NDOU J: This
is an application for default judgment.
The plaintiff issued out summons against the defendants jointly and
severally claiming inter alia a total
of US$7 000 damages for defamation. This
quantum of damages is the subject of this judgment. The other prayers are in order. The defendants were properly served with the
summons on 22 July 2009 and chose not to defend the action. They are, therefore, in willful default. The background facts are the following. Sometime in July 2009, Chief Mathe presided over a meeting of his
subjects at Mashaba. This was a public
meeting open to all villagers and indeed most of them were in attendance. The 1st defendant, who is a senior
kraalhead in Mashaba, was present. So
was 2nd defendant a senior villager.
The 1st defendant addressed the meeting and made utterances
to the effect that the applicant is a stock thief who has stolen cattle from
fellow villagers. He further uttered words
to the effect that the applicant recruited other villagers to participate in
this nefarious practice. He stated that
his (applicant's) herdboy and young brother had stolen cattle and sold them to
the applicant. The 2nd
defendant also addressed the meeting and made utterances that were
corroborative of the above-mentioned defamatory words attributed to the 1st
defendant. He further said the other
villagers in attendance were afraid to unmask the applicant as a stock thief
because they thought he would steal their cattle (in revenge). It is the applicant's case that these
utterances were false and actuated by malice.
He feels that the utterances were defamatory in that they portrayed him
a criminal and stock thief in the eyes of the villagers gathered at the
meeting. The utterances were actuated by
malice in that the defendants' principal intention was to persuade Chief Mathe
to order his eviction from his homestead in Mashaba. I am in agreement that as a result of such
utterances and at such a meeting the applicant's dignity, self-esteem and
reputation was maligned and lowered in the eyes of the villagers present. He is entitled to defamation damages. The issue is whether he has justified or is
entitled to US$7 000 for this kind of defamation. This is the issue before me. In Garikayi
v Kwenda & Anor HH-194-91; SMITH J correctly stated the approach is determining awards
in the following terms:
“Reference
to comparable cases though never decisive is instructive but requires a study
of the full judgment … The theoretical
desirability of achieving some measure of uniformity of awards in similar
cases, must not fetter the trial court's discretion. Some awards will have to be increased
significantly over awards in earlier comparable cases because of the recent
marked diminution of the purchasing power of the Zimbabwe dollar.”
It was pointed out by SANDURA JP (as he then was) in Tekere v Zimbabwe Newspapers
(1980) Ltd & Anor 1986(1) ZLR 275 (HC) at 289D-F:
“The
assessment of damages in a case such as this is not an easy exercise because it
is difficult to recompense the plaintiff for the insult perpetrated against him
and the pain which he suffered as a result of the false allegations levelled
against him.”
In Zvobgo v Kingstons Ltd 1986(2)
ZLT 310 (HC) at 329A-E, REYNOLDS J observed:
“But,
it must also be remembered that, as GREENBERG J commented in Innes v Visser 1936 WLD 44:
“The
figure of justice carries a pair of scales, not a cornucopia”
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
the plaintiff'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. The difficulty of assessing an appropriate
figure in cases of this sort was adverted to by GREENBERG J in Innes v Visser, supra at 45 … Again,
and in the words of Lord HAILSHAM in Cassel & Co Ltd v Broome [1972] AC 1027 at 1027G:
“the
whole process of assessing damages were they are 'at large' is essentially a
matter of impression and not addition.”
(See
too, the pertinent remarks of WILLIAMS AJ in Buthelezi
v Poorter & Ors 1975(4) SA 608 at
618”
In a rural setting the defendants
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 the various factors that I
have adverted to above and the true value of the awards in the cases referred
to above, I am of the view that an award of US$2 000,00 will meet the justice
of the present case.
Accordingly, it is ordered that
default judgment be and is hereby granted to the plaintiff in the following
terms:
1.
The
defendants, jointly and severally, the one paying the other to be absolved,
shall pay the plaintiff the sum of US$2 000 (two thousand United States
Dollars) being damages for defamation.
2.
The
defendants, jointly and severally, shall deliver to the plaintiff eight (8) head
of cattle being replacement of the plaintiff's cattle unlawfully seized by the
defendants.
3.
The
defendants, jointly and severally, the one paying the other to be absolved,
shall pay to the plaintiff the sum of ZAR11 000 (eleven thousand South African
Rands), one (1) goat and 20kg mealie-meal property stolen from the plaintiff's
homestead.
4.
The
defendants, jointly and severally the one paying the other to be absolved,
shall pay costs of this suit on the ordinary scale.
R Ndlovu & Co plaintiff's
legal practitioners
