HIGH COURT OF SWAZILAND
TO ONE EMERGENCY SECURITY
EDITOR, SWAZI NEWS NEWSPAPER
ECHO (PTY) LTD
Case No. 3663/2004
MAPHALALA – J
the Plaintiff: MR. S. MAGONGO
the Defendant: IN ABSENTIA
 This is an
application for default judgment brought in terms of Rule 31 (3) (a)
of the High Court Rules arising from a defamatory claim by a company
duly registered in terms of the company laws of the Kingdom of
Swaziland. The Plaintiff being the said company seeks for damages in
the sum of El, 500, 000-00 and costs of suit.
 The 1st
Defendant is the Editor of the Swazi News Newspaper. The 2nd
is Sihle Mavuso in his capacity as the reporter of the story carrying
the alleged defamatory allegation about the Plaintiff and working for
Defendant. The 3rd
Defendants are Swazi News African Echo (Pty) Limited and Amot
Publishers Company in their capacity as printers and publishers,
respectively of the said newspaper, having its place of business at
Stand No. 407, Sheffield Road. Industrial Sites, iVIbabane in the
 On the 15th
May 2004, at Mbabane, the 2nd
Defendant during the course of his employment published in the Swazi
News an article entitled "Mzwakhe Myeni Security Company loses
contract". The said article reads ipsissima
security company owned by local gospel music icon, Mzwakhe Myeni has
been kicked out of CMC company premises where they were contracted to
after a mysterious disappearance of tools worth over E10 000-00.
Myeni is a Director of One two One Security Company, which is based
in Matsapha. According to information gathered by the Swazi News,
unknown people gained access into the company premises at Ezulwini
where it is constructing a sewage plant. The thugs never broke
anything, which raised a lot of eyebrows, and stole tools like pick
heads, shovels, drillers and a number of valuable items in the
storeroom and made it out and made it out of the company premises
without anyone noticing them even though the place was Hooded with
security officers of Myeni's company. The matter was reported to
Lobamba police who are now pursuing it. Myeni has also launched his
own private investigations.
to CMC Project Manager at Ezulwini, Barbara Luca they have replaced
Myeni's company with V.I.I'. Security Company.
are still in the dark about what really happened and we hope that the
police will come out with something from their investigation. We lost
a lot of valuable material here" she said. She mentioned that
there were no breakages on the fence or anywhere else that would
suggest that the thugs broke into the place, which makes if difficult
tor them to come out with the truth about what really happened.
••Myeni also told us that
he had launched his own investigations and we are still waiting for a
response from him," she said.
mentioned that prior to that incident they had a good working
relation with Myeni though there were some loopholes here and there.
"We had a kind of a working environment that was conducive for
both of use, though there were problems here and there but we would
leave with it. However, after what happened on the Easter weekend we
could not take it", he said. Myeni refused to get into details
of the matter, stating that the police are handling it.
 . The Plaintiff
alleges in his Particulars of Claim at paragraph 6 thereof that the
said article stated that Plaintiff has been kicked out of CMC company
premises following a mysterious disappearance of tools worth over
E10, 000-00. The said words, in the context of the article, were
wrongful and defamatory of Plaintiff in that they were intended and
were understood by the readers of the newspaper that Plaintiff is
dishonest in that:
The Plaintiffs employees were responsible for the mysterious
disappearance of tools;
8.-2 The-Plaintiff!-performed-its duties
unprofessionally.and.negligently, as required of
companies in that thugs did not break any thing during the mysterious
of tools; and 8.3 Plaintiff never at any stage render security
services at CMC Company as stated on
director, Emmanuel Myeni appeared before court on the 28th
April 2005, for leading of oral evidence and to prove the damages.
The witness led evidence on general damages, marketing strategies
hampered and loss of tender from Government. Plaintiffs director did
state on oath how they were hampered and estimated the loss to be E50
000-00 which is claimed for as loss of tender from Government.
Plaintiff also claimed for general damages amounting to E640 000-00.
The claims for good name tarnished, agreement for future services
cancelled and client's refusal to increase payment were abandoned.
 The Plaintiffs
affidavit m proof of damages in the items which are reflected in
paragraph 4.1 to 4.4 were abandoned and only items 4.5, 4.6 and 4.7
remained. These being marketing strategies for the company hampered
for E40, 000-00, loss of tender for E50, 000-00 from Government and
general damages for E640, 000-00.
