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IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 263/95
In
the matter between
DAVID
THOMO PLAINTIFF
And
ADOLF GRUBER DEFENDANT
Coram S.B.
MAPHALALA -J
For
the Plaintiff MR. S. MDLADLA
For
the Defendant IN ABSENTIA
JUDGEMENT
In
this action, the plaintiff sues the defendant for alleged defamation.
The alleged defamation arises from a statement made by the plaintiff
to the Lobamba Police Station dated the 12th May 1993, and annexed to
the plaintiffs combined summons as annexure "A". The
plaintiff claims damages in the sum of E100, 000-00 and interest
thereon of 9% per annum from the date of judgment to the date of
payment.
The
statement which is the subject matter of this action (annexure "A")
according to the plaintiff meant and was understood to mean that the
plaintiff had stolen or assisted in the theft of certain goods and
had committed the crime of contempt of court. The full text of the
offending statement reads, thus:
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"I
was divorced on the 10th March 1993, from my wife Elizabeth Gruber of
Forbes Reef, Enkhaba region. The case was heard at the High Court in
Mbabane. A contract was made that my ex-wife gets certain household
goods immediately (annexure "A") and some goods after an
agreed period (annexure "B"). The copies are attached.
After the court case my ex-wife collected this goods. During my
absent from home together with items she is not entitled. This
happened over several days. I instructed my maid to lock the door and
tell my wife to call me from work when she takes anything out of the
house. The maid did as instructed. However, my ex-wife returned with
a police officer Mr. Thomo who is employed at Police headquarters and
is a relative of hers; he demanded entrance to my residence in order
to take more items not listed in the agreement. This is contempt of
court and theft. To avoid extra court cases I consulted my lawyer to
return the items without success (except some of the goods). I also
spoke to a superior of police officer Thomo to advice Mr. Thomo not
to assist in theft and contempt of court in his position as a police
officer. I never heard anything in this matter. 3 lists attached with
items taken without permission".
The
defendant filed an intention to defend the action and subsequently
requested and was supplied with further particulars. Thereafter, the
defendant filed his plea and thus joining issue with the plaintiff.
The
Registrar duly allocated a date for any party to set the matter down
for hearing. The defendant set the matter down for hearing on the
23rd to 27th March 2000, at 9.30am. The matter came before me on the
23rd March 2000, where the plaintiff was represented by Mr. Mdladla
for trial and there was no appearance for the defendant at 9.30am.
Mr. Mdladla brought to the court's attention a notice of withdrawal
of the notice of set down by the defendant's attorneys. It appeared
that the notice of withdrawal was flawed in that it did not bear a
Registrar's stamp as required by the rules of the court, and thus of
no effect. The court then took a short adjournment to ascertain the
whereabouts of the defendant. When the matter resumed there was no
attendance still and the matter then proceeded on the basis that the
defendant was in default.
If,
when a trial is called, the plaintiff appears and the defendant does
not appear, the plaintiff may prove his claim to the extent that the
burden of proof lies upon him, and judgment must be given
accordingly, in so far he has discharged that burden (see
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Herbstein
at al The Civil Practice of the Supreme Court of South Africa (4tb
ED) at 661 and the cases cited therein).
The
court then heard the evidence of the plaintiff. The plaintiff himself
gave evidence under oath. He told the court that he is Superintendent
in the Interpol Section of the Royal Swaziland Police and that on the
12th May 1995, when he was Desk Officer in the Crime Division he was
called by the Paddy O'Connor who was then Assistant Commissioner of
Police (Crime). Mr. O'Connor was his Supervisor. He told him the
Commissioner of Police Sandile Mdziniso wanted to talk to him about
an enquiry, which had been sent to him by the Lobamba Police Station.
Mr.
