THE HIGH COURT OF SWAZILAND
the matter between:
T. MAGAGULA Plaintiff
VUMILE HLOPHE 1st
SIBONGILE MASUKU 2nd
AFRICA MKOKO 5th
O R A M .
THE PLAINTIFF : MR
THE DEFENDANTS : MISS
plaintiff, a highly qualified and experienced teacher, was until
September 1989, the headmaster of Mpaka High School. The defendants
were teachers at the school. At the beginning of 1989 the plaintiff,
as headmaster, made a recommendation to the Teaching Service
Commission (TSC) for the transfer of the defendants from Mpaka High
School. There is some dispute as to whether the plaintiff followed
the right channels in submitting his recommendation. It is not in
dispute, however, that the recommendation was received by the TSC and
that it was subsequently communicated to the defendants. In response
to the recommendation the defendants prepared and signed a joint
memorandum which was sent to the TSC. The memorandum was dated 13th
March 1989 and was headed "Protest of transfers from Mpaka High
School." The memorandum reads -
would like to oppose the above recommendation which was initiated by
the Headmaster—Mr S.T.M. Magagula. On the 12th April, the
headmaster summoned us to the office and told us about the
recommendation, stating that he had done so because of a breakdown of
the working relationship between the administration and us. On the
13th April we wrote individual letters to him, requesting reasons
pertaining to the breakdown of the relationship, as suggested by him.
This was in an attempt to mend this breakdown while avoiding dialogue
and conflict. The reasons behind this act were that some of us had
not been forewarned of this breakdown, and almost all of us had not
received the three warning letters.
our surprise we were yet again summoned to the office on the 18th
April, to be informed that he was not going to respond to our letters
requesting reasons for such a breakdown and finally the
recommendation. He told us that the only body that could give us the
reasons we requested was the Ministry. He said that because he had
informed us of the recommendation, he was going to offer us no
audience at all.
feel Mr Magagula initiated our transfers because we had criticized
his way of administering the school and his corruptness.
Discipline: Many times he has been requested in staff meetings to
outline measures of discipline expected and accepted in the school.
has totally failed to do this hence a colossal disciplinary problem
exists in the school. Some examples are:
certain student was discovered with a radio on full blast during a
study period. Most students were found outside this class because of
the impossibility of studying in such a class. A teacher on duty,
who happens to be on this list of transferees, confiscated the
radio, as a measure of discipline to the student. Two days later the
teacher was summoned to the office and the radio demanded back.
Headmaster claimed he was going to give proper punishment to the
student. The student was never punished to this date.
student defied a teacher's directive. The teacher called her five
times and she insolently defied these orders in front of a class of
students (on one occasion). When called by the administration she
twice blankly refused to see them and the third time refused to take
the teacher's punishment as directed by the office. The office
accepted her reasons for refusal of punishment. This giant
disciplinary problem has been created and accelerated by the fact
that he makes himself a laughing stock to the students as he
attempts and has affairs with students. When disciplinary measures
are taken these students can blackmail him. We quote "He is
refusing me permission because I refused to sleep with him."
(Jan. 1989) This makes it impossible for teachers to punish those
students and they verbally demand to be punished by him.
Administration: This school has too many 'administrators', this
including two of the Headmaster's sons. They and the headmaster –
access to the bursar's and headmaster's office during weekends or
holidays such that there results in misplacement and subsequent loss
of documents and money in the bursar's office.
more informed than most of the staff on matters pertaining to the
given the privilege of fiddling with the school trucks.
punishment with the Headmaster's backing. In March, these students
were among six other students who were punished by slashing grass in
the school compound, at the recommendation of the administration.
The teacher who issued the punishment was summoned to the office and
directed by the Headmaster to relieve all students from the
punishment with immediate effect. This was all to relieve these two
'administrators' from the punishment and generaly they refuse
punishment preferring to be punished by the Headmaster knowing very
well they will get away with it.
We are being dictated to and we had strongly criticized this.
Students are the first to know of issues pertaining to the school.
R4000 went missing through a burglary during the December/January
holidays. Fingers were pointed at a number of teachers, but the
headmaster still refused to inform us officially of the issue, to
Students are admitted into completing classes despite our protests at
staff meetings. He claims these are admitted because of their
sporting activities yet he had flatly refused to accept our own
repeating Form III students, claiming they must upgrade.
