IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO.778/86
In
the matter between:
DR.
ALLEN NXUMALO Plaintiff
vs
AFRICAN
ECHO PROPRIETARY LIMITED t/a THE TIMES OF 1st Defendant
SWAZILAND
(PTY) PUBLISHING COMPANY 2nd Defendant
MASHUMI
THWALA 3rd Defendant
THEMBA
DLAMINI 4th Defendant
CORAM:
DUNN A.C.J.
FOR
THE PLAINTIFF: MR. S. EARNSHAW
FOR
THE DEFENDANTS: MR. P. FLYNN
JUDGMENT
(17.3.
1989)
DUNN
A.C.J.
The
plaintiff who is 68 years of age qualified as a medical doctor in
1957. He was involved in the pre-independence politics of this
country as leader of the Swaziland Democratic Party. He ceased
leadership of that party in 1966 and served as a Cabinet Minister
during the period May 1967 to June 1978. He served first as Minister
for Health, then as Minister for Health and Education and finally as
Minister for Works, Power and Communications. He has since 1978
devoted his time almost entirely to his medical practice. In February
1985 the plaintiff was appointed Chairman of the Swaziland National
Sports Council a post he holds to-date.
2
He
is a man who is well and widely known in Swaziland.
The
defendants are respectively" the proprietor, publisher, editor
and reporter of a daily newspaper styled The Times of Swaziland (The
Times).
On
the 28th May 1986, the following article appeared on the back page of
The Times:-
WE
DIDN'T STEAL DOGS
The
Chairman of the Interim National Sports Council and former cabinet
Minister Dr. Allen Nxumalo appeared in court yesterday charged with
stealing dogs valued at E1,150 from South Africa.
He
is charged jointly with two other men.
They
are alleged to have stolen the dogs from their two owners in Lothair,
a few kilometres away from the Oshoek Border Post, in South Africa.
The
complaintants are James and Ben Simelane.
James
Simelane, told the court that he does not know Dr. Allen Nxumalo. He
said he only knows the two men who used to visit his place. He said
they used to go to the area looking for dogs, turkeys and chicken.
On
the alleged day of theft, he said, the men went to his home. Simelane
said: "They told me they were going to collect their dog from
another Magagula's homestead in Lothair," he said. "They
were just passing but had to check me as they were regular visitors
to my home".
3
He
continued "I had three dogs at my home.
"They
arrived at about 10 a.m. and left my place to Lothair at about 4 p.m.
Then, the following day in the morning one of my dogs was missing. I
reported the matter to the Carolina Police. Then I heard that my
brother, Ben Simelane's dogs had been stolen.
They
had disppeared on the same day as mine. The two men were also
familiar with my brother Ben.
They
used to come in a car which is said to have been Dr. Allen's car,"
he said.
Mr.
James Simelane said he suspected that the dogs might have been stolen
by the men who had visited his place. He then briefed the police in
South Africa who later informed the Swaziland police.
The
Swaziland police looked for the dogs and one was allegedly recovered
from Dr. Nxumalo and another from one of the young men. The third was
allegedly recovered in South Africa at the other man's sister's
place.
They
all pleaded not guilty to the charge. They denied having stolen dogs
from Mr. Simelane. They said they only helped the police in looking
for the dogs in Swaziland.
According
to the Police officer who was investigating the case, the young men
only showed the police after they were taken to custody and
interrogated by the police.
The
case was postponed until 20th June.
The
article was set out in the first three columns of the page. The
headline was in bold print with letters of approximately 1 ½
cm. The article was attributed to the 4th defendant.
4
The
plaintiff sets out that the article was defamatory of him and claims
damages from the defendants jointly and severally in the sum of
E50,000.00. The plaintiff gave evidence to the effect that he had
never been charged as set out in the article or at all in connection
with the theft of dogs. He denied that the had made any appearance in
court as alleged and stated that he had no knowledge of the contents
whatsoever of the contents of the article. The plaintiff testified
that he was shocked and felt hurt by the publication of the article.
