Thelma Matale v Kaluba Mwaba (2018/HP/1260) [2022] ZMHC 99 (30 March 2022)

IN THE IDGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 2018/HP/1260 THELMA MATALE PLAINTIFF AND KALUBA MW ABA DEFENDANT Before the Honorable Mrs. Justice C. Lombe Phiri in Chambers. For the Plaintiff: Mr. M. Lisimba - Messrs Mambwe, Siwila and Lisimba Advocates For the Defendant: Ms. C. Jere - National Legal Aid Clinic for W omen JUDGMENT CASES REFERRED TO: 1. Muvi TV Limited vs. Charity Katanga Appeal No 77 of2018 2. Berin Ndovi vs. Post Newspaper Limited and another (2011) Volume 1 ZR 472 (SC) 3. Benny Hamainza WycliffMwiinga vs. Times Newspaper Limited (1989) S. J 4. Michael Chilufya Sata vs. Chanda Chimba m, Zambia National Broadcasting Corporation, Muvi TV Limited and Mobi TV International Limited 2010/HP/1282 5. Muvi TV Limited and Mobi TV International Limited 2010/HP/1282 6. Zambia Publishing Company Limited vs. Eliya Mwanza (1979) Z. R 76 SC 7. Transparency International Zambia vs. Chanda Chimba ill, Zambia National Broadcasting Corporation (2010/ HP/1176) 8. Frederick Kunongona Mwanza vs. Zambia Publishing Company Limited (1981) ZR 234. 9. Khalid Mohamed vs. The Attorney General (1982) R 49. 10. Rodger Chitengi Sakuhuka v Sassassali Nungu and Others (9) (2005) ZR48 11. Fredrick Mwanza vs Zambia Publishing Company Limited (1981) ZR 12. Given Lubinda v Edmond Lifwekelo and Daily Nation Newspaper Limited [2020] ZMSC 42 (Supreme Court Appeal N o. 2/2018) LEGISLATION AND WORKS REFERRED TO: 1. Defamation Act, Chapter 68 of the Laws of Zambia 2. Halsbury's Laws of England 3. Phipson on Evidence, 17th Edition BACKGROUND 1.1 This is a matter where the Plaintiff sued the Defendant on a claim for damages for libel and an injunction against further publication of defamatory statements. The Defendant mounted the defence of justification . She also counterclaimed for damages for J2 I Page inconvenience, emotional distress and trauma caused by the Plaintiff. PLAINTIFF'S CLAIM 2.1 The Plaintiff filed into Court a Writ of Summons and Statement of Claim filed on 24th July 2018. It was stated in the Statement of Claim that the Plaintiff's claim arose from the Defendant's publication on or about the 11 th May, 2018. The defamatory words published were as follows: "Please expose these idiots. The other one I am married to, the other one is his so called bestie who I hate with a passion. I am tired of their sick relationship and this hule won't leave my husband alone. She is a shameless home wrecker." 2.2 The Plaintiff asserts that the words in their natural and ordinary meaning meant and were understood to mean that the Plaintiff was of loose disposition and a woman of little or no moral fibre, in the habit of habitually sleeping with married men and breaking their homes. Also that she was a prostitute. 2.3 The Plaintiff claims that by reason of the publication of the words complained of she has suffered injury to her reputation and feelings. She contended that: a) She is not in a sexual or romantic relationship with the Defendant's husband. Bl Page "'. b) She has never slept with the Defendant's husband. c) She has never broken any matrimonial home. d) She has never slept with nor engaged in any sexual activities with a married man. e) That she is in a serious relationship with a single man. 2.4 In view of the foregoing the Plaintiff claims for: 1) Damages/or libel. 2) An injunction restraining the Defendant from farth er publishing or causing to be published the same or similar defamatory words of the Plaintiff. 3) Further or other relief 4) Costs. DEFENCE AND COUNTER CLAIM 3. I The Defendant filed into Court a Defence and Counter Claim on 10th October 2018. She admitted having published the alleged words complained about on Facebook in reference to the Plaintiff. It was, however, denied that the said words were meant to mean what the Plaintiff understood. The Defendant pleaded that the publication was justified. 3.2 The Defendant particularised the justification by giving details of what she described as "a sick relationship" between the Plaintiff and the Defendant. She stated that the friendship had subsisted for J4 I Page ... • seven years. She claimed that the Plaintiff claimed to know the Defendant's husband more than the Defendant herself. She also stated that when the Defendant confronted the Plaintiff asking her to leave her husband alone the Plaintiff laughed off the issue. Furthermore, that when the Defendant's mother talked to the Plaintiff about how inappropriate the relationship with the Defendant's husband was, she was told that their friendship was unbreakable unlike the one he had with the Defendant who he would easily divorce. The Defendant also stated that the Plaintiff would give unsolicited advice to the Defendant on how she should treat her husband or she would risk losing him. 3.3 It was averred that the Defendant's husband informed the Defendant that the Plaintiff's grandmother summoned him and the Plaintiff to stop their affair as it would not be pleasing to the Plaintiff's boyfriend. 3.4 It was further averred that the Plaintiff and the Defendant's husband had such a close relationship that it would create a reasonable suspicion that they had a close romantic relationship. It was stated that at one point the Defendant was attending a funeral of one of her husband's friends. That at the said funeral the Plaintiff and the Defendant's husband were passionately hugging each other, holding hands , talking and laughing to the embarrassment of the Defendant. 