Dlamini v African Echo (Pty) Ltd and Others ((2020/09)) [2010] SZHC 77 (07 May 2010);

IN THE HIGH COURT OF SWAZILAND

HELD AT MBABANE                        CIV. TRIAL NO.2020/09

 

In the matter between:

SIBONISO CLEMENT DLAMINI                             Plaintiff

And

AFRICAN ECHO (PTY) LTD                                    1^st Defendant

THE TIMES OF SWAZILAND                                  2^nd Defendant

MASUKU J.

 

[1]    This matter came before me during motion Court. The plaintiff, an attorney of this Court, sued out a summons against the above-named defendants, claiming payment of the staggering sum of E10,000,000.00; interest thereon at the rate of 9% and costs of suit.

 

[2]    The claim arises out of the publication of an article by the defendants in the issue of the 2^nd Defendant, dated 22 May, 2009, entitled, “Court reports lawyer Siboniso Clement Dlamini to Law Society”. The plaintiff avers that the said article alleged that he was reported to the Law Society of Swaziland by the Supreme Court for unprofessional conduct in the handling of his client’s trust account. He avers further that the said words were, in the context, wrongful and defamatory of him and were understood by the readers of the said newspaper to mean that he is dishonest and had misappropriated client funds.

 

[3]    When the matter appeared before me, it was as a result of an application moved by the plaintiff for judgment by default as it appears that the defendants were served with the summons but they did not file any notice to defend the suit. That notwithstanding, the Court, mero motu raised the issue whether the claim in question was in respect of words that were alleged to be defamatory per se or which amounted to an innuendo. In this regard, Mr. Dlamini was ordered by the Court to file heads of argument on this issue. He did so, claiming that he has made all the necessary averrals in his particulars of claim.

 

[4]    Before I can deal with the legal issues that arise, I feel in duty bound to state that whereas a person is allowed to appear in person in Court, it is inadvisable to do so in certain circumstances, even if he be a lawyer. In dealing with personal matters personally, particularly in cases of defamation where one is the subject of action or comments that he or she perceives to be injurious, one tends to feel personally affronted and aggrieved, it becomes a risky affair.  Human nature, being what it is, may result in an emotional cloud engulfing one as a result of the attachment to the facts giving rise to the claim. This would inevitably hold sway over proper and legal judgment and thereby negatively affecting the necessary detachedness and independence in dealing with matters of this nature.

 

[5]    As a result, the attorney acting in person may fail to properly administer and in due proportion the very medicine he or she prescribes to his or her “patients” on a daily basis and obviously to his or her detriment. This practice needs to be discouraged in such cases. There is no harm in giving instructions to a fellow lawyer, who would be expected to bring his or her legal and professional competence and sagacity to bear on the matter, eschewing the unwanted excesses and pollutants that personal attachment to the matter may bring.

 

[6]    I presently return to the case at hand. It is necessary to quote from the particulars of claim what exactly the plaintiff’s complaint is. This is to be found at paragraphs 4 to 7 of the particulars of claim and which read as follows:

 

“4.    On the 22^nd May, 2009 at Mbabane an article was published in the said newspaper entitled ‘Court reports Siboniso Clement Dlamini to Law Society’.

5.     The said newspaper is a paper widely distributed in Swaziland and widely read by the general public.

6.     The said article stated of the plaintiff that he had been reported to the Law Society by the Supreme Court for unprofessional conduct in the handling of his clients’ trust accounts.

7.     The said words 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 dishonest and had misappropriated and or stolen his client’s funds.”

 

[7]    It is necessary that I pertinently observe that a copy of the newspaper article was not attached to the combined summons nor have the exact words been quoted. For that reason, it becomes difficult for a Judge sitting in my position, especially where there is no evidence led in proof of liability because the defendants have not defended the matter, to properly determine whether the words complained of are in the nature attributed to them by the plaintiff in his particulars of claim and in particular, that they are defamatory of him.

 

[8]    The Learned author L.T.C. Harms, Amler’s Precedents of Pleadings, states at p107 that the plaintiff must set out the words alleged to have been used by the defendant and may not content himself with giving their effect and meaning. The plaintiff, continues the learned author, in that regard, need not plead the actual words used but may set out ‘or more or less words to that effect’. The author continues to say that the whole document containing the alleged defamatory material may be included in or annexed to the claim without a specification of the defamatory passages.