 When the matter
came for arguments Mr.
very comprehensive Heads of arguments with authorities in proof of
damages, for which I am grateful to Counsel for his industry.
 The Defendants
have not filed any opposition in this matter. Therefore it is not
disputed that Plaintiff is entitled to judgment. The only question
for determination is the proof of damages to be awarded.
 The law grants a
right of action to both a trading and non-trading corporation for a
defamatory statement that is calculated either to reflect upon the
business status and reputation of the corporation, or to cause it
financial prejudice, (see the cases of Dhlomo
NO. vs Natal Newspaper (Pty) Limited 1989 (1) S.A. 945 (A) and that
of Universiteit Van Pretoria vs Tommie Meyer Films (EDMS) BPK 1977
(4) S.A. 376 (T) and
fl) S.A. 441 (A).
 In the case of
vs S.A. Associated Newspaper Ltd 1972 (2) S.A. at
assessing the amount of damages to be awarded the court must have
regard to all the circumstances of the case. It must inter
regard to the character and status of the Plaintiff, the nature of
the words used, the effect that they are calculated to have upon him,
the extent of the publication, the subsequent conduct of the
Defendant and in particular his attempts and the effectiveness
thereof to rectify the harm".
[1.1] The court
observed in Chetcuri
vs Van Der Walt 1993 (4) S.A. 394 at
assessing damages is always a difficult matter involving "the
placing of a money value upon abstraction" and
damages cannot be gauged with precision or nicety.
 According to
Stuart's Newspaperman's Guide to the Law, 5lh
of the factors which may be taken into account in assessing the
amount of damages to be awarded are:
conduct of the Defendant from the time of publication until
and the area and extent of
character of the defamatory words, their falseness and the malice
displaced by the Defendant.
rank and position of the parties in society and any special
relationship which existed between them.
persons to whom the defamatory words were published.
place, time and mode of
continuance of the circulation of the defamatory words.
tardiness, inadequacy or absence of
intended or authorised.
apology and the prominence of
Whether the defamer first employed the defamatory words or
whether he simply-
repeated the defamatory words of
character of the person defamed.
The responsibility which the Plaintiff may have to bear for
bringing about the
of the defamatory matter, n) Absence or presence of actual
ill-will towards the person defamed on the part of the
Any undue delay by the Plaintiff in bringing his action.
the matter published was true, even if it was not published for the
Any prolonged or obstinate failure by the defamer to do
to assuage the hurt of the person defamed.
the attack injured the defamed person in the way of his business or
s) A decrease in the value of money.
The fact that robust language is common in political
The conduct of the Defendant in conducting his defence (e.g.
did he seek to attack
Plaintiffs character; did he dispute his evidence unduly or did he
seek to discredit
 This list is
not, of course, exhaustive. See also Kuper
"A Survey of the principles on which damages are awarded for
defamation", (1966) 83 S.A.L.J 477 Smith vs Die Republikein
(EDMS) En Ander 1989 (3) S.A. 872, Micah Celucolo Mavaso vs Sabelo
Mamba and two others - Civil Case No. 1993/99, S.A.
Associates-Newspaper Ltd vs Samuels 1980 (I).
S.A. 24 (A)
the case of
Khan vs Khan 1971 (2)
 In the present
case, it is my considered view that the Plaintiff lost the tender to
Government and therefore would be entitled to the sum of E50,
000-00. Further, marketing strategies for the company hampered for
E40 000-00. However, as to the sum claimed for general damages that
of E640, 000-00 I have come to the considered view that this sum is
excessive in the circumstances of the case but that the sum of E60,
000-00 would fit the merits of the case. I say so for the following
reasons. Firstly, the Defendants have not apologized for publication
of the said defamatory words. Secondly, the attack injured the
Plaintiff in the way of its business. Lastly, the character of the
defamatory words, their falseness has put Plaintiff in a bad
position. In arriving at this figure I have considered a number of
local cases on the measure of damages including that of Micah
Celucolo Mavuso (supra), Lindifa Mamba vs The Times of Swaziland
find that this amount is in line with the range fixed in those
 In the result,
for the afore-going reasons Plaintiff is granted an order as
i) E40, 000-00 in
respect of the loss of tender to Government;
ii) E20, 000-00 for
marketing strategies for the company hampered.
iii) E60, 000-00 in
respect of general damages.
iv) Costs of suit.