IN THE HIGH COURT OF ESWATINI
In the matter Between: Case No. 962/2016
ELLIOT KHUMALO Plaintiff
AFRICAN ECHO (PTY) LTD 1st Defendant
MARTIN DLAMINI 2nd Defendant
SISHO MAGAGULA 3rd Defendant
Neutral citation : Elliot Khumalo v Africa Echo & 2 Others (962/2016)  SZHC 242 (6th December, 2019)
Coram : M. Dlamini J
Heard : 2nd December, 2019
Delivered : 6th December, 2019
Civil action : defamation - elements thereto - first port of call in proving the presence of the elements of defamation is to establish that the statement is defamatory -
: By the use of “allegedly,” it means that the reporter was informing its readers that the story was not conclusively factual -
: Was plaintiff’s dignity lowered to his lawyer? The court was not told and the probabilities do not favour such -
: The media is the key player in carrying out the aspiration and expectation of individuals and society at large in this quest for not only knowledge and information but accountability as well
Outcome : action dismissed
Summary: The plaintiff has alleged that a publication at the instance of defendants was understood by readers that plaintiff was “a perverse old priest and senior resident who maliciously had unlawful carnal knowledge with an underage relative.” He claims the sum of E950 000. The defendants’ plea is that the publication was “objectively reasonable.”
 The plaintiff is a Swazi male adult and a priest. He is the resident of Mhlabubovu.
 The 1st defendant is a company duly incorporated and registered in terms of the company laws of the Kingdom. Its principal place of business is situate at Sheffield Road, Industrial Sites, Mbabane, region of Hhohho.
 The 2nd defendant is an adult male Swazi and is employed by 1st defendant as its Managing Director. The 3rd defendant is an adult male Swazi. He is employed by 1st defendant as a reporter.
The Particulars of Claim
 The plaintiff has stated that on 15th December, 2012 at or about Mbabane, the defendants caused to be published an article whose title was “Jericho Priest impregnates granddaughter.” He alleged further:
The said newspaper stated inter alia that, Plaintiff had, on several occasions, had sexual intercourse with and impregnated his granddaughter to the extent that his granddaughter dropped out of school. It is also part of the article that the residents of Mhlabubovu were angry and wanted Plaintiff evicted.
The said article contained pictures of Plaintiff, the granddaughter as well as Plaintiff’s outside and inside view of his homestead.
The said words and pictures in the context of the article are wrongful and defamatory of Plaintiff in that they were intended and were understood by the readers of the newspaper and that Plaintiff is a perverse old priest and senior resident who maliciously had unlawful carnal knowledge with an underage relative of his worthy of ridicule country wide.”
 The above allegations were said to be incorrect and defamatory. He also alluded:
“11.1. [T]he statements were false and injurious and cannot be relied upon as correct as they were based on hearsay;
11.2. the Defendants did not take proper and reasonable steps to verify the accuracy or authenticity of the material so alleged as it had a huge effect to Plaintiff’s dignity and social status.
11.3. the Defendants wilfully and knowingly published same story despite that the story lacks the aforementioned and Plaintiff having denied same, continued to publish the article.”
 Plaintiff pointed out that DNA evidence exonerated him. He then claimed the sum of E950 000 plus interest at the rate of 9% and costs of suit.
 The defendants refuted the claim by plaintiff that the article was defamatory. They stated that the article was published as a result of interviews conducted upon plaintiff, plaintiff’s daughter in law and plaintiff’s granddaughter. They concluded by stating that the publication was “objectively reasonable.” They further contested the sum claimed on the basis that plaintiff did not suffer any damages.
 The plaintiff testified under oath. He stated that he was a resident of Mhlabubovu. He was borne in 1944. He was uneducated. He could neither read nor write. In December 2012, he heard from his attorney that the defendants had published a story to the effect that he had impregnated a child. It turned out that the said child had been impregnated by another boy. He then referred the court to the newspaper article. This article was admitted to court without any objection. It was marked exhibit B2 – B5.
 He testified that the said Jericho Priest mentioned in the article referred to him. He saw the newspaper and it reflected his house. A reporter had arrived in his homestead. He requested from him to show him the room where the children were using. He took the reporter to that room which was the kitchen. That is where the children slept on the floor. He then saw his house and the inside of his kitchen in the newspaper. He did not see the reporter when he photographed his house. The reporter did not ask him anything about impregnating his child. There was a male child by the surname Ntuli and he did not know his first name as they used Ntuli when calling and referring to him. This child is his daughter’s son.
He is the one who impregnated the child. His attorney told him that there were people who were threatening to kill him because he had impregnated a child.
 In order not to burden this judgement, I shall refer to the rest of his evidence in chief and cross-examination under adjudication herein. The plaintiff closed his case after leading one witness. The defence decided to open its case by leading three witnesses.
