CHAPTER 3 - DEFAMATION AND OTHER ACTIONS UNDER ACTIO INJURIARUM

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General

The leading textbook on this subject is Burchell The Law of Defamation in South Africa. However, as substantial differences exist between South African and Zimbabwean law arising out of differing approaches to the concept of animus injuriandi, care should be taken in relying upon this South African text. As English law has heavily influenced our law in the field, reference should be made to English texts. Additionally, the chapter in McKerron’s book The Law of Delict 7 Ed dealing with defamation in South Africa is a useful reference as it states the South African law prior to the subjectivisation of animus injuriandi, which subjective approach has not been adopted in Zimbabwean law.

Defamation

Competing interests

The law of defamation seeks to achieve a satisfactory balance two competing interests. On the one hand, it recognises the right of the individual to be afforded protection against harm to his reputation. On the other hand, it also recognises that the public have a right to free speech and to proper access to information. Put in the context of newspaper reporting it is vitally important that there should be a free press that keeps the public informed, especially about public affairs. This free press should not be stifled by highly restrictive defamation laws. But at the same time the law cannot ignore the fact that newspapers and other broadcasting media are extremely powerful agencies which are able to reach enormous numbers of members of the public and that, if they publish defamatory material, the end result can be devastating harm to reputation. It should also be borne in mind that harm to reputation is extremely insidious and once reputation has been damaged it is very difficult to repair the damage. There is much truth in the Shakespearean saying “Who steals my purse steals trash; it is something, nothing. But he who filches my good name robs me of something which not enriches him, and makes me poor indeed”.

 

The provisions in the Constitution of Zimbabwe are relevant in relation to the balancing of competing interests. Section 61 provides for the fundamental rights of freedom of expression and freedom of the media. Freedom of expression includes the right to communicate information to others and to receive information. Section 61(5) excludes from the rights of freedom of expression and the mediaexcludes, amongst other things, malicious injury to a person’s reputation or dignity.

 

These rights may also be limited in terms of section 86 of the Constitution but only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors including:

(a) the nature of the right or freedom concerned;

(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others.

(e) the relationship between the limitation and its purpose, in particular whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) whether there are any less restrictive means of achieving the purpose of the limitation.

 

Animus injuriandi

English law substantially influenced the Zimbabwean law on defamation. A similar heavy influence was found in early South African law but, in more recent years, the South African courts have made concerted efforts to remove this influence and to revert to “pure” Roman-Dutch law. The outstanding result of this effort by these courts has been to subjectivise the law of defamation by ruling that under the Roman-Dutch law the requirement of animus injuriandi (in this context intention to defame) was not a fictional requirement, but a real one and thus if subjective intention to defame is absent, P should not be able to recover damages. The opposition to the subjective approach clearly emerges in the Zimbabwean case Smith NO and Lardner-Burke NO v Wonesayi 1971 (2) RLR 62 (G). See also Tekere v Zimbabwe Newspapers & Anor 1986 (1) ZLR 275 (H). From a policy standpoint, it was argued that a move towards subjectivism would create a position where the reputational interests of plaintiffs would be afforded insufficient protection.

 

However, in the case of Garwe v Zimind Publishers (Pvt) Ltd 2007 (2) ZLR 207 (H) the High Court dealt with the defence of absence of intention to defame that was raised in that case as if this defence is applicable in Zimbabwe.It stated that animus injuriandi is a subjective intention on the part of an individual, as opposed to the mass media, to defame or injure the reputation of the plaintiff. The court found on the facts that D had intention to defame.

 

This case, however, did not change the position in relation to the mass media where apparently the court still accepted that the legal position that applied in South Africa at that time still applied in Zimbabwe and the position in South Africa at that time was that liability of the mass media was strict and there was no requirement that the media had to have had the intention to defame.

Liability of distributor of published material

In Zvobgo v Kingstons Ltd HH-485-86 at p 17 it was stated that the liability of the distributor of published material is based on negligence and not intention. This also applies to publishers.

 

What constitutes defamation

Defamation causes harm to reputation, that is, the estimation in which a person is held by others (his good name and standing). A defamatory statement is one which is published orally or in writing which injures the person to whom it refers:

  • by lowering him or her in the estimation of reasonable, ordinary persons generally;
  • by diminishing his or her esteem or standing in the eyes of ordinary members of the general public;
  • by causing the person to be shunned or avoided or exposing him or her to hatred, ridicule or contempt;
  • by casting aspersions on his character, trade, business, profession or office.

 

In most cases P will allege that the facts forming the basis of the defamation were false. However, exceptionally even if the statement about P is true P can still argue that it was not in the public interest to publish this true statement about him or her. This would apply to a story about P that reveals that he or she committed a minor offence when her or she was young but has since then behaved in an exemplary way. Thus it is laid down that it is not in the public interest to dredge up long forgotten minor wrongdoing.

 

A few examples may be given to show the range of statements encompassed by this definition. Reputation would be damaged and defamation would be committed if I say of a person that he is engaging in criminal activities, of a woman that she is a prostitute, of a politician that he is corrupt, of a businessman that he is deliberately falsifying his expense account or of a newspaper editor that he is deliberately distorting the facts in order to give a false picture of events.

 

In the following situations each P was awarded damages for the harm to his or her reputation:

 

           Accusations of criminal or dangerous conduct

Haas v Greaterman Stores (Rhodesia) Ltd & Anor 1966 RLR 313 (G) D made a verbal insinuation that P had committed shoplifting in front of a number of bystanders.

Mavromatis v Douglas 1971 (1) RLR 119 (G) D, in the presence of one other person, accused P of criminal conduct.

Musukutwa v Marova HH-20-94 D said that another railway worker had caused the death of a workmate through witchcraft or similar means.

Tabanie v Chimanzi HB-75-90 a police constable was falsely accused by a member of CIO of providing assistance to two armed bandits and sharing in the spoils of the robbery and attempted murder committed by them.

Prakash v Wilson & Anor S-208-92 in the headline to a story about P, it was incorrectly stated that P, a businessman, was sought by Interpol. This implied that he had been guilty of criminal conduct rather than that he had simply committed a breach of contract.

Associated Mine Workers Union & Anor v Gwekwerere & Ors GS-202-81 D accused P of theft.

Birchall v Mararike HH-43-86 P made a false allegation that P had assaulted and abused him.

Mupita v Bayayi HB-31-89 P was accused at her workplace of theft within the hearing of her subordinates and some customers.

Macheka v Metcalfe & Anor HH-62-07 In front of others, P, a prophet, was accused of theft and was arrested by D’s workers at the instigation of D.

 

           Accusations of immoral conduct

Khan v Khan 1971 (1) RLR 134 (A) D called a woman a prostitute.

Moyo v Abraham HH-467-84 D made an accusation that woman was a prostitute.

Bikwa v Ndlovu HB-18-92 D published to Community Court Presiding Officer’s superiors and others a number of false allegations of an immoral relationship between P and D’s wife and of abusing his office to set up this immoral liaison.

Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) the article created the impression that a female musician, who was healthy, robust and lively during her sober days, but was now shabby, unkept, disoriented and addicted to alcohol, dagga and other hard core drugs, and the situation had deteriorated to such an extent that she was now pitiful and had been sexually abused by her fellow musicians. It depicted her as a wild child of Zimbabwean music who was now unable to control her urge to get drunk or high and was now a prostitute or a vagabond.

 

           Accusations of misconduct

Nyamwanza v Kambadza & Ors HH-104-87 D made unfounded allegations against a headmaster that he was inefficient and was guilty of dereliction of duty and sexual impropriety.

Mahomed v Kassim 1972 (2) RLR 517 (A) D told the audience that P had dishonourably failed to repay a loan.

 

           Corruption and financial mismanagement and corruption

Ireland v Chihambakwe HB-65-85 D made an allegation that that the P’s activities had destroyed his company and country’s economy.

Bushu & Anor v Nare HH-97-95 D made a series of allegations of financial mismanagement by Ps in respect of their handling of the affairs of the Public Service Association Investment Company.

 

           Unsuitability for leadership

Zvobgo v Kingstons Ltd 1986 (2) ZLR 310 (H) a report that a Minister was a “regionalist” and conduct not been that expected of leader.

Arnold v Majome HH-431-86 Information was supplied that chairman of a co-operative society had been suspended by the Registrar because funds donated to the society could not be accounted for.

 

Tekere v Zimbabwe Newspapers 1986 (1) ZLR 275 (H) a newspaper unjustifiably accused a prominent politician of being lazy, inefficient, irresponsible and hypocritical and of not attending properly to his political duties, but instead spending his time womanising.

Darangwa v Bushu HB-68-89 a factory manager was falsely accused of unjustly demoting a worker because the latter had stated publicly that the manager had gone fishing with his girlfriend during working hours.

RP & P Co & Ors v Howman NO 1967 RLR 318 (GD) accusation that Minister of Information of deliberately presenting an incorrect, unbalanced and biased picture of the news.

Parsons v Cooney 1970 (2) RLR 75 (A); Parsons v Cooney 1971 (1) SA 165 (RA) Ratepayer gratuitously giving defamatory information about a municipal employee to the head of his department. D was actuated by malice and he was found liable.

Marongwe & Anor v Tsvaringe HH-5-91two persons were ridiculed in front of subordinates by calling them mad and also making other insulting remarks about them.

Madaka v McLean HB-86-91 D took default judgment against a farmer after he had paid in full and caused publication of the judgment in Dun’s Gazette, causing the AFC to threaten foreclosure.

Remba v Sanyangara HB-12-94 a senior factory nurse told a labour hearing that another nurse, P, was a danger to human life and unfit for her calling. When sued for defamation, she did not justify the comments and admitted that they were not necessary. As a result of her statements, P had been suspended and later given work only in a storeroom. Her relationship with her employer had suffered.

Chikukwa v Marisa & Anor HH-3-92 a newspaper published a misleading article in which it was stated that P had been dismissed following maladministration by him.

 

           Accusations of corruption

Association of Rhodesian Industries & Ors v Brookes & Anor 1972 (2) RLR 1 (GD) In a newspaper report, Ps were accused of corruption in the allocation of foreign exchange;

Chinengundu v Modus Publications (Pvt) Ltd HH-135-92 a newspaper published allegations that P, at a time when he was still a politician, had bought votes during an election. This story was published at a time when the President had been considering appointing him as a judge;

Levy v Modus Publications (Pvt) Ltd 2000 (1) ZLR 68 (H) a businessman was awardeddamages arising out of two newspaper articles dealing with the construction of a shopping complex. The articles pointed out that the construction had commenced before building permits had been obtained and they implied that the businessman was a crook who had used his wealth and political connections to subvert Ministers and officials.

Transtobac (Pvt) Ltd & Anor v Jongwe Printing and Publishing Co (Pvt) Ltd HH-67-94 a newspaper alleged that a tobacco company and its financial director had victimised workers, illegally detained them, and fired some of them because of their political affiliation and that they had detained and tortured people including the President.

 

Chinamasa v Jongwe Printing & Publishing Co (Pvt) Ltd 1994 (1) ZLR 133 (H) a magazine published a story reporting that the police were re-opening an old case of fraud involving P, the Attorney-General. In this story it was stated that lawyers were concerned about P’s fitness for his post.

Shamuyarira v Zimbabwe Newspapers (1980) Ltd 1994 (1) ZLR 445 (H) a newspaper published a story exposing widespread abuse of power by Government Ministers and other senior officials. P was implicated in this story. P was found by the commission of enquiry into the scandal not to have been guilty of any abuse of his position.

Mudukuti v Hove & Ors HH-152-94 Ds drove their executive officer from his jobs by vitriolic verbal attacks upon him.

Zimbabwe Newspapers (1980) Ltd & Anor v Bloch 1997 (1) ZLR 473 (S) two newspapers of the defendant published articles accusing of well-known economist of racism, hypocrisy, insanity and fuelling tribal conflicts.

 

           Accusations of unprofessional conduct

Remba v Sanyangara HB-12-94 a senior factory nurse told a labour hearing that another nurse, P, was a danger to human life and unfit for her calling. As a result of her statements, P had been suspended and later given work only in a storeroom. Her relationship with her employer had suffered.

In Nyatanga v Editor, The Herald & Anor 2001 (1) ZLR 63 (H) the court said allegations which impugn the integrity of a person holding the post of Master of Sheriff of the High Court are defamatory in the highest degree and call for punitive damages. They are much more serious than allegations defaming a politician or businessman. To attack falsely the honesty and integrity of a person holding high office in the judicial system undermines the confidence that the public should have in the judicial system of the country.

In Robertson v Eriksen HH-256-93 P, a gynaecologist, was widely defamed by D’s complaint that he was rude, incompetent, greedy, generally unprofessional and unethical, and had assaulted her. D made her complaint to the Health Professions Council, did not retract it, and it became widely known in the medical profession.

 

In Kawonde v Dun & Bradstreet (Pvt) Ltd 2003 (2) ZLR 352 (H) P was a legal practitioner who, through a misunderstanding, had a default judgment granted against him for non-payment of a debt. When the misunderstanding was cleared up the judgment was rescinded. Shortly after the rescission, D published an issue of Dun’s Gazette in which it recorded that judgment had been granted against P. Although D did not know, and had no way of knowing, that judgment had been rescinded, D declined to remove P’s name from the list for 5 months after being informed of the rescission. The initial publication of P’s name was privileged because D did not know and had no way of knowing that the judgment had been rescinded. However, after D was made aware of the true facts the situation changed, and any continued publication of the information in the Gazette or through D’s computers became unlawful. The court awarded D damages for defamation.

Test for defamation

The basic test to determine whether a statement is defamatory is to examine how ordinary, reasonable people would respond to the statement.