He received numerous enquiries from members of the Royal Family,
friends, relatives and colleagues concerning the article. A formal
demand for damages in the sum claimed was filed with the defendants
by the plaintiff's attorney on the 6th June 1986 as a result of which
the following aplogy appeared in The Times on the 17th June 1986.
DR.
ALLEN NXUMALO : TIMES APOLOGISES The Times of Swaziland wish to
apologise to Dr. Allen Nxumalo and unreservedly withdraws all
allegations concerning Dr. A. Nxumalo that appeared on the back page
of The Times on 28th May 1986.
The
story was printed in good faith by the reporter concerned and the
error was due to a complete case of mistaken identity with no maline
intended. The Times of Swaziland, Arnot Publishing Co.(Pty) Ltd. The
Editor of The Times and the Reporter apologise for any distress or
embarrassment caused to Dr. Allen Nxumalo.
This
apology appeared in the last column on the right hand side of the
back page. The heading which was underlined was in letters of ½
cm. An appearance to defend was filed in respect of the 1st, 2nd and
3rd defendants only. The three defendants admitted publication of the
article in question and pleaded as set out in the apology, that this
was a case of mistaken identity.
5
The
defendants deny that the plaintiff sustained the damages alleged or
at all. It is pleaded at paragraph 9 that "If it is found by
this Honourable Court that plaintiff was defamed, defendants plead
that no damages were suffered by plaintiff. Alternatively if it is
found that plaintiff was defamed and that plaintiff suffered damages,
defendants plead that such damages should be purely nominal by virtue
of the apology which was published as aforesaid."
Evidence
was given on behalf of the three defendants, by the 3rd defendant,
Mashumi Thwala. He told the court that the article in question was
brought in by the 4th defendant who was employed by
The
Times as a free-lance reporter. The reporter was interviewed by
Thwala and Thwala was satisfied that the reporter knew who the
plaintiff was and was left in no doubt as to the accuracy of the
report. It was on this basis that the article was published without
verifying the facts with officials of the court in which the
proceedings were alleged to have taken place. Thwala could advance no
evidence to the effect that there had, at the relevant time, in fact
been criminal proceedings against some person/s other than the
plaintiff on the subject matter of the article, in order to lay the
foundation for the defendant's plea of mistaken identity.
There
can be no doubt, that the article in question was defamatory of the
plaintiff. The article has been shown to have been false and without
foundation. Whilst it is true that the article merely stated that the
plaintiff had been charged with theft, the publication had the effect
of lowering the plaintiff in the estimation of members of the public.
See HASSEN v. POST NEWSPAPERS (PTY) LTD and Others 1965 (3) S.A. 562.
BLIRCHELL, THE LAW OF DEFAMATION IN SOUTH AFRICA 104 and the
authorities there referred to.
6
The
plaintiff having established that the article was defamatory, the
onus then lay on the defendants to disprove the existence of animus
injuriandi. Mr. Flynn for the defendants did not seek to argue the
issue of animus injuriandi conceding, that the liability of the press
is strict in cases of this nature. See Chapter 15 of Burchell supra
on the position of the press, radio and television in cases of
defamation.
I
now turn to the question of quantum of damages. The plaintiff as
earlier pointed out is no doubt well known in Swaziland having served
as a cabinet Minister between May 1967 and June 1978. He is a medical
practitioner of long standing, in this country. The publication of
the article in question reflected seriously on the plaintiff's
reputation. The defendants attempted to show in the cross-examination
of the plaintiff that he had a general bad reputation arising
from certain criminal charges that had according to the defendants,
been instituted against the plaintiff in the courts in the Republic
of South Africa. Unfortunately, the defendants did not find it
necessary to give advance notice of the fact that the defendants
would seek to prove the plaintiff's bad reputation in mitigation of
damages. It is desirable in cases of this nature that notice that
such evidence will be led should be given by the defendant to the
plaintiff to enable a plaintiff to prepare and meet such evidence See
KLISSER v. S.A. ASSOCIATED NEWSPAPERS LTD. v. YUTAR 1969(2) S.A. 442.
