IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 4408/10
In the matter between:
ZODWA EMELDA MADAU APPLICANT
AND SAVINGS BANK (“SWAZI BANK’)
Coram OTA J.
For Plaintiff M. Simelane
The facts of this case as alleged by plaintiff is that around November 2003, the plaintiff obtained a loan from the defendant in the sum of E200,000.00, to purchase property known as Lot 1589 Mbabane, ext No. 12, as evidenced by annexures ZM2 and ZM3 respectively. That the plaintiff was to service the said loan by payment of the sum of E1,935.00 monthly deducted directly from her salary . On the 5th of May 2010, the defendant caused summons under High Court Case No. 1604/10, to issue against the plaintiff and one Damazio Sandile Madau, the plaintiff’s husband, who guaranteed the loan. In that suit, the defendant prayed for payment of the sum of E397,122.62 being outstanding balance on the said loan, and for execution on the property held under Deed of Transfer No. 272 (2004), per the mortgage bond, as evidenced by annexure ZM1. The summons was never signed or issued by the Registrar of the High Court. Thereafter, the defendant issued a Declaration and applied for summary judgment. That at the material time the Defendant instituted the action at the High Court, it had no probable or reasonable cause, as the plaintiff was up to date with servicing the said loan.
That the plaintiff opposed the summary judgment application, with an Affidavit resisting same, as per annexure ZM4, and since then no further steps have been taken by the defendant in pursuit of the said claim.
That the defendant therefore, unlawfully and maliciously set up the process of law against the plaintiff.
It is in consequence of the foregoing facts, that the plaintiff sued out combined summons against the defendant, claiming inter alia the following reliefs:-
1) Payment of the sum of E500,000=00 as damages.
2) Interest thereon at the rate of 9% a tempora morae calculated from the 7th of May, 2010.
3. Costs of suit at Attorney and own client scale
4. Further and alternative relief
The defendant failed or neglected to deliver a notice of intention to defend. Thereafter, the plaintiff commenced the application for Default judgment instant, which application is not opposed.
There is no doubt from the conspectus of the facts stated herein, that the plaintiff’s allegation is that the Defendant put the process of the court into improper use and thus defamed her. She is thus claiming damages for malicious prosecution.
Now, in Joubert, The Law of South Africa (Second Edition) part I paragraph 83, page 146, malicious proceedings is elucidated as follows:-
‘‘ Malicious prosecution of a case infringes a person’s right to reputation. It is the unjustifiable and intentional instigation of legal proceedings, civil or criminal against a person, in whose favour the proceedings ultimately terminated. Deprivation of liberty is not an essential element, the harm could be financial, or a person may have been ejected from premises, but the defendant must have been actively instrumental in prosecuting the charge or claim, for example, doing more than a mere laying of a complaint with the police’’
Case law has evolved certain requirements which the plaintiff must prove, in a claim for malicious prosecution. These requirements are as follows:-
1) That the Defendant instituted the proceedings against her.
2) That in so doing the Defendant acted without reasonable or probable cause.
3) That the Defendant was actuated by improper motive or malice.
4) That the proceedings terminated in the plaintiff’s favour.
See the case of Professor Dlamini v the Attorney General Civil Appeal No. 27/07, Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 A at 134H – 135 A,
The test for determining absence of reasonable and probable cause was set out by Schreiner JA, in Beckenstrater V Rottcher and Theunissen (supra) as follows:-
‘‘ When it is alleged that a defendant had no reasonable cause for prosecuting, I understand this to mean that he did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged: if, despite his having such information, the defendant is shown not to have believed in the plaintiff’s guilt, a subjective element comes into play and disproves the existence, for the defendant, of reasonable and probable cause’’
It is thus apposite for me at this juncture to set out the proceedings instituted by the defendant which is exhibited in this application, as annexure ZM1. In that process the defendant claimed against the plaintiff and her husband, one Damazio Sandile Madau, the following reliefs:-
Payment of the sum of E397,122.62 (Three Hundred and Ninety Seven Emalangeni One Hundred and Twenty Two Emalangeni Sixty Two cents) which is now due, owing and payable being in respect of monies lent and advanced by the plaintiff to the Defendant at the latter’s special instance, request which monies are now due owing and which the Defendant’s fail, neglect and / or refuse to pay to the plaintiff.