 The first witness on behalf of the defendants was Hlobisile Vuyisile Khumalo. She testified that she was twenty three years old. The plaintiff was his grandfather from her paternal side. Plaintiff used to sneak at night and come to the kitchen where she was sleeping with her sisters and cousins. Plaintiff would occasionally enter the kitchen and get under her blanket to have sexual intercourse with her. At first she could not recognise the figure that encroached under her blanket to the top of her body. She however gained an inclination as this figure once through with its act would move out of the kitchen and take the direction to plaintiff’s bedroom.
 She decided to confide to her cousins on this issue. They resolved to solicit the help of Mbongiseni Ntuli, her male cousin. In the company of her female cousins, she approached Mbongiseni Ntuli and narranted to her that there was a mysterious figure that would now and again enter the kitchen at night. Mbongiseni Ntuli decided to sleep in the kitchen in order to see the said figure. One night, the figure emerged as it opened the kitchen door. Mbongiseni Ntuli shone his cellular phone light to its direction. The figure was plaintiff. She then confirmed her suspicious that plaintiff was the mysterious figure.
 One day while at school one of her teachers spoke to her saying that she appeared to be pregnant. She was shocked by this statement. Her teachers asked her as to who was responsible for her pregnancy. She quickly responded, saying that it was her cousin’s friend. She could not tell them the truth because plaintiff who had continued with his conduct even after Mbongiseni had caught him, threatened her that if ever she revealed his name, he would kill her. However, she did subsequently tell her teachers that the plaintiff was responsible for her pregnancy.
 She concluded her evidence in chief by testifying that at that time, she did not have any love relationship with a man. It was not true that Mbongiseni Ntuli was the father of her child who was then six years of age.
 Her cross-examination was brief. She was asked on why she failed to narrate her ordeal to her parents. She said that she was afraid. She was able to tell Mbongiseni Ntuli as according to her Mbongiseni was the only person who would assist her. She pointed out that in as much as she was shocked at the ordeal, she did not shout when plaintiff encroached on her. Most part of her cross-examination were a confirmation of her evidence in chief.
 The second witness was Captain Regina Cecilia Janse–van– Rensburg. She was based in Pretoria Forensic laboratory. She obtained her Bachelor of Science degree from the University of in Pretoria. She majored in Human Physiology, Genetics and Psychology. DNA analysis is part of genetics.. She has been attached to the forensic laboratory department for the past fourteen years.
 This witness referred the court to B27 – B30 and identified the document as her report. She testified on Table 1 at B28 and explained each STR – LOCI. Her final findings were that the probability of Khumalo E (plaintiff) being the father of Nonhlanhla Khumalo, daughter of Hlobisile Khumalo was 72%. This was because there was mutation on one instance of the STR – Loci which affected it by one thousand drop. Under cross-examination, she pointed out that in as much as the 72% chances of Khumalo E being the father of the child fell under the “weak” category, because of the 2.5 times likelihood, she concluded that it was more likely that Khumalo E was the father of the child than not. The only difference is that this was not proof beyond reasonable doubt due to the single mutation which caused a decrease of one tthousand.
 The last witness was Mbongiseni Ntuli. He identified Hlobisile Khumalo as his cousin and plaintiff as his grandfather. He testified that in 2012 Hlobisile together with Tengetile and Temalangeni approached him and reported to him that there was a ghost that was entering into the kitchen where they slept at night and would touch their feet. He decided to sleep in the kitchen with them. He positioned himself above the stove while they slept below it.
 One day he arrived late at about 11:00pm for sleep following that he had been watching television at the neighbour’s house. As he was about to dosse off, he heard the sound of the kitchen door opening. A figure emerged. He took his cellular phone shone its light to the direction of the figure. It was the plaintiff. Plaintiff also saw him. He retreated back without saying a word to this witness. The time was going for 12:00 midnight. He concluded that the so called “ghost” was plaintiff. He decided to keep the matter to himself as he did not want to create a conflict within the family. Ntuli confirmed that before her pregnancy, Hlobisile did not have a love relationship with any male.
 He was queried under cross-examination on the reason Hlobisile chose to confide in him than others. He responded that it could be that they related very well with her. Hlobisile never said that he was the father of the child. The defence then closed their case.
 A very apposite question in these proceedings is one which has been debated the world over, more especially among the environmentalists. “Do trees have rights?” It would become apparent later herein why this poser is relevant in the case at hand.
Delictual elements of defamation
 The elements of defamation in a delict claim are:
- wrongfulness; and
- publication; of
- defamatory statement.
- Concerning plaintiff.
 As correctly pointed out by O’ Regan J, under Roman – Dutch law viz. our jurisdiction, it is not an element of defamation that the statement must be false or incorrect. It is however, a defence in the case of defamation that the statement is true.
