IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.:3194/2011
In the matter between
GIDEON MHLONGO Plaintiff
VUSI GININDZA 1st Defendant
ARICAN ECHO (PTY) LTD 2nd Defendant
ANNOT PUBLISHING COMPANY 3rd Defendant
Neutral Citation: Gideon Mhlongo Vs Vusi Ginindza & 2 Others (3194/2011)  SZHC 89 ( 23 May 2019)
Coram: Hlophe J.
For the Plaintiff: Mr S. Masuku , Howe, Nsibandze and Masuku Attorneys
For the Respondent: Advocate P. Flyn instructed by Musa Sibandze Attorneys
Date Heard: 29th January 2019
Date Judgement Delivered: 23rd May 2019
Civil law – Defarmation – Objection to cross examining Plaintiff's witness on a bundle of documents bordering on Plaintiff's character or reputation when such had not been pleaded – Further, bundle not claimed to be used for mitigation of damages but appears to be used as a full defence – Issues of character or reputation raised in impugned bundle not facts but are allegations which require proof – Clear that to resolve dispute a trial within a trial would be necessary – Most of the issues sought to be raised in the bundle to prove plaintiff’s lack of reputation are issues that occurred sometime after the publication of the article complained of – Whether Defendants entitled to utilize the bundle concerned in the circumstances particularly where same had not been pleaded.
- Complaining that the defendants had defamed him through the publication of a certain article in a Newspaper owned by the second defendant while published and edited respectively by the third and second defendants, the plaintiff approached this court and sought damages in the sum of E200 000-00 for the alleged defamation.
- Without having to go into the details of the article complained of (that is not necessary in the circumstances of the present matter), I will mention that the article in question had been published in the Newspaper owned by the second defendant (The Times of Swaziland Sunday) on the 10th June 2001. Its heading read; "How "The Club "survived the axe". It also had two sub-headings with one set out above the main heading whilst the other one is set out below it. These sub-headings respectively read as follows:
(i) “During 1999 the club made three payments of not more than E6000-00 despite the fact that it already owed about E150 000-00’’.
(ii) "While no-nonsense CEO of the Mbabane City Council Gideon Mhlongo cracked down on rates defaulters, selling their properties, he pardoned the Mbabane Club of which he was chairman yet it was over E100 000 in the red".
- In their plea the defendants raised what I will term; a "three-pronged" defence. Firstly, although they did not deny publishing the article concerned, they denied it was defamatory. Secondly, they contended that in the event the court found it to have been defamatory of the plaintiff; then the words used in both the heading and the sub-headings were allegedly true in substance and in fact. It was, they further contended, in the benefit of the public to publish it in that manner. Thirdly, and in the alternative to the second prong of the defence, it was contended that the court should conclude that the contents of the article complained of were true and that the defendants were unaware of the falsity of any factual averments in the article. They contended further that they did not publish the article negligently or recklessly. The publication, it was further contended, was in all the circumstances of the matter, objectively reasonable. They also contended that the article was published without animus injuriandi and that it was published for the public benefit.
- The matter took a long postponement after the plaintiff had completed giving his evidence in chief whilst awaiting cross examination. When it was about to resume on the 28th January 2019, the defendant's attorneys on the 26th October 2018, filed a discovery affidavit which was accompanied by a bundle of documents comprising 262 pages made of certain correspondence exchanged between the plaintiff and his employer; certain disciplinary charges of dishonesty preferred against the plaintiff by his employer for alleged misconduct at his work place; the report of a certain Commission of Inquiry into the affairs of the plaintiff’s employer (the City Council Of Mbabane) apparently aimed at showing some unfavourable allegations made against the plaintiff in that Commission of inquiry carried out in the year 2002; certain correspondence and minutes of a council meeting held in connection with a matter where a certain Mr Frederick Maphandzeni had allegedly been paid amounts that were allegedly undue to him, supposedly by the plaintiff or at his instance.
- Before the matter could resume in court on the 28th January 2019, there was filed another discovery afffidavit by the defendants. It had an annexure in the form of a ruling from a certain disciplinary inquiry that had been held to discipline plaintiff. In terms of this ruling, the plaintiff had allegedly been found guilty of certain disciplinary charges. It however does not seem to be in dispute that the inquiry concerned had proceeded against the plaintiff in his absence, so much so that his defence thereto was never heard. It is common course he had resigned his employment before the said disciplinary hearing. What should be mentioned at this stage is that he was re-employed by the same employer and is currently working there which renders the allegations of dishonesty against him suspect..
- The stated aim of the defendants in filing and serving all the documents referred to above was to use them in cross examining the plaintiff when the matter resumed in court on the 28th January 2019. It is common course however that neither facts nor defence founded any of these documents had been pleaded in the defendants’ plea.
- The apparent aim of all the documents filed under the subsequent discoveries and referred to above was to show that the plaintiff had a bad character or put differently, that he had no reputation, which was in itself implying that he (Plaintiff) was not capable of being defamed in law.