Interest on the sum of E397,122.62 at the bank’s rate of prime plus 3% per annum from date of issue of summons to date of final payment.
Costs of suit on attorney and own client scale and collection commission.
Declaring property mortgaged by mortgage Bond No. 294/2004 and 474/2004 and held under Deed of Transfer No. 272/2004 to be executable .
Further and alternative reliefs
I am of the firm conviction from the totality of the facts stated, that the ingredients of the cause of action have been established. I say this because the evidence tendered shows that the plaintiff did not neglect to service the loan. She did not omit or refuse to service the loan as alleged by the Defendant in it,s claim against her. I say this because the loan was being serviced by monthly payments of the sum of E1,935.00, which amount was deducted directly from the plaintiff’s salary on a monthly basis. Annexure ZM1 which is the plaintiff’s salary advise for the month of August 2010, shows that, on or about the period when Defendant commenced summary judgment application against the plaintiff, that the plaintiff was servicing the said bank loan. I presume that the defendant which has all the documentation of the transaction between it and the plaintiff knew this fact. Annexure ZM1 shows a deduction of the amount of E1,935.00 from the plaintiff’s salary for house loan. Therefore, at the time the Defendant instituted proceedings against the plaintiff, she was servicing the said loan. It is also in evidence that the plaintiff is still servicing the said loan. This fact is demonstrated in full by exhibit A, which is the plaintiff’s salary advise for the month of March 2011, which clearly shows a deduction of the said sum of E1,935.00 for house loan.
It appears to me therefore, that the Defendant had no reasonable or probable cause to institute proceedings against the plaintiff when it did. By it’s action in instituting proceedings against the plaintiff, it demonstrated malice. The Defendant clearly acted mala fide. I say this because the Defendant was obviously trying to misuse the court process.
Therefore, even when the summons was not signed or issued by the Registrar of the High Court, the Defendant applied for summary judgment. When the Plaintiff responded to the summary judgment application with an affidavit resisting same, the Defendant lapsed into silence effectively abandoning the claim. The Defendant’s action in abandoning the claim to my mind, demonstrates that it realized that it had acted wrongly. Defendant did not go ahead with the suit. The Defendant did not show remorse or tender apologies to the Plaintiff upon realization of the fact that the Plaintiff did not derelict on her obligation under the loan agreement.
I find that the whole idea of filing a process and not going on with it shows mala fide. It suggests that the Defendant intended to sneak in and obtain a judgment and embarrass the plaintiff and her husband. If she did not respond to the summary judgment application, the Defendant would have gone ahead and obtained judgment against plaintiff and her husband and executed it. To my mind the defendant’s action by abandoning the suit in the face of the plaintiff’s affidavit resisting summary judgment, effectively terminated the said proceeding in the plaintiff’s favor.
Aggrieved by the enterprise of the Defendant, the plaintiff now sues it to court saying, ‘‘you defamed me by your activities’’, and the Defendant refused or neglected to answer. It is obvious to me therefore that the activities of the Defendant in instituting the said proceedings against the Plaintiff, was mala fide. As a diligent bank, if the Defendant had good faith, it would have sent a letter to the plaintiff indicating that it acted negligently and apologized to her. If the Defendant had good faith, it would have withdrawn the said proceedings from the Court and tendered costs. The Defendant failed to undertake any of these tasks, thus demonstrating bad faith. The plaintiff in my view has thus established animus injuriandi i.e conscious wrongful intent or an intention to injure or a deliberate intent to cause harm on the part of the defendant. See Naisel v Van nairen 1960 (A) SA 836 (C).
The foregoing raises the natural question to wit “was the plaintiff injured or her reputation dented, by the activities of the defendant as is urged?