3.5 It was stated that the Plaintiff would openly speak about things the Defendant confided in her husband privately. Also that whenever JS I Page the Plaintiff would call the Defendant's husband, he would go rushing to her. 3.6 It was stated that the Plaintiff is a shameless homewrecker who ruined the Defendant's marriage. Further, that the Defendant is no longer living with her husband in their matrimonial home as her husband has decided to side with the Plaintiff. Furthermore, that the Defendant's husband would beat her up whenever the Defendant would confront him on the inappropriate relationship with the Plaintiff. It was stated that the Defendant's husband is more loyal to the Plaintiff than the Defendant. 3.7 It was stated that the Defendant's husband would spend more time with the Plaintiff and her son during weekends and holidays. Further, that people would inform the Defendant that her husband would be at the family plot with the Plaintiff. Also that they would go to various places together including Pavillah Gardens. She stated that the Plaintiff and her husband would post pictures and videos of themselves on social media together embracing which they had suspiciously removed. 3.8 It was stated that the Plaintiff would often go to their matrimonial home unannounced and take alcohol to share with the Defendant's husband. That during these visits she would speak to the Defendant's husband in a coded language. It was stated that during these visits the Plaintiff would deliberately say things to hurt the Defendant. That the Plaintiff would say things that suggest that the JG I Page Plaintiff and the Defendant's husband are close and would tell her that the Plaintiff and the Defendant's husband would go out and she wasn't invited. 3.9 Further, that the Plaintiff even once told the Defendant that she keeps having children in the hope that she would trap her husband Micheal Mutumina. COUNTER CLAIM 4.1 The Defendant states that she is married to Mr Micheal Mutumina and for the past seven years, the Plaintiff has had a close friendship with her husband resulting in the breakdown of their relationship. 4.2 She states that the Plaintiff and her husband are always together. That whenever he is not working he spends more time with the Plaintiff and her child than his own family. It was stated that they go to various places together to the extent that people would inform the Defendant that they saw the Plaintiff with her husband. 4.3 It was claimed that the Plaintiff has been telling the Defendant hurtful things, like speaking openly about sensitive things that the Defendant had told her husband in confidence which he further told the Plaintiff about. Further, that the Plaintiff tells the Defendant that her bond with the Defendant's husband is stronger than that which he has with her and that he can divorce her anytime. It was stated that the Plaintiff has told the Defendant that she keeps having children in order to trap her husband. Also that the Defendant has been beaten by her husband. It was stated that she has drifted apart J7 I Page from her husband because of the Defendant's objection to her husband's involvement with the Plaintiff. 4.4 It was averred that the Defendant even lost her second baby because her husband caused her stress and was not supportive due to his involvement with the Plaintiff. 4.5 It was stated that the Defendant's husband has even broken household property when the Defendant objected to him going out with the Plain tiff. 4.6 It was stated that the Defendant has suffered emotional stress and inconvenience because of the Plaintiffs involvement with her husband and the hurtful and malicious things she has said and done which include this Court action. 4. 7 The Defendant therefore claims: - a) That the matter be dismissed with costs b) Damages for inconvenience, emotional distress and trauma caused by the Plaintiff to the Defendant c) Any other relief the Court may deem fit PLAINTIFF'S DEFENCE TO COUNTER CLAIM 5. I In Defence to the Counter Claim the Plaintiff admits that she is engaged. She also stated that the Defendant's husband was her childhood friend, who she has a platonic relationship with. Further JS I Page that whatever problems the Defendant has with her husband cannot be attributed to her. THE PLAINTIFF'S EVIDENCE 6.1 At the trial of the matter Thelma Matale, the Plaintiff herein was the only witness in her own regard (PWI). She testified that on 28th May 2018 , the Defendant's husband, Mr. Michael Daniel Mutamina, called her while he was in Siavonga. He requested that she sends K300 to his wife, the Defendant, as their son was unwell. PWI testified that she was hesitant, as in the past she did not have a pleasant relationship with the Defendant. She testified that she, however, sent the money at about 14:00 hours the same day. She testified that she later noticed a lot of spam messages on her phone. She then received a call from a friend of her's who asked her about what he had seen on social media. That upon checking on Facebook, PWI found that the Defendant had posted on a group called "Zedhule.com". That she was calling her a prostitute and alleging that she was having an affair with the Defendant's husband and using their friendship to conceal the affair. 