 

No distinction is drawn in our law between written and verbal defamation. The requirements for both are exactly the same. In other words, the English law distinction between written defamation (libel) and verbal defamation (slander) does not exist in our law.

 

In respect of written material, the test obviously does not take account of how a reader with a morbidly suspicious mind or how an abnormally sensitive or supercritical reader would respond to the contents. It should also be stressed that the test is not how highly virtuous people who always think perfectly rationally and are totally devoid of all prejudices would respond to the material. Instead, it is the likely reaction of ordinary people of average intelligence. Thus, if a person is being prosecuted for a crime, but has not yet been convicted, the highly ethical individual who is completely fair-minded would adopt the stance that a person is presumed innocent until his guilt is proven and thus he would suspend all judgment upon the guilt of the accused until the court has ruled. The response of ordinary people, however, would be more likely to be that the prosecution would never have been brought unless the police had cogent evidence that he was guilty. So too, the moralistic person would have nothing but sympathy for a victim of rape; but to say of a woman that she has been raped will lower her reputation in the eyes of many people in the general public.

 

In Mapuranga v Mungate 1997 (1) ZLR 64 (H) the court held that to accuse a person of committing adultery is still defamatory, in spite of great changes in general notions on the subject. Although adultery is no longer criminal, the reason why an allegation of adultery is defamatory is because adultery is an act of sexual incontinence which brings the perpetrator into odium from a social point of view. Adultery is still widely reprobated by public opinion and the defamation was inherently serious.

 

This test pays heed to contemporary social and political values and if, over time, values undergo change what is defamatory may alter within the society. To give an extreme example, in the fascist white-ruled “Rhodesia” the courts would have looked upon the term “Communist” as being defamatory, whereas in post-independent Zimbabwe at a time when a socialist economic path was being pursued the use of this term certainly was not defamatory.

The test is the response of ordinary, reasonable people generally. Under this test, a sectional or segmental test is not used. It has, however, been argued that the test should rather be whether a substantial and respectable group of society members would construe the remark as defamatory so as to accommodate the situation where a remark would seem innocuous in the society as a whole, but amongst people with similar beliefs to P, say Hindus, the remark would be construed as being highly defamatory, e.g. that a Hindu eats beef which is completely forbidden for people of his faith. There was support for the sectional test approach in Velempini v Engineering Services Dept of Works 1988 (2) ZLR 173 (H).

 

Where the alleged defamatory statement is contained in a newspaper article the court is entitled to examine the article as a whole and not just the words specified by P. See Ndewere v Zimbabwe Newspapers (1980) Ltd & Anor 2001 (2) ZLR 508 (S).

 

In Masuku v Goko & Anor 2006 (2) ZLR 341 (H) the court stated that, in determining whether or not a person has been defamed, the court should adopt a three-stage approach:

  • consider whether the words complained of are capable of bearing the meaning attributed to them, that is, whether the allegedly defamatory meaning is within the ordinary meaning of the words;
  • assess whether that is the meaning according to which the words would probably be reasonably understood; and
  • decide whether the meaning identified is defamatory.

 

In this case the court found that the plain meaning of the offending article was that P was being investigated for improper or unethical behaviour and that he had committed acts of corruption rendering him unfit to hold public office. Its overall tenor suggested that he was already under investigation and that the case against him had overtaken mere allegations of corruption. Applying the tests cited, the words, as understood by the ordinary reader, were defamatory of P, in that they cast aspersions on his character, lowered him in the estimation of ordinary reasonably persons and, having regard to the diverse public offices he held, exposed him to public ridicule and contempt.

 

In Garwe v Zimind Publishers Ltd & Ors 2007 (2) ZLR 207 (H) the court said that the ordinary meaning of the words is determined by looking at the context in which they were uttered. The court must decide both whether the words in their ordinary significance are capable of bearing a defamatory meaning and whether the ordinary reader would understand the words as being defamatory. The reasonable reader is a person who gives a reasonable meaning to the words used, within the context of the document as a whole. The reasonable reader will not engage in an exercise to subtly, elaborately or intellectually analyse a word and come up with a meaning different from that ordinarily assigned to it.

 

In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) applied the three stage approach to decide how ordinary reader of a newspaper would have understood an article about a female musician.

 

           Test where exception that P’s declaration that it does not disclose cause of action

In Mnangagwa v Alpha Media Hldgs (Pvt) Ltd & Anor 2013 (2) ZLR 116 (H) the court ruled that where exception is taken to P’s declaration on the ground that it did not disclose a cause of action in a defamation case, the test of what constitutes defamatory matter is different from that at the trial stage. All the court is called on to decide at this stage is whether a reasonable person of ordinary intelligence, having heard D’s words and having knowledge of the circumstances might reasonably understand these words as meaning that P had been guilty of illegal or criminal conduct. The test on exception is, therefore, whether a reasonable person of normal intelligence and with knowledge of the circumstances could or might regard the statement as defamatory, whereas at the trial stage the test is whether a reasonable person would regard it as defamatory. The question which must be answered is: what immediate impact would the contents of the article in question have on the mind of the ordinary reader of the publication and what would be the overall impression gained by him? Or, put another way, in the contest of the article as a whole; are the words used reasonably capable of conveying to the reasonable reader the defamatory meanings ascribed to them by P in his declaration?

 

Primary and secondary defamation

Material can be defamatory either in a primary or in a secondary sense. Where it is alleged that the material is per se defamatory, it is not permissible to call witnesses to testify as to how they understood that material. It is for the court to decide how reasonable people generally would have been likely to construe that material. See Mavromatis v Douglas 1971 (1) RLR 119 (G).

 

Where, however, P is alleging innuendo (i.e. that in the primary sense the words are not defamatory but because of special circumstances they assume a secondary meaning which is defamatory), it is necessary and permissible for P to call witnesses to testify that they were aware of the special circumstances and that, given those special circumstances, P’s estimation was lowered in their eyes. (The court still has to consider such witness testimony from the standpoint of whether the witnesses were reasonably justified in interpreting the material in this fashion.) See Mahomed v Kassim 1972 (2) RLR 517 (A); 1973 (2) SA 1.

 

Although words are per se defamatory, P may still allege an innuendo, the object of which is to highlight the sting of the imputation. The highlighting of the sting of the imputation is not an innuendo in the true sense, as the imputation can be derived from the words themselves. The highlighting of the sting has been referred to as a quasi-innuendo. See Zvobgo v Kingstons Ltd 1986 (2) ZLR 310 (H) and Zvobgo v Mutjuwadi & Ors 1985 (1) ZLR 33 (H).

 

In Moyse & Ors v Mujuru 1998 (2) ZLR 353 (S) the court decided that a person claiming damages is bound by the specific meaning selected by him as being defamatory and the court will deal with that meaning and no other.

 

Proof of bad character of plaintiff

In Jansen v Naylor 2006 (3) SA 546 (SCA) the court stated that for the purposes of assessing appropriate damages, ‘evidence of a plaintiff’s general bad character is admissible,’ but ‘evidence of particular acts of misconduct is not’ (para 15). It went on to say, however, that evidence that falls short of justifyingconduct, could nonetheless mitigate the impact of the words: In some instances the evidence could show that, although not all of it, at least a portion of the statement was justified.

 

Persons who can be defamed

An action for defamation can be brought by:

  • a natural person;
  • a trading or non-trading corporation when the status or reputation of that corporation has been damaged. See Boka Enterprises v Manatse & Anor 1989 (2) ZLR 117 (H); Dhlomo NO v Natal Newspapers & Anor 1989 (1) SA 945 (A); and PTC v Modus Publications (Pvt) Ltd 1997 (2) ZLR 492 (S).

In Caxton Ltd & Ors v Reeva Forman (Pty) Ltd & Anor 1990 (3) SA 547 (A) the court stated that a trading corporation may claim damages to compensate for the actual loss sustained as a result of defamation. The extent of harm to business is to be decided with reference to nature of the defamation, the character of the business and the likely impact thereon of the defamation. Damages are to be assessed in accordance with principles relating to claims for defamation, bearing in mind that corporation has no feelings to outrage or offend;and

  • a political party Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A).

 

But Government itself cannot sue for defamation because to allow such an action would inhibit freedom of speech. People have the right to criticize government and government should not be able to suppress criticism by suing for defamation using state funds.

 

It would seem that local authorities also cannot sue on the basis that they are elected bodies which should again be open to criticism.

 

As to whether statutory corporations can sue for defamation, the Supreme Court dealt with this issue in the case of Postal and Telecommunication Corporation v Modus Publications(Pvt) Ltd 1997 (2) ZLR 492 (S). The PTC sought to sue a private newspaper for defamation damages. The court decided that statutory corporations which are part of the governance structures of the county should not be able to sue for the same policy considerations that apply in respect of statutory corporations that are in effect part of governance structures. The court examined the statutory framework of the PTC and decided that it was a state organ that was not independent of government. Thus in respect of other statutory corporations and other institutions such as state universities, their statutory framework would have to be examined in order to determine whether they are simply the alter egos of government or whether they have a sufficient degree of independence from government that would enable them to be treated as separate entities that have the right to sue for defamation.

 

The court however pointed out that statutory corporations were still entitled to bring actions for economic loss that they suffer as a result of scurrilous false statement about them. This action can be brought under the delict of injurious falsehood.

 

A person cannot sue in respect of defamatory statements about his dead relative. Only if the statements about the dead relatives have the effect of defaming him personally can he sue.

 

Reference to plaintiff

P must show that the defamatory statement was made about him or her.

 

When a statement is made about an entire class or group of persons (say all university lecturers), P, who is a member of that class, can only sue for defamation if reasonable people generally would have understood the statement as referring to P individually as well as to others in the class and therefore they would have thought less of P himself or herself. See Arnold v Majome HH-431-86.

 

The P does not necessarily have to be referred to by name. That person can be identified by reference to the position or office that person holds, as, for instance, where D refers to the managing director of a company or a Minister holding a specified portfolio.

 

In Ndewere v Zimbabwe Newspapers (1980) Ltd & Anor 2001 (2) ZLR 508 (S) a defamatory article referred to the in-house lawyer of the company. P was the corporate secretary and legal advisor of the company. P asserted that her friends, relatives, acquaintances and colleagues would have known that she was the company’s in-house lawyer and would have understood that the article referred to her. The court accepted that the article was understood by a limited number of persons as referring to her.

 

In Moyo v Chipanda 2004 (2) ZLR 67 (H) P sued D for defamation. The statement, published in a newspaper, did not refer to P by name or by description. However, the newspaper subsequently published articles in which P was identified and linked to the earlier statement. The court held that publication of defamatory words and identification of the person intended to be defamed need not occur contemporaneously. The evidence of such subsequent publication was therefore admissible.

 

In Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H) the court said that P is required to prove that the injurious statement referred or related to him, not necessarily that he was specifically mentioned by name. With a series of statements, the publication of defamatory words and the identification of the person intended to be defamed need not occur contemporaneously. Evidence of a subsequent statement identifying P is admissible as proof that an earlier defamatory statement referred or related to him. In the present case once the later articles, which mentioned P by name, were published, the reasonable reader, taking all four articles conjunctively, would undoubtedly have identified P as one of the mining commissioners who was being transferred on the grounds of corruption. The articles taken together imputed to P (amongst others) a proclivity towards corrupt behaviour, illegal activities, dishonest and unprofessional conduct and attempting to cover up illegalities. Such imputations were unquestionably defamatory in accordance with the applicable tests laid down by the courts.

 

In Mohadi v The Standard & Ors 2013 (1) ZLR 31 (H)  P, one of the co-Ministers of Home Affairs, claimed damages for defamation following the publication of an article in a newspaper. The article referred to the large scale theft of copper wiring alongside the main Gweru-Harare road and the lack of action by the police, and went on to say: “Recently the co-Minister of Home Affairs responsible for the Police had his 30-tonne truck impounded with 30 tonnes of stolen copper wire on board … a close relative has been running a gang stripping wire from power lines for several years. The police at Beitbridge are well aware of this and have done nothing ...” The article did not name P. Ds excepted to the claim, on the grounds that the words complained of contained no reference to P and, further, that the declaration made no proper allegations of what facts would enable the ordinary reader to identify P as the person referred to. P claimed damages in the sum of US$35 million.

 

The court held that in order to succeed in a claim for defamation damages, a person must establish that the material complained of referred to or concerned him. The test for determining whether in any publication the reference is to P is an objective one: whether the ordinary, reasonable person hearing the speech would have understood the words complained of to apply to P. There are two stages in the inquiry into the question whether the material complained of refers to or concerns P. The first is whether the statements complained of are reasonably capable of referring to P, either in their ordinary meaning or by reason of some special circumstances. This is a question of law which can be determined on exception. Evidence is not admissible in that enquiry. The second leg of the inquiry is whether a reasonable person would regard the words complained of as referring to P. Only the first stage needed to be considered in the present case.Where P is not identified or referred to by name or description, such as his office or occupation, he must state the facts upon which he relies as showing that the statements complained of referred to or concerned him. While it was possible to identify P as the co-Minister of Home Affairs being referred to (the other co-Minister being female), it was clear that the defamatory aspects of the article which P sought to rely upon did not refer to or concern P as co-Minister of Home Affairs. They concerned a relative of his, as well as the police who were being accused of inaction. The article did not say or imply that P was responsible for vandalising the electrical system. The allegation that the police impounded a motor vehicle owned by P carrying thirty tonnes of copper wire did not in any way mean that the plaintiff was involved in the stealing of the copper wire. Although, the article stated that a close relative of P had been leading a gang of persons responsible for stealing copper wire from the railway company, there was no suggestion that P is responsible for the conduct of his relative. The article did not state or suggest in any way that P ran a criminal gang that had been stealing copper wire. That allegation related to a relative of P. There was no suggestion that P influenced the police not to arrest the persons who stole the copper cables. The exception would accordingly be upheld.

