On 2 October 2020 the highest court of appeal in Zimbabwe handed down judgment in an appeal involving a claim for damages for defamation by the biggest media house in the country, Zimbabwe Newspapers 1980 Ltd. The brief background of the matter shows that The Herald and H-Metro newspapers published articles of Tafadzwa Mushunje who had been falsely accused of injecting her H.I.V infected blood into the body of a minor child. The child was of her then boyfriend and consequently the mother of the child reported the matter to the police after seeing the allegations on an online website.
The Herald and H-Metro newspapers wrote articles of the news (with sensational headlines) purportedly obtaining the information from court proceedings. When they were eventually sued for defaming Mushunje they pleaded that the defence of qualified privilege saved them from any liability. That defense found favour with Justice Charewa in The High Court. Tafadzwa Mushunje was however unrelenting. Through her lawyer's Takunda Gombiro and Fungai Chimwamurombe of Chimwamurombe Legal Practice they lodged an appeal with the Supreme Court. That appeal was argued by Advocate Tawanda Zhuwarara.
1. In assessing whether or not there has been defamation of an individual, It is improper to separate a headline of a newspaper article from the body of the article. The two must be treatedas the same and read conjunctively. The ordinary meaning of a statement taken from the headline can render the whole article defamatory, when constituted as a publication together with the article.
2. A headline on its own may not constitute a publication in the strict sense of the word. A publication relates to the communication of a statement to a certain person or group of persons adequately identifying another person to be the subject of the injurious words.
3. The term 'Malice' in the context of court reporting is a difficult term to define. It does not have to be specifically proven with direct evidence but in certain instances 'actual malice' has to be inferred from certain facts for it to be deemed an existing fact. However for the allegation of malice' to be vitiated, the evidentiary burden shifts to the media house/journalist to disprove the existence of malice'.
4. If an article is written with an improper motive then there is malice'. One does not have to identify spite, personal vengeance or ill will. Any indirect motive other than a sense of duty is what the court calls malice'.
5. When a journalist has certain information about the circumstances of a matter that eventually spills into court, they must tread carefully about their reporting as they can vitiate they defense of qualified privilege.
6. Investigative journalism is unavoidable especially when one attempts to meet the three tier elements of the defense of qualified privilege being, fairness, balance and accuracy in court reporting.
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