6.2 PWI, stated that the Defendant obtained her images from her Facebook account without her consent. She identified the images and read out the screenshots exhibited in her Bundles of Documents. 6.3 PWI testified that she had known the Defendant's husband for over 16 years. She further testified that he her son's father's close friend. J9 I Page ·- .. She stated that she knew about ladies the Defendant's husband had dated before the Defendant. Also that the Defendant was equally introduced to her. She testified that when the Defendant was pregnant she supported her as best as she could. That at the birth of the Defendant's child, PWl picked up the Defendant's husband from Intercity Bus Terminal and drove him to the University Teaching Hospital. 6.4 PWl testified that she had known the Defendant's husband longer than his marriage to the Defendant. She also denied using words that might be unfair to describe the Defendant. PWI stated that the Defendant tried to control the relationship amongst the three of them. That when she couldn't she complained that she was left out of their interactions. PWI told the Court that the Defendant's husband and herself were in the same profession and undertook a number of business transactions together including the purchase of land. 6.5 PWI testified that when she saw the Defendant's post on Facebook she called the Defendant to find out what wrong she had done. That, however, the Defendant insulted her. She further testified that she called the Defendant's husband who confirmed receiving numerous messages from people. PWI stated that she sought advice from Counsel who advised her to go to the nearest Police Station and report the matter so as to have a record. PWI testified that she went to Matero Police Station and reported to the Victim JlOI Page ... Support Unit. That following the report, the Police engaged the Defendant to report herself to the Police Station and she resisted. 6.6 PWI testified that when the Defendant eventually reported to the Police she insisted on her claims being accurate and correct. PWI stated that the Defendant was not justified in publishing the words complained of. 6.7 In Defence to the Counter Claim PWI, admitted to being close to the Defendant's husband and spending a lot of time with him. PWI told the Court that for the last 9 years the Defendant had not shown any diplomacy in filtering her utterances towards PWI and other females in her husband's life. 6.8 In cross-examination, PWI confirmed knowing the Defendant's husband. She stated that in 2007 they had founded a company together called Quality Distributors. However, 5 years preceding the trial she had stepped away from the business. PWl stated that not all her associations with the Defendant's husband were business in nature. She denied that her interactions with the Defendant's husband had been inappropriate. She also reconfirmed that she and the Defendant's husband had been friends for a long time. 6.9 PWI confirmed that she had sent money to the Defendant for the child despite being uncomfortable doing so. She stated that after she sent her the money, the Defendant accused her of having an affair with her husband and called her a "hule" which means prostitute. Jll I Pa g e 6.10 PWI confirmed that before she sent the money to the Defendant, the Defendant had expressed her displeasure between the Plaintiff and her husband. PWI also told the Court that the father of her child has not always been present when she was with the Defendant's husband. She did not have any proof of the business ventures with the Defendant's husband before Court. PWI confirmed that she is not married. DEFENDANT'S EVIDENCE 7.1 The Defendant called (4) witnesses. 7 .2 Kaluba Mwaba, the Defendant herself, was the first witness (DWI) in her own regard. She testified that she wrote the post complained about by PWI and posted it on Facebook, a social media platform . That after 30 minutes she took it down. DWI denied the charges of libel. She maintained that her comment was justified because of the way PWl interacted with her husband. She stated that the friendship was too close for comfort. Also she said she didn't like the way the Plaintiff used to treat her from the time they met. 7.3 She told the court that she called PWI and her husband idiots because of the countless times she has spoken to them about their relationship which makes her uncomfortable. She stated that their friendship is ''sick". DWI testified that she met her husband in J12 I Page .. 2002. That at the time they were just friends. F urther, that around 2009 when she became intitrnate with her now husband she was introduced to PWI. She stated that PWI was introduced to her as the mother of one of her husband's friend's son. 7.4 DWI testified that PWI felt the need to tell her how to take care of her husband and this didn't sit well with her. DWI testified that when she spoke to her boyfriend, then, that she was uncomfortable with PWI he told her ignore PWI. She stated that her husband was always in the compan y of PWl. She stated that it was during courtship that she noticed how close PWI was to her husband. 7. 5 DWI further testified that a few hours after she gave birth her husband walked in to see her with PWI. She stated that she was uncomfortable with the comments being made by PWI as she was implying that she and DWI's husband would be out all night celebrating. 