O'Connor was assigned to conduct the inquiry. He said to him "you
were terrorising a certain house and took some items belonging to a
certain Mr. Gruber". He told him that Mr. Gruber had made a
statement to the Lobamba Police Station that plaintiff had stolen
goods belonging to the defendant and thus flouting a High Court
Order. Plaintiff told the court that he was shown this statement made
by the defendant. Plaintiff told the court that he had not gone to
Mr. Gruber's home as it was alleged and he did not know where his
home was.
On
the same day he received a telephone call from one S.V. Mabuza who is
a Superintendent in Hhohho who said there was a white man who said
plaintiff had gone to his home and took property belonging to him.
Plaintiff denied these allegations. He told the court in his long
career since 1966 he has never been called by the Commissioner of
Police or accused of anything. This has created doubt on his
credibility such that his chances of advancement in the force have
diminished.
The
above is the plaintiffs case and as there was no appearance on behalf
of the defendant the court has to establish whether the plaintiff has
discharged its onus. From the perusal of the papers it appears that
the offending statement is not being denied by the defendant. The
defence put forth by the defendant in his plea is that the statement
was made without malice and that annexure "A" is a
privileged document because it was received by the Royal Swaziland
Police for the purpose of obtaining evidence. Mr. Mdladla for the
plaintiff argued that it would not be in the public
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interest
for one to go around reporting people at their work place and later
turn around that it was privileged information.
He
argued that in the case in casu the defendant should lose the defence
of privilege. Further, this statement does not fall under the classes
of privilege documents recognised by law (see Jonathan M. Burchell
"The Law of Defamation in South Africa (1988) page 287). To say
that a person is a thief is defamatory. If there was not defamation
the plaintiff would not have been called by his superiors and an
enquiry heard. Police officers are custodian of property rights of
citizens and to accuse them of theft is highly defamatory. Moreso if
one is accusing them of acting against a High Court Order.
On
the question of intention Mr. Mdladla is of the view that the
defendant had to be led in order to be cross-examined but he was in
default (see Herbstein et al at 661). Furthermore, it is contended on
behalf of the plaintiff that no copy of the apology defendant is
referring to in paragraph 4.3 of the plea was amongst the documents
discovered. Lastly, Mr. Mdladla left the issue of the award of
damages in the discretion of the court.
These
are the issues before me. It appears to me that the nub of this
matter is whether or not annexure "A" is a privileged
document. It is without question that words used in annexure "A"
are defamatory and that they were communicated to third parties as
evidenced by plaintiffs evidence-in-chief. It would appear to me that
in the case in casu . The defendant would be immune from liability on
the defence of privileged. There can be no doubt, that it is the duty
of every person who has reason to believe that a crime has been
committed to inform the police. (McKerron on the The Law of Delict
(7th ED) at page 192 and the case cited thereat). There can also be
no doubt that every person has a duty, as well as a right, to bring
any misconduct or neglect of duty on the part of a public officer or
employee to the notice of the proper authority for investigation. It
has been held in English law that a statement by a private individual
to the Chief Secretary of the Post-Master General as to the alleged
misconduct of an official under the authority of the Post-Master
General, or by an Inspector of Police, or Private individual, to a
Chief Constable, as to the official conduct of a police Sergeant
would constitute qualified privileged (see Cassidy vs
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Connochie,
1907 S. C. 1112 (Ct of Sess) and Gatley on Libel and Slander (4th ED)
at 22). Further, a person who suspects, and has reason to suspect,
another of a particular theft, may with a view to enquiry, tax that
individual with the theft, and although the suspicion turns out to be
erroneous, the law gives no redress to the party accused. A person
who suspects another of theft is not only privileged in asking
questions of him with a view to ascertaining whether his suspicious
are true, but he is entitled to approach any other person who he has
reason to believe will be able to throw any light upon the subject of
the inquiry, so long as he acts bona fide. (see Gatley at page 213).
It
is my considered view that in the case in casu the plaintiff would be
immune in the circumstances and I could not find that he was actuated
by any malice.
I
rule that each party pays his own costs.
S.B.
MAPHALALA
JUDGE
