THE HIGH COURT OF SWAZILAND
the matter between:
OF THE TIMES OF SWAZILAND 1st Defendant
(PTY) LTD t/a THE TIMES OF 2nd Defendant
THE PLAINTIFF : MR. P.M. ZWANE
THE DEFENDANTS : MR. H. CURRIE
25TH NOVEMBER 1994
Times of Swaziland (the Times) of which the 1st defendant is the
editor and the second defendant is the publisher has a daily
circulation of about 90,000 copies per day. On the 5th May 1992 an
article appeared on the front page of the Times under the heading
"Government car 'sold in SA'". The article read as
GOVERNMENT car belonging to the Ministry of Health which was
illegally sold in South Africa has still not been returned despite
car, a 4x4 SG 003 PHE went missing early this year at the Mental
hospital in Mansini.
car was identifed among nine cars, seven belonging to government,
that had been recovered by the South African police.
vest of the cars have since been returned after government sent a
recovery team to South Africa to identify the cars.
comprised officials from the Ministries where the cars belonged and
the health car, government sent Mr. Donald Luhlanga, then
administrator at the Mental hospital and Assistant Superintendent
Cornelius Lukhele to identify the car.
while in South Africa, Mr. Luhlanga is alleged to have sold the car
to a white South African citizen, promising that he (Luhlanga) would
make arrangements with government.
was confirmed by police PRO, Inspector Azaria Ndzimandze.
said police moved in time to foil the attempt by Luhlanga and the
matter was reported to the authorities at the Ministry of Health.
Ndzimandze said the delay in repatriating the car came about
because the South African who bought the government car after it was
illegally sold to him by Mr. Luhlanga told the police team that he
had put a new engine in it.
Ndzimandze said the man was told that he must take off his engine and
replace it with the original so that it can be repatriated, but this
has still not happened.
Mr. Luhlanga has since been transferred to become transport officer
in the Ministry of Health headquarters, replacing Mr. Poslid Simelane
who has been transferred to the Ministry of Transport and
last week, the South African had not changed the engine hence the car
has not been returned.
could not be obtained from the Ministry of Health."
plaintiff is the Luhlanga referred to in the article. He is presently
employed as an Immigration Officer in the Public Service but was the
administrator of the Mansini
hospital at the time of publication of the article. The plaintiff
alleges that the article is false and defamatory of him. He claims
payment of the sum of E50,000 together with interest and costs as
damages for the defamation.
of the article is not in dispute. The defence raised by the
defendants is that the article was not defamatory alternatively that
if the article is found to be prima facie defamatory the article was
true and fair comment on a matter of public interest, for the public
onus of establishing that the contents of the article were true and
that its publication was in the public interest rests, in the
circumstances, on the defendants. It can be stated at the outset that
in discharging this onus it is not necessary for a defendant to prove
the statement literally true in every detail; it is sufficient if he
establishes that the statement is substantially true as a whole
and in every material part thereof. See McKerron, THE LAW OF DELICT
7th Edition 186; Burchell, THE LAW OF DEFAMATION IN SOUTH AFRICA 218,
231 and the authorities there cited.
plaintiff gave virtually unchallenged evidence of the circumstances
surrounding the disappearance of the government vehicle bearing
registration No. SG 003 PHE
the Mental Hospital in Manzini and its subsequent identification by
him in Rustenburg in the Republic of South Africa. The vehicle, a
Toyota 4x4, had been purchased by a Mr. Ford from some undisclosed
person in South Africa. Mr. Ford had effected considerable changes
and improvement to the vehicle including a new engine. The plaintiff
was nevertheless able to identify the vehicle as a government
vehicle. It is common cause that the vehicle was still to be used as
an exhibit in a criminal trial in South Africa and that some
arrangements were to be made regarding Mr. Ford's improvements
to the motor vehicle. It was the plaintiff's evidence that Mr. Ford
expressed the wish to purchase the vehicle. The plaintiff explained
that the vehicle belonged to the Swaziland Government and that its
sale would have to be negotiated with the Government. It may well be
that the plaintiff may have agreed to assist Mr. Ford in his attempts
to purchase the vehicle.
