Social media abusers must learn…
NATHAN GUMA
HIGH Court Justice Joseph Mafusire’s judgement in the defamation case between lawyers Petina Gappah and Fadzayi Mahere holds critical lessons for social media users and the broad digital community in Zimbabwe and elsewhere. In his judgement on 29 August, Mafusire said:
“On 11 October 2018 the plaintiff (Mahere) issued a summons for damages for defamation against the defendant (Gappah). Until the ‘last minute’ the defendant contested both liability and quantum quite vigorously. But in the end, she admitted liability. She published some retraction and an apology. The plaintiff did not accept them. So, the issues remaining for trial reduced to the weight to be given to the purported retraction and apology, the level of damages as may be due to the plaintiff, if any, and of course, the question of costs.
“The journey to the day of judgment has been long, arduous and acrimonious. The theatre of contest has been a ‘hard hat area’. At the various milestones the court has assumed the roles of conciliator, mediator, counsellor and judge over interlocutory disputes, spats, tiffs and rows being urged upon it with so much zest and passion. It has rather been distressing to be umpire over an internecine contest between arguably two brilliant legal minds…”
In his final disposition of the matter, Mafusire said,
“I determine that the plaintiff is entitled to her costs but not on the higher scale. My reason for this is that whilst the defamatory statements by the defendant were vile and persistent, the stiff award of damages above has been in recognition of that factor, among others. Furthermore, the defendant lost all the interlocutory applications with costs being awarded against her there and then. None were held over for determination later as is sometimes done.
“In the recusal application, the costs were awarded on the higher scale. There is no reason to mulct the defendant any further. “Lastly, the plaintiff’s summons was not issued in October 2020, but in October 2018 when the monetary regime in place was different from the one-to-one ratio referred to by her. So it cannot have been the reason for the initially inflated claim.
“However, whilst the plus petitio principle is relevant, it has had little sway in this matter because I have considered that there are really no special circumstance to warrant a departure from the general rule about costs.”
In the result, the following order is hereby made:
i/ The defendant shall pay the plaintiff the sum of US$18 000 [eighteen thousand United States dollars], or the equivalent thereof in local currency at the rate of exchange prevailing at the time of payment.
ii/ The defendant shall pay interest on the above amount at the prescribed rate, namely 5% per annum from the date of judgment to the date of payment.
iii/ The defendant shall pay the plaintiff’s costs of suit.” T he judgement has shown the digital community that they must be aware that their online activities, including commenting, sharing, liking, and tagging, can have legal consequences.
Mafusire noted Gappah’s reckless defamatory comments were “malicious and sustained,” warranting the substantial damages awarded to Mahere.
This has sent a clear message that people cannot hide behind social media to defame others and get away with it.
Prior to the judgement, the judge had said Gappah needed “psychological intervention” — mental assistance – amid her unrestrained attacks on the judge and the judiciary after losing interlocutory battles on the US$1 million defamation suit filed against her by Mahere.
Mahere dragged the ironically vocal and litigious Gappah, an international trade lawyer who describes herself as a “globalist” and “multilateralist”, to court on defamation charges in 2018. Mahere was demanding US$1 million in damages.
In a series of tweets posted on 29 September 2018, Gappah made a number of scurrilous accusations against Mahere.
Gappah, among other things, claimed Fadzayi Mahere ubiquitous platforms for sharing opinions, thoughts, and information.
Mahere did not qualify to study law at the University of Zimbabwe and was only admitted because of her father’s influence.
Her father, Stephen Mahere, once served as the permanent secretary in the Ministry of Education, Sport, Arts and Culture.
Gappah further claimed Mahere only got admitted to Cambridge University in the United Kingdom after she had edited and almost completely rewritten her application essay.
She also said her fellow “learned friend” doctored her curriculum vitae to embellish it, which is fraudulent.
In a further vituperative attack, Gappah said Mahere had attempted to sleep with her partner, which seemed to be the source of her uncontrollable rage.
