THE HIGH COURT OF SWAZILAND
Case No. 1248/93
the matter between:
G. SHONGWE Plaintiff
PLAINTIFF Mr. Shabangu
DEFENDANT No Appearance
plaintiff, Mr. Shongwe resides at Mhubhe in the Manzini region and
the defendant, the Swazi Observer, prints and publishes a newspaper
of the same name with a wide circulation in this country.
Monday 7th June 1993, the Swazi Observer published as its leading
story in that day's edition of its newspaper an article which has
given rise to this action for damages for defamation.
article was published very prominently on the front page. It
concluded, still in a quite conspicuous way, on the second page. I
can illustrate this to an extent by setting out verbatim, as follow,
the two pages with the initial headline (though its is necessary to
look at the newspaper itself, and especially the front page, to
appreciate how prominently it featured):
STRIKE OVER SPECIAL PROJECT FUNDS
of Mhubhe High School in the Manzini Region went on strike on Friday
over the alleged disappearance of money they contributed for a
certain special project that has not been disclosed to The Swazi
students alleged that their contributions were paid to a member of
the community instead of being deposited to the bank as it was the
procedure with the building and school funds.
pointed out that the school authorities demanded them to contribute
E50 per student.
decision to go on strike was taken after the students, upon inquiry,
were told their contributions had been handed over to a certain Mr.
Shongwe who built himself a clinic with the money.
students after having discovered the construction of the clinic, held
a meeting on Thursday afternoon where they resolved to go on strike
the following day, if the school authorities did not furnish them
with reasonable explanation on their contributions.
the meeting all the school prefects were given the task of seeking an
audience with the headmaster, Mr. Bernard Dlamini.
wanted to know in particular why the funds had to be paid to Mr.
Shongwe yet other school funds were paid directly to the bank.
students also demanded an explanation on why the headmaster refused
to join school soccer team in the Coca-Cola football tournament yet
they were required to pay E20 sports fee per student.
students also bitterly complained about the use of a whip by the
headmaster when disciplining them instead of using a stick. The
students said the use of a whip by Mr. Dlamini, had resulted in some
students abandoning school.
the headmaster and Mr. Shongwe, had a meeting with the students on
Friday and a compromise was reached and it was agreed that he will
pay the joining fee for the Coca-Cola football tournament.
further told the students that he was not aware that a number of
students have since abandoned school for fear of being beaten with a
Dlamini told the students that he will no longer use the whip when
Mr. Shongwe, when asked by students to give an account regarding the
clinic which he is building, stormed out of the meeting without
answering the queries.
strike was however, suspended on condition that Mr. Shongwe be
summoned to the school today to account for the money in his
Shongwe's complaint is that the average reader would infer from the
ordinary meaning of the article that he had fraudulently and
improperly misappropriated to his own private use, to build a clinic
for himself, funds that he had received on behalf of the school.
Accordingly he seeks E20 000 general damages for injury to his
dignity and reputation.
claim is unopposed.
of the article is proved. On the face of it, the report is in my
judgment defamatory in the way alleged by Mr. Shongwe.
ordinary reader, in my view, would construe the article as reflecting
adversely on Mr. Shongwe's moral character.
defence has been advanced by the newspaper. Mr. Shongwe is
accordingly entitled to succeed: De Waal v. Ziervogel 1938 AD 112.
is entitled to recover damages for the wrongful done to his
reputation and to consequent injury to his feelings : Die Spoorband
v. S.A.R. 1946 AD 999.
to the measure of damages, it is a serious matter to accuse a person
wrongly of misappropriating funds. The newspaper describes itself as
one that "serves the nation", and is well known to be one
of those in daily circulation throughout Swaziland. Conspicuous
publicity was given to the article.
newspaper chose to make it the leading story for the day, under the
very prominent headline. It is also given prominence where it
continues on the second page. There is no evidence that an apology
has been rendered.
these circumstances, I regard an award of E16 000 as fair and
reasonable. There will be judgment for that amount accordingly and
interest at the rate of a percent from today, with costs.
HULL CHIEF JUSTICE
THE HIGH COURT OF SWAZILAND
Case No. 1909/94
the matter between:
RAND MERCHANTS CC Applicant
CARL MOORE KIRK Respondent
RESPONDENT Mr. Nkosi
APPLICANT Mrs. Currie
is an application by Mr. Kirk to set aside an order made by me, on
28th October 1994, on the application of the company, for the release
of its truck and trailer which Mr. Kirk had detained, and for costs.
circumstances are set out at length in my order today dismissing with
costs Mr. Kirk's application to attach the rig to found or confirm
jurisdiction in an action he intends to bring that is related to this
is not in dispute that the rig belongs to and, more particularly, was
in the possession of the company - in Swaziland - when Mr. Kirk
detained it physically, without having obtained any court order to do
the affidavits filed on Mr. Kirk's behalf are read carefully, it can
be seen that no good reason for detaining the rig is disclosed. No
basis is shown for rescinding the order, which was obtained on an
application by mandament van spolie.
present application is therefore dismissed with costs. The order of
28th October 1994 is confirmed.
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