The remedy of Injunction in civil defamation-The Zambian Perspective

The remedy of Injunction in civil defamation-The Zambian Perspective

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Date

2013-04-15

Abstract

This dissertation considered the remedy of injunction in civil defamation from the Zambian perspective. With this end in mind, the research begins by looking at the legal regime governing the tort of defamation in general. The dissertation thereafter traces the origin of injunctive relief The research also examined the unique position of the injunctive relief in defamation cases before doing a comparative analysis between Zambia and two common law jurisdictions namely; Canada and United States of America. The dissertation, through research primarily comprising secondary data especially case law, statute analysis and books, found that the Defamation Act, Chapter 68, of the Laws of Zambia, the principal Act governing civil defamation is silent on the definition of defamation and does not provide guidelines on the granting of injunctions in defamation cases. The other finding was that the courts rely on common law guidelines on the grant of injunctions under which the remedy is discretionary. This has led to uncertainty in the law as common law is not fixed. Further, the availability of the remedy on discretionary terms makes it susceptible to abuse by the judges. Furthermore, an analysis of Zambian case law on defamation showed that injunctions are granted on a narrow basis as opposed to a broad basis. This disadvantages the majority poor as defamation litigation is convulsed and expensive. The inability of Legal Aid Board to give Legal Aid in civil defamation has augmented this problem. Unless these problems are ironed out or remedied there is no hope of injunctive relief in civil relief in civil defamation to be responsive to the needs of the Zambian society. Some of the important recommendations to improve the legal regime governing the grant of injunctions in defamation causes as drawn from the American, Canadian and indeed the Zambian experience include; the need to reform the Defamation Act so that it can expressly provide for the remedy of injunction and provide guidelines on how this remedy is to be granted. This will make the remedy statutory thereby remove the discretion vested in judges on its grant and turn the remedy to be a right and not a privilege; the remedy of injunction should be granted on a broad basis in light of the realities in Zambia. Further, the Legal Aid board should provide legal services for civil defamation causes. In essence, the Zambian system should adopt the Canadian and American approach in the grant of injunctions.