There is no doubt in my mind that the Plaintiff was injured in that her reputation was dented or impinged by the Defendant’s actions. I say this irrespective of the fact that the Defendant’s claim was abandoned upon the event of the plaintiff’s affidavit resisting summary judgment. I hold the view that the said processes still impinged on the plaintiff’s reputation. This is because notwithstanding the fact that the processes filed by the Defendant were abandoned, and that none of them was ever published in a widely read newspaper, I still am firmly convinced, that these processes were published by the mere fact of filing them in the court registry. This is due to the fact that these processes were read by third parties, other than the Plaintiff and her husband. I say this because court processes are public documents at the behest of clerks of court, Registrars, process service Deputy sheriff who are vested with the duty of serving the processes, e.t.c. These court officials, as is the practice, often read these court processes. It is trite that publication takes place where the statement is read, heard and is complete at the time of publication – see Grapelli v Derek Black (Holdings) Ltd (1981) 2 ALL ER 272. It is also trite that if publication takes place in a publicily distributed document, such as a court process, it is not necessary to list the name or names of the readers because it is factually presumed that publication did take place. It is obvious to me that the words to wit:- “which monies are now due, owing and which the Defendant’s fail, neglect and/ or refuse to pay to the plaintiff” have a defamatory meaning in the ordinary sense, especially in the face of the fact that when these words were published, the plaintiff did not derelict her obligation under the loan agreement as alleged. These words raise doubts about the plaintiff’s financial integrity or credibility. They suggest to the readers, that she was so unreliable to pay her loan that she had to be dragged to court before she could pay it. The foregoing raises a rebuttable presumption that the words were used willfully and knowingly and that the object of their use was to defame the plaintiff. The onus in these circumstances then rests on the defendant to establish some lawful defence such as justification, fair comment e.t.c. The Defendant did not avail itself of this opportunity, since it remained silent and refused or neglected to attend court, despite service on it of the combined summons.
On these premises, I am firmly convinced that the defendant injured the plaintiff by instituting the said proceedings, in that it reduced the esteem and reputation of the plaintiff in the eyes of all persons to whom the processes were published.
It is imperative for me to state here that everybody has an inalienable right to the protection of his or her reputation. That is the foundation of the law on defamation. One does not lose that right by going to take a loan from the bank. The bank does not, by giving a loan, acquire an unbridled right to assault one’s reputation as it deems fit. It must show good faith in all its dealings with the members of the public, which includes it’s customers. Keeping to the terms of it’s agreement is the minimum required of the bank in it’s dealings with it’s customers. The bank was required to at least send a letter of demand to the plaintiff and her husband before embarking on litigation, it failed to do this. The process of the court was clearly put to improper use in these circumstances. If such improper use has defamed the plaintiff, I fail to see why the Defendant cannot be held liable for defaming the plaintiff. The question left to be answered is:- what is the quantum of damages to be awarded the plaintiff for the assault on her reputation?
By the orders of court, the plaintiff filed an affidavit in proof of damages. She also as tendered oral evidence in this regard. Her viva voce evidence is akin to her averments in the affidavit in proof of damages. The plaintiff alleges that she is a 47 years old married women with 2 children. She has been a teacher for the past 24 years, currently teaching at the Central High School, Mbabane. That she is also an active member of the John Wesley Methodist Church, being a chorister in the said church. That the action of the defendant was unlawful, malicious, vexatious, scurrilous and intended to injure, embarrass, prejudice, tarnish her good name and reputation. That in consequence her dignity has been lowered and tarnished warranting the E500,000-00 in damages prayed.
In arriving at a value judgment on this question, it is apposite for me to consider the award of damages in similar cases in the Kingdom, as demonstrated by Case Law. Although comparing awards in other cases is not necessarily the most crucial factor that must hold sway. The precise facts and circumstances of each case must be considered, in order to ensure that comparisons can be validly made.
In Vusi Ginindza and Others V Lindifa Mamba and Another Appeal Case No 8/2001, by summons issued in the High Court, the respondents sued the Appellants for damages for defamation in the sum of E1 Million and E500,000-00 respectively. The action arose out of articles that were published in the Times of Swaziland, on three respective dates in December 1999. It was thus alleged that the appellants jointly and severally defamed both respondents in the three articles. The 1st Respondent was a prominent attorney in Swaziland, practicing in partnership as a partner in the second respondent, a firm of attorneys practicing as such in Mbabane.
The learned trial Judge carefully considered all the aggravating factors to be taken into account in awarding damages. He considered the following :-
The first Respondent is a man of high standing in the profession who practices in The High Court, where he is highly regarded.
The defamation was repetitive as it was published in three articles in newspapers which are widely circulated and read by a large readership ‘‘ the distribution was immense’’
The imputation contained in the articles was of a very serious nature and that if the imputation that the first respondent is dishonest, unethical, unprofessional, incompetent, and inclined to mislead the Court, were to be believed, his career could be ruined.
