The final matter for determination
is assessment of the quantum of damages.
Damages in this jurisdiction have
remained modest. See Tekere v Zimbabwe Newspapers Anor HH290-68; Zvobgo v Kingstons Ltd
HH485-86;
Chinengundu v Modus
Publications Ltd HH132-92.
The factors which a court should
take into consideration in assessing an appropriate estimate of damages are
settled. They include:
1. ...
The final matter for determination
is assessment of the quantum of damages.
Damages in this jurisdiction have
remained modest. See Tekere v Zimbabwe Newspapers & Anor HH290-68; Zvobgo v Kingstons Ltd
HH485-86;
Chinengundu v Modus
Publications Ltd HH132-92.
The factors which a court should
take into consideration in assessing an appropriate estimate of damages are
settled. They include:
1. The content and nature of the
defamatory publication.
2. The plaintiff's standing in
society.
3. The extent of the publication.
4. The probable consequences of the
defamation.
5. The conduct of the defendant.
6. The recklessness of the
publication.
7. The comparable awards in other
defamation suits.
8. The declining value of money.
See Manyanga v Mpofu & Ors
HH162-11;
Butau v Madzianike &
2 Ors HH378-12;
Garwe v Zimind Publishers
(Pvt) Ltd & Ors 2007
(1) ZLR 209 (H)…,;
Chivasa v Nyamayaro & 2
Ors HH50-13.
In this case, the content and the
nature of the defamatory publication was sensational and scandalous, more
suitable to other scandal-mongering publications that are in circulation than
to a leading and well-established family newspaper such as the Sunday Mail. The
content of the defamatory publication was largely untrue. It was accepted
during the trial that the Sunday Mail is a widely circulated newspaper in
Zimbabwe, and that, in 2011, it was circulated online and reached audiences
abroad. The evidence which was accepted by the court is that
the consequences of the defamation touched the plaintiff, whose musical
career has now stagnated; it turned her into a recluse when she became a
laughing stock; was ridiculed in public, at the supermarket and while using
public transport; her fans expressed disappointment via social media; her
extended family, her in-laws, her friends, her parents and siblings all felt
that they had been brought into disrepute by the contents of the article; her
son, Gabriel, had been named as fatherless, which would haunt him as an adult;,
her husband and his family were tainted by their association with her after the
article was published. Finally, despite
being invited to do so, neither the first nor third defendants apologized to
the plaintiff.
This would have mitigated damages.
The conduct of both the first and
third defendants was unethical, deplorable, and unconscionable and motivated by
malice. No attempt was made to investigate the story or verify with the
plaintiff, her husband, her siblings, or her parents. Allegations of sexual
abuse were made casually, only for the court to establish that they had no
basis during trial. The allegation of addiction to hardcore drugs was a
fabrication in its entirety. The article was calculated to tarnish the plaintiff's
image and to lower her in the eyes of ordinary Zimbabweans, to bring her down
from her pedestal, and leave her mired in controversy. The publication was
reckless because basic journalistic principles were ignored. The third
defendant appears to have edited the article himself, contrary to the second
defendant's policy and standing orders.
In the case of Zimbabwe Banking Corp Ltd v Mashamhanda, it
was held that:
“…, an award of damages for
defamation is intended to provide vindication and consolation, not to provide
the plaintiff with a financial windfall. Awards in Zimbabwe will generally not
equate with those in larger and wealthier economies, but they must take into
account the rapid rate of inflation here.”
This case was decided in 1995. Zimbabwe
became a multicurrency economy in 2009. Inflation is currently not a factor
that should influence the court in assessing the quantum of damages. It is my
view that, in order to keep up with current trends, the court should seriously
consider the effect that social media like facebook, watsapp, twitter and
instagram now has on the extent of the publication, for purposes of assessing
the quantum of damages. There was evidence in this case that people as far away
as America and the United Kingdom read the article that was published almost at
the same time as the plaintiff's family, because the Sunday Mail is now
published online.
Comparable awards in other
defamation suits are as follows:
Chinengundu
v Modus
Publications HH135-92 - ZWD$23,000=
in 1992.
Zimbabwe
Banking Corp v Mashamhanda - ZWD$45,000= in 1995.
Chinamasa
v Jongwe Printing
& Publishing (Pvt) Ltd & Anor 1994 (1) ZLR 133 (H) – ZWD$30,000=
in 1994.
Zvobgo v Kingstons Ltd
HH485-86 - ZWD$20,000= in 1995.
Masuku v Goko & Anor
2006
(2) ZLR 341 (H) - ZWD$80,000= (revalued).
Butau v Madzianike &
2 Ors HH378-12 - US$3,000=.
Chivasa v Nyamayaro & 2
Ors HH50-13 - US$4,000=.
Moyo v Nkomo & Anor HB38-11-
US$5,000=.
Manyange v Mpofu & Ors
HH162-11
- US$2,000= and US$5,000=.
Taking all the above factors into
account, including the effect that social media platforms have had on the
extent and speed of publication ,as well as our country's obligations in terms
of international and regional protocols and conventions, as well as the
provisions in our new Constitution that seek to protect the right to non
discrimination on the basis of sex and gender, and gender stereotypes, as well
as the fact that our country has now adopted a multicurrency regime, I am
satisfied that an award of USD$10,000= is justified in this case.
ORDER
In the result, it is ordered that:
Judgment be and is hereby granted in
favor of the plaintiff as against the defendants jointly and severally, the one
paying and the others to be absolved, for:
(i) Payment of the sum of USD$10,000=.
(ii) Interest thereon a tempore morae from the date of
judgment to the date of payment in full: and
(iii) Costs of suit.
