MULUNGUSHI UNIVERSITY

SCHOOL OF BUSINESS STUDIES

DEPARTMENT OF LAW, LABOUR AND HUMAN RESOURCE

NAME: WENDY NDAWA

STUDENT NUMBER: 202301491

COURSE: LAW OF TORTS II

COURSE CODE: BLL 222

LECTURER: DR. NGOMA

DUE DATE: 11TH APRIL, 2025

QUESTION:

Ian is a sports commentator for ZedSports Television, a major broadcaster in Zambia. He decides to
produce a programme on Lusaka Warriors, a local amateur football team that has reached the final of
the prestigious ZamCup tournament. In the programme, there is a shot of the team socializing at a well-
known Lusaka nightclub, accompanied by Ian’s commentary: ‘This is how Lusaka Warriors prepare on
Friday night for their crucial ZamCup final on Saturday.’ In reality, the footage was filmed on a Saturday
night after a different league match.
The programme also features footage of John, the team’s star striker, eating at a popular fast-food
restaurant, with Ian commenting: ‘John, being a bachelor, has to fend for himself, which means eating
out a lot.’ However, John is married to Jane, who is deeply offended by this misleading statement.
Lusaka Warriors go on to lose the ZamCup final, and in Ian’s post-match analysis, he states: ‘They played
appallingly badly, even by the standards of an amateur team.’ The Zambia Daily Times, in its review of
the match and Ian’s analysis, repeats his comments about the team’s poor performance and speculates
that John’s ‘unhealthy lifestyle’ may have contributed to their loss.
Advise John, Jane, and Lusaka Warriors on any possible claims they might have under Zambian tort law
LEGAL ISSUES

1. Libel and slander: Can among the two types of defamation to be specific libel suffice seeing
the fact that Lusaka Warriors were offended due to Ian’s commentary as well as a video
footage of the team which was accompanied by the commentary?

2. Who can sue under defamation?:Can a group or class of persons like the Lusaka warriors
have a successful claim under the tort of defamation in Zambia as well as a third party who is a
spouse like Jane?

3. Fair Comment and qualified privilege: Can Ian’s post match analysis about the Lusaka
Warriors be regarded as a fair comment and can the Zambia Daily times rely on the defense of
qualified privilege to escape liability?

4. Damages: Can John, Jane and Lusaka Warriors be entitled to compensation under the tort of
defamation and what remedies are available in the Zambian jurisdiction owing to the facts
given in the scenario?

LAW APPLICABLE AND ANALYSIS

a)There should be a defamatory statement; the word defamatory has been seen to be defined
differently by courts and one of the definitions can be drawn from the case of Parmiter v
Coupland,1 where the Lord Wensleydale noted inter alia that in cases of libel, it was for the
judge to give a legal definition of the offence which he defined as being “a publication, without
justification or lawful excuse, which is calculated to injure the reputation of another, by
exposing him to hatred, contempt or ridicule”. Therefore, for this element to be established,
the statement made should tend to bring a person into hatred, contempt or ridicule in that the
words used must be regarded as defamatory in the eyes of reasonable or right thinking
members of society as seen in the case of Cobbett Tribe v The Zambia Publishing Company
Limited,2 where the court held inter alia that the words were defamatory because they can be
taken by a reasonable person to refer to the plaintiff.

b) Reference to the claimant; the claimant need not be named, for the issue is whether the
statement may be understood by reasonable people as referring to the claimant. For example,
the claimant may be referred to by a nickname or by initials. A statement may refer to more
than one person by implication and that can amount to a reference to another person. On the
other hand an individual can sue in respect of words that are directed against a group, or body,
or class of persons as was considered in the Zambian case of Ibid,3 where the court passed
judgment in favor of the claimant who was part of a group of persons to which the defamatory
statement was made as well as the case of Browne v DC Thomson,4 where the court held that if
a statement makes reference to a limited group of people, for example the tenants of a specific
building then the whole group will be allowed to sue under the tort of defamation.

1
(1840) 6 M & W 105,108
2
(1973) Z.R 9
3
Ibid (n2)
4
(1912) SC 359
 On the contrary, in the case of Mutemba v Zambia Newspaper Limited & Anor,5 the claim for
defamation failed simply because the defamatory statement was not referring to the claimant.
Therefore, with regards to the scenario given, Lusaka Warriors can succeed in their claim
according to the Cobbett and Browne cases because Ian explicitly stated in his commentary that
‘This is how Lusaka Warriors prepare on Friday night for their crucial ZamCup final on Saturday’
and that is enough to prove the reference requirement.

c) Publication; the tort of defamation cannot be committed unless the statement concerned is
communicated to at least one person other than the claimant. Simply making the statement to
the defendant alone cannot fulfil the element of publication because the tort of defamation is
concerned with protecting reputation rather than one’s opinion of oneself. However, there are
exceptions to this element in the sense that if the publication made was not made with malice,
then it shall be privileged in accordance with section 9(1) of the defamation Act CAP 68 of The
Laws of Zambia. The other exception is with regards to the defense of fair comment as provided
by section 7 of the defamation Act CAP 68 of the laws of Zambia which states that in an action
for libel or slander in respect of words consisting partly of allegations of fact and partly of
expression of opinion, a defense of fair comment shall not fail by reason only that the truth of
every allegation of fact is not proved if the expression of opinion is fair comment having regard
to such of the facts alleged or referred to in the words complained of are as proved.