The
specific issue that was put to the plaintiff was that he had been
charged with and convicted on 7 counts on fraud in South Africa
during November 1985. Articles which were published in The Times
concerning the conviction and sentence of the plaintiff were put to
him.
7
The
plaintiff explained that he had been charged in his capacity as a
director of a company known as Mantenga Liquor Distributors (Pty)
Ltd. He explained that he was not involved in the conduct of the
company's affairs that resulted in the fraud charges. The plaintiff
was taken to task by Mr. Flynn, on this issue on the grounds that he
(plaintiff) had not taken any steps to correct the reports carried by
The Times regarding the fraud charges. The Times did not disclose the
source of its information regarding the arrest and conviction of the
plaintiff in South Africa.
The
defendants did not produce any evidence of the precise charges that
the plaintiff pleaded to and of the person/s against whom the
conviction was entered. It was put to the 3rd defendant under
cross-examination that the reports in the Times were innacurate and
incomplete in a number of material respects. Thwala could not deny
that that was so as he had no knowledge of the source of the
information. Whilst it is open to a defendant in cases of this nature
to plead the plaintiff's general bad reputation in mitigation of
damages it is not open to a defendant in circumstances such as the
present to itself paint an unfavourable picture of the plaintiff and
then attempt to use this as the standard by which the plaintiff's
reputation is to be gauged. The defendants cannot be heard to say
that it was the plaintiff's duty to correct the impression which was
created by the articles in The Times concerning the fraud charges.
The plaintiff was not in Swaziland at the time of the publications
and remained unaware of them until their production in the course of
the trial. The defendants have in my view failed to establish that
the plaintiff already had a -tarnished reputation at the time of
publication of the article complained of.
8
The
Times enjoys a fairly wide circulation in Swaziland. A column in bold
print in the copy of The Times in which the article complained of was
published reads "The Times is read by over 60,000 people every
day". The article was given prominence on the back page. The 3rd
defendant agreed that the back page of The Times is an important page
on which articles on the first page are continued and on which
headline news is also contained. As against the extent of the
publication it was argued on behalf of the defendants that the
apology served to reduce the damage to the plaintiff's reputation.
The
apology must no doubt have had this effect but the question remains
as to what extent, for as pointed out by Colman J. in Hassen's case
supra at 577 an apology "can seldom if ever undo fully the
mischief that a published defamation has caused." The defendants
could and should in my view, have attempted to give equal prominence
to the apology. The position and print size of the apology on the
back page is in my view such that it could easily have gone unnoticed
by the average reader.
The
plaintiff's claim is for E50.000. It has been correctly submitted by
Mr. Flynn that this figure is excessive. The only defamation case
decided in our courts that I have come across is that of JOHN MNCENCE
NXUMALO v. PAT NXUMALO and ANOTHER Civ. Case No. 261/83 (unreported)
in which I made an award of E2.000.00 against the defendants for
defamatory matter published of and concerning the plaintiff to the
effect that the plaintiff in that case was an associate of a Dr.
Gilbert who was a confidence trickster. The award in that case was
made in April 1984. The evidence of the plaintiff's reputation and
standing in that case was poorly presented and that had a direct
bearing on the amount of the award.
9
I
have in the present case a plaintiff who is well known who has held
high office over an appreciable period of time. He is a medical
practitioner who is held in high esteem and who still holds a public
office. The defendants were under a clear duty to check and verify
the contents of the article presented by the 4th defendant
particularly as these related to alleged court proceedings. The
defendants have not been able to establish even at the time of this
trial that any trial took place in the Magistrate's court involving
theft of dogs as set out in the article. It is against this that I
must attempt to assess the damages suffered by the plaintiff. Doing
the best I can in the circumstances of this case I assess the
plaintiff's damages at E10,000.
Judgment
is accordingly entered in favour of the plaintiff against the
defendants jointly and severally in the sum of E10.000.00 with
interest thereon at 9% p.a. from to-day's date to date of payment and
costs.
B.
DUNN
ACTING
CHIEF JUSTICE
