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 nonbailable 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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