NAME: MORRIS KASWEKA

STUDENT NUMBER: 29005488

PROGRAMME: LLB

COURSE: TORT LAW

YEAR: FIRST YEAR, SEMESTER ONE

ASSIGNMENT: ONE

LECTURE: Ms FISONGA
INTRODUCTION
In recent pasts with an improvement in technology we’ve seen a rise in the usage of social media
platforms, the press, in newspapers, radio and television by individuals, website operators,
employers and so on. On the other hand, freedom of expression being another issue that has to
stand as a key facet to a society at liberty, to others this freedom of expression has not been well
taken care of, in some instances even abused both by the informed and the less informed people
in our society making all sought of utterances or comments by publication to a third person in
whichever way we deem fit. Some of these statements may cause damage to one’s reputation,
therefore the law needs to find a way to deal with these untrue and negatively affecting
statements to avoid financially supreme firms or individuals too much power to control the
media or public perception at will. Sancha and people at large need to know what is defamatory
and the legal consequences attached to it. A communication is defamatory if it tends to harm
one’s reputation in the community, either by lowering others’ estimation of him, or deterring
others from associating or dealing with him.1
In my assignment I intend to write on a scenario case between Sancha and Mulemwa. whether
Sancha the chairman of a member’s organization which represents interests of small financial
lending institutions in Zambia can bring an action against Mulemwa for writing a serious
accusation against the organization purporting that its members take advantage of innocent
members of the public.

LEGAL ISSUE:
Whether Sancha can bring an action for defamation against Mulemwa, there are two types of
defamation namely libel and slander. Mulemwa was liable for libel which is a defamatory
statement in a permanent form. Mulemwa was seriously infuriated after Sancha’s Company sold
his vehicle for the money he was owing without his consent. Therefore, Mulemwa wrote a
serious accusation against the organization representing the interests of the small finance lending
institutions that the organization is crooked and its members simply take advantage of innocent
members of the public and that it should be investigated.

Mulemwa is liable for libel for giving publicity to a matter which places Sancha before the
public in a false light, provided this publication (false light) was highly offensive not only to
Sancha but any reasonable person.
Defamation is the publication of a defamatory statement which tends to lower a person’s
reputation in the estimation of the minds of the right-thinking members of the society, deterring
others from associating or dealing with him or causing them to shun and avoid him. According to
the NIPA module defamation can either be in written or permanent form and it is called libel.
Libel is deemed as a tort as well as a crime. Libel is actionable per se, this means that it is
actionable without proof of special damages.
1
Edwards J. Kionka, Torts, (5th Edition, West Academic Publishing, 2013)
For a claim for defamation to succeed, the following elements has to be shown by the plaintiff.
a) The words must be defamatory
The words must tend to lower the plaintiff’s reputation in the minds of the right-thinking
members of the society. The words which the plaintiff is complaining may either be defamatory
in their natural sense or in the light of facts. An innuendo which is a defamation in indication
may occur where a defamation is indirect like in the case of Cassidy v Daily Mirror Newspaper
(1925). The claimant argued that the publication caused damage in that it implied the husband
was living with her immorally, the statement was seen to have some defamatory meaning, the
jury ruled in favor of the claimant and the jury was right in that the publication made the
reasonably minded person believe that the claimant’s moral character was questionable.
Innuendo is an oblique remark or indirect suggestion usually of a derogative nature. In some
instances, a statement may not convey any defamatory imputation in its natural meaning, but it
may convey a defamatory remark owing to a particular circumstance2.
b) The words must refer to the plaintiff.