7.6 DWI further testified that PWI's behaviour continued even when they moved into their matrimonial home. She stated that PWI would show up unannounced at their home with bottles of alcohol. Also that PWI would leave her out of conversations. She also testified that when PWI was leaving her home with her husband she would instruct her to remain at home and breastfeed the baby. DWI also testified that PWI would openly discuss personal issues which she had confided to her husband. She further testified that J13 I Page she suffered a miscarriage because of the stress of dealing with the relationship between her husband and PWl. 7. 7 DWI told the Court that she confronted PWI and expressed how uncomfortable she was with the relationship between PWI and her husband. She stated that PWI simply laughed off her complaints and advised her to join the bandwagon. 7.8 It was DWI's testimony that PWI told her that her bond with her husband was stronger than her marriage and that her husband will leave her but their friendship would subsist. DWI testified that she felt devastated and demanded to her husband that PWI never set foot in their home. 7. 9 DWI went on to testify that at some point when her husband began working in Lusaka PWI would drop him off, usually between 20:00 - 22:00 hours. That when dropping him off they would sit in the car chatting for long periods of time. 7. 10 DWI further told the Court that once at a funeral PWI fo und her with her husband and another gentleman. She stated that PWI ignored her and the other gentleman and went straight to hug her husband in the full view of other mourners. She testified that they hugged passionately. 7 .11 DWI testified that one weekend her husband received a call fro m PWI. That she tried to restrain him from leaving the home by J14 I Page ... • locking the door. That in annoyance her husband threw a tantrum and broke household goods. DWI then let her husband leave but upon his return he beat up DWI. She reported this to the Police and they subsequently reconciled after counselling. 7 .12 DWI told the Court that she called PWI a homewrecker as she was the cause of 90 percent of the problems in her marriage, which led to the couple often sleeping in separate bedrooms. She further told the Court that her marriage has totally broken down as her husband has moved out of the home ever since the publication. 7 .13 DWI testified that she called PWI a hule because despite telling PWI that she was uncomfortable with the relationship she had with her husband, PWI persisted with the relationship and shamelessly, without any regard for her feelings, was flirty with her husband. DWI referred to text messagees between PWI and her husband, were PWI, had a pet name 'big cheeks' for her husband. 7. 14 In relation to her Counter Claim DWI testified that she suffered emotional distress at the hands of PWI . 7. 15 In cross-examination DWI confirmed that the text messages she had produced in Court did not contain either PWI or her husband's name. She confirmed that she has brothers and friends with strong unbreakable bonds but would not consider those relationships sexual. J15 I Page 7.16 DWI further confirmed that the only home PWl ever broke was hers. She also told the Court that the reason her husband beat her up was because she talked to their daughter rudely. She further stated that she did not have any evidence before Court that her husband broke household goods. 7 .17 DWI confirmed that she had never seen her husband and PWI kiss nor had she caught them having sexual intercourse. She stated that hule has a lot of definitions and according to her statement it meant "a woman that has very low morals or very little or no morals at all, who knows no boundaries". 7.18 DWI stated that she never implied that PWI was prostituting. She said that to the best of her knowledge PWI never has nor has her husband kept secrets from DWI. DWI told the Court she was jealous of the relationship PWI had with her husband. DWI confirmed having knowledge of some business ventures her husband had with PWI. 7. 19 DWI confirmed she was still married to her husband. 7.20 DWI stated that she only put up the post for about 30 minutes before she took it down. She stated that when she posted it she had mixed emotions. DWI further told the Court that she was advised by her mother to remove the post from Facebook as there were better ways to resolve the issues. JlG I Page 7.21 DWI confirmed she acted on impulse and maintained that PWI was a hule because she lacked morals on account of whispering in her husband,s ears in public and seductively leaning on him at a funeral. DWI further confirmed that PWI and her husband maintained that they were best of friends. DWI further confirmed that she too has best friends both male and female but has boundaries with them. DWI also confirmed receiving money from PWI , but never withdrew it as she did not want to have anything to do with PWI . 7 .22 In re-examination DWI clarified that the text messages referred to did not have her husband,s name as they were screenshots she had taken from his phone. 7.23 Nancy Mungole, the Defendant's aunt, was the second witness for the Defendant (DW2). She testified that she first saw PWI at the University Teaching Hospital in 2011 when PWI arrived with DWI's husband at the birth of DWI's child. According to DW2 the Plaintiff and the Defendant's husband were very close. She testified that when the two arrived at the hospital, about 2 hours after the baby was born, they took photographs of the baby and said they were going to party. 