The case for capping defamation damages in Zimbabwe

By Kudzai Rangarirai

There has been a marked increase in defamation cases being brought before our courts in recent years, especially after the dollarization of the economy.

It is noted that though most of the cases are brought against privately owned newspapers, some cases have also been brought against individuals. The claimants are, as usual, public figures.

Whilst the law regarding defamation has been around for some time and the elements to be proved for a defamation case to be successful have been laid out in various reported cases, the issue of quantum of damages has never been robustly dealt with by our Courts.

The absence of guidelines regarding the quantum to be awarded in defamation cases has seen some obscene, vulgar and ridiculously high figures being claimed for damages. It will be wrong to blame the plaintiffs alone for claiming such astronomically high amounts as lawyers have a duty to advise their clients on the amount they can reasonably claim depending on the severity of the defamation.

It is however noted that the lawyers are unable to offer such advice because they also do not have guidelines as to the quantum to be awarded in defamation cases. In such circumstances , we would expect a Judge who is presiding over a defamation case to have a guideline about the appropriate figures a person can be awarded .

The sad story is that it seems our Judges do not have such guidelines and each Judge will award any figure he thinks is just and equitable in the circumstances. This has resulted in some cases where a plaintiff was awarded a ridiculous figure of $US10million for defamation, surely this figure, by any standards ,is stupendous.

This haphazard way of dealing with quantum of damages cannot be allowed to continue unabated as law should be predictable and certain, hence the need for immediate action to be taken to address this anomaly.

We have cases which are currently before the Courts in which the plaintiffs are claiming ridiculous amounts that an ordinary reasonable person will be forced to think that the defamed person actually died because of the defamatory statement!

For example, we have Mr G. Gono claiming $US 25 million from Mr Kereke, Mrs Grace Mugabe claiming $US15 million from Standard Newspaper and ZBC claiming $US10million from Standard Newspaper. It is submitted that these amounts are manifestly excessive.

Who, on this earth, has a reputation worth US$10 million? My foot!

You would expect lawyers to advise their clients about the level of damages that can be claimed and if the lawyer does not do his job, you would expect the Judge to come hard on the lawyer when such cases come before the Courts. Unfortunately nothing like that has ever happened because no one knows where the law stands in relation to the amount of damages to be awarded.

The primary remedy in defamation cases should be to restore the claimant’s reputation not to enrich him/her with astronomical damages. It would seem that some of the claimants have not adjusted to the dollarized economy figures and still use the hyperinflationary figures to peg their damages.

Further the level of damages depends on the person’s reputation before that person was defamed. Most of those suing have damaged reputations anyway.

It is against this background that it is proposed that the Supreme Court should step in and put a cap on the amount of damages a person can recover for defamation. The Court should take out the financial incentive in defamation cases by capping the amount of damages.

Our defamation law was heavily influenced by English law hence it is will be helpful for our Courts to get guidance from cases decided in that jurisdiction. In England &Wales, the maximum damages a person can get for defamation is around £275,000.00 and it is likely to be lowered in the new Defamation Act.

In the recent case of Lord McAlphine and BBC, the Lord was awarded £185,000.00 after being wrongly accused of being paedophile, a serious allegation indeed. This is a reasonable figure.

The highest amount of damages awarded in a defamation case by the English Courts is £1.5million, awarded to Lord Aldington in 1989. He never got the money though. The Australian Defamation Act 2005 also puts a cap for damages at $250 000.00.

A look at these figures clearly reveals that there is something fundamentally wrong with the amount of damages claimed for defamation in our Courts.

It is suggested that in view of the state of our economy and the need to balance freedom of expression and privacy, defamation damages should be capped at US$ 20 000.If the claimant wants to demand more, he would need to prove material damage such as loss of earnings.

This is a reasonable figure and in line with our current economic situation.

The availability of a guideline will greatly help the claimants, lawyers and Judges and make the law clear, constant and certain. Newspapers will also be able to play their role of being watchdogs without fear of being dragged to Court by some career litigants among us.

In the meantime the Supreme Court can issue a practice direction, giving the above figure as an interim maximum amount to claim in defamation cases and then issue a substantive guideline after consultation.

It should be noted that though this article was specifically directed at defamation damages, the question of quantum is a problem across the board as evidenced by some awards granted by the Arbitrators and Courts in labour disputes.

For instance, a Kingstons Bookshop employee was awarded US$17, 5 million by a High Court Judge in an employment dispute and in another case in Bulawayo, a manager is claiming US$72 million as compensation from the company he is working for.

This clearly shows that there is no correlation between the compensation awarded and current economic situation obtaining in the country. In reaching a compensation figure, a Judge or Arbitrator must take into consideration the financial status of the losing party, a factor which seem to be absent, judging by recent awards.

We seem to be suffering from the hangover of yesteryear inflationary times and the sooner we become real, the better.

Mr.Kudzai Rangarirai ,Oxford, UK.