widespread closure of banks in Zimbabwe, mainly due to non-performing loans, a situation that has resulted in permanent prejudice to thousands of depositors; it is difficult to understand why Mtetwa & Nyambirai would convey the message that stories about toxic bank loans are not a public interest issue.
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  1. While Econet Wireless and Steward Bank decry the undermining of “the very foundations of our banking system,” they fail to admit that what has essentially undermined the banking system in Zimbabwe in the past decade, is the high incidence of imprudent and unethical business practices by bankers, which practices have been kept largely unreported by the dark cloak of banker-client confidentiality.
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  1. The allegation that Mr. Douglas Mboweni and Econet Wireless communicated with the Editor of The Source is categorically denied. No such communication or meeting took place; and there is no record of any Econet request being made to The Source. We challenge Econet Wireless and Steward Bank to provide proof of this before peddling this fictitious account.
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  3. The Source respects our Courts of Law, and it looks up to the same judicial authorities for protection when journalistic rights are threatened, hence the filing of an Urgent Chamber Application at the High Court of Zimbabwe for the referral of constitutional questions to the Constitutional Court.
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  5. The Source had hoped for restraint on the part of Econet Wireless and Steward Bank in respect of their search and seizure action, at least up to the time of the delivery of a ruling in the Urgent Chamber Application.
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  7. While the Court Order was executed by Econet Wireless and Steward Bank with the assistance of the Zimbabwe Republic Police and the Sheriff, that does not detract from the fact that this unprecedented search and seizure operation has induced a sense of shock among journalists at The Source and at other media houses.
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  9. Econet Wireless and Steward Bank go to town in their Statement about how Freedom of Expression and Freedom of the Media should be applied.  However, neither these companies nor their legal representatives can authoritatively make a determination on the accuracy of their views, with finality.  That is why The Source has requested for the referral of these kinds of constitutional questions to the Constitutional Court.
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  11. What must be condemned by all progressive Zimbabweans, are the actions of powerful institutions and individuals who seek Court Orders for the revelation of journalistic sources, in clear violation of enshrined fundamental media rights.
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  13. Finally, The Source takes note that Steward Bank claims to know who stole from it, declaring “we are on their trail.” If Econet Wireless and Steward Bank “know who the thieves are,” as they claim, surely they should have instituted criminal proceedings, not to instill the fear of the devil into the newsroom at The Source, and into the media industry.
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Issued for and on behalf of Source-Net (Pvt) Ltd by Cris Chinaka, Chairman of the Board of Trustees of The Source Trust.

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PRESS RELEASE FROM STEWARD BANK REGARDING THE RAID ON THE SOURCE

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During the course of last year, private and confidential information relating to Steward Bank Limited and its clients and to the very confidential processes that the bank undertakes in evaluating client proposals was stolen.  Some of the information landed in the hands of very responsible journalists who gave us a right of reply and, after considering our response, concluded that the information was of a private and confidential nature and that its publication was not in the public interest and would constitute an unwarranted and malicious invasion of the right to privacy of not only the Bank, but also of the bank’s clients.

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The banker client relationship is a relationship uberrimae fidei, or in the utmost of good faith.  When a client visits his bank to transact, no matter who they are, whether loved by the public, or vilified, they must do so with the knowledge that the information they share with the bank is safe and protected from unwarranted public disclosure without their consent.

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Even regulatory authorities hold such a right to be sacred and inviolable to the extent that any disclosure legislation such as the Money Laundering legislation, the Criminal Law (Codification Reform) Act and the Criminal Procedure and Evidence Act provide very clear safeguards where disclosure is necessary for purposes of investigating crime.  Failure to protect this important right can undermine the very foundations of our banking system and can condemn us to the dark ages where people shun banks and keep their money hidden under their beds, or resort to informal business transactions.

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Some of the stolen confidential information was published by the Source without even giving Steward Bank the right of reply.  Because the Econet Wireless group respects journalists and holds freedom of expression to be paramount, Mr Douglas Mboweni and his team communicated with the Editor of the Source and made a kind request for the withdrawal of the stolen information that was published without affording Steward Bank the right of reply.  The request was ignored.  It was only then that an application was made to the Courts.  Our client did not seek to take the law into its own hands.  It went to Court.  The search and seizure that has taken place is a Court sanctioned search and censure conducted in the presence of officers of the Court.

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True, the Constitution of Zimbabwe grants freedom of expression and of the media.  But that freedom is not absolute.  It is not a license to theft and unwarranted invasion of privacy.  In fact, the same Section that grants freedom of expression and of the media, Section 61 of the Constitution of Zimbabwe, specifically provides under subsection 5, that:

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“(5) Freedom of expression and freedom of the media exclude-

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“(c) Malicious injury to a person’s reputation or dignity or

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(d) Malicious or unwarranted breach of a person’s right to privacy.”

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The right to privacy is itself protected under Section 57 of the Constitution of Zimbabwe from encroachment not only by the State, but also by other private citizens.  In the new Constitutional dispensation, we have very clear access to information legal procedures set out in the Constitution.  Journalists no longer have to rely on theft of information or the unwarranted violation of other citizens’ rights in order to access information needed in the public interest or to protect, or enforce rights.  The hallmark of good journalism has ceased to be the ability to access underground unethical or criminal networks for provision of information.  The Constitution has justiciable access to information provisions that can prove to be very handy tools to a modern and progressive journalist who has respect for the rights of others and of the law.

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What happened here must be condemned by all progressive Zimbabweans.  It was not only the commission of theft of information belonging to a bank.  It was an attack on the very foundation on which the banker client relationship is legally anchored.  It was also a violation of Section 163 (1) of the Criminal Law (Codification Reform) Act which makes it a crime to copy or transfer any data held in a computer without the consent of the owner.  It was a violation of the rights to privacy protected by Section 57 of the Constitution of Zimbabwe.  It was a violation of the protection against malicious and unwarranted invasion of a person’s privacy protected by Section 61 of the Constitution of Zimbabwe.

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We know who the thieves are.  We know them that have received these proceeds of crime and used them, and seek to use them to effect an unwarranted invasion of the privacy of other citizens.  We are on their trail.  We shall make them accountable for their unlawful actions through lawful means.

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Dated at Harare, this 27th Day of March 2015

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For and on behalf of Steward Bank Limited

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Mtetwa & Nyambirai Legal Practitioners