HIGH COURT OF SWAZILAND
CASE NO. 2681/00
the matter between
HERMON SAMBO GULE DEFENDANT
MAPHALALA - J
Plaintiff MR. R. DHLADHLA
Defendant MR. B. SIGWANE
plaintiff has filed a special plea to the defendant's counter-claim
following an action brought by the plaintiff against the defendant
for damages amounting to E450-000-00 where it is alleged that the
defendant had on various occasions committed acts of adultery with
the plaintiff's wife.
filed a plea together with a counter-claim alleging that on or about
the 23rd May 2000, at or near Piggs Peak and Nhlangano, plaintiff
stated to one Eldah Gule
the defendant is an adulterer who slept with his wife Thulisile on
diverse occasions in Swaziland and South Africa and that the
defendant was using money to corrupt or entice his said wife into
sleeping with him. The statement by the plaintiff is wrongful and
defamatory of the defendant. The statement was made with the
intention to defame plaintiff and to injure his reputation.
Consequently, defendant has suffered damages in the sum of E750,
special plea advanced by the plaintiff to the defendant's
counter-claim is that the defendant's cause of action is based upon a
statement allegedly published to the defendant's wife Eldah Gule. The
plaintiff contends that it is a principle of our law that where
plaintiff seeks to recover damages as a result of publication by
another person (s) of a defamatory statement of and concerning him
(plaintiff), the publication must have been made to a person other
than the plaintiff or his spouse.
the premise, since the alleged defamatory statement was made to
defendant's wife, same cannot found a cause of action for defamation.
for both parties filed Heads of Arguments and invited the court to
decide this crisp point.
Dhladhla for the plaintiff contended that a statement made to a
person's spouse does not found a cause of action for defamation in
our law. The statement must have been made to a person other than
Plaintiff's spouse. To support this proposition he referred the court
to the cases of International Tobacco Co. (S.A.) Ltd vs United
Tobacco Co. (S.A.) Ltd (4) 1955 (2) S.A. 40w and that of Mograbi vs
Miller 1956 (4) S.A. 239 (T).
Sigwane on the other hand argues that although a communication of
matter, which is defamatory of a third party between spouses is not
publication thereof (see Whittington vs Bowles 1934 E.D.L. 142 at
145) any communication of defamatory statement by a third party about
one spouse to the other constitutes publication. To buttress this
view he cited the following authorities: Kuzzulo vs Kuzzulo 1908 T.S.
1030; Grindlays Bank Ltd vs Louw 1979 (2) PHJ 33 (R) and Burchell,
The Law of Defamation in South Africa, (1985 Edition) at page 74. He
argued further that
of a defamatory statement takes place when the statement is made
known to some person other than the person defamed (see Lawsa, Vol. 7
(First re-issue), 1995 para, 254, p. 235 - 236).
would appear to me that Mr. Sigwane is correct that a communication
between spouses does not in law constitute publication. Thus, if a
husband communicates to his wife material, which is defamatory of a
third person, this does not constitute sufficient publication for the
purposes of the law of defamation (see Mckerrow, The Law of Delict
(7th ED) p. 183 and the case of Whittington vs Bowles 1934 E.D.L.
142). But, if a third person communicates material to one spouse that
is defamatory of the other, the element of publication would be
satisfied (see Wenman v Ash (1853) 13 C.B. 536; Jones vs Williams
(1885) 1 T.L.R. 572; Gatley on Libel and Slander (5th ED) at 99
paragraph 160 and J.M. Burchel (supra) at page 72 - 73).
casu this was a defamatory statement made to a wife of the plaintiff
about the plaintiff, and is sufficient publication following the
above-mentioned legal authorities.
the premise, the plaintiff special plea is dismissed. Costs to follow