In the case Byrne v Dean (1937) The case was an appeal, It stated that there was no
evidence that any of the defendants apart from the secretary had anything to do with the
publication.
It was held that the words could not constitute a defamation. A sufficient indication that
the plaintiff is the subject of the defamatory statement must be established. The plaintiff
may be referred to by picture, initials or job among others. In the case of a defamatory
statement directed to a class or group of people. For example, teachers no one individual
of that class may sue unless there is some indication in the words or publication
indicating a particular claimant3. The court may establish that the statement made by
mulemwa can make him liable for defamation provided Sancha can prove that the
statement referred to him and failure to which he may not succeed. In the case Mwinga v.
Times newspapers (1988-1989), the article, which the trial judge found to be clearly
defamatory in their natural and ordinary meaning, imputed that the appellant was one of
those Zambians involved in smuggling drugs. Trial judge found that the appellant had
failed to prove that the articles referred to him.
c) The words or statement must be maliciously published.
In Hulton and co v. Jones (1910) A newspaper article described the immoral life of a fictious
church warden called Atemus, there exist a barrister by the name Atemus Jones the article that
people that new him brought that article to him, He was awarded damages. Publication is
communication to a third party about the plaintiff by the actor and the third party must be in a
position to understand the defamatory nature of the communication. Defamation is an injury to
one’s reputation, reputation is an important aspect of a person and its what people think of a
person and not what they think about themselves. Mulemwa published a defamatory statement in
2
Joseph Chirwa, Chirwa on tort, 1st Edition
3
IBID
one of the newspapers. In criminal libel the offence is in a breach of peace and not necessarily of
reputation therefore publication in criminal libel to the person defamed will suffice.
If a group of people has been defamed an action can only be available if each individual can be
identified and they are personally affected. Group defamation laws are defined to include
defamatory utterances against groups based on religion, race, sex but the recent development the
law looks at a lot of aspects. Sancha strongly feels this is disparaging to him because he has
connected it to what happened between his company and mulemwa, despite the defamatory
statement made by mulemwa this does not make him liable to the action by sancha unless it
breaches the peace and sancha has to prove that the defamatory statement referred to Sancha.
Even though the words might be defamatory in its natural and ordinary meaning.
Husband and Wife situations:
Communication of defamatory material by a husband to his wife of vise versa, is not a
publication for the purpose of defamation. However, if someone wrote to the husband about the
wife or vise versa, that would be defamation.4

Conclusion
Sancha can bring a case of defamation and I feel the court may find mulemwa liable for
defamation, to be specific he may be liable for libel which is both a civil wrong and a criminal
offence in that it breaches his peace. Clearly Sancha is afraid of the publication given that he can
prove that the words or statement was defamatory, the defamatory statement was referred to him
and the statement was maliciously published failure to which the action may not succeed.

4
Richard Owen, Essential Tort Law, (Third Edition, Cavendish publishing Ltd. Year 2000).
Introduction:
Torts being civil wrongs that a person suffers as a result of one’s negligence, a party to this type
of civil wrong is left to wonder whether there is a remedy or some form of relief for the injury
suffered considering the fact that there is no contract between the two parties. Up until 1932,
there were a number of incidents of liability for negligence which lacked a connecting principle
formulated which could be regarded as the basis for all of them and they were called “duty
situation”5. In the case of Donoghue v Stevenson, the house of lords decided that a person should
be able to sue another for causing them a loss or damage even if there is no contractual
relationship. On the other hand, an injury caused as a result of an accident for example a person
riding a motor bike accidentally bumps into a person riding a bicycle and the one on the bicycle
breaks his leg, will it be necessary for the injured party to sue otherwise the courts will be
overwhelmed with cases provided it was so.
Legal issue:
The issue is whether the manufacture (bed city) owed a duty of care to Hakabundi, more so, in
the presence of a contractual relation even if it is not necessary in establishing a duty of care and
if Hakabundi had a cause of action against bed city.
Negligence is the omission to do something which a reasonable man guided upon those
consideration which ordinarily regulate the conduct of human affairs would or doing something
which a prudent and reasonable person could not do or doing something which a reasonable
person could not have done or failing to do something which a reasonable person would not have
done. This definition is according to Baron Anderson in the case blyth v Birmingham water
works Co (1856)6. Negligence is carelessness for which liability will arise.
The rule that you are to love your neighbour becomes in law. In the case donoghue v Stevenson,
Lord Atkin formulated a principle called “neighbor principle”. A reasonable care must be taken
in order to avoid acts or omissions that you can reasonably foresee are likely to cause harm to
your neighbor. Proximity means there must be a legal relationship between the two parties from
which the law will attribute a duty of care.
A neighbor is a person who is so closely and directly affected by my acts that I ought reasonably
to have them in contemplation as being affected when I am directing my mind to the acts or
omissions which are called into question7. Therefore bed city has a duty of care towards
Hakabundi and an action against bed city for breach of a warrant can succeed.

