THE
HIGH COURT OF SWAZILAND WALTER BENNETT
Applicant
And
MASHUMI THWALA
1st
Defendant
AFRICA
ECHO (PTY) LTD
2nd
Defendant
ARNOT
PUBLISHING COMPANY (PTY) LTD
3rd
Defendant
Civil
Case No. 1787/2001
Coram S.B.
MAPHALALA - J
For
the Plaintiff IN ABSENTIA
For
the Defendants Advocate P. FLYNN
(Instructed
by R.
J.
S.
Perry)
JUDGEMENT
(23/04/2003)
The
matter was set-down for trial for the 26th to 27th March 2003, at
9.30am. When the matter was called at 9.30am there was no appearance
for the Plaintiff and the court adjourned for the Clerk to establish
the whereabouts of Plaintiff s counsel. The court reconvened at
around 10.00am and still there was no appearance for the Plaintiff.
Mr.
Flynn then sought to proceed in terms of Rule 39 (3) of the High
Court Rules. The rule reads as follows:
2
"39
(3) if, when a trial is called, the Defendant appears and the
Plaintiff does not appear, the Defendant shall be entitled to an
order granting absolution from the instance with costs, but may lead
evidence with a view to satisfying the court that final judgment
should be granted in his favour and the court, if so satisfied may
grant such judgment".
In
the circumstances I have described above I then allowed Mr. Flynn to
proceed in terms of the rule (see also Herbstein et al The Civil
Practice of the Supreme Court of South Africa at page 661 and the
cases cited thereat). Mr. Flynn then lead the evidence of one Nimrod
Mabuza who is one of the Editors of the 2nd and 3rd Defendant who was
also the author of the articles which are alleged to be defamatory by
the Plaintiff. He gave evidence at length submitting a number of
annexures pertinent to the Defendants' case. These were labelled from
exhibit "A" to "F", for ease of reference.
The
substantial facts of this matter are as follows: The Plaintiff is
Walter Bennett, a Swazi male adult businessman of Mbabane.
The
first defendant is Mashumi Thwala, a Swazi male adult with full legal
capacity and Editor of The Times of Swaziland, newspaper situated at
Stand No. 44, Sheffield Road, Industrial Sites, Mbabane, Hhohho
district, Kingdom of Swaziland (referred hereinafter as the Editor).
The
second Defendant is Africa Echo (Pty) Limited, a company duly
incorporated and registered with limited liability according to the
company laws of the Kingdom of Swaziland, with its principal place of
business as the same premises as the first Defendant.
The
third Defendant is Arnot Publishing Company (Pty) Ltd, also a company
duly incorporated with limited liability according to the company
laws of the Kingdom of Swaziland.
3
The
Plaintiff alleges that on the 13th September 1999, an article was
published in The Times of Swaziland as follows:
"7.1. "Another
scandal by Carmichael revealed".
7.2. "Commercial
property in the capital city allocated to relatives"
According
to the Plaintiff the said article stated the Plaintiff inter alia
that;
"8.1. "That
a company belonging to him had been improperly allocated Plot
937.
8.2. That
the commercial pieces of and had been awarded under questionable
circumstances".
The
said words contends the Plaintiff, in the context of the article, are
wrongful and defamatory of the Plaintiff in that they were intended
and were understood by readers of the newspaper that Plaintiff is:
9.1. unethical.
9.2. Unprofessional.
9.3. Dishonest
in that he had conspired with the then Minister Carmichael to acquire
land illegally.
The
said newspaper is widely distributed and widely read by the general
public. The said articles were published with the intention to defame
the Plaintiff and injure his reputation. The Plaintiff wherefore
claim against Defendants, jointly and severally payment of the sum of
E500, 000-00 (five hundred thousand emalangeni) in respect of
damages. Interest thereon at the rate of 9% per annum, calculated
from the date of demand to the date of payment and costs of suit.
The
defence advanced by the Defendants is essentially that the article
was published without malice and without any intention to injure the
Plaintiff and in the bona
fide
and reasonable belief after fully investigating the facts and taking
all reasonable steps to
4
investigate
the accuracy thereof that the contents were true and correct. I must
say that the evidence of Nimrod Mabuza who gave viva voce evidence on
behalf of the Defendant satisfied me that the contents of the
articles were based on the truth and I could not detect any malice on
the part of the defendant. Mr. Mabuza took the court through the
various annexures "A" to "F" to buttress the
Defendants' case.
He
testified that the disposal process/sale of land in the Ministry of
Housing and Urban Development is distributed in accordance with the
procedure which is outlined in annexure "A" viz, the
disposal process/sale of land. This process is as follows:
"1. General
plan prepared by survey department.
2. The
piece of land be declared as a township - (certificate of registered
title prepared by Attorney Genera's office on our instruction).
3. The
piece of land or township is gazetted.
4. Allocation
committee allocates.
5. Letter
of offer sent by local authority to prospective purchaser (valid for
3 months).
6. Purchaser
pays deposit at local authority.
7. Deed
of sale prepared by local authority [3 copies].
8. D/S
forwarded to the Ministry for Minister's signature together with
receipts of deposit payments.
9. When
received D/S is recorded in register.
10. Minister
signs deed of sale.
11. Two
[2] copies of D/S returned to local authority [1] one copy remains
with processing file.