Publication

If a defamatory statement about P is published only to P, he may be able to sue for injuria, but he cannot sue for defamation because, by definition, defamation is onlycommitted when there is publication of the defamatory statement to at least one person other than P. (This requirement is satisfied if D publishes it to P’s spouse. However, because of the closeness of the marital relationship as an exception to this rule, publication is not deemed to have taken place if the publication is only to the D’s own spouse.)

 

The fact that other people have previously published the same defamatory statement is no defence.

 

See Grindlays Bank v Louw 1979 ZLR 189 (G) publication to P’s agent.

 

Liability of D for re-publication

If another person re-publishes a statement originally made by D, D will also be liable to pay damages for that further publication of his defamatory statement if:

  • he or she authorised or intended the repetition; or
  • to his knowledge, the other person had a moral duty to repeat the matter; or
  • the publication flows in the ordinary course from the original publication.

 

See Maketo v Medical Investments (Pvt) Ltd & Anor HH-324-88 in respect of liability of D for republication by another.

 

Multiple defendants

In Mashamhanda v Mpofu & Ors 1999 (1) ZLR 1 (H) the court ruled that when P  an action for defamation against multiple defendants P should bring the action against all the defendants in one single action.

Electronic publication

The World Wide Web has expanded enormously the scale and extent of publication. Newspapersoften publish their copy on websites, and this means that huge numbers of persons may read the newspaper, not only in the country where the newspaper is located but all around the world. The harm caused by the defamatory statementscan thus be on a vast scale.

 

Social media, such as Facebook and Twitter, blogs, chat rooms, online forums and personal websites can also be used to harm other people’s reputations.

 

In H v W 2013 South Gauteng High Court Case Number 12/10142/2013D posted on Facebook a letter for the attention of P and for public consumption a letter defaming P.The court held that even if the contents of the letter were true, it was not in the public interest to publish the article, that D had acted with malice in publishing it and the defence of fair comment did not apply. The court ordered D to remove all postings which she had posted on Facebook or any other site in the social media which refer to P.

 

The question that arises is what would have happened if P had sued D for defamation damages? If the author of the defamatory statement is known then that person can be sued but the problem is that Internet users can easily create bogus profiles and make anonymous and unlimited defamatory postings regarding any person.

 

Service providers hosting web sites in Zimbabwe are legally obliged to obtain and record the names, addresses and other identity details of their customers who have web sites hosted by those service providers. Thus, if defamatory material is placed on such web sites, the persons posting the material will be known and it will be possible to sue these persons.

 

There is no legislation in Zimbabwe dealing with the question of the liability of the internet service providers located in Zimbabwe for defamatory statements appearing on, for instance, web pages hosted by service providers.  Unlike the owner of the website or the blog, the service provider is a mere conduit of information. It is the owner of the website who controls the contents on its website. It is the owner of the website who decides, for instance, to provide a forum or chatroom where defamation might occur.

 

Interdict

The courts are reluctant to issue an order to prevent the media from publishing a story on the basis that the story is allegedly defamatory.

 

For a final interdict to be granted in a case of defamation, P would have to establish that he or she has clear right, that he or she reasonably apprehends that he or she will suffer injury if the interdict is not granted and that he or she cannot obtain similar protection by some other ordinary remedy.

 

In this sort of case the court will balance the interests of P against those of D. But the court will take into account that an interdict could end up stifling the freedom of the media as entrenched in s 61 of the Constitution. It will not grant an interdict if it considers that on the facts there is a defence available to D in respect of any action for defamation. It will also take into account that after publication P will still be able to bring an action for damages if it turns out that D cannot successfully raise any defence to the defamation. It will take into account the financial prejudice to the newspaper if it stopped from releasing the paper after it has already been printed. However, it may in exceptional cases decide that P will suffer irreparable harm if the paper is not interdicted because the article is extremely defamatory and on the facts before the court, there do not appear to be any viable defences that can be raised

 

In Schweppes (Central Africa) Ltd v Zimbabwe Newspapers (1980) Ltd 1987 (1) ZLR 114 (H) the court said that before an interdict may be granted restraining the publication of matter alleged (or admitted) to be defamatory, the court must be satisfied not only that the matter is defamatory but also that there is no defence (such as that the statement is true and for the public benefit) and that nothing has occurred to deprive the plaintiff of his remedy (such as consent to publication).

 

In Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 (1) ZLR 234 (H). in the early hours of the morning on which a weekly newspaper was to be published, the applicant bank sought an interim interdict preventing the publication of the paper. The paper contained an article which the bank said would be damaging to it because it suggested that the bank was in serious financial trouble. There had been an article in the previous edition of the paper in which it was said that the bank was in trouble. The court refused to grant an interdict to stop the circulation of the paper. It held that the bank had produced no proof that the article was false and that the article would harm it, particularly as there had been a previous article that gave an equally bleak picture of the bank’s situation. The court also held that there were a number of alternate remedies available to the bank, including suing the paper for defamation. The court did, however, point out that a newspaper has a duty to act responsibly and to take reasonably adequate steps to satisfy itself of the veracity of the reports it publishes. This is particularly so when a report alleges that a bank is in serious financial difficulties because of the reaction such report can generate from the bank’s customers.

 

In Moyo v Muleya & Ors 2001 (1) ZLR 251 (H) a Cabinet minister sought an interdict against the respondents after they published an article which referred to legal proceedings being brought against him in Kenya. The applicant had already instituted proceedings against the respondents in respect of the article already published; the respondents had raised the defences of fair commentand justification.  The court held that the competing interests of the right to personal dignity and integrity and the right of freedom of speech had to be balanced. In doing so, the court should interfere as little as possible with freedom of speech. Before granting a final interdict, the applicant had to establish a clear right. He could not do so when the existence of the right had yet to be determined in the other case pending. The fact that the applicant was a politician was important in assessing the respondents’ defences. Generally speaking, politicians are open to greater scrutiny than ordinary persons. This meant that the defences being raised had a reasonable prospect of success.

 

See also Hix Networking Technologies v System Publishers (Pty) Ltd and Anor 1997 (1) SA 391 (A); Van Zyl and Anor v Jonathan Ball Publishers (Pty) Ltd & Ors 1999 (4) SA 571 (W) and Malema v Rampedi & Ors 2011 (5) SA 631 (GSJ).

 

Defences to defamation

As a result of certain South African Appellate Division cases since 1960, it is now a defence to defamation in South Africa that D did not subjectively intend to defame (i.e. that he had no animus injuriandi). This defence would not appear to be available in Zimbabwe as animus injuriandi is a purely functional requirement because as soon as it is proved that objectively the statement was defamatory, animus injuriandi is presumed to exist by the courts and, at this stage, D will only escape liability if he successfully pleads one of the recognised defences, namely,justification, fair comment, privilege, compensation, rixa or consent to the publication of the defamatory material.

 

However, in the case of Garwe v Zimind Publishers (Pvt) Ltd 2007 (2) ZLR 207 (H) the High Court dealt with the defence of absence of intention to defame that was raised in that case as if this defence is applicable in Zimbabwe.

 

Unavailable defences

It is no defence to an action for defamation for D to say that the statement has already been published in, for instance, another newspaper and that D is simply repeating what was said elsewhere. This is because the action of spreading the story around causes more harm to the P’s reputation. Merely putting the offending words in quotation marks provides no defence.

 

It is no defence to an action for defamation for a newspaper to say, for instance, that it has merely published the letter from one of its readers which turns out to be defamatory and without any foundation.The issue of whether the press is protected against actions for defamation if they accurately quote what high-ranking government officials say in statements to the press or when addressing public rallies will be dealt with later.

 

It is no defence to an action for defamation for the publisher of the defamatory to say that before publishing the statement D confronted P with a defamatory allegation against him or her. The purpose of confronting a person with an allegation is to try and check the story. If, when confronted, P admits the allegation, the newspaper can go ahead safely and publish the story. But if P completely denies the allegation or refuses to comment on it and the newspaper still publishes it, the newspaper will still be liable to P if the defamatory allegation is without substance.See Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR 503 (H).

 

Justification

 

The onus is on D to prove this defence: Du Plessis & Ors v De Klerk & Anor 1996 (3) SA 850 (CC); Selemela & Ors v Independent Newspaper Group Ltd & Ors 2001 (4) SA 987 (NC).

 

           Truth.

The statement does not have to be completely accurate in every single particular detail. It is and in every material respect that form the basis of the complaint of defamation. What must be true is the “sting of the charge” or the material allegations only.

 

           Public benefit.

The publication of that statement in that manner at that time must public benefit. The element of public interest lies in telling the public something of which it is ignorant and which is in its interest to know. Thus, for instance, this requirement would be satisfied if the statement is about the integrity or competence of a public official. But it would not if D publishes to a man information that the man’s wife is committing adultery.

 

It is not for the public benefit to rake up long forgotten scandals, for example, the fact that a person who is now a public figure was convicted of a minor criminal offence thirty years ago where this has no bearing on his present conduct. See Graham v Ker (1982) 9 SC-185 and Yusaf v Bailey & Ors 1964 (4) SA 117.

 

If only a section of the public have an interest in a defamatory news item, it is not justified to publish to others.See Ferreira en Andere v Suidwes Drukkery Bpk en 'n Ander 1965 (3) SA 276 (SWA).

 

In Levy v Modus Publications (Pvt) Ltd 1998 (1) ZLR 229 (S) a well-known businessman sued a newspaper for defamation arising out of two editorials criticising the manner in which the businessman had implemented his project to develop a shopping complex. On appeal, the majority of the court decided that the newspaper had defamed the businessman. The editorials implied that the businessman was a crook, that he had corruptly used his wealth and his political connections to suborn officials who ought to have prevented the continuation of the project and that he had bent the rules and violated the law in pushing through the project.

The majority of the court also decided that the defence of justification had not been established as the statements had not been shown to be true. In relation to defamation, the court decided that the court must determine the matter on the facts as they existed at the dates of publication of the alleged defamatory articles, not as they were when the judgment was given some months later by the court. The minority of the court decided that in a democracy the public should guard against the tendency of prominent, wealthy and well connected people in society to get away with breaking and bending the law and rules and trampling on the rights of other citizens. In this case, the newspaper had a right to raise these issues pertaining to the conduct of this public figure. The statements were generally true and the comments based on them were fair. The newspaper was therefore not liable to pay damages for defamation.

In Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H) a newspaper has published articles, containing statements attributed to D1, in his capacity as Minister of Mines, to the effect that certain mining commissioners had been transferred because of their corruption. It later published two further articles in which it specifically referring to P by name. P had never been charged with any act of misconduct involving corruption or other illegal activity. He was never interviewed by the newspaper to present his side of the story.

The articles taken together imputed to P (amongst others) a proclivity towards corrupt behaviour, illegal activities, dishonest and unprofessional conduct and attempting to cover up illegalities. Such imputations were unquestionably defamatory.P claimed damages for defamation arising from the newspaper articles, citing D1 in his personal capacity, as well as the editor and the publisher of the newspaper.

 

It was argued that D1, as Minister of Mines, had a public duty to speak out against corruption. The statements made by him were truthful and accurately reflected the endemic corruption and malpractices within the Ministry. D2 and D3 contended that they were justified in publishing the articles and were discharging their duty of informing the public which has a clear interest in being informed of the matters reported. They had a duty to report on the corruption of public officers and their resultant transfers and reassignment, and the public had a reciprocal interest in receiving such information.

 

The articles contained information that was undoubtedly of considerable public interest, as the alleged malpractices within the Ministry and the consequent reassignment of Ministry officials were of unquestionable public importance. However, what was relevant was whether the material imputation that P himself was corrupt and dishonest was factually true. Ds proffered nothing to verify that imputation. In the absence of any evidence to substantiate the utterances of illegality and impropriety against P, the claim of justification in the public interest could not avail Ds.

 

In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) the court found that the defence of justification failed because the article was based on fabrications and it was motivated by malice

 

See also RP & P Co v Howman NO 1967 RLR 318 (G); Mahomed v Kassim 1972 (2) RLR 517 (A); Serfontein v Irvine; De Villiers v Irvine 1980 (2) SA 63 (ZRA); Tekere v Zimpapers & Anor 1986 (1) ZLR 275 (H); Caxton Ltd & Ors v Reeva Forman (Pty) Ltd & Anor 1990 (3) SA 547; Natal Witness Printing & Publishing Co (Pty) SA Ltd 1991 (4) SA 677 (N); Neethling v Du Preez & Ors; Neethling v The Weekly Mail & Ors 1994 (1) SA 708 (A); Kemp & Anor v Republican Press (Pty) Ltd 1994 (4) SA 261 (E); Gardener v Whitaker1995 (2) SA 672 (E); McNally v M & G Media (Pty) Ltd & Ors 1997 (4) SA 267 (W); Kyriacou v Minister of Safety and Security & Anor 1999 (3) SA 278 (O); Naylor & Anorv Jansen; Jansen v Naylor & Ors 2006 (3) SA 546 (SCA) (damages).

 

Non-negligent publication by press of information in public interest which turns out not to be correct

The South African courts have developed an approach towards the liability of the press that allows for a proper balancing the protection of reputation against the right of the press to inform the public about matters of public interest. This approach has been used particularly in respect of cases where the press has published articles about the fitness of public officials to hold public office. The South African approach has not, so far, been followed in Zimbabwe.

 

In National Media Ltd & Ors v Bogoshi 1998 (4) SA 1196 (SCA) the court decided that publication in press of false defamatory allegations of fact is not unlawful if, upon consideration of all circumstances of case, publication of facts in a particular way at a particular time is reasonable. In judging the issue of reasonableness, the court would examine the nature, extent and tone of allegations to be taken into consideration. Relevant factors included, but were not confined to, the nature of the information upon which the allegations were based, the reliability of source and the steps taken to verify information, and the opportunity given for response.Thus the press was not to be strictly liable for publication of information that turned out to be false if the publication was reasonable.