 The first port of call in proving the presence of the elements of defamation is to establish that the statement is defamatory. In other words, the court would enquire first if the impugned article is defamatory before ascertaining whether the other elements are present. If the evidence adduced fails to pass master on the question as to whether the statement or article as a whole is defamatory, it is the end of the case. There is no need for the court to continue with the enquiry where there is no proof that the statement is defamatory of the plaintiff. After all, all the elements must be proved. Supporting this exposition of the law Jacoob J wrote on the interpretive approach:
“It will become necessary to discuss the issues concerning the intention as well as the wrongfulness of the publication only if the publication is defamatory in the first place.”
 Firstly, the article reads partly:
“A 16 year – old Grade V pupil has dropped out of school after being allegedly impregnated by her 70 year old grandfather.”
 By the use of “allegedly,” it means that the reporter was informing its readers that the story was not conclusively factual. It was speculation. In other words, the publication was not yet tested and found to be true. This piece of evidence taints the element of defamation.
 Secondly, there is another aspect of plaintiff’s evidence whose relevancy is on repute. The plaintiff testified that his counsel told him about the article and explained to him that the 3rd defendant had written the defamatory words against him. No evidence was led throughout the trial that as a result of the publication, his peers or members of his community held him in low esteem. Now the question is, where is defamation here? Was plaintiff’s dignity lowered to his lawyer? The court was not told and the probabilities do not favour such.
 Turning to publication, the evidence obtaining from the plaintiff himself both in chief and cross-examination does not support this element. The plaintiff testified in chief:
“My attorney told me that there was an article about me that I impregnated a girl. He told me that there were people who were talking about me and they were planning to kill me or to have me incarcerated for life.”
 He immediately testified:
“The basis of all this talk that I impregnated the child are my own children. They told the reporter i.e. my own children.”
 He was cross-examined:
Counsel M. Sibandze : “You said these parents (plaintiff’s children) were talking about you”
Plaintiff : “My children and the people out there.”
Counsel M. Sibandze : “By the time the reporter came this story was well known in the community.”
Plaintiff : “Yes, it was widely spread.”
 From the above evidence, it is clear that the news that the plaintiff had impregnated Hlobisile were rife in the community. The basis of this discussion was certainly not the reporter but the members of his family. By the time the 3rd defendant arrived and before he could put ink and paper together, the news about plaintiff impregnating his grand-daughter had been well publicised in his community including his household. This vitiated the element of publication.
 There is a further aspect of the case which boggled the court’s mind as to why the defendants have been dragged to this court. It unravelled:
Counsel M. Sibandze : “When he (the reporter) spoke to you, you knew he was from the newspaper and he was going to write a story”
Plaintiff : “Yes”
Counsel M. Sibandze : “You showed him your house”
Plaintiff : “Yes”
Counsel M. Sibandze : “He spoke to you about this issue which was well known in your community and you told him you knew nothing about sneaking on your granddaughter at night at your house?”
Plaintiff : “Yes.”
Court : “You told him that”
Plaintiff : “Yes”
Counsel M. Sibandze : “also told him that these allegations were merely spread out by your daughter-in-law?”
Plaintiff : “Yes I told him”
Counsel M. Sibandze : “You told him you and the child’s mother you never saw eye to eye?”
Plaintiff : “”Yes.”
Counsel M. Sibandze : “You told him your son and you had a bad relationship?”
Plaintiff : “Yes”
Counsel M. Sibandze : “The reporter wrote all this in the newspaper and told the nation under the sub-title ‘I’m Innocent’?”
Plaintiff : “Yes”
Counsel M. Sibandze : “The reporter told both exactly what you wanted him to say and he told the child’s parents story and your story?”
Plaintiff : “Yes”
 The last question posed and its response thereto was the last straw in plaintiff’s case:
Counsel M. Sibandze : “That is what exactly you wanted him to do?”
Plaintiff : “Yes.”
 From the above, it is safe to conclude that when the defendants published the story, they did so with the full knowledge and consent of the plaintiff. What fortifies this inference is that the article depicts plaintiff inside his kitchen and pointing to the place where the girls were sleeping. He testified in chief and confirmed the same under cross-examination that after the reporter requested him to show him where the children were sleeping, he took him inside his kitchen and showed him. He narrated his side of the story and the reporter had to write a balanced story as he did. By any standards of reporting, that was professional reporting that deserved no censor. That was acknowledged by the plaintiff himself when he testified that the reporter did what he wanted him to do. In my considered view, the reporter could not be faulted in that regard therefore. This prompts me to write few points on the importance of publications.
