Defamation – allegations in pleadings/affidavits – publication by media

SWAZILAND HIGH COURT

Siboniso Clement Dlamini

Plaintiff

v

The Swazi Observer

Defendant

Civ. Case No. 631/99

Coram Sapire, CJ

For Plaintiff Mr. Mabila

For Defendant Mr. S. Earnshaw

JUDGMENT

(1st August 2000)

The plaintiff is an attorney practising in Mbabane. The defendant is a company, which until a short while ago published a newspaper known as the Swazi Observer. Publication of the daily has since ceased.

The plaintiff is claiming damages arising out of the publication of an article in The Observer of the 26th February, 1999. The article appeared under a heading “Widow sues lawyer”. A copy is annexed to the particulars of claim. The content is largely accurate but the first paragraph reads:

“Mbabane lawyer, Siboniso Clement Dlamini, is being sued for allegedly swindling a widow of E500.000.00 in respect of an insurance policy of her late husband.”

The article itself makes it clear that the litigation referred to is a claim by the widow against the plaintiff in his capacity as an executor in her husband’s estate and relates to a claim for maintenance for the two children.

The plaintiff claims the passage quoted is in itself defamatory of him, and. points the defamation by stating that the words used castigate him as a dishonest attorney, allegedly guilty of dishonourable and improper conduct. Pointing of the defamation is unnecessary as clearly the word “swindle” read by any intelligent reader connotes .the meaning of dishonesty.

The particulars of claim allege that the article was printed, published and distributed by the defendant wrongfully and with the intention to injure the plaintiff. Plaintiff claims that because of the publication he has suffered damages in the amount E1, 500,000.00.and that the defendant is liable to compensate him in that amount. The plaintiff also has made a claim that his costs are paid on the scale apposite to attorney and own client.

The defendant in its plea has not denied the contents of paragraphs 1,2,3,4 and 5 but has denied the remaining allegations in the particulars of claim. In particular the defendant denies that the statement, which it admits having made was made, is defamatory or made with the intention to injure the plaintiff in his reputation. The essence of the plea is that the statement was true and its publication was in the public interest. It further particularises its plea by denying, the defamatory nature of the article, and that the plaintiff had suffered damages.

When the matter was called the parties agreed that before dealing with the question of damages, the issue of liability would be contested and determined.

As the offending article itself was before the court as an annexure to the particulars of claim, and its publication admitted, the only evidence which was led was the production of the notice of motion and founding affidavit whereby the widow, Winnie Muir had commenced proceedings in this court against the plaintiff. This is the litigation reported on by the defendant. The Registrar apparently received the application on the 17 February 1999 and in the copy of the notice of motion produced there is a further imprint of the defendant having received a copy on the 18 March 1999. The relevance of this last fact is not apparent to me.

It is however clear that in the proceedings instituted by Winnie Muir which are referred to in the article no mention is made by her of any dishonest conduct on the part of the Plaintiff in this action. This, notwithstanding, the word “swindle” appears in defendant’s report. There is nothing in the notice of motion or supporting affidavit, which justifies the use of such a word.

For this reason alone, the defendant cannot succeed in its defence of privilege arising from truth and public benefit. Clearly the article is defamatory and furthermore it is not true.

As far as the public interest aspect of the defence is concerned the defendant has a further difficulty. The litigation referred to in the article had at the time of publication thereof not been heard in open court. The privilege enjoyed by the media in reporting on court proceedings is limited to statements made in open court. While the litigants themselves, and their advisors, may, subject to limitations, make defamatory allegations relating to the cause of action in their pleadings, the media may not repeat the defamatory matter until; those proceedings enter the public domain when the matter is heard in open court

.see Murdock & Another vs Ellis & others 1956(1) SA 528 (N)

Joubert and others v Venter 1985 (1) SA 654 (A)

This judgement is a general warning, to reporters not to report on matters containing defamatory allegations in the Registrar’s office. Defamatory allegations appearing therein before the matter is called in open court may be privileged as far as the litigants but not for general publication until the matter is called in open court

I answer the question raised in favour of the plaintiff, who may hereafter quantify the damages to which he is entitled. I will deal with the question of costs at the conclusion of the case.

SAPIRE, CJ

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