ZIJENA v MAPHOSA 1992 (2) ZLR 423 (S)

Flynote

Delict — defamation under customary law — defences — truthfulness — telling of lie — actionable if told with intention of injuring reputation — but may not be actionable if audience would readily dismiss statement as nonsense

Customary law — defamation — imputation of immorality defamatory both under customary law and general law — but differences between the customary law and the general law on defences available to defendant

Headnote

The respondent had been accused at a village meeting of setting fire to the appellant's granary. He was annoyed by this accusation. He believed that the appellant had committed adultery with the wife of one Gambiza and the relatives of Gambiza had burnt the appellant's granary as a reprisal for his adultery. In anger after this meeting he took aside one of the villagers and told him that the appellant had committed adultery with Gambiza's wife.

Held, that this statement imputing to the appellant immoral conduct by committing adultery was defamatory under both customary law and the general law.

Held, further, that there were differences as between the customary law in relation to the defences to an action for defamation.

Held, further, that although truth was a full defence under customary law, the respondent had not pleaded the defence of truth.

Held, further, that under customary law the defence of lying could be raised to an action for defamation. In both Shona and Ndebele custom a distinction was made between a lie told with intent to injure the plaintiff in his property or reputation, which is actionable, and a lie which the audience to whom it is published can readily dismiss as "nonsense". The defendant in the latter case would invariably be a person whom the community would consider to be a person who was not to be taken seriously because he was a lunatic. In the present case the respondent did not claim or feign insanity when he uttered the defamatory words and thus this defence did not apply.