Masilela v Dlamini And Anotherther (22 of 1997) [1997] SZSC 201 (1 January 1997)








SWAZILAND APPEAL COURT





MASILELA, Moimoi

Appellant



vs



DLAMINI DR. BEN

Respondent In 21/97


MZIZI DR. JOSHUA

RESPONDENT IN 22/97

Appeal Case No. 21/1997 No. 22/1997

Coram

BROWDE, JA SCHREINER, JA LEON, JA

For Appellant

For Crown


JUDGMENT

BROWDE, JA

The two matters referred to in the above heading were heard together in theHigh Court.

The appellant (the plaintiff in the Court a quo) applied for judgment by default as the

respondents (the defendants in the Court a quo) had not given notice of intention to defend the

action instituted against them. Sapire ACJ on the grounds dismissed the applications

that the summonses did not disclose causes of action.




The claims arose from allegedly defamatory articles that were published in

the Times of Swaziland which is a daily newspaper circulating in this country. The articles were

published on the 16th February 1997 and 2 March 1997 respectively. In each case the

defamation complained of is an extract from an article in the said newspaper. In the case against

Dr. Ben Dlamini the words complained of were the following:‑



"While Government was busy in this way, then comes members of the Swazi

National Council Senanile Nkosi and Moimoi Masilela. They tell Maweni, the

Minister of Justice that they bring a mandate saying the Union Leaders should

be locked up".


I agree with Sapire, ACJ that the words are per se not defamatory nor do I think that

they are susceptible to being understood to mean, as was pleaded by the appellant, that the

appellant "misused his office and abused his public position". Even if, however, the words

could possibly be so construed that does not avail the appellant. The onus is on the appellant

to establish, on a balance of probabilities, that the defamatory meaning relied upon was the one

which in the circumstance the ordinary reader of the Times of Swaziland would have given to

the matter complained of.


Mr. Mdladla who appeared for the appellant reluctantly but correctly conceded that

the circumstances which might have assisted the appellant were not pleaded. Consequently he

was forced to rely on the words in the extracts only.

This onus is not discharged by showing that the meaning alleged is a possible

meaning or that the matter complained of is capable of the meaning alleged (which is relevant

if one is considering the matter an exception). The essential question is how a reasonable or

ordinary reader with normal intelligence and development would have understood the publication

relied upon.


Johnson v Rand Daily Mails 1928 AD 190


The test is an objective one and it seems to me that the learned Acting Chief Justice

was correct in finding and that the words complained of do not, from the appellant's standpoint,

fulfil the requirements for a valid cause of action.


The same applies in the case against Dr. Joshua Mzizi. In that declaration the

words complained of are:‑


"DPP ‑ SFTU CIRCUS IS OVER


Then there was the revelation that two members of the Swazi National

Council, a certain Moimoi Masilela and Mrs. Senanile Nkosi pressurised the Minister for Justice,

Chief Maweni, to ensure the top leadership must be behind bars before February 3, 1997. Chief

Maweni is said to have instructed the Attorney General to prepare the non‑bailable offences

under the Act and the draconian sentences crowned by a life sentence should anyone be found to have sabotaged essential services like water and electricity".


Whatever this extract may mean, and like Sapire ACJ I find it difficult to make

sense of it, I do not think that the ordinary reader of the newspaper would regard the words

complained of as bringing the appellant into disrepute. On the contrary, the ordinary reader may

well argue that anyone who sabotages essential services like water and electricity should be

imprisoned.


In my judgment the learned judge a quo cannot be faulted for refusing the

applications for default judgment and the appeals should therefore be dismissed with costs.




J. BROWDE, JA





I AGREE

W.H.R. SCHREINER



AND SO DO I R.N. LEON



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