Exception
MATHONSI
J:
The defendants (who are the excipients in this matter) have excepted
to the plaintiff's (who is respondent) declaration and I have, to
decide whether that exception has merit or not.
The
plaintiff is a Government Minister, being the Minister of Defence,
and a senior member of a political party known as the Zimbabwe
African National Union Patriotic Front (Zanu PF) which is one of the
ruling parties in the current government of national unity.
The
defendants are the owner of a publication which is said to enjoy wide
circulation in Zimbabwe, namely, The Zimbabwe Independent, and its
editor.
In
The Zimbabwe Independent edition of 11 May 2012, an article was
published in the front page under the title “Mnangagwa Ready to
Rule”. The article reads, in pertinent part, thus:
“Defence
Minister Emmerson Mnangagwa (pictured) has for the first time openly
declared his interest in taking over from President Robert Mugabe as
the leader of Zanu PF and the country, in remarks showing the
succession battle in the party is intensifying. Mnangagwa told the
Zimbabwe Independent last Friday at Heroes Acre, during the burial of
Zanu PF politburo member Edson Ncube, he was ready to govern if given
an opportunity. This virtually confirmed he is positioning himself to
succeed Mugabe, remarks which could anger senior Zanu PF officials
and fuel factionalism and internal power struggles ahead of the next
elections.
'I
am ready to rule if selected to do so' Mnangagwa said.
'Zanu
PF is about observing the will of the people and I will respect the
people's wishes if they choose me'….,.
In
remarks which show succession is now hotly-contested, Zanu PF
secretary for administration, Didymus Mutasa, this week poured cold
water on Mnangangwa's ambitions, saying he would not waste his time
commenting on individuals dreams;
'I
do not want to be drawn into baseless arguments by commenting on
individuals wishes' said Mutasa.
'I
will comment on that issue when the time comes, that is when the
people, here I mean Zanu PF, have chosen him as the leader of the
party.'
Mutasa,
who is number five in the hierarchy, recently said Mnangagwa, who is
not in the top 10, was far down the pecking order to succeed Mugabe
compared to Mujuru and others….,.
Mnangagwa
has been battling the Mujuru faction for years in a sustained turf
war to succeed Mugabe. The Zanu PF fight for power has escalated as
evidence mounts that Mugabe is struggling with old age complications
and ill health. Factionalism and infighting recently flared up in
Zanu PF forcing Mugabe, last Friday, to slam faction leaders and
greed, saying they were destroying his party.
Mnangangwa
has been fighting to take over from Mugabe for a long time. He first
tried to position himself as heir apparent by vying for the
vice-presidency in the run up to the 2004 congress but was ruthlessly
crushed by Mugabe and the Mujuru faction. His camp was also trounced
during the 2009 congress but is now gaining ground….,.
Zanu
PF spokesperson, Rugare Gumbo, also appeared to dismiss Mnangagwa's
ambitions saying his party had laid-down procedures to be followed on
succession;
'In
Zanu PF, we have a hierarchy and this is adhered to whenever there is
need for promotion' said Gumbo.
'Whilst
people may harbour presidential ambitions, it is unfortunate (for
Mnangagwa) that we follow this hierarchy'….,.
The
Zanu PF Youth league said factional leaders causing chaos in the
party should be confronted and dealt with head on;
'These
are pretenders (factional leaders) and we don't work with
pretenders but the person elected at the congress. We deal with
reality – that is the person in power;' National Deputy Youth
Secretary for External Affairs, Tongai Kasukuwere said.
'If
people are named for fanning divisions, they must be disciplined. We
don't want to work with people who cause confusion.'”
The
plaintiff took issue with the article and instituted summons action
against the defendants seeking defamation damages of US$1 million.
In
para(s) 2.6 to 2.9 of his declaration he made the following
averments;
“2.6
The article specifically alleges that (the) plaintiff, is a leader of
a 'faction' fighting and involved in a power struggle with other
Government officials to succeed the President of Zimbabwe.
2.7.
The article is false in that the plaintiff never made the remarks
attributed to him in the article nor did he speak to the Zimbabwe
Independent or anybody else as alleged.
2.8.
The article is defamatory per se of (the) plaintiff to whom it
refers, in both his personal as well as his professional capacities.
2.9.
As a result of the defamation, (the) plaintiff has been damaged in
his good name and reputation and suffered damages in the amount of
USD1,000,000.00.”
“Allow
me a minute” as Alan Paton would say, while I make the point that I
share the indignation of Mr Morris who appeared on behalf of the
defendants about the outrageous amount of damages being claimed.