7.24 DW2 further testified that DWI would complain about the relationship between PWI and her husband to her. DW2 advised J171 Page DWI to meet PWI in person to resolve their issues. She stated that DWI had told her about the meeting she had with the Plaintiff. 7.25 During cross-examination, DW2 told the Court that a hule is a female who has extra relationships with different men on a sexual based business. She stated that she had never seen PWI engage in such activity. 7.26 Constance Munalula, the Defendant's mother, was the Defendants third witness (DW3). She testified that some time in 2017 her son in law beat up DWI (her daughter) and ran away from home. Further, that DWI moved out of the home to stay with her brother. She stated that she then had a discussion with her son - in - law trying to find out why he allowed the Plaintiff to interfere with the marriage. She stated that the Defendant's husband did not explain anything. That he kept quiet through out the time she was speaking to him. 7.27 DW3 testified that some time later DWI called her to inform her that she was in trouble because of what she had posted on Facebook relating to Michael and the Plaintiff. She stated that DWI told her that the Police were looking for her. DW3 testifed that she spoke to the Plaintiff about the Facebook posting and the money she had sent to DWI. 7.28 DW3 recalled being told that the bond between PWI and DWI's husband was unbreakable. J18 I Page 7 .29 When cross-examined, DW3 told the Court that a hule is somebody who does not respect herself and can-do things w hich are not supposed to be done in public. She confirmed that a hule is a prostitute who can even sleep with people's husbands. DW3 confirmed that DWI never told her that her husband slept with PWI. She further confirmed that when DWI posted the words complained of she was annoyed and confused following a postnatal period. DW3 confirmed that DWI's husband never told her of any sexual relationship with PWI nor anyone else. 7.30 Moses Mwaba was the Defendant's fourth witness (DW4). He is the Defendant's son and was aged 16 at the time he testified. He testified that when he was 14 years old, he saw PWI drop off his stepfather (the Defendant's husband) a couple of times at home. He testified that before he entered the ho use, the two would sit fo r a while in the driveway which he found to be very weird. 7. 31 In cross-examination DW 4 testified that a hule was a prostitute and sleeps w ith people for m oney. He confirmed that he never saw PWI sleep with his stepfather. SUBMISSIONS 8. 1 At the close of the trial both parties were invited to file final submissions. J19 I Page PLAINTIFF'S SUBMISSIONS 8.2 The gist of the Plaintiffs submissions was that "defamation" is defined as the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of the right thinking members of society generally or tends to make them shun or avoid him. 8.3 It was submitted that there are two (2) forms of defamation namely libel and slander. Libel takes permanent form for example, an article or a photograph published in Daily Newspaper, while slander is temporary, for example words shouted across a classroom or gestures made to a crowd. 8.4 It was also submitted that no civil action can be maintained for libel or slander unless the words complained of have been published. That to constitute publication, the matter must be published by the Defendant to a third party that is to say, at least one person other than the claimant, since publication to one person will suffice it is clearly not necessary that there should be a "publication" in the commercial sense, though the scale of publication will of course affect the damages. 8.5 Reliance was placed on the case of Muvi TV Limited v Charity Katanga< 1 > on the elements of defamation. Further reliance was placed on Halsbury's Laws of England 4 th Edition Volume 45(2) at paragraph 388; which states that: J20 I Page "every person is entitled to his good name and to the esteem in which he is held by others, and has a right to claim that his reputation will not be disparaged by defamatory statements made about him to a third person without lawful justification or excuse." 8.6 It was submitted that Halsbury's Laws of England at paragraph 389 provides a checklist of factors that must be proved in order to establish a prima facie case in a claim for libel or slander. That is: a) it is necessary for the claimant to prove that the words complained of were published of him; b) the words were defamatory of him; and c) the words were published by the defendant in circumstances in which the defendant is responsible for the publication. 8. 7 It was submitted that the plaintiff must state what he understands by the words, including any innuendo alleged, and prove the existence of facts to support the innuendo. Defamation is a publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. See also Berin Ndovi vs. Post Newspaper Limited and another (2011) Volume 1 ZR 472 (SC)<2)_ 8.8 Further reliance was placed on the cases of Benny Hamainza Wycliff Mwiinga vs. Times Newspaper Limited<3 ) and Michael J21 I Page Chilu a Sata vs. Chanda Chimba Ill Zambia National Broadcasting CorporationC4>, Muvi TV Limited and Mobi TV International Limited 2010/HP /1282<5 > as well as Zambia Publishing Company Limited vs. Eliya Mwanza<6>. 8. 