MAKONI
J: The plaintiff issued summons out of
this court claiming damages in the sum of $100 000-00, interest at the
prescribed rate from date of issue of summons to date of payment and costs of
suit.
The
basis of the claim is that the plaintiff, as a representative of R.C.L.I (Pvt)
Ltd (“the company”) and the defendants, entered into an agreement of sale
whereby the company sold to the defendants a night club. The defendants failed
to meet the terms of the agreement. The parties then entered into another
agreement which extended the time within which the defendants were to pay the
deposit. The agreement had a clause to the effect that if the defendants failed
to meet the terms of the agreement, any amount paid as deposit will be
forfeited by the seller. Again the defendants, after having paid a deposit,
failed to pay the balance of the purchase price. The company then cancelled the
agreement and forfeited the deposit paid
by the defendant.
The
night club was operated from rented premises. The defendants had also entered
into a lease agreement with the landlord Mickeys Investments (Pvt) Ltd as
represented by Mr Ranchord. The lease agreement was also cancelled as the
defendants failed to pay the agreed rentals.
The
defendants then approached Mr Ranchord and uttered words to the effect that the
plaintiff was a fraudster and had cheated them out of a deal. They also uttered
the same words to several police officers which led to the plaintiff being
summoned on 29 June 2010 by sergeant Singini, and sergeant Maringamoyo and on 7
July 2010 by sergeant Mushininga. The plaintiff was cleared and no criminal
proceedings were instituted.
It
is the plaintiff's case that the words uttered were defamatory. The words was
i.e. fraudster and a cheat would to any ordinary person mean that the plaintiff
was a dishonest business man who was a swindler and had tricked the defendants
out of their money. The plaintiff also suffered embarrassment by reporting to
the police.
The
plaintiff's evidence, went were unchallenged is that he is a well known
businessman in the entertainment industry. He had always maintained a good
business reputation. The defendants' utterances were a direct attack on his
honour. No retraction or apology has been made by the defendants.
The
fact that they uttered the words fraudster and a cheater to his landlord is a
clear indication that they meant to tarnish his credibility with the landlord
in order to diminish his good standing in the landlord's opinion.
The
defendants did not defend the matter. The plaintiff's claim that the words uttered
are defamatory has not been challenged. The words were uttered to the landlord
and to the police. It will be presumed that the publication was with the
intention to injure. See Tekere v Zimbabwe Newspapers (1990)
Ltd & Anor1986 (1) SA 275 (H) at 278 H-279 A.
This
leaves the issue of determination of the quantum of damages. The purpose of an
award of damages in a defamation suit has been defined in a number of cases
within and outside our jurisdiction. I can do no better than quote ROBINSON J
in Shamuyari ra v Zimbabwe Newspapers (1980)Ltd
& Anor 1994 (1) ZLR 443 (H) at 503 A-D:
“The difficulty
in assessing damages is expressed thus in Amerasinghe's Defamation in the Law
of South Africa and Ceylon
'The assessment
of damages for injury to feelings stemming from the loss of an abstraction such
as reputation is not easy, since it involves the placing of a money value upon
abstractions'.
(b)
LORD HAIILSHAM put it quaintly when, in Cassell & Co Ltd v Broome & Anor (1972) 1 All ER 801
(HL) at 825e (1972) AC 1027 at 1072 G, he said that “the whole process of
assessing damages where they are 'at large' is essentially a matter of
impression and not addition”.
(c)
In Argas P &
P Co Ltd v Inkatha Freedom Party
1992 (3) SA 579 (A) at 590 E, GROSSKOPF JA, when delivering the judgment of the
Appellate Division of South Africa, said:
“Our Courts
have not been generous in their awards for solatia.
An action for defamation has been
seen as the method whereby a plaintiff vindicates his reputation and not as a
road to riches”.
The factors that
I will take into account in assessing damages in the matter are:
A.
The content of the article which includes the
defamatory matter.
B.
The nature and extent of the publication, including the
aspect of republication of the defamatory matter.
C.
The plaintiff's standing, that is to say, his
reputation, character and status.
D.
The nature of the defamation.
E.
The probable consequences of the defamation.
F.
The conduct of the defendants from the time the
defamatory matter was published up to the time of judgment, including
(i)
their reliance on the persistence in a plea of
justification;
(ii)
the question of any malice on their part;
(iii)
the question of any retraction of and apology for the
publication of the defamatory matter
G.
The recklessness of the publication.
H.
Comparable awards of damages in other defamation suits
and the declining value of money.
See Shamuyarira's case supra.
The
words uttered by the defendants of the plaintiff point him in bad light taking
into account that he is a well known businessman. The words were blatant lies
as the plaintiff was cleared both in civil and criminal courts. The content
therefore aggravates the damages.
The
defamatory utterances were published to the plaintiff's landlord and to the
police. The publication was not very wide.
The
plaintiff by the nature of his business has to uphold his character,
credibility, honesty, good business ethics. The defendants' utterances were
meant to tarnish his image in the eyes of his landlord and ultimately his
business credibility. In my view, the plaintiff has not established the extent
to which the words had tarnished his image in the eyes of the landlord and
other business associates. It would have assisted if he had led evidence from
the landlord and the other business associates. This mitigates the damages.
The
defendants have not apologized to the plaintiff despite the fact that the
plaintiff was cleared in both the civil and criminal courts.
Comparable
awards in other defamatory suits in our jurisdiction will not be of any
assistance as they were not awarded in foreign currency. There is also a danger
of relying on awards in other jurisdictions as our economies are so different.
Taking
into account all the factors outlined above and the purpose of awarding
defamation damages, I estimate that an award of US500-00 is appropriate.
In
the result I make the following order:
1.
The first and second defendant, jointly and severally
one paying the other to be absolved, pay to the plaintiff the sum of US500-00
plus interest at the prescribed rate from date of judgment to date of full
payment.
2.
The first and second defendants shall pay the
plaintiff's costs of suit.
Scanlen &
Holderness, plaintiff's legal practitioners
