IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 599/2015
In the matter between
SIMANGALISO PATRICK MAMBA Plaintiff
ACKEL ZWANE 1ST Defendant
MBONGENI MBINGO 2ND Defendant
THE SWAZI OBSERVER 3RD Defendant
Neutral Citation: Simangaliso Patrick Mamba Vs Ackel Zwane And 2 Others (599/2015)  SZHC 153 ( 15th August 2019)
Coram: Hlophe J.
For the Plaintiff: Mr M. Dlamini
For the Defendants: Mr Z. Shabangu
Date Heard: 30th April 2019
Date Judgement Delivered: 15th August 2019
Civil Law – Action Proceedings – Defamation – Defendants Published an article in the 3rd Defendants Newspaper which allegedly attributed dishonest conduct on the Plaintiff – Plaintiff contends Publication was false and was meant to defame him and that it did defame him – After Plaintiff had closed its case, Defendants’ Counsel moves an application for absolution from the instance – Applicable test in such application considered – Whether requirements of the application met the circumstances – Court of the view requirements not met – application for absolution dismissed – Costs to be costs in the Course.
 On the 14th March 2015, the Second Defendant’s Newspaper, The Observer on Saturday, published an article titled “Lawyer Simanga Mamba In Clients’ Moneys Controvesy”. The body of the article averred that the Plaintiff had, whilst representing three clients of his as one group, decided to issue individual statements of account against each one of them, calling each such client to pay for the services rendered by the Plaintiff as an attorney. It needs to be clarified that the said three clients of the Plaintiff had brought an application against their former employer before the Industrial Court for payment to them of certain monies they claimed were due to them.
 Whereas the Court had found in their favour at the conclusion of the matter, thus awarding them respectively the sums of E50,032.80, E49, 262.89 and E48, 052.00; the Plaintiff allegedly charged them respectively sums of E14, 001.20, E21, 215.30 and E10, 423.00 as legal fees termed as legal costs and went on to deduct the said fees from each of his client’s award and went on to remit to each one of them the balance in each case, less whatever had been paid as an advance, if any in a particular case.
 It is common cause the Plaintiff’s aforesaid clients were unhappy with the manner in which the said attorney had deducted the amounts concerned from their awards. They in fact contended that the way he had done it amounted to a misconduct in terms of the Law Society’s bye laws. They had gone on to report the matter to the Council of the Law Society of Swaziland for a remedy.
 According to the Plaintiff the Law Society had allegedly not found any wrong doing on his part but had advised him to find an amicable solution with his clients by one way or the other addressing their concerns.
 The Plaintiff further alleged in his evidence that following the advice from the President of the Law Society of Swaziland he had managed to settle the complaint’s by his former clients. The settlement concerned was in terms of him refunding his clients some of the amounts he had initially billed as fees.
 He contended that this was not in acknowledgement of any wrongdoing on his part. He contended it was done as merely a settlement of the apparent misunderstanding or dispute.
 Whatever the true position in this regard, the Defendants’ version has not yet been heard. It sufficies that if indeed the Plaintiff had paid the amounts he did to the Defendants not in acknowledgement of any wrong doing, there was a possibility he was being defamed when considering the manner in which the article complained of was published. Similarly if it were found that he settled the dispute or matter in acknowledgement of having refunded his clients monies he should not have deducted in the first place, that is in acknowledgement of some wrong doing on his part, he would then not have been defamed. The reality is that I cannot decide this without having heard the otherside.
 The Plaintiff contended as well that from the facts of the matter, it was obvious the Defendants, when publishing the article, were driven by malice when considering the fact that notwithstanding that as at the time the article was published the matter between him and his former clients had long been settled such that it was no longer a live issue; the article by the Defendants had made it look like that issue was still very much alive or ongoing, thus confirming some wrong doing on his part because the matter was made to look like one that had not been resolved by the parties. Nothing had therefore been published about the Plaintiff’s having settled with his former clients nor was anything said about the extent of the settlement.
 The contention of the Plaintiff is that the Defendants had deliberately falsified the facts of the matter to perpetuate their alleged defamation of him as a means of getting even with him. The correctness or otherwise of this aspect cannot be decided without the Defendants’ side also being heard. It may be that the Defendants are the only ones who can explain why on the face of all facts regarding a settlement between the Plaintiff and his former clients, that could not have been published included whether by publishing the article complained of in the manner they did they were indeed falsifying the facts.