12. If
purchaser paid in full;
a) Prepare
crown grant for Minister's signature (2) copies.
b) In
the meantime, local authority should send the following documents; i)
Rates clearance certificate
ii) Dues
paid certificate
iii) Survey
fee paid certificate
iv) Graded
tax number
v) Transfer
duty certificate
vi) Birth
certificate
5
13. When
the Minister has signed the crown grant all the stated documents in
12 (b) should be attached to the crown grant together with the
receipts of payment of lot and forwarded to the Deeds Registry.
14. When
the Deeds Registry is through with its registration process, the
registered crown grant is collected by the land processing officer
(only 1 copy is collected and the other remains with the Deeds
Registry).
15. The
LPO records the registered crown grant in the register, seals it and
then forwards it to the Local authority where it originate
16. Local
authority records it and forwards it to the owner (i.e, the
purchaser).
i) If
the purchaser is a female, and married in community of property the
property
should
be registered under the husband's name.
ii) If
she is married by Swazi Law and Custom, the property is registered
under her
name,
and should be stated to whom she is married.
iii) If
she is a widow, the property is registered under her name, in
addition to those
in
12 (b) (excluding sub-item iv and vi).
17. For
companies, the following documents should be produced, in addition to
those in terms 12 (b) (excluding sub-item iv and vi).
a) Board
resolution
b) Certificate
of incorporation
c) Articles
and memorandum of association
18. For
churches, the following documents should be produced, in addition to
those in 12 (b) (excluding sub-items iv and vi).
a) Church
resolution
b) Church
constitution". (my emphasis).
The
above mentioned allocation system was launched in a public notice
captioned "Sale of Crown Land (Urban Areas)", the said
documents entered as exhibit "B".
The
properties which are the subject-matter of this litigation are found
in exhibit "C" and "D". The former is a map of
the area and the latter exhibit is a list of companies which were
allocated plots as follows:
6
|
Cust.
Plot#
|
Plot#
|
Organization
Name
|
Address
|
City
|
Phone
No.
|
Fax
No.
|
Plot
Price
|
|
1.930
|
7309
|
Lidolobha
Dev. Co. Ltd
|
Box
2184
|
Manzini
|
|
|
E219
270-00
|
|
2.931
|
3118
|
Swd
Public S. Terminal
|
Min
of Works
|
|
|
|
|
|
3.932
|
2396
|
Swd
Public S. Terminal
|
Min
of Works
|
|
|
|
|
|
4.933
|
2670
|
SNBC
|
Box
2748
|
Mbabane
|
40
49069
|
40
47482
|
E
93 450 - 00
|
|
5.934
|
3513
|
Takhiwo
Invest (Pty) Ltd
|
Box
2180
|
Mbabane
|
|
|
E105
390-00
|
|
6.935
|
3104
|
Temisentse
(Pty) Ltd
|
Box
A200
|
Swazi
Plaza
|
|
|
E
93 120-00
|
|
7.936
|
2368
|
S.S.
Eamshaw
|
Box
1134
|
Mbabane
|
40
46440
|
40
44841
|
E
71 040-00
|
|
8.937
|
2502
|
Umzilazembe
(Pty) Ltd
|
Box
2104
|
Mbabane
|
40
44690
|
4045999
|
E
75 060-00
|
The
witness testified that these allocations were not done through the
allocation committee as required by the disposal process/sale of land
spelt out in exhibit "A" more particularly item no. 4
therein. In his investigations he found that the companies Temisentse
(Pty) and Umzilazembe in exhibit "D" were traced to the
Plaintiff.
Exhibits
"E" and "F" were letters dated the 25th September
1998, to the two companies from the Minister of Housing and Urban
Development Mr. J.P. Carmichael allocating Plot No. Portion 935 of
Farm 2 to Temisentse (Pty) Ltd and Plot No. Portion 937 Farm No. 2 to
Umzilazembe (Pty) Ltd.
The
witness testified that the Minister in these allocations had flouted
the procedures laid down in annexure "A" and had by passed
the allocation committee stipulated therein. It would appear to me,
without evidence to gainsay this fact, that the Minister rode
roughshod the established allocation procedures and acted ultra
vires. I am satisfied after scrutinizing the evidence presented that
the Defendants are entitled to judgment in this matter.
7
Further,
the averments in the Particulars of Claim, more particularly
paragraph 8.1 and 8.2 the words which appears therein are cited as
direct speech yet when one looks at the articles themselves it is not
so. The Plaintiff has not presented facts to support the alleged
innuendo. Even on the Plaintiff's pleadings he would not have
succeeded.
Coming
to the issue of costs Mr. Flynn applied that the court award the
Defendants costs for the two days in which the matter was set down
for and that such cost to include costs of counsel to be exempt from
the rigours of Rule 68 of the High Court rules. I have considered the
matter very carefully. It is trite law that the award of costs is a
matter wholly within the discretion of the court (see Herbstein et al
(supra) at page 703 and the cases cited thereat). In casu, in view of
the circumstances of the case I have come to the considered
conclusion that Defendants would only be entitled to the wasted costs
of the 26th March 2003, in all fairness to the Plaintiff.
The
Court order.
The
following order is accordingly granted:
i) The
Plaintiff's claim is dismissed; and
ii) Defendants'
granted wasted costs of the 26th March 2003, to include costs of
counsel to be exempt from the rigours of Rule 68.
S.B.
MAPHALALA
JUDGE