 

[9]    I dare say that in this matter, there is no reason for the plaintiff not to have annexed a copy of the article. Furthermore, he did not set out the exact words used which allegedly defamed him. All he did was to paraphrase what the defendants said in the article and which appears from the plaintiff’s own pleadings may (and this is unnecessary surmise), be a factual report of what happened in Court, namely that the Court referred him to the Law Society for misconduct relating to trust funds.

 

[10]  This places the Court in a rather invidious position. I say so because as earlier indicated, the article is not annexed nor have the particular words allegedly published been quoted in the article or recorded as being words to that effect. In the context of this case, where the defendants have not defended the matter and neither the article in question nor the words allegedly stated appear, how will the Court, as a matter of law, conclude that the words are indeed defamatory of the plaintiff?

 

[11]  Whatever the case may be in other instances, there was a need to annex a copy of the article in this particular case as there is allegedly one. At the least, the actual allegedly offensive words from the article should have been quoted in the pleadings. Failure to do so has left the Court in the dark regarding what the words were exactly and consequently, whether they were defamatory of the plaintiff, particularly considering that the matter is undefended and there may be no opportunity for the plaintiff to produce the article as would have been the case if the matter was defended. Failure to annex the article or to quote from it has a telling effect in this particular matter as it denies the Court the wherewithal with which to decide whether the words used are, as alleged, defamatory of the plaintiff.

 

[12]  During the hearing of the matter on motion, I specifically referred Mr. Dlamini, the plaintiff, to the case of Editor, The Times of Swaziland And Another v Albert Shabangu Civ. App. No. 30/2006, where the respondent, who was the country’s Deputy Prime Minister, complained, as has the plaintiff herein, that a certain article published by the same defendant herein was defamatory of him. He was successful in this Court and was granted damages in the amount of E750,000.00.

 

[13]  After quoting the relevant portions of the pleadings and analyzing the same, Magid A.J.A, who wrote the judgment on behalf of the majority, had this to say at page 7 [para 7] – [8] of the cyclostyled judgment:

 

“7. In a defamation action, the language complained of may be defamatory per se (‘X is a rapist’ or “X being an attorney, has stolen money from his trust account”), or may by implication, contain a defamatory ‘sting’, or, as it is sometimes called, a quasi-innuendo, or may, by reason of extraneous facts which may not be known to the ordinary reader, contain a defamatory innuendo.

 

8. It is not alleged in the Particulars of Claim that the words complained of were defamatory per se, nor did the pleader allege an innuendo properly so-called. What has been alleged is that the words complained of (a relatively short extract from a long article”) ‘were intended and were understood by the readers of the newspaper to mean. . .”

 

[14]  It is clear from relevant excerpts from the pleadings and which I have quoted above that the plaintiff herein followed exactly what the pleader did in the Shabangu case (op cit). It is not being specifically alleged that the words complained of are defamatory per se. All that is alleged is that the words are defamatory without saying whether in the primary or the secondary sense.

 

[15]  At the end of the day, it is unclear to the Court whether the plaintiff alleges that the words complained of are defamatory per se or are, on the other hand, innocent words on the face of it but he then alleges a latent defamatory meaning to them and which the readers would have understood them to mean. If indeed the article had been attached, the Court may have been able to read the article and rule out the possibility that the defendants made a factual report of what the Supreme Court did or said i.e. refer the plaintiff to the Law Society Tribunal.

 

[16]  There is yet another issue. In the case of National Media Limited and Three Others v Bogoshi Case No. 579/1996 (1998 (4) S.A. 1196, the South African Supreme Court of Appeal moved away from the doctrine of strict liability in respect of allegedly defamatory articles published by newspapers and for good reason, I my add. The Court, in that judgment, per Hefer J.A. did a thorough analysis of the concept of strict liability and drew parallels from other jurisdictions regarding jettisoning of the said concept and preferring instead, to use the standard of negligence. This, it appears to me, is a good reason which is sound in law and principle and which should be followed in this Kingdom as well if the Courts are to evenly balance the rival rights to personality, on the one hand and press freedom, on the other.