9 It was submitted that the undisputed facts of this case are that the Defendant did publish or cause to publish the words complained of and they were in reference to the Plaintiff. The Defendant has not caught or seen the Plaintiff parading as a prostitute or hule. 8.10 It was further submitted that the Defendant has pleaded justification in her defence. In the case of Transparency International Zambia vs. Chanda Chimba Ill Zambia National Broadcastin > on the defence of justification, it was held that the Corporation < facts relied on to support the plea of justification must be properly particularized. The defendant must also have reasonable evidence, and prove the literal truth of the publication. 8.11 It was also submitted on justification that the Defamation Act section 6 provides as follows: "In an action for libel or slander in respect of words contained in two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges" J22 I Page .. 8.12 On injury to one's reputation reliance was placed on the case of Frederick Kunongona Mwanza vs. Zambia Publishing Company Limited<8>. 8.13 It was submitted that the Defendant did not show any evidence or facts to justify reliance on the plea of justification. The Defendant denied that the Plaintiff was a hule and that she has not been in the habit of breaking marital homes. All the Defendant's witnesses supported the fact that the Plaintiff did not fit the description attributed to her by the Defendant. 8.14 The Defendant did not file any submissions. LAW 9 .1 The law relating to libel and slander is well established in our jurisdiction. Further, it is trite that the standard of proof in civil matters is that on a balance of probabilities. Also that the burden of proof lies on the one who alleges the fact in issue. 9 .2 The learned authors of Phipson on Evidence, 17th edition m paragraph 6-06 at page 15, state that: "So far as that persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts that affirmative of the issues. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, J23 I Page the decision must be against him. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. " 9. 3 T he above principle has also been well articulated in a plethora of authorities including the case of Khalid Mohamed v The Attorney Generai<9>. 9 .4 T he mam issue before the Court is one fo unded on the tort of defamation . In this case I wish to consider one cardinal issue namely: Whether the words stated by the Defendant were indeed defamatory on the Plaintiff. 9.5 It must be stated that there is clearly no dispute that the alleged defamatory words were published. This fact has been admitted by the Defendant in her own pleadings and through DW3. There is no dispute that more than one person saw the words that were uttered on F acebook by the Defendant. T herefore what lies for determination is whether the other elements of the tort have been satisfied. 9.6 Halsbury's Laws of England (Fourth Edition , Vol. 28 paragraph 10) defines defamation as: J24 I Page • "A defamatory statement is a statement which tends to lower a person in the estimation of right-thinking members of society generally or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business. " 9. 7 F urther, in paragraph 50 it is stated that: "It is defamatory to charge another with fraudulent, dishonest or dishonourable conduct or motives, or to call a person a villain, swindler, rogue or rascal, or to state that he is not conversant with business ethics. It is also defamatory, though considerably less serious, to suggest that a person is being investigated by the authorities, or is under suspicion of dishonesty or crime, even if the reasonable reader would not infer outright guilt. " 9 .8 In o ur jurisdiction libel was defin ed in the case of Rodger Chitengi Sakuhuka v Sassassali Nun and Others <10>, quo ting the case of Mwanza u Zambia Publishing v Company <11 > as follows: "1. Libel is the publication of a matter, usually words, conveying a defamatory imputation as to a person's character, office or vocation. 2. Any imputation which may tend to injure a man 's reputation in business, in employment, calling or office carried on or held by him is defamatory. J25 I Page 3. The article complained of was defamatory of the appellant and injured his reputation as a diplomat because he was portrayed as someone who had committed a criminal offence of causing death by dangerous driving. " 9.9 It is important in the case of defamation to be clear that the issue is not the emotions that were invoked on the part of the Plaintiff. Defamation is really about the effect of the words on right meaning members of society. The cardinal question for consideration is therefore whether by the utterance of the offending words the reputation or image of the Plaintiff was brought into contempt. In the case of Given Lubinda v Edmond Lifwekelo and Daily Nation Newspaper Limited [2020] ZMSC 42 (Supreme Court Appeal No. 2/2018)<12 > the Supreme Court stated as follows: "Damage to reputation is f elt by how right thinking members of society generally perceive you after the publication and not how you feel about the publication or the emotions it draws out of you. The public either, shun and hold you in contempt, or hate, avoid and ridicule you, thereby lowering your standing in society generally. For this reason it is incumbent upon a plaintiff to lead evidecen, through his witnesses, the right thinking members of society, to show that the publication complained of had such an effect on them" J26 I Page 9.10 In this case the Defendant has pleaded the defence of justicification. T he circumstances in which the defence of justification and fair comment can be upheld have been settled in a plethora of authorities. See also section 6 of the Defamation Act. 9. 