The test for defamation





So what is the test for defamation? This is the question that someone would ask. The test to determine whether a statement is defamatory is to examine how ordinary, reasonable people would respond to the statement.

Our law does not distinguish between written and verbal defamation.  Other jurisdictions, for example English law make a distinction between the two; written defamation (libel) and verbal defamation (slander) does not exist in our law.

In respect of written material, the test 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.

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.

Rather, it is the likely reaction of ordinary people of average intelligence. For example, 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.

However, the response of ordinary people, would be more likely to be that the prosecution would never have been brought unless the police had cogent evidence that he was guilty.

The moralistic person on the other hand 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.

There are several cases that have looked into this issue. I shall identify a few so that you can read them further if you are so inclined. 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 indiscretion which brings the perpetrator into odium from a social point of view. Even to date, adultery is still widely reprobated by public opinion and the defamation was inherently serious.

The test applied in the Mungate case pays heed to contemporary social and political values and if, over time, values undergo change what is defamatory may alter within the society. There are also extreme examples, 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 therefore 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 the Plaintiff, for example a person belonging to a particular faith with particular beliefs.

A remark would be construed as being highly defamatory, for example that a Hindu eats beef which is completely forbidden for people of his faith. This sectional test approach found support in the case of Velempini v Engineering Services Dept of Works 1988 (2) ZLR 173 (H).

If 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 the Plaintiff.

The authority for this proposition is found in the case of 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.

The court in this case found that the plain meaning of the offending article was that the Plaintiff was being investigated for improper or unethical behaviour.

Further that he had committed acts of corruption rendering him unfit to hold public office. The suggestion in all its tenor was 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 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.

To be continued next week . . .

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

 

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara@ gmail.com