 This takes me to the next ground of complaint in the Plaintiff’s case. He contends that the Defedants had decided to publish the article concerned without him having been consulted to give his side of the story including his having had to comment thereon. It is obvious that giving him an opportunity to comment would have enabled the Plaintiff set the record straight, at least from his point of view, on what the true position was. Our law is clear that a failure to cause the party against whom a publication has been made, to comment before publication, amounts to proof of malice in the publication. See in this regard the case of African Echo (PTY) LTD t/a The Times of Swaziland and Others Vs Inkhosatana Gelane Simelane Civil Appeal Case No.77/2013 at paragraphs 36, 37 and 38. See also Sankie Mthembu - Mahanyele Vs The Mail and Guarding And Another (2004) all SA 511 at Paragraph 68.
 Over and above, the failure to cause the person alleging defamation to comment before publication of the impugned article can also indicate the lack of reasonableness in the publication. The cases of National Media Ltd Vs Bogoshi (1998) 4 SA 1196(SCA) and that of Langa V TB Atkinson And Another (New Zealand) (1990) UKPC 46 are authority for this proposition. This again should necessitate that the Defendants explain themselves in this regard; firstly on whether as a matter of fact they had not consulted the Plaintiff or why they had dealt with the matter in the manner they had done, which would then have to be evaluated.
 I also note that whereas the Plaintiff had alleged that he was never consulted or asked to comment before the Publication complained of was published, the Defendants have put their version to the Plaintiff’s witnesses denying this, and suggesting they had actually consulted him. Given the seriousness of the effect of the failure to cause a party to comment before a publication was made, and the fact that I have not heard the Defendant’s witnesses in this regard, I cannot realistically assume that there was or there was no opportunity given to the Plaintiff to comment before the publication was made. Again this makes it necessary that the Defendant’s witnesses be heard. It is for this reason as well therefore, that I do not think it would be proper for the Court to conclude this matter without the Defendants having been heard in their defence.
 Our law is settled that an absolution from the instance will not be granted in a case where at the close of the Plaintiff’s case there is sufficient evidence upon which a reasonable man might give judgement in favour of the Pllaintiff. In Gascoyne Vs Paul And Hunter 1917 TPD 170 at page 173 this position was put as follows:-
“At the close of the case for the Plaintiff, therefore, the question which arises for consideration of the Court is, is there evidence upon which a reasonable man might find for the Plaintiff?...The question therefore is, at the close of the case for the Plaintiff was there a prima facie case against the defendant, Hunter; in other words, was there such evidence before the court upon which a reasonable man might, not should, give judgement against Hunter?
 It seems to me that a prima facie case has been made against the Defendants in the evidence presented by the Plaintiff. This therefore necessitates that the Defendants be heard on their reaction to the evidence by the Plaintiff which so far is the only version before court. I have already clarified that it is only the defendants who can controvert the Plaintiff’s case that is currently one sided on the evidence given. The question whether the Law Society had merely advised the parties to consider settling their matter as Plaintiff avers, as opposed to directing that there had been a wrong by the Plaintiff which necessitated a refund, is also part of the crucial aspect which can only be clarified by the Defendants’ witnesses. The same thing applies to the alleged falsification of the facts. We need to ascertain firstly if the facts were indeed falsified and if they were indeed not accurately captured how that had come about. That is to say, was it a case of a deliberate falsification of the facts. The last consideration will be a reaction to the alleged failure by the Defendants to seek a comment from the Plaintiff before publishing. That would go to the reasonableness of the publication as well as to whether or not the publication in the manner it was done was malicious.
 I am therefore convinced that from the foregoing considerations the Defedants’s application for absolution from the instance cannot succeed. I therefore make the following order:-
15.1 The Defendants’ application for absolution from the instance cannot succeed. It is dismissed.
15.2 The Defendants’ case is to be proceeded with on a date agreed upon by the parties counsel.
15.3 Costs are to be costs in the course.
N. J. HLOPHE
JUDGE – HIGH COURT