11 It is stated in the Halsbury's Laws of England, paragraphs 82 and 135 that "The defence of justification is that the words complained of were true in substance and in fact. Since the law presumes that every person is of good repute until the contrary is proved, it is for the defendant to plead and prove affirmatively that the defamatory words are true or substantially true. If a defendant pleads justification, where the words complained of consist of statements of fact and comment, he must prove that the defamatory statements of fact are true or substantially true and that the defamatory inferences borne by the comment are true. Truth may be pleaded as a defence to the whole of defamatory statements or in the alternatives as a defence to the severable part of them. The defence of fair comment is in the nature of a general right, and enables any member of the public to express defamatory opinions on matters of public interest. Such opinions must be based on true facts stated on a privileged occasion and the defence only applies to statements which are recognizable by the reader or listener as expressions of opinion rather than statements of fact. The defence is J27 I Page defeated on proof by the Plaintiff that the defendant made the defamatory comment maliciously." 9 .12 On the counterclaim the Defendant made a claim for damages for incovenience, trauma and distress. At traditional common law, damages for mental harms were only recoverable as part of torts like assault, battery, or false imprisonment. Plaintiffs could include emotional distress as an additional harm if they also suffered physical injury or the threat of physical injury. Eventually, the courts recognized the infliction of psychological injury as its own independent cause of action, even without any accompanying harm to a person or property. Today, most jurisdictions recognize two torts for emotional harm, the intentional infliction of emotional distress, and the negligent infliction of emotional distress. 9.13 Certain kinds of behavior, under specific conditions, can be deeply offensive and psychologically damaging to other people, even if there is no threat of physical harm. What amounts to being offensive conduct is subjective by its very nature. Therefore, the courts have set high standards to make out a claim for intentional infliction of emotional harm. To be successful, the plaintiff must show that the defendant intentionally or recklessly engaged in extreme and outrageous conduct which caused severe emotional distress to another person. J28 I Page 9.14 Let's take these elements one at a time. First, the conduct must be intentional or reckless. Someone can be liable for inflicting emotional distress if he or she intended to cause distress, or unreasonably disregarded a high risk that distress would occur. 9 .15 The key question m emotional distress cases is whether the defendant's conduct was extreme and outrageous. This is a subjective determination, and must be decided on a case by case basis. The most widely accepted standard is conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." An action which would lead an average member of the community looking at the Plaintiff in lowered estimnation. 9.16 Examples include a defendant who made repeated late night harassing calls to the plaintiff to collect a debt, causing her to suffer a heart attack, and a meter reader who aggressively demanded entry into an apartment where a pregnant woman was bedridden, causing her to miscarry. In one case, a woman brought a successful case for emotional harm against the estate of a man who was a guest in her home, who committed suicide in her kitchen. The court found that the defendant's conduct was outrageous and in reckless disregard of the risk of causing emotional distress to his host, who suffered nervous shock when she found the corpse and a kitchen knife in a pool of blood. J29 I Page • 9 .17 As these cases suggest, the court will look at the specific circumstances of the case, and any relationship between Plaintiff and defendant, to determine whether the conduct is outrageous. 9.18 The final element is showing that the Plaintiff suffered severe emotional distress. A brief period of unhappiness or humiliation is not sufficient. In one case, a supervisor had repeatedly and outrageously publicly shamed an employee with a speech impediment over the course of many months. However, since the only harm the employee claimed was a feeling of 'being shaken up', and 'wanting to go into a hole and hide' , the court ruled that the psychological injury was not severe.[8] So, there is a substantial burden on the plaintiff to show significant and lasting psychological impact. At the same time, most jurisdictions have abandoned an older requirement for the pla intiff to demonstrate that the psychological harm led to observable, physical symptoms. 