- At this point I feel the need to digress and clarify that I have noted from a perusal of all the documents filed under cover of the subsequent discovery affidavits that they relate mainly to two things a Commission of Inquiry into the affairs of the plaintiff’s employer carried out in the year 2001 and to a certain disciplinary inquiry carried out against the plaintiff in 2003.I must clarify that during the occurance of these events. I was employed by the then firm of attorneys, Millin & Currie as a Professional Assistant. In that capacity I featured prominently in the Commission of Inquiry concerned whilst I featured occasionally in matters relating to the disciplinary inquiry. I did that as and when I would be called upon to do so on behalf of my then colleague who was handling the matter, Mr Sibandze. At the time Millin & Currie was acting for the Mbabane City Council. It must be clarified I have volunteered this information of my own accord because I think it is a proper thing to do. Otherwise I am certain that both parties are aware of this position and none has had an issue with it. For my own, I do not think that my dealing in that capacity with the matters concerned disqualify me in any way from hearing this one. The publication complained of had already occurred as at the time I attended to the Commission of Inquiry and the disciplinary inquiry referred to. Furtherstill I was not aware of the publication in question at the time nor was I aware of the current proceedings. Besides, the relevance or otherwise of these events is the issue for determination in this objection are in dispute.
- Otherwise when the matter was mentioned in court on the 28th January 2019, the Plaintiff’s counsel claimed not to have seen the documents forming the basis of the current objection in time for him to prepare and asked for a postponement of the matter to the next day, the 29th January 2019, to enable him do so, which this court granted.
- When the matter was meant to commence on the 29th January 2019, the Plaintiff objected to the documents concerned being used in the cross examination of the Plaintiff. This it was contended was because the defence sought to be raised in terms of the cross-examination had not been pleaded by the defendants given that their defence as pleaded was that referred to above, of which the one implied in the provision of the bundle of documents was not another one. The parties were then directed to present their argument for and against with regards the cross examination of the Plaintiff using the said bundle of documents.
- The basis of the objection as raised by the plaintiff’s counsel can be summarized as follows:-
- The publication of the article complained of was actually made prior to the events relied upon in the bundle to contend that the Plaintiff had no reputation at the time; that is to say there is no proof that the plaintiff had as a matter of fact no reputation at that point even assuming that the correctness of the events asserted in the bundle were not in issue, which is not the case herein
- It does not appear anywhere in the defendant's plea that they published what they did knowing that it was defamatory but did so because the Plaintiff had, according to them, no reputation to be impaired. The defence they sought to introduce by means of the bundle of documents was in that sence not consistent with the one pleaded in the defendant's plea.
- None of the allegations made in the events relied upon in the bundle of documents to advance the defence being raised to the effect that plaintiff had no reputation can be taken to have been proved or established as a fact. Instead all the allegations made in the events referred to therein such as the charges preferred against the Plaintiff way back then; the dossier on the so called Frederick Maphandzeni issue and the Mothibi ruling on the disciplinary charges preferred against the Plaintiff, were all disputed. As the correctness of all the allegations made was disputed by the Plaintiff their determination would involve this court in a protracted trial of a multiplicity of issues which were not germaine to the resolution of the matter.
- None of the issues raised in the bundle and which are sought to be entered into the record through cross - examination, were pleaded contrary to the practice in this jurisdiction where a defendant is required to state clearly and concisely all the material facts upon which he relies for his defence in the plea.
- The evidence on one's character where such character has not been placed in issue by that person can only be admitted for the mitigation of damages and not as a total defence as it is happening here.
10. The defendants on the other hand placed heavy reliance on the Klisser v Associated Newspapers LTD 1964 (3) SA 308 and contended that the defendants were entitled to cross examine the Plaintiff on matters touching on his character without having pleaded those in their plea and without necessarily having given the Plaintiff notice. It cited the following except from the head note of the judgement concerned:
“A Plaintiff who claims damages for an alleged defamatory statement should be apprised of the intention of the defendant to attack his general reputation and to lead evidence in support of such attack. Though such evidence is perfectly admissible and it is not rendered inadmissible because no notice has been given or because the matter has not been raised in the pleadings, fairness and equity demands that, should the defendant lead such evidence, without having given prior notice to the Plaintiff, the Plaintiff should have a reasonable opportunity to meet such evidence in rebuttal."
11. Based on the foregoing extract, the Defedant's counsel submitted that although the facts grounding the attack on the Plaintiff's character or reputation had not been pleaded; and in so far as sufficient notice had been given to the Plaintiff on the evidence the Defendant intended to lead, this court should dismiss the objection and allow the evidence on the reputation or the lack thereof by the Plaintiff to be led.
12. From my perusal of the bundle of documents the Defendant seeks to cross examine the Plaintiff on, it is clear that none of all the allegations in the documents which touch on the Plaintiff's alleged character have come to a definite conclusion about his lack of reputation. This means that whatever assertions there are made of or about the Plaintiff so as to have a bearing on his character or reputation are disputed.