5
IBID
6
Daka Francis William, Law of Tort, (1st Edition, NIPA, 2015).
7
Owen Richard, Essentials of Tort law, ( 3rd Edition, Cavendish Publishing Ltd, Year 2000)
The three elements to prove negligence.
a.) There must be a duty of care. In the case Caparo industry plc v Dickman (1990) A
neighbor principle came into existence, The brief case stated that; The shareholders of the
company purchased the shares after auditors had given a report purporting that the
company was making a surplus, basing their decision on the report, they purchased the
shares and took over the company. They later discovered that the information was a
misrepresentation the company actually made losses.
The house of lords held that no duty of care had arisen in relation to existing or
potential shareholders. It was found that three factors has to exist for the to be a duty of
care which where proximity, knowledge of to whom the report would have
communicated and the purpose of its use.
A three way test was used to determine if a duty of care existed8.
The test required that:
i.) Harm must be a reasonably foreseeable result of the defendant’s conduct. Bourhill v
young in this case the the plaintiff did not recover as she was not regarded as being
reasonably fosseable.
ii.) A relationship of proximity must exist.
iii.) It must be fair, just, and reasonable to impose liability. Smith v Eric S Bush this case
holds that it is reasonable to impose a duty of care for valuers

b.) There has actually been a breach of duty of care.

In case the of Hakabundi the courts will consider the standard of care that a bed city had
taken.
c.) The plaintiff has suffered a loss as a direct consequence of the defendant’s breach of his
duty of care. In many cases it will be found that more than one cause is involved in the
events leading up to an injury.

Hakabundi had a cause of action against bed city even in the absence of a contractual
relationship provided bed city was aware that the product was dangerous knowing the type of
material used in making the bed or it had a defect that was concealed to the consumer which
might appear fraudulent.
The other possibility was that bed city knew the bed was a danger per se and failed to warn the
consumer or end user of this.
Conclusion.
Negligence is not actionable per se, therefore Hakabundi has to show that he has suffered a loss
in order for his claim to succeed. I feel the court would rule in Hakabundi’s favor owing to the
fact that bed city owed him a duty of care and that duty of care was breached by offering him a
8
https://www.lawstudent.net/free-law-essays
product that couldn’t last longer than two weeks without disclosing the defects to Hakabundi,
unless Hakabundi was shown to have been aware of the risk but declined to take appropriate
precautions, then any ward may be reduced. Arguably to some extent and with prove that the
claimant who is Hakabundi failed to take reasonable care and as a consequence the damage
happen. In what is called a Contributory negligence this claim would still fail looking the time
frame between the time he bought the bed and when it actually broke shows how week and of a
sub standard the material they used to manufacture it.
The breach caused the harm because it was the manufacture (bed city)’s responsibility to ensure
that the products meet the standard required and management should be up to speed to ensure all
possible precautions are taken to avoid negligence claims.
BIBLIOGRAPHY:
Cases
Blyth v Birmingham waterworks Co (1856) 11 Ex Ch 781
Cassidy v Daily Mirror Newspaper Ltd (1925) 2 KB 331
Caparo industry plc v Dickman (1990) UKHL 2
Donoghue v Stevenson (1932) A.C.562
Mwinga v Times Newspaper (1989)

Websites
>https://www.lawstuent.net/free-law-essays

Books
Chirwa. J, Chirwa on Torts, (1st Edition)
Daka. F.N, Law of Tort, (1st Edition, 2015)
Edwards. J.K, Torts, (5th Edition, West academy publishing, 2013)
Richards. O, Essentials Tort Law, (3rd Edition, Cavendish Publishing Ltd, 2000)