In Thembi-Mahanyele v Mail and Guardian & Anor 2004 (6) SA 329 (SCA) the newspaper had published an article that suggested that a Cabinet member was corrupt. On appeal, the court held that although the words were defamatory, the newspaper was not liable for defamation.It decided that the press is not liable for the publication of defamatory material where it is able to show thatit had been reasonable in publishing the material. It ruled that the reasonableness of the publication might also justify it. In appropriate cases, D should not be held liable where publication was justifiable in the circumstances; where the publisher reasonably believed that the information published was true. The publication in such circumstances is not unlawful. Political speech might, depending upon the context, be lawful even when false provided that its publication was reasonable. The question that arose in this case was whether special principles should be invoked to protect the press, or for that matter individuals, when they make defamatory statements about a Government Cabinet member. Freedom of expression in political discourse was necessary to hold members of Government accountable to the public. And some latitude must be allowed in order to allow robust and frank comment in the interests of keeping members of society informed about what Government did. Errors of fact should be tolerated, provided that statements were published justifiably and reasonably: That was with the reasonable belief that the statements made were true. That did not mean that there should be a licence to publish untrue statements about politicians. They too had the right to protect their dignity and theirreputations.

Where publication was justifiable in the circumstances D would not be held liable. Justifiability was to be determined by having regard to all relevant circumstances, including the interest of the public in being informed; the manner of publication; the tone of the material published; the extent of public concern in the information; thereliability of the source; the steps taken to verify the truth of the information (this factor would play an important role too in considering the distinct question whether there was negligence on the part of the press, assuming that the publication was found to be defamatory); and whether the person defamed had been given the opportunity to comment on the statement before publication. In cases where information was crucial to the public, and was urgent, it might be justifiable to publish without giving an opportunity to comment.In the circumstances of this case, the court held that the publication of the defamatory article was not unlawful since it was justifiable in all the circumstances, and was not negligent.

 

The case of Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network Ltd & Anor; Akani Egoli (Pty) Ltd v Electronic Media Network Ltd & Anor 2011 (3) SA 208 (GSJ) dealt with the defence of reasonable publication by the media. It stated that the test for this defence was adherence to principles of responsible journalism. Fairness and balance was required. The court would adopt a practical and flexible approach in assessing whether all responsible steps weretaken before publication. The court would consider the meaning sought to be conveyed by the publication and whether journalists in question could reasonably have believed that this was how ordinary viewer or reader would have understood it.

See also Sayed v Editor,Cape Times, & Anor 2004 (1) SA 58 (C).

 

However, in Mangope v Asmal & Anor 1997 (4) SA 277 (T) the court observedthat the constitution does not legalise character assassination of individuals merely because they are politicians.A defamatory statement about a politician aimed at his personal dignity and reputation and not at his public conduct is not justified.

 

Fair comment

 

The law recognises this defence subject to certain requirements in the interests of free speech. It lays down that in certain circumstances a citizen should be immune from civil liability if that person expresses that person’s genuine opinion concerning matters of fact which are of public interest, even if that opinion is defamatory in its effect. The basic requirements for this defence are:

  • There must be a comment or an expression of opinion as opposed to a statement of fact.
  • The comment must be “fair” in the sense that it must be an honest opinion that is relevant to the facts. In other words, the opinion must be one which D genuinely held based upon those facts and he must have been exercising his citizen’s right to express his opinion and his motivation must not have been simply to cause harm to P’s reputation because he had, say, a grudge against him.

This defence will apply even if the opinion is expressed in strong and somewhat intemperate, exaggerated and extravagant language.if the opinion is fair in the sense that it is genuinely held and, if D is expressing the opinion in the public interest and not because of motives of spite or grudge towards P.The defence is extended in the interests of free speech and this right would be substantially negated if it was an essential pre-requisite that opinions expressed must always be well-balanced and completely impartial.

 

In Hardaker v Phillips 2005 (4) SA 515 (SCA) the court stated that thecomment does not have to “be impartial or well-balanced”. “Fair” in this context means only that the opinion expressed is that of 'a fair man, however extreme his views may be, might honestly have, even if the views are prejudiced'.

 

  • The facts commented upon must be expressly stated or clearly indicated in a document or speech containing the defamatory matterunless they are so notorious as to make this unnecessary.
  • The facts commented on must also be true in their salient particulars and must be facts that are legitimately matters of public concern.

 

These requirements were set out in Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H) In that case,the offending articlescontained statements of fact, drawn from the D1’s utterances and from correspondence by P’s lawyers. There was nothing by way of comment or opinion expressed in the articles. Even if one were to stretch the notion of comment to include the content of the articles, Ds failed to show that the factual allegations on which the supposed comment was based were true. Ds could not rely on the defence of fair comment.

 

In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) the court found that in respect of a highly defamatory article about a female musician most of the allegations did not amount to opinions and the allegations were unfair.

 

In Moyse & Ors v Mujuru 1998 (2) ZLR 353 (S) a politician had been acquiring business interests in an area contrary to the leadership of the ruling party by which he was bound. A magazine had published a story in which it referred to the “goings on” of this politician. This story was defamatory as the ordinary reader would take this to mean that the politician had been doing things of a dishonourable or disreputable nature and perhaps even of a dishonest nature. However, the magazine successfully raised the defence of fair comment. The comment was fair, it was based on true facts, the matter commented upon was a matter of public interest and, although the facts relied upon were not stated, they were generally known to the relevant audience.

 

In Ndewere v Zimbabwe Newspapers (1980) Ltd & Anor 2001 (2) ZLR 508 (S) D2 wrote an article which appeared in a newspaper published by D1. The article was critical of a decision made by the Zimbabwe Broadcasting Corporation, alleging that the decision was taken by the Corporation’s “in-house lawyer”. The article referred to “the calibre of some of the people who make decisions at ZBC” and referred to “the lawyer’s strange and warped thinking”. P claimed that the article referred to her, as she was the Corporation’s corporate secretary and legal adviser. She stated, though, that the decision which was being criticised was made, not by her, but by the Corporation’s Board of Governors, although she had, in her official capacity, signed the press statement in which the decision was announced. The court held that that to question the calibre of people working for a particular employer necessarily implies that some are of a low calibre. When this was followed by reference to the lawyer’s “strange and warped thinking”, this necessarily implied that this was meant as an example of the work of a low calibre employee. While the word “strange” may not be regarded as defamatory, to refer to the “strange and warped” thinking of one of those employees is to make a statement calculated to lower that person in the esteem of those who know the remark refers to him or her. If fair comment is pleaded, the factual allegations on which it is based must be true. The article alleged that P made the decision which was being criticised. The evidence established that the decision was not made by P, even though she had, in her official capacity, signed the press statement. Where the allegations are made about P, and should have been made about someone else, the defence of fair comment must fail.

 

In Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR 503 (H) P, a member of Parliament, claimed damages for defamation following the publication of an article about him in a weekly newspaper that circulated in a local area. It quoted a letter written to the management of a mining company “from a suspected highly placed ZANU PF official threatening them that they are likely to be abducted, tortured and even get killed for betraying the party in the area”. The allegation that P was terrorising mine workers in the name of ZANU PF is attributed to unnamed “impeccable sources”. The allegations that P was the major problem and cause of unrest in the areawere also attributed to the same sources. Ds claimed the article constituted fair comment on a matter of public interest.

 

The court held that for a newspaper to describe its sources as “impeccable” means that the newspaper has associated itself with the allegations allegedly made by the sources. It in fact validates and associates itself with the allegations through its description of the sources as “impeccable. It was no defence for the newspaper to say that it was simply repeating what had been said by someone else in the letter to the mining company.

 

See also RP & P Co v Howman NO 1967 RLR 318 (G); Tekere v Zimbabwe Newspapers & Anor 1986 (1) ZLR 275 (H); Zvobgo v Kingstons Ltd 1986 (2) ZLR 310 (H); Crawford v Albu 1917 AD 102 at 125; Pienaar & Anor v Argus Printing and publishing Co Ltd 1956 (4) SA 310 (W); Buthelezi v Poorter & Ors 1974 (4) SA 831(W); Rautenbach v Republikeinse Publikasies (Edms) Bpk 1971 (1) SA 446 (W); Johnson v Beckett & Anor 1992 (1) SA 762 (A); Vorster v Strydpers Bpk en Andere 1972 (2) SA 928 (T); Heard v Times Media Ltd & Anor 1993 (2) SA 472 (C); Delta Motor Corporation (Pty) Ltd v Van der Merwe 2004 (6) SA 185 (SCA); The Citizen 1978 (Pty) Ltd & Ors v McBride 2010 (4) SA 148 (SCA).

 

Privilege

 

There are two types of privilege, namely absolute privilege and qualified privilege. The difference between the two is, whereas qualified privilege does not apply if D was actuated by malice, with absolute privilege the defence still applies even if malice was the motivating force and the statement was entirely untrue.

 

Absolute privilege

 

The sole form of absolute privilege recognised in Zimbabwe is that extended to Parliamentarians in respect of statements made by them in Parliament. In the interests of unconstrained and probing debate, Parliamentarians cannot be sued for defamation for statements made in during debate in Parliament or during the proceedings of any committee of Parliament.

 

Section 148 provides as follows:

 

148 Privileges and immunities of Parliament

(1) The President of the Senate, the Speaker and Members of Parliament have freedom of speech in Parliament and in all parliamentary committees and, while they must obey the rules and orders of the House concerned, they are not liable to civil or criminal proceedings, arrest or imprisonment or damages for anything said in, produced before or submitted to Parliament or any of its committees.

 (2) An Act of Parliament may—

(a) provide for other privileges, immunities and powers of Parliament and its Members and officers;

(b) define conduct which constitutes contempt of Parliament, whether committed by Members of Parliament or other people; and

(c) provide for a right of reply, through the Speaker or the President of the Senate, as the case may be, for persons who are unjustly injured by what is said about them in Parliament; but no such Act may permit Parliament or its Members or officers to impose any punishment in the nature of a criminal penalty, other than a fine, for breach of privilege or contempt of Parliament.

 

This absolute privilege is provided for in section 5 of the Privileges, Immunities and Powers of Parliament Act [Chapter 3:03].

 

See Poovalingam v Rajbansi 1992 (1) SA 283 (A) for the limits of Parliamentary privilege in South Africa.Here privilege did not attach to a letter allegedly defaming P delivered by hand to all Members of House.

 

Qualified privilege

 

This defence applies where the person making the statement has a duty or right totransmit the statement and the person receiving the statement must a reciprocal right, duty or interest to receive the statement. See Masuku v Goko & Anor 2006 (2) ZLR 341 (H).

 

In the case of Thomas v Murimba 2000(1) ZLR 209 (H), Judge Chinengo referred to the wide nature of the defence of qualified privilege. The judge quoted Burchell’s statement in The Law of Defamation in South Africa p 245 to the effect that qualified privilege applied in three categories-

  • statements published in discharge of a duty, the exercise of the right or in furtherance of a legitimate interest;
  • statements published in the course of judicial or quasi-judicial proceedings; and
  • reports of proceedings of courts, parliament and public bodies.

The judge further quoted with approval this passage from Burchell on the same page that since the basis of the defence of qualified privilege “is one of public policy, there is no closed list of rights, duties or interests that are considered as legitimate for the purpose of the defence of qualified privilege. To attempt to categorise the legal decisions in which the duty or interest has been held to be legitimate might tend to create the impression that the categories are fixed.” Judge Chinengo fully agreed with these views and went on to say-

 

“It is also my view that the range of duties or rights to communicate defamatory matter is wide and must be widened even further for the greater good of social transparency. The range spans the legal, moral ans social duties or rights or interests in respect of which the list cannot be fixed. …the law must develop and in that process the widening of the interests, rights and duties involved becomes inevitable.”

 

In the South African case of Borgin v De Villiers & Anor 1980 (3) SA 556 (A) at 577D-G the court stated that the test for qualified privilege was the objective test. The question that needed to be asked was whther in the eyes of the reasonable person the circumstances created a duty or interest which entitled the party being sued to speak in way in which he or she did. In answering this question, the court would be guided by the criterion as to whether public policy justified the publication and required that it be found to be a lawful one.   

 

Published statement turns out to be untrue

 

The law recognises certain situations where a person has a right to make a statement even though the statement turns out to be untrue. In Musakwa v Ruzario 1997 (2) ZLR 533 (H) the court held that where the defence of qualified privilege is raised it is not necessary to establish that the defamatory statement is true. The degree of truth in the defamatory statement is only relevant to the issue of whether the bounds of privilege have been exceeded or the statement was motivated by malice. In the Musakwa case D sent an affidavit to the Secretary for Justice and the Commissioner of Police alleging that a magistrate had solicited a bribe. The behaviour of the magistrate had led D to believe that he had tried to solicit a bribe, even though it was not subsequently proven that he had done so. Nonetheless, the court held that D was entitled to send the affidavit to the two parties who had a duty or interest in receiving this information so that the matter could be investigated.

 

Thus if D genuinely and on reasonable grounds believes that P is committing a crime such as child sexual abuse, he has a qualified privilege to report his belief to the police so that the police can investigate. D would be protected against defamation on the basis of qualified privilege even it turns out that P is not in fact committing the crime.

 

But this does not apply to a statement published in the media. Here the media may believe it is acting out of a duty to inform the public generally about, for instance, alleged corruption on the part of a government official, but if the published allegations are not true, the media institution will be liable for defamation. As pointed out previously, it has not been accepted in Zimbabwe that the media has a defence that it published the information in the public interest believing on reasonable grounds that the information it is publishing is accurate, having taken all reasonable steps to check the accuracy of the facts – in other words the defence of reasonable mistake by the media which has been accepted in South Africa has not been accepted in Zimbabwe.