He had promised teachers in a number of staff meetings to make
students adhere to school rules and regulations, e.g. uniform and
personal grooming, the English language, and latecoming. This he has
failed to do because "Kuzawudingwa siqaphele ukuthi sikhuluma
nobani." This he said wholeheartedly knowing very well that the
majority that was going to suffer was the permed group which
consisted mainly of the she group. Amongst this group was the student
who was heard to say
is refusing me permission because I refused to sleep with him."
Personal Relationships with Students:
He has affairs with students. One particular case is that of a girl
who wrote O-levels last year who is now his live-in girlfriend and he
openly discusses this with members of staff.
he abuses the school vans (SG020ED, SD631SM and SD432NM) for his own
drove a student (Jan. 1989) to Luve in an attempt to seduce her. He
the 26th Nov 1988, he drove boarding students (girls) in SG020ED to
Siteki to buy liquor and meat to entertain themselves, without the
boarding master's permission. Amongst these girls was the present
live-in ex-student. As a result, the Boarding master cannot define
boundaries to students since they are –
to be called by the headmaster by sending the two administrators
living with him.
their friend (the ex-student) at the Headmaster's house, at the
recently donated van (SD631SM) was presented by the Canadian
representative on the 8th April with a big dent that was powder
pasted. The headmaster was responsible for this.
the vans were needed for urgent use by the school in the late
evening, he was nowhere with one of the vans. He would either be
seen in Mhlume or carrying logs to Luve, so that the vehicles were
not available in case of illness or other emergencies.
the 20th April he drove off late
the afternoon in SD631SM with the live-in ex-student and his family
until late in the 'evening.
is very much aware that we stand as a threat because of our open
criticism of his policy of corruption and his lack of administration.
In the above issue he has displayed these two aspects by attempted
assault of one of the transferees—Nicholas Dlamini TSC No.10364 on
the 18th of April.
therefore proves that he feels we are a great threat to his policy.
Broken promises. Too many broken- promises which has led to lack of
discipline, poor attendance of students in class and hence poor
Lack of discipline: he doesn't stand by his word. He discusses with a
teacher the right disciplinary channels but when he meets with the
Headmaster they discuss the wrong channels of discipline which favour
the student resulting in lack of discipline of the students. One
incident was when students were punished by cutting grass after
school. He admitted that it was a fair punishment, but when he met
the headmaster, the teacher was directed to drop the punishment with
immediate effect, with him strongly supporting the Headmaster. This
results in defiance by students.
Diplomacy: he is not diplomatic in communicating with teachers. He
treats teachers as his peers.
refers to teachers' business as nonsense, which is a word we, the
transferees, had strongly criticised.
Poor attendance of students in class: His policy of administration
has led to poor attendance of students to class, in that he, in
collaboration with the headmaster, issues pass out slips to students,
throughout the day, for very trivial reasons, regardless of classes
going on. The students have begun to mock the administration, whereas
the parents and the community as a whole mock the school about the
abundance of female students at the Railway compound during school
the person who should be transferred under the above conditions is
none other than the Headmaster.
plaintiff alleges in this action that paragraphs A and B under the
headings "School Administration" and "Corruption"
are defamatory per se of and concerning the plaintiff. It is alleged
that the publication of the memorandum was malicious and was intended
and understood to mean -
that the plaintiff is an immoral person who seduces and maintains
close relationships with school girls for purposes of having sexual
intercourse with them;
that the plaintiff is a dishonourable and untrustworthy person in
that he misuses school property for his own personal benefit;
that the plaintiff by virtue of his immoral disposition was
incompetent in his work and. was unworthy of being headteacher of
Mpaka High School and was bringing the said school into discredit.
plaintiff alleges that as a result of the publication he. has been
injured in his good name and reputation as well as in his position as
the headteacher of Mpaka High School and has suffered damages in the
sum of E50.000.00. He claims the said amount against the defendants
jointly and severally.
defendants who are represented by the office of the Attorney-General
admit the publication of the memorandum but deny that they acted
maliciously. The defendants deny that the memorandum is defamatory
"as it was published on a privileged occasion in that they had a
common legitimate interest and duty to object to the concerned
authorities regarding their transfer". The defendants plead in
the alternative that –
were justified to publish the said letter in as much as its contents
were true in substance and in fact since such contents mainly related
the prevailing standard of administration at the
the quality of working relations and morale among members of staff;
the quality of the then prevailing teacher and student relationship
and the level of student discipline."