13. To illustrate this, the contents of the bundle from pages 1-21 comprise the charges and related correspondence levelled against the Plaintiff. Pages 22-191 comprise the Commission of Inquiry Report. There is no objection to this being used in cross examination of the Plaintiff. It is a fact however, that the contents therein are also disputed. Pages 192 to 262 comprises a dossier concerning certain allegations made against the Plaintiff indicating his alleged impropriety in the matter of one Frederick Maphandzeni who had allegedly sold the City Council some property when he had no right to do so together with the related correspondence thereto. Again the allegations directed at the Plaintiff are disputed, meaning that they were not established as facts of his alleged impropriety.
14. The ruling on the Disciplinary inquiry (the Mothibi ruling) as filed under the filling notice of the 16th January 2019, makes it clear that the Plaintiff did not attend the disciplinary hearing that resulted in it allegedly because the days on which it was meant to be heard were not suitable to his Counsel. If that was the case then whatever finding might have been made then may not necessary be conclusive if it was not admitted and was also never confirmed by an independent entity like a Courts of law in the face of such dispute. I do not think it is for this Court to make determination whether that ruling was or was not in the context of the matter before it. It suffices for me to say that this court would be deciding a side issue.
15. It is not for me to determine in the course of these proceedings which ones of the other allegations made by the parties are correct or incorrect including which ones are or are not competent in law. I only observe that none of the assertions made are common course or put differently that they are all disputed.
16. The thrust of this is that this court is being asked to allow the Defendant's to cross- examine the Plaintiff on various documents making diverse allegations in pages totaling 290 in all which are highly disputed. This means that what is in issue before this court will not only be the correctness or otherwise of the issues contained in the documents concerned but also their relevance to the matters in issue herein, particularly on whether or not the Plaintiff was defamed.
17. It shall be noted that the Defendants in their plea do not acknowledge that the Plaintif was defamed where the contents of the bundle would only be used in the mitigation of damages which is what the cited case of Klisser V SA Associated Newspapers LTD (Supra) suggests is the only time when such documents can be used even if they had not been pleaded. This contention also helps in distinguishing the Klisser V SA Associated Newspapers LTD case from the present one as the bundle of documents seem to be intended for use as a full defence and not only for the mitigation of damages.
18.This takes me to the next point namely that the Defendants have not pleaded these allegations on the reputation or the lack thereof by Plaintiff in their Plea. This in my observation is notwithstanding that the Defendants seek to use the contents of the bundle and the ruling as part of their primary defence as opposed to use it as a means for the mitigation of damages. Our Civil Practice has crystalised over the years to the effect that a Defedant is obliged to concisely set out his defence in his plea. It would otherwise be unfair and therefore improper for a party to purport to raise a comprehensive defence otherwise than through a plea filed in terms of the rules so as to enable the Plaintiff understand the defence raised by the Defendant. The practice adopted by the Defendants herein seems novelistic and cannot be allowed to stand without the otherside being prejudised.On what a plea should contain,Herbstein And Van Winsen’s book on The Civil Practice Of The Supreme Court Of South Africa put the position as follows:
“The defendant must in his plea admit,deny or confess and avoid all the material facts aiieged in thecombined summons or declaration,or state which of those facts are not admitted and to what extent,and must clearly and concisely state all the material facts upon which he relies. Particularity must be furnished as to the material facts relied upon.’’
19. I agree with Plaintiff's Counsel that to allow the use and reliance on the said bundle of documents and the Mothibi ruling would be tantamount to the court seeking to determine a multiplicity of issues not necessarily connected to the matter. Not only would that be prejudicial to the plaintiff in terms of deviating from the pleaded case but it would aloso be time consuming when it says nothing or very little on the defence as pleaded.
20. On what was attributed to the Klisser judgment by the Defendants, it seems to me that the latter would only be entitled to lead evidence on matters not directly in issue but which are relevant. I take it that by relevant matters is meant those whose relevance has already been determined and not those where such is still in issue because the correctness of their assertion has not yet been determined. The contents of the bundle and the Mothibi ruling sought to be relied upon fall into the category of those allegations whose correctness and by extension their relevance have not yet been determined. Such can therefore not be relied upon in the manner the defendants seek to.
21. On the basis of the foregoing I am convinced that the plaintiff has made a case for the objection raised against the use of of the bundle of documents and the Mothibi ruling the Defendants have sought to rely on in cross examining the Plaintiff. To that end I make the following order:-
21.1. The Plaintiff's objection to the utilization of the bundle of documents comprising 262 pages together with the 28 pages long Mothibi ruling is upheld.
21.2. The usage of the bundle of documents and the Mothibi Ruling filed to found the Plaintiff's cross examination on matters other than those pleaded be and is hereby refused.
21.3. The costs of the objection shall be costs in the course.
Judge - High Court.