 

However, the question arises of whether the media can claim a qualified privilege in this sort of situation. In the case of Garwe v Zimind Publishers (Pvt) Ltd & Ors 2007 (2) ZLR 207 (H) a newspaper has published articlesalleging that a High Court judge had acted improperly in the handling of a treason trial. Dealing with the newspaper’s defence of qualified privilege, the court found that the newspaper had regarded it as its duty to publish this story. But it also found that the newspaper had not genuinely believed the truth of the allegations as it had found out the true facts and had nonetheless published the false information. This meant that the newspaper must have had an improper motive in publishing the story and the defence of qualified privilege was thus defeated because of this improper motive. From this judgement the question arises as to what would have been the position if the court had found that the newspaper had published the erroneous story in the public interest genuinely believing the story to be true? Would then the defence of qualified privilege be applicable?

 

When qualified privilege does not apply

Where the law recognises that a privilege attaches in the sort of situation, the defence will still not apply if-

  • D makes defamatory statements which are not relevant to the assertion of that sort of privilege; and
  • D publishes the statement to persons other than those who have a legitimate interest in receiving the information in terms of the privilege.

 

One example of where qualified privilege would exist is where, P, an ex-employee of D, is applying for a job with X and X approaches D to provide a reference about P. If D supplies a candid, condemnatory reference, D can rely upon the defence of qualified privilege unless D was actuated by malice.

 

Abuse of privilege

If the maker of the statement knows in advance of making it that it is completely untrue and nonetheless goes ahead and makes it, this will frequently mean that the maker was acting out of malice towards P and, if so, the defence will not then apply as this defence is forfeited if the statement was made maliciously. The onus is on P to establish malice.

See Faber v Barrow (2) 1962 R & N 657; Parsons v Cooney 1970 (2) RLR 75 (A);Tuch & Others NNO v Myerson & Ors NNO 2010 (2) SA 462 (SCA).

 

In Nyandoro v Kamchira 1997 (1) ZLR 522 (H) D and P, who worked together in the same Ministry, had a poor working relationship. D sent a report to the Ministry's head office in which she made four complaints against P, three of which the court found to be of a defamatory nature. One of the three complaints was found to be substantially true, that relating to P's poor leadership qualities, but the other two, namely, allegations that (a) the plaintiff had sexually harassed D and (b) he had caused someone to lie in order to be able to try to obtain occupation of a Ministry house, were not proved to be true.The court held that although the report was made to the head office in circumstances that were privileged, D had abused the privilege by setting out deliberately to injure P. The defence of qualified privilege therefore failed.

 

In Masuku v Goko & Anor 2006 (2) ZLR 341 (H) the court said newspapers have a right to keep their readers informed about matters of public interest involving public figures. Even if the elements of privilege are established, the defence is vitiated if P shows thatD was actuated by malice or that he abused or exceeded the bounds of privilege. In this case the court decided that P’s conduct was a matter of public interest and D’s newspaper had a duty to report on his activities as a public figure. However, the contents of the article were published recklessly and exceeded the bounds of privilege, in that;

  • the article was unbalanced and selective;
  • acted contrary to the clear advice offered by P to withhold publication until they had investigated further; and
  • the article’s reference to earlier press reports of alleged corruption on the part of P was unsubstantiated.

It could thus not be said that the contents of the article were even partially true, let alone completely or substantially true.

 

In Garwe v Zimind Publishers Ltd & Ors 2007 (2) ZLR 207 (H) the defence of qualified privilege failed because the newspaper had failed to check the facts and seemed to have had an improper motive.

 

In Mugwadi v Nhari & Anor 2001 (1) ZLR 36 (H) P, the Chief Immigration Officer, sued his former deputy (D1) and a weekly newspaper (D2) for defamation. P and D1 did not get on well. P considered R1 to be insubordinate, incompetent and possibly corrupt, while D1 thought that P was corrupt, practised nepotism and mismanaged the department’s affairs. D1 wrote a letter to the responsible Minister and Permanent Secretary, making certain accusations about P. Subsequently, a board of inquiry recommended that R1 be charged with misconduct. The charges were heard by a provincial magistrate. R1 was found guilty of most of the charges and his employment was terminated. He applied unsuccessfully to the High Court for a review of the proceedings. The judge nevertheless recommended that an investigation be carried out into the allegations of corruption in the Immigration Department. D1 appealed to the Supreme Court, which set aside the magistrate’s decision on the grounds that his constitutional right to a fair hearing had been violated. The merits of the case were not considered. D2 published an article about the whole matter, entitled “Immigration Chiefs in Corruption Scandal”. In the article, statements were made which were admittedly defamatory of P. D2’s defence was that the statements were made on a privileged occasion. D1 stated that in communicating defamatory matter to the Minister and Permanent Secretary he had the duty to do so, and they had the duty, right and interest to do so. D2’s argument was that it faithfully reported the proceedings before the magistrate and relied entirely on the documents before the judicial inquiry, that it had a duty to publish the proceedings, and that the public had the right to know what was going on. The court held that the defence of qualified privilege does not depend on the truth of the statement made. The degree of truth only becomes relevant when P alleges that D has exceeded the bounds of privilege or has been motivated by malice. Once D shows that he had a duty or interest in publishing the statement and that the persons to whom he published it had a duty to receive it, the onus shifts to P to prove animus injuriandi. He can do this by showing that D acted mala fide, not only by proving actual malice, but by showing that D was actuated by any indirect or improper motive or that he stated what he did not know to be true, reckless as to whether it was true or false. The evidence must be affirmative and cogent. The communication in the present case was made in circumstances of privilege. Both the Minister and the Permanent Secretary had a duty and interest in respect of the Department. P should have established not only that the statements made against him were false but that there was a motive or other indirect purpose for making them. This he failed to do. Generally speaking the public has a right to know and an interest in knowing what is happening in a department funded from public coffers. D2 could not have more faithfully reported on what was taking place between the two top officials in the Immigration Department. When a newspaper reports faithfully about the counter-accusations made by senior officials in a government department, and does so merely by reporting what was said in judicial or quasi-judicial proceedings, it cannot but be protected by law.

 

In Herselman NO v Botha 1994 (1) SA 28 (A) a town councillor (D) alleged, during a council meeting held to discuss the continued employment of a municipal employee convicted of possessing pornographic material, that another councillor (P) had in corrupt manner been undercharged for services rendered to him on behalf of municipality by the employee.It was held that the issue of P's dishonesty was not germaneto the issue of the employee's dismissal. The defence of privilege failed.

 

In Broom v Stirling 1952 (4) SA 798 (SR) D had no reasonable grounds for believing in the truth of statements uttered but the court said the protection of privilege is not necessarily lost, as the court may nevertheless find that D entertained an honest and genuine belief in their truth.

 

In Baird v Pretorius 1996 (2) SA 819 (O) the court held that D must prove that words complained of were published on privileged occasion and, if so, that publication thereof was within limits of privileged occasion or relevant.

 

In Faydene Shirt and Clothing Manufacturers (Pty) Ltd & Orsv Levy 1966 (1) SA 26 (D) the relevance of statement was in issue.

 

Statements made by defendants having a legal, moral or social duty to communicate certain information to persons having a legitimate interest or duty to receive such information.

 

Providing references

One example of this sort of situation would be where an ex-employee of D is seeking a job with X and X approaches D to provide a reference about the ex-employee. If D supplies a candid, condemnatory reference he will be covered by a qualified privilege unless he was actuated by malice.

 

In Couldridge v Eskom & Anor 1994 (1) SA 91 (SE) P’s former supervisor, D, provided a character reference for P to P’s prospective employer. This reference contained false statements regarding P's character which D knew to be false. The defence of privilege did not apply as D had abused the privilegedoccasion with subjective intention to hurt P.

 

           Reporting suspicion that crime has been committed

Another example is where D has received certain information that suggests that P has committed a crime. If, acting out of duty, he supplies this information to the police; he will be covered by qualified privilege. This will apply even where he thinks that the information is possibly incorrect but nonetheless feels obliged to hand it over to the police so that they can investigate it to see if it is true or false. In Musakwa v Ruzario 1997 (2) ZLR 533 (H), in an affidavit to the Secretary of Justice and the Commissioner of Police D alleged that P, a magistrate, had solicited a bribe. In an action for defamation, D raised the defence of qualified privilege. In the present case the statement had been published on a privileged occasion. D had a duty to publish the statement, or a legitimate interest in doing so, and the recipients had a similar duty or interest to receive the information. Where D has established that the statement was made on a privileged occasion, the onus is then on P to prove that the defence of privilege does not apply because the statement was motivated by malice or the bounds of the privilege have been exceeded. In the present case P had failed to establish that D had abused the privilege and had acted from malice. D had acted on the basis of a genuine suspicion and had communicated his suspicion to the appropriate authorities.

          

Judges, magistrates, legal counsel, litigants and witnesses in connection with legal proceedings

 

These persons have a qualified privilege for statements made during judicial proceedings and in affidavits connected with legal proceedings.

 

In Udwin v May1978 (4) SA 967 (C) a magistrate defamed an attorney in a written judgment. The magistrate established that the defamatory remarks in his reasons for judgment were germane to the matter to be dealt with but failed to establish any facts known to him from which he could reasonably have concluded that his allegations against the attorney were well founded. The magistrate was not protected by qualified privilege.

 

As regards statements made by legal representatives in cross-examination, see Moolman v Slovo 1964 (1) SA 760 (W).

 

In Joubert & Ors v Venter1985 (1) SA 654 (A)the court ruled that qualified privilege attaches to affidavits drawn up by counsel in respect of court proceedings if the statements are relevant to the issue in the proceedings. Qualified privilege also attached to statements by litigants or witnesses in legal proceedings or in affidavits for legal proceedings.See also Tuch &Ors NNO v Myerson & Others NNO 2010 (2) SA 462 (SCA). In Van der Berg v Coopers & Lybrand Trust (Pty) Ltd & Ors 2001 (2) SA 242 (SCA) the court pointed out that, in assessing whether an issue is relevant or not, it is important to bear the reason for privilege in mind, i.e. that litigants not be constrained in presenting evidence to court.

 

The case of Pogrund v Yutar 1967 (2) SA 564 (A)dealt with when a claim by an advocate is privileged.

 

In Blumenthal v Shore 1947 (3) SA 475 (W) a statement reflecting on a creditor made to a magistrate in court by an opposing debtor was privileged; in Allardice v Dowdle 1965 (1) SA 433 (D) a creditor disclosedat a creditors’ meeting information revealing advantage obtained by a creditor; in Zwiegelaar v Botha 1989 (3) SA 351 (C) D made a defamatory statement whilst testifying under oath at an inquiry in terms of a provision in the South African Companies Act.

 

           Other situations

Strydom v Fenner-Solomon 1953 (1) SA 519 (E) A letter by the chairman of the school committee to the Secretary of Education complained of the conduct of a teacher and requestedthe teacher’s dismissal; Retief v Van der Westhuizen 1959 (2) SA 166 (C) words uttered before police officers investigating a collision; Jordan v Van Biljon 1962 (1) SA 286 (A) petition drawn up by parents of pupils stating that a teacher was unsuited for his calling; Borgin v De Villiers & Anor 1980 (3) SA 556 (A) letter concerning a professor’s conduct at his previous university after the professor gave a false version of the conduct. Professor's conduct at university leading to his enforced resignation risk; Kennel Union of Southern Africa & Ors v Park 1981 (1) SA 714 (C) voluntary association publishing in its journal a report of its decision to suspend a member; McPhee v Hazelhurst & Ors 1989 (4) SA 551 (N) report by committee to head office; Yazbek v Seymour 2001 (3) SA 695 (E) client unhappy with manner in which conveyancer performing duties and writing letter of complaint to Law Society and bank financing the property transaction; NEHAWU v Tsatsi 2006 (6) SA 327 (SCA) statements made by branch secretary of trade union and published in report distributed to union members at union meeting. Secretary having right to make allegations and to impart information to trade union members, and latter having reciprocal right to receive statements; Byrne v Masters Squash Promotions CC & Anor 2010 (1) SA 124 (GSJ) letter of dismissal sent by employer to employee explaining reasons for his dismissal.

 

As regards the application of the defence of qualified privilege to reporting by the press of:

  • proceedings of Parliament and other public bodies such as city councils;
  • court cases;
Ø statements made by government Ministers at public meetings;

see later in the special section on newspaper reporting contained at the end of this section on defamation.

 

Compensation

It may be a good defence to show D had replied in equal measure to a defamatory statement about him made by P.

 

Jest

In Zimbabwe, D is only protected where he made the statement complained of in jest if, objectively, given the character of the statement and the circumstances in which the statement was made, it could not reasonably have been understood in a defamatory sense.

Makova v Modus Publications (Pvt) Ltd 1996 (2) ZLR 326 (H) P was employed at the head of the army’s public relations section. A newspaper owned by D published a satirical article about him poking fun at his obesity. The claim was rejected on the basis that the article was made in jest =.

 

Rixa

D may not be liable if he uttered the defamatory words without premeditation, in sudden anger on provocation by P and did not subsequently persist in them. In other words, this is tantamount to a defence of provocation. Presumably, the provocation has to be of a serious character before this defence will avail in Zimbabwe.

 

See Mahomed v Kassin 1972 (2) RLR 517 (A); Moyo v Abraham HH-467-84.

 

In Jasat & Anor v Paruk 1983 (4) SA 728 (N) the court pointed out that this defence can only succeed where D establishes that the defamatory statement was uttered without premeditation and in great and sudden anger. Here, an attorney acting for P in a civil trial tried to persuade D to settle an action at a pre-trial conference. D uttered defamatory words to P and his attorney. The court held that the provocation was not such as to provoke D to great and sudden anger. D's reaction was immoderate in the circumstances and the defence of rixa failed.