is lawful to publish a defamatory statement in the
of a duty or the exercise of a right to a person who has a
corresponding right or duty to receive the information. Even if a
right or duty to publish material and a corresponding right to
receive it does not exist, it is sufficient if the publisher had a
legitimate interest in publishing the material and the publishee had
a legitimate interest in receiving the material. See Burchell, THE
LAW OF DEFAMATION IN SOUTH AFRICA p 244 and the authorities there
referred to. The duty or right to communicate defamatory matter may
be legal, moral or social. DE WAAL v. ZIERVOGEL 1938 AD 112. In
deciding whether a social or moral duty existed so as to make
privileged an occasion upon which a defamatory statement has been
published the test is whether the ordinary reasonable man would
consider such a duty existed. De WAAL v. ZIERVOGEL supra. The
protection afforded on certain occasions by the defence of qualified
privilege can be forfeited if the defendant is actuated by an
improper motive or as it is sometime said, "malice".
Burchell, supra p 258.
order to establish the defence raised in the present case, the onus
is on the defendants to establish that -
defendants had an interest in making the communication to the TSC;
TSC had ah interest in receiving the communication;
communication was relevant to the matter under discussion.
TSC is a statutory body set up by Section 9 of the Teaching Service
Act No.l of 1982. The TSC is responsible, inter alia, for the
appointment, transfer and discipline of teachers.
argument advanced on behalf of the plaintiff is that the defendants
were actuated by an improper motive and that the matters they
complained of were not relevant to the question of transfer which was
the subject of the plaintiff's recommendation to the TSC.
plaintiff gave evidence setting out the reasons on which his
recommendation to the TSC was based. He explained that the defendants
failed to obey instructions which he had given and to abide by
regulations which the defendants had agreed to at the beginning of
1989. The plaintiff denied the allegations made against him in the
memorandum. He told the court that he had fallen in love with a girl
who had completed high school in 1988. He fell in love with her in
February 1989 and married her in 1991.
evidence led on behalf of the defendants is that the memorandum
sought to bring to the attention of the TSC the real reason for the
plaintiff's recommendation namely, that the defendants actively
challenged the plaintiff's conduct in the management of the school.
The plaintiff, it was argued, viewed the defendants as a threat to
his leadership and hence the recommendation without first calling
upon the defendants to mend their ways. The defendants deny any
improper motive and maintain that the communication was made solely
for purposes of placing the full story before the TSC whose duty it
was to take a decision on the plaintiff's recommendation.
can be no doubt in my view that the TSC had an interest in and the
right to receive the memorandum from the defendants. The plaintiff
concedes that that is the position. The plaintiff's contention is
that the defendants were actuated by an improper motive. It is
submitted that paragraphs A and B of the memorandum complained of are
to the question of the transfer of the defendants. It is essential,
in my view, that the memorandum be read as a whole. Paragraphs A and
B were set out as the real reason for the plaintiff's recommendation.
The paragraphs set out the basis for the criticism which the
defendants allege they levelled at the plaintiff. The defendants
sought by paragraphs A and B to substantiate the allegation that the
plaintiff's recommendation was actuated by the criticism that the
plaintiff faced. The defendants' memorandum, it must be borne in
mind, was in response to an allegation by the plaintiff that the
defendants were in breach of administrative regulations in force at
the school. The memorandum served to deny this allegation and placed
before the TSC what they considered was the real reason behind the
plaintiff's recommendation. It is interesting to note that a
commission of enquiry was set up by the TSC following the defendants'
memorandum. This emerged in the course of the plaintiff's evidence.
The findings of the commission were not communicated to the parties.
The establishment of the commission was indicative of the TSC
interest in the contents of the memorandum under its overall
responsibility for the teaching profession.
plaintiff has not established, in my view, that the defendants were
actuated by an improper motive in publishing the memorandum. The
defendants had a legitimate interest in the issue which the
memorandum sought to address namely, the question of their transfer.
The communication was made bona fide to the TSC which as stated had
the power to investigate and make a decision on the plaintiff's
recommendation. The relevance of the communication to the question of
the transfer is not in any doubt.
action is dismissed with costs.