Later during proceedings, Gappah accused Mahere of sleeping with people’s husbands, saying “my witnesses will testify that if anyone is to blame for her reputation as a ‘woman of low morals’, it is the plaintiff (Mahere) herself who has earned that reputation for herself, separately from anything I have said.”
She added: “I will show that her reputation is in fact that of a serial mistress renowned for her affairs with married (men).”
However, Mafusire said Gappah’s “torrent of abuse decluttered, the following allegations or insinuations must rank as the nadir of dishonour”.
This led to his unprecedented defamation judgement in Zimbabwe in social media context and era.
Many social media users operate under the false assumption they can express their opinions without facing any consequences.
It is essential to understand that the law of defamation applies equally to speech on social media as it does to conventional forms of communication.
Courts are adapting to the challenges posed by new technologies and extending traditional legal principles to address these issues.
In an article, titled From Posts to Courtrooms: Defamation on Social Media, South Africa’s CK Attorneys Inc says: “In today’s digital age, social networking sites like Facebook, Instagram, and Twitter have become
“However, many users operate under the false assumption that they can voice their opinions without facing any consequences. It is essential to understand that the law of defamation applies equally to speech on social media as it does to traditional forms of communication. Courts are adapting to the challenges posed by new technologies and extending traditional legal principles to address these issues.”
According to DP van der Merwe in Information and Communications Technology Law (2021), when evaluating issues related to freedom of speech on social media, courts have acknowledged the complex nature of online expression.
“The South Gauteng High Court has noted that ‘expression may often be robust, angry, vitriolic, and even abusive’.
Each case must be examined in its context, considering the nature of the debate, the individuals involved, the language used, and the content published.
The requirements for a temporary interdict include a prima facie right, a well-grounded apprehension of irreparable harm, a balance of convenience, and the absence of other satisfactory remedies.
A final interdict requires a clear right, actual or threatened infringement, and no suitable alternative remedy.
Courts are cautious about granting interdicts that might infringe on free speech, favouring actions for damages instead.
Prior restraint on free speech is generally not preferred, except in exceptional circumstances.
The principles of defamation law are fully applicable to social networking sites. Users must be aware that their online activities, including sharing, liking, and tagging, can have legal consequences.”
This led to Mafusire’s unprecedented defamation judgement in Zimbabwe in the social media context.
Many social media users operate under the false assumption that they can express their opinions without facing any consequences.
It is essential to understand that the law of defamation applies equally to speech on social media as it does to conventional forms of communication.
Courts are adapting to the challenges posed by new technologies and extending traditional legal principles to address these issues.
In an article, titled From Posts to Courtrooms: Defamation on Social Media, South Africa’s CK Attorneys Inc says: “In today’s digital age, social networking sites like Facebook, Instagram, and Twitter have become ubiquitous platforms for sharing opinions, thoughts, and information.
“However, many users operate under the false assumption that they can voice their opinions without facing any consequences. It is essential to understand that the law of defamation applies equally to speech on social media as it does to traditional forms of communication.
Courts are adapting to the challenges posed by new technologies and extending traditional legal principles to address these issues. As per DP van der Merwe in Information and Communications Technology Law (2021), when evaluating issues related to freedom of speech on social media, courts have acknowledged the complex nature of online expression.
“The South Gauteng High Court has noted that ‘expression may often be robust, angry, vitriolic, and even abusive’. Each case must be examined in its context, considering the nature of the debate, the individuals involved, the language used, and the content published.
The requirements for a temporary interdict include a prima facie right, a well-grounded apprehension of irreparable harm, a balance of convenience, and the absence of other satisfactory remedies.
A final interdict requires a clear right, actual or threatened infringement, and no suitable alternative remedy.
Courts are cautious about granting interdicts that might infringe on free speech, favouring actions for damages instead.
Prior restraint on free speech is generally not preferred, except in exceptional circumstances.
The principles of defamation law are fully applicable to social networking sites