9 .19 One special case involving intentional infliction of emotional harm is the case of bystanders. Normally, a defendant can only be held liable for emotional distress when he or she intended to cause distress to a particular person. If a school principal verbally ab uses a student in an outrageous way, the student's friend cannot sue for emotional distress since she was not the target of the conduct. However, the law recognizes an exception in the case of immediate family. If the defendant intentionally injures someone when the J30 I Page • victim's family member is watching, the relative can recover for the emotional injury suffered from witnessing the injury, if the defendant knew that the family member was present. For example, a gang who attacks a father in front of his son can be held liable for the both the physical injury to the father, as well as the psychological trauma suffered by the son. Some authorities allow recovery for emotional distress even in cases where the bystander is a stranger, if he or she is present and witnesses an act of violence directed against another, and suffers physical injury as a result. [9] Under this rule, someone who shoots another person in public may be held liable for intentionally inflicting emotional distress on all who are present and witness the shooting and become physically ill as a result. 10 ANALYSIS 10.1 According to the statement of claim the disapproving words are stated as follows: "Please expose these idiots. The other one I am married to, the other one is his so called bestie who I hate with a passion. I am tired of their sick relationship and this huke won 't leave my husband alone. She is shameless home wrecker" 10.2 Now as can be seen from the authorities cited above, in order for the Plaintiff to show that the words are defamatory its important not only for the words uttered to have been injurious on the reputation of the Plaintiff but also that right thinking members of the public J31 I Page now hold the Plaintiff in lower estimation owing to the words that were uttered. It is for the Plaintiff to lead evidence in such a way that it is proved that there are actually right thinking people who saw the words that were published and now have a lower opinion of the plaintiff. It is not enough to simply put to the Court that the words injured the feelings of the Plaintiff. As was stated in the Given Lubinda case "the law of defamation is not about repairing dented egos". 10.3 The Defendant has admitted that she posted the offending words on Facebook, a social media platform. It was also not disputed that the said posting was on the platform for only about 30 minutes before the Defendant pulled it down. There was also evidence led by the Plaintiff that a few people called her to ask about the posting. However, no witnesses actually came to the Court to state that as a result of the posting their view of the Plaintiff was reduced. Nor was there any evidence led on behalf of the Plaintiff to show that she was now being shunned, avoided or ridiculed by right thinking members of the society because of the words that were posted by the Defendant. This brings into question firstly whether publication was infact proved and also what the effect of these words were. While it is not questionable that referring to another person as a "hule", which has been translated to mean prostitute or person with loose morals willing to engage in casual sex is injurious to one's reputation, for liability to arise under defamation the other ingredients of the tort must be proved to the requisite standard. It is clear from this case that the necessary standard has not been J32 I Page surmounted. The claim against the Defendant cannot therefore stand. There being no finding that the words uttered by the Defendant were defamatory, there is no need to consider whether the defence of justification can stand. 10.4 The claim by the Plaintiff is dismissed. 11 COUNTER CLAIM 11 .1 Turning to the Counterclaim for damages for inconvenience, emotional distress and trauma caused by the Plaintiff to the Defendant. A perusal of the evidence adduced by the Defendant shows that while there is mention in the testimony of the Defendant that she was uncomfortable with the relationship between the Plaintiff and her husband it is difficult to connect how she ascribes liability to the Plaintiff. There is no evidence regarding the time period or extent of the emotional distress or trauma that was occasioned by the relationship between the Plaintiff and the Defendant's husband. There was evidence led that the Defendant suffered a miscarriage. However, the medical evidence adduced into Court shows no corelation between the relationship the Plaintiff had with the Defendant's husband and the loss of the pregnancy. T here was no evidence of any medical diagnosis of emotional distress. F urther, all the behavioiur that distressed the Defendant was ascribed to her own husband. Her husband is the one who behaved in a manner that upset her. She drew the conclusion that the behviour of her husband, a sane adult, should be blamed on the Plaintiff. L iability in relation to the Plaintiff is J33 I Page . .. • therefore remote from the evidence adduced on the record. The counterclaim by the Defendant therefore fails and is dismissed 12 CONCLUSION 12.1 The claims on the main matter and on the counter claim both having failed the entire matter is dismissed. 12.2 As each party has not succeeded on their respective claims I will order that each party bears its own costs. 12.3 Leave to appeal is granted. Delivered at Lusaka this 30th day of March, 2022. C. LOMBE PIIlRI JUDGE J34 I Page