Based on the factors enumerated ante, the trial Court awarded damages in the sum of E60,000-00 to the 1st respondent. On a cross appeal by the 1st respondent, the erstwhile Court of Appeal of Swaziland, increased the amount to E85,000-00, on the grounds that having regards to the conspectus of all the circumstances of the case, the award of E60,000-00 was palpably too low.
In casu, there is no doubt that the Plaintiff who has been a teacher for 24 years, is a person of considerable high standing in the society, who has a lot of people, not only her students, but also the parents of the students, looking up to her for example. There is no doubt that her religious inclination, demonstrated by the fact that she is a chorister in her church, being the John Wesley Methodist Church, is an added spice to her high standing in the society. There is of course also, her standing in the eyes of her family. The imputation in the Defendant’s claim that she failed, neglected and/or refused to pay the sum owed to the Defendant, are such that if believed by those to whom it was published, and as I have already held herein, raise doubts about the Plaintiff’s financial integrity or credibility. They suggest that she was so unreliable or irresponsible to pay her loan that she had to be dragged to Court before she would pay it. This imputation has the ill consequence of diminishing the Plaintiff’s esteem and thus denting her reputation.
However, since the publication of the defamatory Court processes was done to a small group i.e the Court officials, namely:- Registrars, Clerks, Interpreters, deputy sheriff etc and was not done to a larger number of the populace, in that they were not published in a widely read newspaper, I in the circumstances, access the damages suffered by the Plaintiff in the sum of E50,000. In coming to this award, I take cognisance of the rate of inflation, since the Vusi Ginindza V Lindifa Mamba Case (supra), which is a space of 10 years.
The Plaintiff claims interest at the rate of 9% a tempora morae calculated from the 7th of May, 2010. There is no doubt that this Court has an unimpeded discretion to award interest in this case. However, the interest cannot be calculated from the 7th of May, 2010, as urged. This is because the liability to pay interest did not attach to the damages which were unliquidated as at the 7th of May, 2010. This is based upon the trite principle that interest would not be awarded by the Court in a damages action until the claim had become liquidated by the damages being agreed upon or quantified by an order of Court. Koch on Damages for lost Income edition 1984, puts this trite principle of the law in the following language:-
‘‘ (a) The rule of Roman Dutch Law is that liability or interest does not attach to an obligation to pay unliquidated damages only ascertainable as to amount after a long and intricate investigation. An exception to this rule arises under circumstances where the amount of damages payable could have been ascertained upon reasonable inquiry. Interest on damages only begins to run once the defendant is in mora. By virtue of the wrongful act and the associated damage measured at the same point an uncertain indebtedness is created. In order to place the wrongdoer in mara, it is necessary that the Plaintiff demand the compensation due and that the quantum of the uncertain indebtedness be ascertained. An investigation is commonly needed to determine the indebtedness which crystallized at the time of wrongful act’’
Similarly in Vusi Ginindza and Others V Lindifa Mamba and Another (supra), the Court of Appeal held, that the learned trial Judge erred in awarding interest from the date of demand, because, damages for the defamation was unliquidated and required thorough investigation before they could be quantified.
It is indisputably apparent from the foregoing, that any award of interest herein, must be from the date hereof.
Finally, the Plaintiff claims costs on the scale as between Attorney and own client, and I am convinced that she is entitled to an order as prayed. I say this because the Defendant had no reasonable or probable cause whatsoever, to have instituted proceedings against the Plaintiff as it did. By so doing, the defendant put the Plaintiff to unnecessary expense in hiring counsel to defend the Defendant’s suit and to institute the proceedings instant, to redress the injury occasioned by the Defendant’s enterprise. This to my mind is compounded by the fact that the action instituted by the Defendant was not only malicious, it was also vexatious and frivolous, thus inexorably an abuse of the process of the Court.
On these premises, I make the following orders:-
Payment of the sum of E 50,000 as damages.
Interest thereon at the rate of 9% a tempora morae calculated from the date hereof i.e date of judgment.
Costs of suit at Attorney and own client scale.
DELIVERED IN OPEN COURT IN MBABANE ON THIS
THE …………………………….. DAY OF …………….2011
JUDGE OF THE HIGH COURT