This can be exclusively noted in the Zambian case of Zulu v Times Newspapers (Zambia)
Limited,6 where the supreme court of Zambia upheld the defense of fair comment. The case of
Bevin Ndovi v Post Newspapers Limited, 7 clarified that the duty to disclose information on
matters of public interest was a key in determining the validity of the defense of fair comment.
Lusaka Warriors as well as John therefore, cannot succeed in a claim for defamation against
Zambia Daily Times in accordance with section 7 and 9(1) of the defamation Act as well as the
case of Zulu. However, there is a likelihood of John succeeding against Zambia Daily Times
Newspapers with reference to the statement which was published stating John’s unhealthy
5
(1972) Z.R.107
6
(1965) Z.R.30
7
(Appeal 48 of 2007) [2010] ZMSC 1
lifestyle may have contributed to their loss in the sense that despite the fact that the Zambia
Daily Times simply repeated what was said by Ian, they also speculated that it was due to john’s
unhealthy lifestyle which raises malice on the part of Zambia Daily Times as section 9 of the
Defamation Act provides that’s publication in a newspaper of any report or other matter shall
be privileged unless the publication is proved to be made with malice. This therefore means
that Zambia Daily Newspapers cannot rely on the defense of qualified privilege to escape
liability because of the proof of defendant’s malice.

d) Damage; the defendant needs to prove that damage or harm was suffered. If the defamation
claim succeeds, then the plaintiff is entitled to compensatory damages for the harm to their
reputation and dignity. Damages are calculated on a case by case basis and in cases of criminal
defamation which is libel, it even amounts to sentencing the perpetrator. In Zambia, the courts
will consider factors such as the extent of damage caused to the claimant’s
reputation/business.

There are two types of defamation namely; libel and slander where libel is defined as
defamation in a more permanent form such as printed statements, drawings, recorded
broadcast programmes while slander on the other hand is a statement in less permanent form
such as spoken words. Libel is a crime as well as a tort while slander is a tort only and libel is
actionable per se as can be noted from the case of Musiwa v Chanda,8 meaning there is no
need to prove actual harm suffered whereas slander requires proof of actual damage. In
relation to the facts in the given scenario, Ian’s commentary on Lusaka Warriors stating ‘this is
how Lusaka Warriors prepare on Friday night for their crucial ZamCup final on Saturday’
accompanied by a shot of the team socializing at a well-known Lusaka night club when in
reality, the footage was filmed on Saturday after a different league match draws attention to
the type of defamation known as libel simply because it was a broadcasted programme and
libel is deemed to occur in a more permanent form like this one. And also making reference to
the case of Youssoupoff v MGM Pictures Ltd,9 where libel was said to occur in permanent form
in the form of films like the one which was broadcasted featuring the Lusaka Warriors.
8
(1985) Z.R.244
9
(1934) 50 TLR 581
In this regard, Lusaka warriors can sue Ian for defamation to be specific libel due to the
existence of the film as seen in the Youssoupoff case because it caused their reputation to be
ruined through broadcasting.

Furthermore, Jane can also bring an action against Ian on the basis of defamation by
implication/innuendo. This is a kind of defamation which occurs where the defamatory
meaning is not explicitly stated but rather is suggested or implied, and it’s recognized and
actionable in Zambia. This means that a statement even if seemingly truthful on its own, can
still be defamatory if it leads to a false or misleading impression that harms someone’s
reputation with the primary requirement being whether an ordinary, right thinking person
would understand the statement to imply a defamatory meaning as seen in Ibid. 10 It focuses on
indirect statements which have an implied meaning and according to the scenario given, Ian’s
comment stating ‘John, being a bachelor, has to fend for himself, which means eating out a lot’
despite him being married to Jane amounts to defamation by implication and Jane being
offended is justified because the statement implies that John is single and therefore Jane is just
cohabiting with John of which reasonable members of society in the Zambian jurisdiction
consider cohabiting to be morally and culturally wrong and further it is not even supported by
the Zambian laws which only recognize two types of marriages which are statutory and
customary. Therefore it would imply that Jane is a morally indecent woman by virtue of her
living with a man she is not married to when in the actual sense they are married. And
according to the case of Cassidy v Daily Mirror Newspaper Ltd,11 Jane can succeed in a claim for
defamation by innuendo because the words can be interpreted by a reasonable person as
defamatory.

In conclusion, Lusaka Warriors, John and Jane can successfully sue Ian and Zambia Daily Times
under the tort of defamation in Zambia and the remedies that can be given by courts include
nominal damages which is compensation awarded to the plaintiff who has succeeded in
proving elements of a tort without actual loss, injunctions as well as exemplary damages.

10
Ibid (n2)
11
(1929) 2 KB 331
REFERENCES

BOOKS

Mvunga MP and Ng’ambi SP, Mvunga and Ng’ambi on Torts (UNZA Press 2011)

Cooke J, Law of Tort (12TH edn, Pearson 2015)

Peel E and Goudkamp J, Winfield and Jolowicz on Tort (19th edn, Sweet & Maxwell 2014)

STATUTES

Defamation Act CAP 68 of the Laws of Zambia

CASE LAW (ZAMBIAN AND ENGLISH CASES)

Parmiter v Coupland(1840) 6 M & W 105,108

Cobbett Tribe v The Zambia Publishing Company Limited High Court (1973) Z.R 9
Browne v DC Thomson (1912) SC 359
Mutemba v Zambia Newspaper Limited & Anor HC (1972) Z.R.107
Zulu v Times Newspapers (Zambia) Limited SC (1965) Z.R.30
Bevin Ndovi v Post Newspapers Limited (Appeal 48 of 2007) [2010] ZMSC 1
Musiwa v Chanda (1985) Z.R.244
Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581

Cassidy v Daily Mirror Newspaper Ltd (1929) 2 KB 331