 

[17]  I am well aware that in the Shabangu case, the Court of Appeal did not find it necessary to deal with the question raised before it viz whether Courts in this country were not bound by the Bogoshi judgment but by the overruled judgment in Parkendorf v de Flamingh 1982 (3) S.A. 146 (A), where that Court applied the concept of strict liability in matters of defamation involving the press. The Parkendorf judgment, it needs be said, was found in Bogoshi, to have been wrongly decided. I can find no reason in law or logic why we should stick to the past which has been departed from, not only in the Republic of South Africa but in the United Kingdom and many other respected jurisdictions of the world as discussed in Bogoshi.

 

[18]  For that reason, since Bogoshi, the claim for defamation has taken a different tone altogether in cases where it involves the press, including the elements thereof. For instance, the learned author Jonathan Burchell, Personality Rights and Freedom of Expression, The Modern Actio Injuriarum , Juta & Co, 1998, defines defamation in so far as it involves the press in the following terms at page 142:-

 

“Defamation perpetrated by the media or a distributor of published material can be defined as: the unlawful (unreasonable), negligent publication of defamatory matter referring to the plaintiff which causes his or her reputation to be impaired.” (Emphasis added).

 

[19]  It then becomes clear that the plaintiff’s particulars of claim do not, as they should, allege negligence, considering as we must, that this is a case which involves alleged defamatory matter published by the press. On that basis also, it would appear to me that the particulars of claim are bad in law and it would be improper to grant the judgment by default.

 

[20]  There is yet one other matter I must comment upon. This relates to the quantum of damages. In the Shabangu case, the Court of Appeal complained about the quantum of damages awarded by this Court to the plaintiff before it. He was awarded E750,000.00. In dealing with the quantum, Magid A.J.A. had this to say at page 20 [para 24]:

 

“It must be borne in mind that an award of damages in a defamation case is to afford some solatium for the injuria done to the plaintiff. And no doubt, having regard to the social and political status of the respondent, a court would be inclined perhaps to err on the high side in awarding him damages for defamation. But we feel it necessary, as a guide to other courts which may be seized of claims for defamation, to say unequivocally that the award in this case [E750,000-00] was grossly excessive. Had we had occasion to consider an appropriate award in this case (i.e. had we thought that the article was indeed defamatory) we should not have been inclined to award even as much as E50,000-00.”

 

[21]  I am well aware that no award has been made in this case by this Court. I however, cite the above judgment to show that lawyers who sue for damages on their own behalf or on behalf of their clients, must be realistic in the figures they claim as solatium. The figure stipulated in the Shabangu case should offer a useful guide and may, depending on the peculiar facts be adjusted upwards or downwards, considering also the fluctuating value of money. The amount claimed in this case is, notwithstanding that the plaintiff is a lawyer, way above what can be properly awarded in matters of this nature. It may well be that the influence of the extent of the injury felt by the plaintiff interfered with what a reasonable claim in such a case may have been, an issue I have commented about earlier in the judgment.

 

[22]  It would appear to me therefor that the plaintiff has, on the papers, failed to make out a case for the relief he seeks. The particulars of claim would be clearly excepiable and do not found a cause of action. For that reason, the application for judgment by default is hereby refused.

 

[23]  I must stress that the mere fact that a matter is undefended does not mean that the Court must perforce grant judgment as prayed for. The Court’s duty, even in the face of an undefended matter notwithstanding service on the other party, goes far beyond that. The Court has to ensure before judgment is granted as prayed that the pleadings are legally correct, in the sense that a case for relief with all necessary averments has been made out in law and that all technical and procedural requirements have at the least, been substantially complied with. Where that is not the case, the Court will be well within its powers to refuse to grant judgment by default notwithstanding there being no opposition from the defendant.

 

DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 7^TH DAY OF MAY, 2010.

 

-------------------------------------

T. S. MASUKU

JUSTICE OF THE HIGH COURT

 

 

Messrs. S.C. Dlamini And Company for the Plaintiff

No appearance for the Defendants