Quite
often in recent years litigants of this country have taken to coming
up with these outlandish claims for damages, even for the slightest
of infractions, which are completely divorced from the economic
realities of this country and are detached from existing precedence
and legal realities of our jurisdiction.
It
is the kind of habit which legal practitioners must take
responsibility for encouraging, as ultimately it is them who advise
litigants and draft the processes filed in court.
Legal
practitioners engaged by litigants to represent them in this court
and to draft court processes on their behalf should take care in
drafting such court papers and claims and should apply their minds to
the task reposed upon them. After all they are paid to provide such
service and it is the height of irresponsibility to come up with
outrageous claims which not only fail to ventilate the relief the
litigant seeks but also to conform with existing precedence on the
subject. Legal practitioners should be taken seriously by the courts
for it is serious business that we transact in these courts and not
local drama, nor is it the television series 'Carson's Law' or
'LA Law'.
But
then, I digress.
The
quantum of damages is not the subject of the present inquiry and
drifting away from the field of discourse will not resolve the
present dispute between the parties. The quantum of damages will
obviously feature prominently in the event of the matter going to
trial. My immediate concern is to determine the propriety of the
exception that has been taken.
The
defendants have excepted as follows:
“The
defendants hereby note an exception to (the) plaintiff's
declaration as disclosing no cause of action in that the words
complained of are not defamatory per se and can under no
circumstances be damaging to (the) plaintiff's good name and
reputation.
Wherefore
(the) defendants pray that (the) plaintiff's claim be struck down
with costs on the scale of legal practitioner and client”.
Where
exception is taken on a defamation suit, the law is as was set out by
the learned author J.M Burchell, The Law of Defamation in South
Africa, Juta & Co. Ltd at pp102-3 where he said:
“Where
exception is taken to the plaintiff's declaration, the test of what
constitutes defamatory matter is different from that at the trial
stage.
TINDALL
JA said in Basner v Trigger 1945 AD 229 & 32 (this case involved
an innuendo, but the test on exception is the same):
'In
other words all the court is called on to decide at this stage is
whether a reasonable person of ordinary intelligence, having heard
the defendants words and having knowledge of the circumstances…
might reasonably understand these words as meaning that the plaintiff
had been guilty of illegal or criminal conduct…'
The
test on exception is, therefore, whether a reasonable person of
normal intelligence and with knowledge of the circumstances could or
might regard the statement as defamatory, whereas at the trial stage
the test is whether a reasonable person would regard it as
defamatory”.
The
above passage in Burehell was adopted in our jurisdiction by SANDURA
JP (as he then was) in Zvobgo v Mutjuwadi & Ors 1985 (3) SA 1055
(ZH) 1058F-G where the learned judge pronounced:
“I
must now deal with the fourth defendant's exception to the
plaintiff's declaration. The fourth defendant excepts to the
plaintiff's declaration on the ground that it is bad in law because
it discloses no cause of action in that the words relied upon are not
reasonably capable of conveying a defamatory meaning.
I
ought to make it quite clear right from the outset that I do not have
to determine at this stage whether or not the article in question is
in fact defamatory. What I must decide is whether the words
complained of are reasonably capable of conveying to the average
reader the defamatory meaning assigned to them by the plaintiff. This
is made quite clearly by Burchell in his new book, The Law of
Defamation in South Africa at 102-3”.
In
Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2)
ZLR 359 (H) at 368C-D, ROBINSON J added the following:
“The
test is undoubtedly an objective one. See Botha en'n Ander v Marais
1974 (1) SA 44 (A) at 48E and Demmers on appeal supra at 842A-B. In
Visse's cases supra at 447, MURRAY J went on to say:
'The
test to be applied by the court in determining whether these words
are reasonably capable of the alleged defamatory meaning is the
effect on the mind of the ordinary reader, an average reasonable
person of ordinary intelligence; Basner v Trigger 1945 AD at p32, who
reads the article with ordinary care, but not as 'an astute lawyer
or a super critical reader would read the passage'; per WESSELS JA
in Johnson v Rand Daily Mails 1928 AD at p204.'
The
learned judge went on at 371C-G to say:
'Accordingly,
putting aside, as I am told I must do, my training and my logical,
critical and analytical habits of mind as a lawyer and stepping into
the shoes of the ordinary reader of the Financial Gazette, the
question which I must answer is: what immediate impact would the
contents of the article in question have on the mind of such a reader
and what would be the overall impression gained by him? Or put
another way, in the contest of the article as a whole; are the words
used reasonably capable of conveying to the reasonable reader the
defamatory meanings ascribed to them by the plaintiff in para 5 of
his declaration?'”