 “Information is power,” so goes the adage. It is for that reason that constitutions of both developing and developed countries capture as a clear provision, freedom of expression. Freedom of expression entails that the public must continuously be informed. In its process, it carries with it the notion that truth and moral values must be recognised and protected. Society at large must hear and express their opinions and views freely and widely on issues affecting their day-to-day affairs. The dictates of public policy and democracy as enshrined in the constitution under section 24 of Act No: 1 of 2005 are that the public should not be hindered in holding institutions and individuals alike accountable by expecting certain degree of compliance. The media is the key player in carrying out the aspiration and expectation of individuals and society at large in this quest for not only knowledge and information but accountability as well. It is a forum upon which information, debates, opinions and views can be expressed and exchanged. Freedom of expression is one of the cornerstone of a democratic and free society. Willy nilly litigation such as the case at hand are an obstacle to the constitutional mandate of the press. In the discharge of their constitutional mandate, reporters are well entitled to cover publication on a wide variety of subjects including people. To restrict them in the manner plaintiff anticipated would be to call upon them to write only about trees. By the way, trees too have rights and this means the restriction would go on and on until they are completely incapacitated. No vibrant and progressing society can survive outside the media. Where therefore the scales of justice are at equilibrium in an action for defamation, it is better to lean in favour of the right to freedom of expression.
 Turning back to the case at hand, it is common cause that when the impugned story was published, the Kingdom and the world over had just celebrated what is termed “16 days activism against gender based violence.” The coverage by the 3rd defendant came at the right time when the public needed to be informed on the responses by society to this advocacy of “16 days activism against gender based violence.” Hefer JA writing on the period and manner of reporting in cases of defamation by the media stated:
“….the publication in the press of a false defamatory allegation of fact will not be regarded as unlawful if upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time.”
 I do not see why I should hold otherwise than that the reporting came at the very opportune time. By no means do I say that any reporting especially on such issues as at present should be restricted to such periods. I have already demonstrated above that there is no justiciable ground upon which the manner of 3rd defendant’s reporting can be faulted.
 There is a further aspect of the case that the court needs mentioning. It borders on the credibility of plaintiff as a witness. It first showed its ugly face as follows:
Plaintiff (in chief) : I knew that the article refers to me because it is captioned, ‘Jericho Priest,’ and I am that Jericho Priest. My house is also in the article.”
Counsel I. Motsa : “Your name is not in the article?”
Plaintiff : “Yes.”
 Plaintiff was cross-examined:
Counsel M. Sibandze : “Did your attorney tell you that your name as not mentioned in the article.”
Plaintiff : “He said my name does appear in
 The above poser was repeated. The answer did not change. It is not clear why plaintiff changed tune on an obvious matter. Indeed his name did not appear in the newspaper. His credibility was tainted by this alone for the reason that he was questioned several times and he insisted that his name appeared despite that in chief he informed the court that he only knew that the article referred to him by the information ‘Jericho Priest’ and a depiction of his house. Another aspects which shows that he was incredible is that he told the court that he could neither read nor write. However, as the proceedings progressed, the court noted that he understood English very well. This was dictated when defendant’s counsel would object to the manner of questions put to him by his counsel when leading him in chief. He would quickly respond to the question even before the court had the opportunity to rule on the objection. At the end to allay any wrong inference the court enquired from him how far he went to school. He said that he had never been to school. The court enquired as to how he maintained his living. First he said that he was a tree cutter at work. The court insisted if that was his career until retirement. He later pointed out that he had intended to be a qualified constructor. He had enrolled at a tertiary institution but owing to financial challenges, he could not. This clarified to the court that plaintiff did understand English. He had some form of education. It is therefore highly likely that he knows how to read and write. He must have read the article therefore.
 The principle, costs follow the event, goes without saying in our jurisdiction. However, it is not a rigid rule. In the present case, the plaintiff’s case fell from plaintiff himself when leading his evidence in chief. The response to cross-examination was a further blow to the plaintiff’s case as demonstrated above. The question is, why did defendants’ counsel open its case? Worse still, he led a number of witnesses on a case that was a non-starter. This court may not have the answer except that the defence delayed the court and thereby wasted its time. It escalated litigation costs in the process. The defendant ought to have moved an application for absolution from the instance. Counsel for the defence is called upon to make submission on why the court should not order discounted cost in its favour.
 In the result, the following orders are entered:
40.1 The plaintiff’s cause of action is hereby dismissed;
40.2 Costs order is postponed in terms of para 34 above.
M. DLAMINI J
For the Plaintiff : I. Motsa of Mkwanazi Attorneys
For the Defendant : M. Sibandze of Musa M. Sibandze Attorneys
“A 16 year – old Grade V pupil has dropped out of school after being allegedly impregnated by her 70 year old grandfather
 Page 8 paragraphs 8,9,10 book of pleadings
 Page 9 paragraph 11.1 – 11.3
 Khumalo & Others v Holomisa 2002 (5) SA 401
 Le Roux and Others v Dey 2011 (3) SA274 CC at para 36