HomeOpinion & AnalysisSupreme Court should put a cap on defamation claims

Supreme Court should put a cap on defamation claims

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

Sunday Views by Kudzai Rangarirai

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.

While 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 US$10 million for defamation, surely this figure, by any standards, is astounding.

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!

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

The highest amount of damages awarded in a defamation case by English courts is £1,5million, awarded to Lord Aldington in 1989. He never got the money though.

The Australian Defamation Act 2005 puts a cap for damages at A$250 000.

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