BEADLE
AJ (as he then was) made the point in McKelvey v Cowan NO 1980 (4) SA
525 (Z) that:
“It
is a first principle in dealing with matters of exception that, if
evidence can be led which can disclose a cause of action alleged in
the pleading, that particular pleading is not excipiable. A pleading
is only excipiable on the basis that no possible evidence led on the
pleadings can disclose a cause of action. That is the manner in which
I approach this case”.
Mr
Morris for the defendant submitted that the article complained of
does not in fact specifically allege that the plaintiff is a faction
leader although the implication is there.
In
this view, in most organisations including political ones, there is
vying for leadership and nothing turns on that. He submitted that
there is nothing in the article to suggest that the plaintiff is
fanning division or creating dissent but that he is just one of a
number of people interested in standing for the office of President
once the incumbent steps down.
Mr
Morris further submitted that the fact that the article attributes to
the plaintiff the words that he will abide by the decision of the
people and respect their wishes shows considerably greater nobility
of mind than some of those quoted who believe that a presidential
candidate must be selected following a party hierarchy of succession.
Mr
Uriri for the plaintiff pointed to passages in the article which, in
his view would be understood by the ordinary reader to mean that the
respondent is of a diminished reputation and character.
According
to Mr Uriri, the crux of the matter lies in paragraph 2.8 of the
declaration which avers that the article complained of is defamatory
per se. For that reason, the article must be examined in its entirety
to determine whether it would convey the message complained of.
I
agree.
I
am mindful of the fact that I am not being called upon at this point
in time to determine whether the article is defamatory. That is the
province of the trial court. What I have to determine at this stage
is whether the article is reasonably capable of conveying to the
average reader the defamatory meaning assigned to it by the
plaintiff.
In
doing so, I must, as suggested by ROBINSON J in Auridiam Zimbabwe
(Pvt) Ltd (supra) put aside my training and my logical, critical, and
analytical habits of mind as a lawyer and step into the shoes of the
ordinary reader of the Zimbabwe Independent in order to answer that
question.
The
article states that the respondent is “positioning himself to
succeed Mugabe, remarks which could anger senior Zanu PF officials
and fuel factionalism and internal power struggles”.
It
also states that Zanu PF has laid down succession procedures which it
follows whenever there is a need for promotion. The ambitions of the
plaintiff, who is not even in the top 10 of that hierarchy, to
succeed the President are therefore misplaced and at variance with
the procedures of that party.
It
is the kind of ambition which could fuel factionalism and internal
struggles which have already flared up resulting in President Mugabe
slamming faction leaders for greed and destroying his party.
Indeed,
even the youth wing of Zanu PF has taken a stand against faction
leaders for fanning divisions insisting that they should be
disciplined.
To
the extent that the declaration makes the averment that the entire
article is defamatory per se and that one has to therefore look at it
in its entirety, one cannot avoid the conclusion that in the context
of the article as a whole, the words used are reasonably capable of
conveying to the reasonable reader of The Zimbabwe Independent the
defamatory meaning ascribed to them by the plaintiff.
Generally,
factionalism is presented as a sticking problem for Zanu PF and
faction leaders as not only undisciplined but also as destroying the
party.
I
do not agree with Mr Morris that the article does not allege that the
plaintiff is a faction leader. In fact that argument is made
half-heartedly because counsel conceded at the same time that the
implication is there.
It
is also important to point out that the plaintiff avers in his
declaration that he never gave an interview to The Zimbabwe
Independent and that everything attributed to him in the article is
false.
That
is an issue to be canvassed by evidence and if evidence can be led to
that effect, clearly a cause of action exists.
The
declaration is therefore not excipiable: McKelvey v Cowan N.O.
(supra).
I
am therefore unable to uphold the exception.
I
however take the view expressed by BEADLE AJ (as he then was) in
McKelvey (supra) that the law does not discourage parties from taking
exceptions when exceptions may result in the reduction of costs and
shortening of proceedings.
This
is a case in which the defendants were entitled to except, albeit
unsuccessfully. For that reason, the costs should be in the cause.
In
the result, it is ordered that:
1.
The exception is hereby dismissed.
2.
The costs shall be in the cause.
Dube,
Manikai & Hwacha, plaintiff's legal practitioners
Atherstone
& Cook, defendants legal practitioners