 

See also Jeftha v Williams 1981 (3) SA 678 (C).

 

Consent

It is a good defence for D in an action for defamation to show that P consented to the injury to his reputation. However, a challenge or a dare to repeat a defamatory statement should not be a defence if the implication is that P will proceed against D should he or she repeat the statement. Thus, if the statement is originally made in Parliament and is originally protected by absolute privilege, if the statement is repeated outside Parliament after P has challenged the maker to do so, the defence of consent will not apply.

 

See Fortune v African International Publishing 1976 (2) RLR 223 (G). For criticism of this decision, see 1985 ZL Rev 110.

 

Possibility of development of further defences

In Hardaker v Phillips 2005 (4) SA 515 (SCA) the court suggested that the established defences were not a closed list and whether a comment was lawful depended on balancing constitutionally entrenched rights to dignity and freedom of speech.

 

Damages

           Purpose of damages award

The award of damages for defamation may be regarded as consolatory. This is the approach because once the defamatory statement has been published, it is very difficult to rehabilitate completely a reputation even if it is proved in court that the statement was misguided and a full apology is extracted. In Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR 503 (H) the court stated that the award of damages for defamation is more as a solace for injured feelings, rather than as a way of repairing all the damage that has been done. The fact that P is a politician and a public figure, whose life is necessarily in the public domain and open to criticism, does not divest him of protection against harm to his dignity and reputation. He is entitled to protection.

 

The case of Thomas v Murimba 2000 (1) ZLR 209 (H) at 217F the court said that defamation damages are to compensate P and not to punish the defamer for his or her conduct. Where aggravating factors exist, the award of damages must be increased but the damages remain compensatory in nature.

 

           Impermissible to claim extravagant amounts

 

In Mnangagwa v Alpha Media Hldgs (Pvt) Ltd & Anor 2013 (2) ZLR 116 (H) HH-225-13 the court held that the damages being claimed were outrageous. Quite often in recent years litigants in this country come up with these outlandish claims for damages, even for the slightest of infractions, which are completely divorced from the economic realities of this country and are detached from existing precedence and legal realities of our jurisdiction. It is the kind of habit which legal practitioners must take responsibility for encouraging, as ultimately it is they who advise litigants and draft the processes filed in court. Legal practitioners engaged by litigants to represent them and to draft court processes on their behalf should take care in drafting such court papers and claims and should apply their minds to the task reposed upon them. After all, they are paid to provide such service and it is the height of irresponsibility to come up with outrageous claims which not only fail to ventilate the relief the litigant seeks but also fail to conform with existing precedents on the subject.

In Mohadi v The Standard & Ors 2013 (1) ZLR 31 (H) the court pointed out that it is not uncommon now for large sums of money which bear no relation to the awards being made in this jurisdiction or other jurisdictions to be claimed as damages for defamation. The legal profession should be reminded that lawyers owe it to their clients to render proper legal advice on quantum of damages claimed, and should avoid creating false expectations in the minds of their clients regarding the amounts which they can claim.

Factors to be taken into account in assessing damages

The following criteria are taken into account in assessing damages for defamation:

(a) the nature and gravity of the defamation, its probable consequences and the intended effect of the words used;

(b)the plaintiff’s reputation, character and standing in society. (Did P have a good or bad reputation prior to the defamation?);

(c)the extent of the publication. (Was the defamatory statement contained in a newspaper with wide circulation or published on the internet or was the defamatory statement only published to a single person or a small number of persons?);

(e)whether the defamatory statement was made recklessly without taking proper steps to check the accuracy of the facts upon which it was based;

(f) whether there has been an attempt to rectify the situation by making a retraction and apology or there has been a refusal to retract and apologise;

(g)comparable awards in other cases; and

(h)the declining value of money.

 

An apology will only mitigate damages if:

  • it is a full, unconditional and unreserved withdrawal of all imputations together with an expression of regret;
  • it is done as soon as reasonably possible after the original publication; and
  • the apology is given the same or greater prominence than the original defamatory statement.

In Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W) the alternative remedy claimed by the plaintiff was in the form of an apology, or the amende honorable. This remedy had fallen into disuse but it remained part of South African law. Even if the amende honorable was no longer part of South African law, there were compelling reasons why a remedy analogous thereto should be available. If the only remedy available in a defamation action was damages, the risk of financial ruin could operate to restrict information being published which would in fact be in the public interest, thereby imposing indirect restrictions on the right to freedom of expression. Furthermore, a damages award often did not afford an adequate protection to reputation. The harm done by a defamatory statement was damage to the victim's reputation and a public apology could 'set the record straight', restore the victim's reputation and provide the victim with the necessary satisfaction without serious financial harm being caused to the culprit. Even if the amende honorable had never existed, the legal imperatives of the present constitutional framework would have required its invention. The remedy was entirely consonant with the spirit, purport and objects of the Bill of Rights referred to in s 39(2) of the Constitution of the Republic of South Africa Act 108 of 1996. In the circumstances of the instant matter it would be just and equitable if the defendant were given a choice between making a public apology and paying damages. This approach could usefully by followed in Zimbabwe.

 

On these criteria see Masuku v Goko & Anor 2006 (2) ZLR 341 (H); Garwe v Zimind Publishers Ltd & Ors 2007 (2) ZLR 207 (H) and Makova v Masvingo Mirror (Pvt) Ltd & Ors 2012 (1) ZLR 503 (H) and Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H).

 

In the Masuku case the court said that in applying these factors, it must be borne in mind that damages are intended as a solatium and should not as a rule be punitive. In this case the court found that D’s conduct was aggravated by their failure to investigate further the allegations before publication; by failing to verify the authenticity of the document on which they were based; by failing to publish any retraction or apology; and by persisting with their denial of liability even after the action was instituted.

 

In Nkala v Sebata & Anor 2009 (2) ZLR 203 (H) the chief of the area in which P lived presided over a meeting of his subjects. This was a public meeting open to all villagers; most of them were in attendance. D1, who was a senior kraalhead, was present, as was D2 a senior villager. D1 addressed the meeting and made utterances to the effect that P was a stock thief who had stolen cattle from fellow villagers and had recruited other villagers to participate in this nefarious practice. He stated that P’s herd boy and young brother had stolen cattle and sold them to P. D2 made utterances that supported what D1 said. He further said the other villagers in attendance were afraid to unmask P as a stock thief because they thought he would steal their cattle in revenge. P claimed that these utterances were false and actuated by malice, in that D’s principal intention was to persuade the chief to order P’s eviction from his homestead. Ds were in default and P applied for summary judgment. The only issue was the quantum of damages. As a result of such utterances and at such a meeting P’s dignity, self-esteem and reputation were maligned and lowered in the eyes of the villagers present.

 

The court held that the assessment of damages in a case such as this is not easy because it is difficult to recompense P for the insult perpetrated against him and the pain which he suffered as a result of the false allegations levelled against him. The quantum ultimately determined by the court represents what is designed to be a fair and appropriate sum which, in contemporary thinking, will help to assuage P’s injured feelings, and will compensate him reasonably for the injury. It is not always a simple matter to decide what is proportionate or adequate. Here, in a rural setting, Ds participated in an extremely grave attack upon the applicant. They wanted to cause the applicant to lose his homestead. They wanted to maliciously influence the chief to remove the applicant from the village. Bearing in mind these factors and the true value of the awards in previous cases in this country, an award of US$2000 would be appropriate.

 

In Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H) the court said that in assessing the quantum of damages, a variety of factors had to be considered, including the content and nature of the defamatory publication; P’s standing in society; the extent of the publication; the probable consequences of the defamation; the conduct of D; the recklessness of the publication; comparable awards of damages in other defamation suits; and the declining value of money. Damages for defamation are intended to compensate the plaintiff for sentimental loss and should not as a rule be punitive.

 

In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) highly defamatory statements were made about a females musician. The court found that there were numerous aggravating factors including the absence of an apology and the widespread publication of the defamatory article in the newspaper, the social media and the internet and the reckless and unethical conduct on the part of the journalists.

 

In Mahomed v Kassim 1972 (2) RLR 517 (A) nominal damages were awarded.

 

Punitive damages

In Garwe v Zimind Publishers Ltd & Ors 2007 (2) ZLR 207 (H) and Masuku v Goko & Anor 2006 (2) ZLR 341 (H) at 237, the court pointed out that punitive or exemplary damages are awarded where, for example, D acted with a malicious motive, was aware of the falsity of his remarks and where the defamation is of an exceptionally serious nature. Aggravating features may serve to increase the amount of damages awarded to P.In the Garwe case the defamation was particularly serious as it was about a senior judge about whom it was alleged that in a treason trial he had attempted improperly to depart from established procedure by excluding the assessors in the formulation and handing down of judgment in a treason case. This was highly damaging to his professional integrity.

 

See also Khan v Khan 1971 (1) RLR 134 (A) circumstances under which exemplary damages would be awarded; Tekere v Zimpapers & Anor HH-286-86 exemplary damages.

 

           Interest on defamation damages

 

In Zimbabwe Newsapers (1980) Ltd & Anor v Bloch 1997 (1) ZLR 473 (S) the court ruled that interest on defamation damages runs from the date on which the cause of action arose.

Class character of damages

It can be argued that damages for defamation have a distinctly class character and that our approach to damages in this area strongly reflects capitalist values as to status and human worth. Thus a person’s worth depends upon his class or status. This approach comes under fire from the author of an article entitled “Defamation in Tanzania and its Reflection on Socialism” Vol. 9 No. 3 Eastern Africa Law Rev 99. The author refers to Eyakuze’s case where it is suggested that damages should not vary in accordance with class. An ordinary worker’s contribution to the social good is as valuable as, say, a managing director’s. Both should receive the same amount of damages for the same sort of defamatory statement, all other things being equal, such as, extent of publication of the statement. Underlying assumptions about human worth based upon class should be challenged, the author maintains.

 

Customary law defamation

In customary law, defamation consists of a false accusation that P behaved in a certain way or spoken words by D which could cause P suffering or disturb the peace. The lowering of the status or reputation of P in the community is not an essential ingredient. It is enough that the statement will cause personal suffering or anger. The most serious false accusation that can be made is to accuse a person of being a witch or wizard. See Goldin and Gelfand.

 

Newspapers and defamation

This special section concentrates on the difficulties which newspapers, magazines and journals face in trying to avoid liability for defamation. As written defamation is the most frequent type of defamation, this section is intended to provide a guide to the main practical aspects that are relevant to this type of defamation.

 

Test applied

When it comes to newspaper reports which are allegedly defamatory the courts apply the test of whether readers with normal understanding and average intelligence would interpret the item in question in a defamatory sense. As Stuart points out in his book The Newspaperman’s Guide to the Law 3 Ed, the courts accept for this purpose that the ordinary reader of a newspaper is not supercritical and does not read every item with meticulous care. Rather than engaging in a process of careful intellectual analysis, because of the mass of material he is likely only to form an overall impression of the material. Because this reality is recognised by the courts, Stuart advises that sub-editors should read the various reports and then put them aside and consider what overall impression they would create in the minds of ordinary readers who might not read all the items in the paper right through. If a particular item could create an impression in the minds of readers that could adversely affect reputation, then the paper’s lawyers should be consulted.

 

In Mugwadi v Dube & Ors 2014 (1) ZLR 753 (H) the court said that in determining how an ordinary reader of a newspaper would understand words, it is necessary to strike a balance between subtle analysis and hasty misconception, between cool reserve and excitability. One is entitled to assume of the ordinary reasonable readers that he or she gets a general impression and one cannot expect him or her to look again before coming to a conclusion. The ordinary reasonable reader is not super-intelligent, highly educated or sophisticated. He or she will form a general impression of the contents of the article in question. 

 

The test of the response of ordinary readers is varied in respect of specialist journals or papers which require special expertise to understand the contents thereof. With, say, a technical, scientific or economics journal, the test applied is how ordinary readers with specialist knowledge that would allow them to comprehend the contents would understand the contents.

 

Defences

A newspaper that publishes defamatory material can be sued for damages and so can the publisher of the newspaper. The journalist who wrote the story could also be sued. There are, however, a number of defences which a newspaper can raise to actions for defamation. These defences apply even though reputation may have been damaged by the report in question. The main defences that are recognised are justification, fair comment and qualified privilege. Justification obviously would cover such things as reporting true allegations of corruption by public officials. As indicated above, in South Africa courts have ruled that it is now a defence for the press to publish information in the public interest when it reasonably believes the information to be correct even if the information turns not to be correct.

 

Fair comment would be applicable where, for instance, a damning criticism of a book or a play is published in the newspaper. Perhaps the most important defence for newspapers is that of qualified privilege. This defence may succeed even though the defamatory report turns out to be untrue. Here the law lays down that in certain circumstances newspapers should be afforded protection against defamation actions where they were reporting events in the public interest. This defence has application in relation to the reporting of Parliamentary proceedings, reporting of court cases and the reporting of certain public meetings.

 

Disclosure of sources

The previous position was that a journalist must disclose his or her source of information when ordered by a judge to do so during a trial. See Serfontein & Anor v Irvine 1979 RLR 510 (A); Shamuyarira v Zimbabwe Newspapers (1980) Ltd 1994 (1) ZLR 445 (H).