J. Dlamini of the Royal Swaziland Police was present when the
plaintiff identified the motor vehicle. According to Dlamini who gave
evidence for the defendants the vehicle was not sold to Mr. Ford-It
was Dlamini's evidence that the plaintiff agreed to assist Mr. Ford
in purchasing the vehicle. Dlamini told the court that he made it
quite clear to Mr. Ford
the plaintiff that the vehicle could only be sold by the Government.
For some unexplained reason Dlamini stated that he reached the
conclusion that the plaintiff was attempting, in his personal
capacity, to dispose of the vehicle to Mr. Ford. There is nothing to
substantiate this conclusion. The identification of the vehicle was
made on or about the 26th February 1992.
the 28th February the plaintiff made a report of his trip to the
Republic of South Africa and the identification of the vehicle to the
Principal Secretary, Ministry of Health. The report, exhibit A, sets
out in some detail all that had transpired at Rustenburg and in
particular, the plaintiff's advices to Mr. Ford regarding the
possible sale of the vehicle.
article complained of has clearly been shown to be false and
inaccurate. The plaintiff did not sell or attempt to sell any
Government vehicle in South Africa. The editor of the Times, Gordon
Mbuli gave evidence that the contents of the article were obtained
from the police who he believed were investigating the matter and
whose credibility he did not doubt. No attempt was made to contact
the plaintiff before publication of the article. According to Mbuli
when the plaintiff approached the Times about the article, the
plaintiff indicated that he would institute an action against the
On that basis the Times decided not to publish an apology or
retraction and awaited a response from the police. The defendants
have failed in my view to discharge the onus of establishing the
defence they have raised. The article was clearly defamatory of and
concerning the plaintiff. Mr. Currie for the defendants did not
at the conclusion of the evidence seek to argue otherwise.
to the question of quantum, the plaintiff was a hospital
administrator at the time. He was ridiculed by his junior staff
following publication of the article. He is a married man with
children and he told the court that he was deeply hurt by the
publication particularly as it related to government property over
which he was responsible. An acquaintance of his, gave evidence of
her reaction after reading the article. The Times enjoys a fairly
wide readership in Swaziland. There was no attempt to retract the
publication or at the very least to point out that the contents of
the article were being challenged by the plaintiff. An explanation to
the effect that the plaintiff was challenging the report and that the
Times either stood by its story or had simply reported the story as
given by the police would have gone a long way in lessening the sting
that the publication had had. The attitude of the editor on learning
intended action was simply one of "go ahead! We will meet in
court." This is a dangerous and high handed attitude which
stands to be discouraged. It is not an easy matter for the man in the
street to stand up to the might of the press. It is quite improper
for the press to capitalise on this.
have been referred to past awards of this court in defamation cases.
In the unreported case of NXUMALO v. African ECHO (PTY) LTD t/a TEE
TIMES OF SWAZILAND & 2 Others Civil Case No. 778/86 an award of
E10,000 was made following the publication of a false and defamatory
story that the plaintiff a well known medical doctor had been charged
and prosecuted for having stolen dogs in the Republic of South
Africa. The facts and the standing of the plaintiff in that case were
considerably different from the present case. I do not consider that
the present case calls for an award in the region of Nxumalo's case.
It must as was pointed out in ARGUS PRINTING AND PUBLISHING CO. LTD.
v. INKATHA FREEDOM PARTY 1992(3) S.A. 587 at 590, be borne in mind
that an action for defamation "had been seen as the method
whereby a plaintiff vindicates his reputation, and not as a road to
the best I can in the circumstances of this case I consider that an
award of E6,000 would be appropriate. Judgment is in the
circumstances granted in
of the plaintiff in the sum of E6,000 together with interest at 9%
p.a. from today's date to date of payment and, costs.