 

However, s 61(2) of the Constitution now provides:

61(2) Every person is entitled to freedom of the media, which freedom includes protection of the confidentiality of journalists’ sources of information. (emphasis added)

 

Reporting Parliamentary proceedings

First, taking Parliamentary proceedings, if a newspaper reports fairly and accurately and in a balanced fashion what has been said during Parliamentary debates a qualified privilege will attach to these reports. The newspaper is not obliged to check the veracity of a statement made by a Parliamentarian in Parliament. Even if the statement from the Parliamentarian which it publishes turns out to be false, the newspaper would still be protected unless it knows the statement was totally false and, nonetheless, it went ahead and published the statement with the sole purpose of harming someone’s reputation. The requirement that the report be balanced means that if, for instance, on one day in Parliament a defamatory allegation is made which the paper publishes, but on a subsequent day the allegation is refuted or disputed, the debate on this subsequent day must be properly reported and equal or greater prominence must be given to this second report.

See Benson v Robinson & Co (Pty) Ltd & Anor1967 (1) SA 420 (A).

 

Reporting court proceedings

The reporting of court proceedings is also covered by a qualified privilege.

 

In Mugwadi v Nhari & Anor 2001 (1) ZLR 36 (H) the court said where a newspaper reports judicial or quasi-judicial proceedings; it is protected by qualified privilege. See also Mushunje v Zimbabwe Newspapers HH-47-17.

 

However, the law lays down that a privilege will attach only if the report of court proceedings is fair, accurate and balanced. Court reporting is a difficult operation and is fraught with dangers as far as the newspaper is concerned. Newspapers are entitled in the public interest to report not only the court proceedings themselves (i.e. evidence led in open court) but also the preliminary proceedings before the case comes to court. In criminal matters, they are allowed to report the arrest of a person by the police on suspicion of committing an offence and the remand of a person in or out of custody pending trial. It should be carefully noted, however, that it is not permissible to publish documents relating to a pending case. Indeed, some documents or evidence may never be produced when the case is tried as, for instance, when the prosecutor decides not to call a particular witness to give evidence.

 

Thus, the newspaper can only report on the evidence that is elicited in the actual court case and it risks a prosecution for contempt of court if it publishes evidence which may or may not be produced at the actual trial in open court. It should also be noted that a newspaper is not permitted to publish information about a case held in camera (i.e. a case from which the public have been excluded). Cases involving juveniles are usually held in camera. The court is also empowered to order that certain information, such as the name of a State witness, should not be published. The newspaper is obviously bound by this restriction.

 

The report of a court case must be fair and balanced. Both sides of the case must be reported impartially. This does not require exactly equal detail and prominence to the cases of the two sides, but there must not be undue emphasis upon the one side or omission of important facts highly favourable to one side. Thus, the law requires that if certain evidence is reported, there should be equal coverage of evidence in rebuttal. Qualified privilege would not attach, for instance, where the newspaper has concentrated exclusively on the prosecution case and has ignored the defence case. So too, in a criminal case if the charge is withdrawn or the accused is acquitted or is found guilty of a lesser charge, if the newspaper has reported the original charge, it is obliged to report the subsequent developments relating to that charge. There are logistical difficulties in keeping proper track of what has happened in a large number of court cases. But if a newspaper has started to report a case, it must report what has happened at subsequent stages in that case and court reporters must design an efficient system of monitoring cases. Wherever possible, they should be in court to report verbatim what has transpired and they should be very cautious about relying upon what they have been told will happen or has happened in the courtroom by prosecution or defence counsel or officials such as clerks of court because, if this information is erroneous and the newspaper publishes it, the paper may be sued. A particular problem arises with lengthy trials where there may be variable or diminishing public interest in the matter as it proceeds. Still, nonetheless, the paper is obliged to report the case in a balanced fashion.

 

A report of a court case must be reasonably contemporaneous with the proceedings and should not be long after the trial. This is because the public has an interest in receiving information about cases, as they take place, but the newspaper is not usually permitted to rake up court cases that took place years ago, especially if they were of a trivial nature. Where evidence is led in court, however, of an accused person’s previous convictions, the newspaper can report this evidence. However, the newspaper should not publish gratuitous defamatory remarks made by legal counsel or witnesses about persons other than those on trial as these will often fall outside the scope of qualified privilege.

 

There is the pervasive difficulty of ensuring accuracy in reports of court cases. The newspaper will want to condense reports of most court cases, but condensation can lead to a report becoming distorted, garbled and misleading. It may in the process fall foul of the requirements that the report must be balanced and accurate. The court reporter himself must exercise meticulous care in gathering and checking his information. He must ensure that no vital facts are left out of his or her report and that he has not distorted the facts or, even worse, invented any facts. A particular point to note is that where a witness has given evidence through an interpreter, the report must report only the interpreter’s translation, as this is what will be noted in the court record. He must not make his own translation of the testimony where he believes the court interpreter’s translation is not accurate and include his own translation in his report of proceedings. The court reporter must be especially on his guard to avoid errors such as erroneously reporting that a person has been charged with a more serious charge than he has (e.g. murder instead of culpable homicide) or that he has been convicted of a more serious charge than he has (e.g. attempted murder instead of culpable homicide or five counts of fraud and two of theft instead of just one count of theft).

 

In Mushunje v Zimbabwe Newspapers HH-47-17 the events leading up to an action for defamation by P against the newspaper were as follows: A social  media site published a damaging article alleging that P HIV positive and injected her HIV tainted blood into the son of her boyfriend. Further the same site alleged that P made the child drink her urine and that she physically abused the child. As a result of this publication the mother of the child filed a complaint against P with the police and the social media site published another article alleging that P had been arrested. P was then tried for child abuse but she was acquitted on all charges after medical tests on both the child and P showed that neither was HIV positive, nor did the child exhibit any signs of abuse.

 

Zimpapers published a series of articles which were also put on its website and this resulted in a number of international online publishing the same story. The newspaper articles dealt with the court case and the acquittal. P alleged that the newspaper articles were unfair, unbalanced and inaccurate and did not categorically state that there merely allegations against the P. The court held that although the articles were defamatory, the newspaper had the defence of qualified privilege and there was no proof of malice such as to defeat this defence.

 

In Murdock & Anor v Simpson & Ors 1956 (1) SA 528 (N) the omission of certain details of legal proceedings and inaccuracies in the report did not make the report unfair or substantially inaccurate.

 

Reporting proceedings of other public bodies

As regards reporting of the proceedings of public bodies, such as city councils, a qualified privilege is extended to newspaper reporting of such proceedings as it is obviously in the public interest that the public is kept properly informed about the deliberations and activities of such bodies. Again, however, the privilege would only apply to reports of such proceedings that are fair, accurate and balanced.

 

See Benson v Robinson & Co (Pty) Ltd & Anor 1967 (1) SA 420 (A).

 

Reporting public meetings

What about reporting of things such as statements by prominent politicians at public meetings and rallies? What happens if the newspaper accurately reports what a Cabinet Minister has said about a person when addressing the public but after publishing the statement, which is highly defamatory, it turns out to be completely untrue? In England, this situation is covered by legislation. Under this legislation, the newspaper is protected if the report related to something of public interest said at a public meeting from which reporters were not excluded. In the absence of similar legislation in Zimbabwe, the position would be governed by common law and it would seem that under common law it is arguable that a qualified privilege would attach to such reports. This privilege would, however, not exist if the paper published the statement knowing it to be completely without foundation. The legal position, however, is unfortunately not clear and, as a safeguard, the paper should try to check the facts if it is intended to publish such a highly defamatory statement. (But see Minister of Justice v SA Associated Newspapers 1979 (3) SA 466 at 467 and Zillie v Johnson & Anor 1984 (2) SA 186 (W). See below for suggestions for reform of our law in this regard.)

 

Investigative reporting

Newspapers often believe that they are protected by qualified privilege if they publish reports seeking to expose corruption or misconduct on the part of public officials such as politicians which reports turn out to be false. If the paper’s information is without substance, the defamed official can sue for damages and the newspaper would not be protected by qualified privilege in this instance. In Zimbabwe, it would seem that mistaken belief in the accuracy of the facts of this nature is no defence. However, in the case of Thomasv Murimba (2000), the judge stated that the range of duties and rights to communicate defamatory matter is wide and should be widened further in the interests of social transparency.

 

Accuracy

Newspapers must obviously do their best to eliminate inaccuracy and errors in their reporting because errors can lead to people being defamed. The need for accuracy in order to avoid defamation suits is illustrated by two cases. The first, an English case, illustrates how even a small mistake in a headline can lead to a newspaper having to pay damages. The headline in question read: “Car thief to pay wife £2 000”. The headline should have read: “Car chief” but the letter “t” was substituted for the letter “c”, due to a compositor’s error. P was the chairman of a well-known firm of car dealers and he was able to sue successfully for defamation because of this headline. In a South African case a newspaper meant to publish a photograph of a dangerous criminal who was being tried on a criminal charge. Unfortunately, by mistake, they published P’s photograph in connection with the story about this criminal case. P was able to sue successfully for defamation as his reputation had been adversely affected by the publication of his photograph as the criminal on trial.

 

However, in the case of Mushunje v Zimbabwe Newspaper HH-47-17 the court said that “it tended to agree with the defendant that a reasonable reader does not go by the headline, but accepts it as an invitation to buy the paper and read the story. If defamation was to be predicated merely on newspaper headlines, then there would be an onerous plethora of litigation. In my view a headline is akin to the heading on any legal document, which does not create any substantive rights for the parties concerned but merely indicates what the legal document is all about. In the same way that one cannot sue for breach of a heading on a legal document, one ought not to be able to claim infringement or damage to reputation merely from a newspaper headline which is not supported by the substance of the article.”

 

Suggested changes to law

It is argued in an article entitled “Does our defamation law muzzle the press?” contained in 1989 Vol. 1 No. 3 Legal Forum 39 that the present law on reporting of public meetings and on investigative reporting is unsatisfactory and should be changed.

 

On reporting of public meetings at p 44, the following suggestions are made:

 

It is arguable that the press should be protected under a qualified privilege in reporting upon public meetings. Because the legal position is still unclear in Zimbabwean law on this point, the best course would be to pass legislation along the lines of the English Defamation Act of 1952. In s 7 of this Act, read with Part II of the Schedule the press is given a qualified privilege when reporting lawful meetings from which the press has not been excluded. To be covered by this privilege, the report must be fair and accurate and the subject matter reported must be of public concern. This applies to all lawful public meetings, whether admission is general or restricted. However, this protection will fall away if:

  • the report was made maliciously, with the primary intention of harming P’s reputation rather than informing the public; or
  • the paper or broadcasting station concerned has refused a request to publish a reasonable statement from P by way of contradiction or explanation or has published such statement in a manner not adequate or reasonable in all the circumstances.

 

The obligation on the part of the press to publish a reasonable contradiction or explanation from P should be incorporated into Zimbabwean law. It is right that D should be made to forfeit the qualified privilege if there is a refusal to publish such a reasonable statement from P.

 

As regards investigative reporting, these proposals are made at pp 42-43:

 

... it is submitted that we should substitute negligence for strict liability as the basis of liability for defamation in all such cases. To base liability on negligence seems to draw a fair balance between freedom of speech and protection of reputation and would bring our defamation law into conformity with our freedom of expression constitutional safeguard.

 

Under the suggested approach, the press would be protected against liability for defamation if it publishes stories about either public or private persons on a matter pertaining to them of legitimate public interest, unless there was a negligent failure to discover the falsity of the facts. (Of course, if there was knowledge of falsity or recklessness, liability would also ensue.) As the precautions taken are singularly within the knowledge of D, it should be specified that the onus rests squarely on D to prove absence of negligence. Moreover, as with reporting of statements made at public meetings, the press should be under a duty to publish any reasonable statement by way of contradiction from P. Any refusal to do so should lead to the forfeiture of this defence.

 

Additionally, as soon as D discovers the falsity of the facts, he or she is under an obligation to take corrective action. The penalty for failure to do this within a reasonable period of time should be the forfeiture of this defence. This will provide an incentive promptly to retract a false statement and to apologise for making it. Such prompt remedial action is beneficial. As

Burchell points out at p 318:

 

“The plaintiff’s reputation will be vindicated by a prompt, unreserved acknowledgement of the falsity of the imputation if the retraction receives prominence equal to the original imputation (and) the reputation of the publication for journalistic integrity and honest reporting may well be enhanced by effecting a retraction and apology.”

Actio injuriarum(excluding defamation)

This delict is committed when a person, without justification, intentionally affronts another’s dignity or invades that other’s privacy.

 

Insulting, humiliating and degrading treatment

If D verbally insults D or treats D in a manner that insults or humiliates P, D may be liable to pay damages to P for injuria.

 

In Chituku v Minister of Home Affairs & Ors 2004 (1) ZLR 36 (H) the court held that the right to dignity is recognised as an independent right that can be protected by the actio injuriarum, the actio injuriarum being wide enough to encompass any action that violates the corpus or dignitas of the plaintiff. Inhuman and degrading treatment affronts the dignity or self-respect of an individual and could found a claim.

 

In Ndebele v Ncube 1998 (1) ZLR 377 (S) the court warned that people frequently exchange insults, arising out of grievances real or imagined, large or small. It said it would be intolerable if every insult were to be followed by a law suit, so a court should be very careful about awarding damages for abuse such as occurred in the present case.

 

In Mehta v City of Salisbury 1961 R&N 911 (SR) P had been barred from entering a swimming pool on the basis of his race. He was awarded damages for the affront to his dignity.

 

In Zimunya v Zimbabwe Newspapers (1980) Ltd 1994 (1) ZLR 35 (H) a photograph published in a newspaper misleadingly suggested that P was urinating or exposing himself outside some offices. He was awarded damages for injuria.

 

In Nkosi NO v Moyo HB-43-91 a fifteen-year-old was raped. She was a virgin and suffered physical pain and emotional trauma. She was awarded damages.

 

In Ndebele v Ncube 1998 (1) ZLR 377 (S) D called P, an employee of a District Council, a dog and a mad person. The court awarded P a small amount as damages for injuria.

 

In Snyman v Snyman 1984 (4) SA 262 (W) a wife was awarded damages for injuria against her husband who had committed bigamy. The court said that damages are awardable to a wife who had been induced to enter a void marriage with a man, who unbeknown to her was party to an existing valid marriage.

 

In De Lange v Costa 1989 (2) SA 857 (A) D sent P a letter criticising P. The court held that fair criticism is not wrongful and does not constitute an injuria.

 

In Arendse v Roode 1989 (1) SA 763 (C) there was a claim by a woman lies against a bigamist who induced her to enter into marriage which he knew, but which she did not know, to be null and void because he was already married. Damages awarded in the circumstances.

 

In Matiwane v Cecil Nathan, Beattie & Co 1972 (1) SA 222 (N) D sent a letter which was insulting and contemptuous of P. D was held liable for injuria.

 

In Minister of Police v Mbilini 1983 (3) SA 705 (A) the court pointed out that for verbal remarks to constitute injuria, the words used must constitute offensive and degrading treatment as distinct from mere meaningless abuse.

 

In Fayd'herbe v Zammit 1977 (3) SA 711 (D) D wrote an objectionable and insulting letter to P. The reprehensible conduct by D did not allow D subject P to indignity. The truth of words used to degrade injured person may be relevant to assessment of damages but do not provide a defence on the merits.

 

In Ryan v Petrus 2010 (1) SA 169 (ECG) a widow was conducting an adulterous affair with a man and the son of the man verbally insulted her. Even though widow was committing adultery with his father, the son had no right to insult her and treat her with indignity.

 

Invasion of privacy

Anyone who without reasonable justification invades the privacy of another is entitled to claim delictual damages. Each person has right to decide what aspects of his or her life he or she wishes to keep private from unauthorized disclosure.

 

In National Media Ltd & Anor v Jooste 1996 (3) SA 262 (A) the court examined the nature of infringement of the right to privacy. It ruled that the right includes the right to determine the destiny of private facts and to dictate their ambit, purpose and method of disclosure. It also includes the right to decide when and under what conditions private facts may be made public.

 

Section 57 of the Constitution of Zimbabwe guarantees the right to privacy. It provides:

Every person has the right to privacy, which includes the right not to have:

(a) their home, premises or property entered without their permission;

(b) their person, home, premises or property searched;

(c) their possessions seized;

(d) the privacy of their communications infringed; or

(e) their health condition disclosed.

 

Section 61 (5) of the Constitution further provides that the rights of freedom of expression and freedom of the media exclude malicious or unwarranted breach of a person’s right to privacy.

 

The right to privacy may also be limited in terms of section 86 of the Constitution, but only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors including:

(a) the nature of the right or freedom concerned;

(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) the relationship between the limitation and its purpose, in particular whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) whether there are any less restrictive means of achieving the purpose of the limitation.

 

Disclosure of confidential medical information

 

Patients need to disclose all medical information about themselves for doctors to be able to give them proper medical treatment. Patients must be able to trust doctors to keep their medical information confidential. If patients believe their medical information will not be kept confidential they will be reluctant to confide in their doctors, especially  about embarrassing medical details. This will hinder the doctor in making a correct diagnosis and thereafter to provide the best possible medical care.

 

In Jansen van Vuuren & Anor NNO v Kruger 1993 (4) SA 842 (A) P’s general medical practitioner disclosed that P had AIDSto another general practitioner and dentist from same town that P, who was known to the latter two persons. P specifically requested D not to disclose that he had AIDS and D having agreed not to do so. D had no duty to disclose such information and other general practitioner and dentist having had no right to receive it D's disclosure unreasonable and therefore unjustified and wrongful.

 

In NM & Ors v Smith & Ors (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC) the court held that the publication in a book of applicants’ HIV status without requisite consent from them constituted wrongful publication of a private fact, in breach of applicants' rights to privacy and dignity. The court awarded damages.

 

Section 23 of the Medical Practitioners (Professional Conduct) Regulations 41 of 2004 provides that no medical practitioner may divulge confidential patient information which ought not to be divulged but it provides for exceptions such as where the disclosure is required by law.

 

Medical procedure without consent

 

In C v Minister of Correctional Services 1996 (4) SA 292 (T) a blood sample for an HIV virus test was drawn from a prisoner serving sentence. The policy of requiring informed consent was not complied with. P was entitled to claim damages for injuria.

 

Protection of rights of children

 

In Rhodesia Printing & Publishing Co Ltd v Duggan & Anor 1975 (2) RLR 281; 1975 (1) SA 590 (RA) a newspaper intended to publish an article alleging that Ps had come into the country with their children in violation of the access rights. Ps sought an order restraining the paper from publishing the story. The court granted the order, finding that if the story was published it would interfere with the rights of the children to privacy, tranquility and peace of mind of the children.

 

Interception of communications

 

In Reid-Daly v Hickman & Ors (2) 1980 ZLR 540 (A); 1981 (2) SA 315 P, a high-ranking army officer, had been placed under surveillance and his phone had been tapped and his letters had been opened. This constituted a serious impairment of his dignity.

 

In S v Nsoro HH-190-16 the court pointed out that in terms of s 57 (d) of the Constitution every person has the right to privacy of their communications. There is no law which provides that a husband or wife has a right to infringe on the privacy of the other’s communications. The accused’s insistence that the deceased should divulge a communication made to him on his phone was in itself an infringement upon the right of the deceased to privacy of communication.

 

Publication of photographs of private property

 

In Mandaza v Daily News & Anor 2002 (2) ZLR 296 (H) a newspaper published photographs of residential properties owned by a person who was a public figure. The photos had not been obtained as a result of unlawful intrusion into the properties. The public figure sought an interdict to prevent the publication of details of his property holdings and any further intrusion into his private life. The court refused to grant the interdict, finding that the right to privacy only extends to unlawful intrusion into privacy. The applicant has not suffered any injuria by the publication of photographs of his property.

 

Unauthorised publication of photographs

 

In O'Keeffe v Argus Printing & Publishing Co Ltd & Anor 1954 (3) SA 244 (C) the unauthorised publication of a person’s photograph and name for advertising purposes can found an action for injuria.

 

In Mhlongo v Bailey & Anor 1958 (1) SA 370 (W) there was unauthorised publication of photographs about the personal love life of a celebrity. The court decided that if a celebrity courts publicity about her private life, then publication of details about her private life will not be actionable.

 

In Jooste v National Media Ltd en 'n Ander 1994 (2) SA 634 (C) D published magazine articles intimidate details concerning famous rugby player's alleged love life. He had consented to the publication but had then withdrawn his consent. He was therefore entitled to damages.

 

Corporate information

 

In Financial Mail (Pty) Ltd & Ors v Sage Holdings Ltd & Anor 1993 (2) SA 451 (A) the court held that where the publication of information is obtained by means of unlawful intrusion upon privacy, generally, publication of any such information is unlawful. But there is a possible exception to general rule where the nature of information is such that there are overriding grounds in favour of the public being informed thereof. The court would then conclude that publication is permitted despite the source of the information or the manner in which obtained. However, the public interest in favour of publication required must be very cogent indeed.

 

In Janit & Anor v Motor Industry Fund Administrators (Pty) Ltd & Anor 1995 (4) SA 293 (A) the third party had no right to invade the company’s privacy by publishing stolen tape recordings of board meetings containing confidential information.

 

Justifiable invasion of privacy

 

There are various situations where invasion of privacy or disclosure of privacy information is legally justifiable and thus not actionable.

 

The police can intrude in a person’s house and conduct a search where authorized by a valid search warrant or where a search without warrant is legally justified in terms of the relevant legislation.

 

A person’s communications can be lawfully intercepted where this is legally permitted in terms of the Interception of Communications Act [Chapter 11:20].

 

In S v Israel & Anor 1975 (2) RLR 191 (A) a private detective and a woman seeking to find evidence of adultery by a husband for a divorce action had invaded the privacy of a man had peeked through his window and had seen the husband in bed with another woman. The court found that they were justified in doing this because they did so solely with the bona fide motive of obtaining evidence of adultery. They were not, however, justified in forcing entry into the bedroom. However, the decision regarding the peeking through the window has been criticized on the basis that there was enough circumstantial evidence to  the adultery without resorting to invading the privacy of the husand in this manner. See Burchell 1976 SALJ 268. Now that the divorce law is no longer based on fault, any such invasion of the privacy of the spouse would obviously no longer be justified.

 

Section 23 of the Medical Practitioners (Professional Conduct) Regulations 41 of 2004 provides that no medical practitioner may divulge confidential patient information which ought not to be divulged but it provides for exceptions such as where the disclosure is required by law.

 

A doctor is obliged by section 19 of the Public Health [Chapter 15:09] to notify the local authority that his or her patient has certain infectious diseases.He may also be legally justified in disclosing medical information about his patient where this is required to protect a third party of third parties from being harmed by his patient. Thus a psychiatrist may be obliged to disclose that that his mentally unstable psychiatric patient is seriously threatening to kill a person or that a bus driver whom the doctor has diagnosed as being an epileptic is refusing to stop driving buses. A doctor is also justified in disclosing medical information about a child to the authorities where the medical condition of the child suggests that the child is being sexually abused. A doctor may disclose medical information about a child to the parents where the child does not have the capacity to make decisions about his or her medial welfare. Similarly a doctor may disclose medical information to a mentally incompetent person to his or her guardian or relatives.

 

 

The doctor will also be obliged to disclose medical information relating to a patient when he or she has been ordered by a court of law to disclose the information, for example, where the the patient is being prosecuted for a criminal offence. In Davis v Additional Magistrate. Johannesburg & Ors 1989 (4) SA 299 (W) where serious allegations had been published of assaults perpetrated on detainees whilst in detention, the confidential relationship between a doctor and his patient had to yield to wider considerations of public interest. The doctor was ordered to disclose medical information relating to this matter.  

 

A doctor is also justified in disclosing medical information about a child to the authorities where the medical condition of the child suggests that the child is being sexually abused.

 

In Financial Mail (Pty) Ltd & Ors v Sage Holdings Ltd & Anor 1993 (2) SA 451 (A) the court held that corporations have a right to protect the confidentialiy of sensitive business information. It further pointed out that Where the information sought to be published was obtained by means of an unlawful intrusion upon privacy then, generally, any publication of such information would be unlawful. But there could be exceptions to the aforesaid general proposition: if in the case of information obtained by means of an unlawful intrusion the nature of the information is such that there are overriding grounds in favour of the public being informed thereof, the Court would conclude that publication of that information should be permitted, despite its source or the manner in which it was obtained.

 

Wrongful court proceedings

 

In Moaki v Reckitt & Colman (Africa) Ltd & Anor1968 (1) SA 702 (W) a writ was issued and executed in respect of an amount already paid. Delictual damages were claimed.

 

In Barclays National Bank Ltd v Traub; Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W) a default judgment had been taken against a debtor when an attorney's clerk was aware that summons had not been served on a debtor. The attorney's client was held liable for damages.

 

Actions for injuria involving police misbehaviour

 

In Granger v Minister of State (Security) 1985 (1) ZLR 153 (H) P, an elderly legal practitioner, had been assaulted by CIO officers. P was awarded $1 200 damages for injuria.

 

In Karimazondo & Anor v Minister of Home Affairs 2001 (2) 363 (H) P1 and P2 were both arrested on allegations of murder. The charges were subsequently dropped. P2 was a serving police officer. P1, his wife, was tortured while in custody and suffered long-lasting physical and psychological effects, full details of which were disclosed in medical reports. The court held that the circumstances of the case were exceedingly grave and warranted a substantial award of damages. The actions of the police were in flagrant and reckless disregard of the rights of the Ps. The fact of the detention in itself created a hardship. The brutality and callousness with which the assaults were perpetrated on P1 instilled in any right thinking person a sense of horror and shock. The unlawful and inhumane treatment to which P1 was subjected to was totally unnecessary, vindictive and malicious. The court would make an award which in money terms expressed its disapproval of the seriousness, brutality and humiliating effect of such treatment.

 

In Chituku v Minister of Home Affairs & Ors 2004 (1) ZLR 36 (H) the court stated that treatment of an arrested, detained or convicted person that affronts the dignity of that person or exceeds the limits of civilised standards of decency and involves the unnecessary infliction of suffering or pain is inhuman and degrading.

 

In Tendere v Harare City Council 2004 (1) ZLR 495 (S) the court dealt with a situation of wrongful attachment of P’s property and the circumstances in which a judgment creditor could be liable for injuria in relation to P.

 

In Coltart v Minister of Home Affairs & Ors 2006 (1) ZLR 543 (H) the court dealt with an allegation that an injuria had been committed against P because the police had searched his premises illegally.The claim was dismissed because under the Police Act, the police were protected against liability as they had acted in good faith.

 

In Ramsay v Minister of Police & Ors 1981 (4) SA 802 (A) the court held that the conduct of police officers infringed the rights of personality of P who was an attorney. No crime had been committed and the police were acting merely on suspicion. The actions of the police were unreasonable and therefore unlawful.

 

In the case of Mazibuko v Sithole & Or s2009 (1) ZLR 33 (H) the court awarded exemplary damages to a legal practitioner for injuria. P had been denied access to his clients and had been assaulted and sworn at by the police. The court held that the fact that P was a legal practitioner and that the delict was directed against him in his professional capacity was grave, warranting heavy damages.This was a proper case for the award of exemplary damages.

 

Defences to action for injuria

In Strydom v Fenner-Solomon 1953 (1) SA 519 (E) a letter sent by P to D contained the more insulting remark. D’s letter was in reply to P. D was entitled to reply both on application of defence of compensation and on retorsion.

 

In Bester v Calitz 1982 (3) SA 864 (O) the claim for damages arose from an insulting remark made in anger elicited by a provocative insult of a similar nature. The provocation acted as a defence because the elicited response was not unlawful.