IN THE HIGH COURT OF SWAZILAND

JUDGMENT

Case No. 461/2012

In the matter between:

LUKE SHIBA Plaintiff

And

THE TIMES OF SWAZILAND GROUP

OF COMPANIES 1st Defendant

THE EDITOR, SWAZI NEWS GROUP OF COMPANIES 2nd Defendant

AFRICAN ECHO (PTY) LTD 3rd Defendant

ARNOT PUBLISHING (PTY) LTD 4th Defendant

Neutral citation: Luke Shiba v The Times of Swaziland Group of Companies & 3 Others (461/2012) [2016] SZHC144 (18th August 2016)

Coram: M. Dlamini J.

Heard: 5th August, 2016

Delivered: 18th August 2016

Delictual claim – defamation – definition thereof – elements of defamation – untruthfulness not an element to be established by plaintiff – plaintiff to establish that article is defamatory of him – no defamation by proxy - reasonable reader – striking a balance between the right to protection of dignitas and freedom of press -

Summary: The plaintiff is claiming the sum of E520,000 as damages arising from a defamatory publication. The defendants contend that the publication referred to is not defamatory by reason that they were justified in publishing the story.

The plaintiff

[1] The plaintiff described himself under oath as a police officer occupying the rank of Sergeant and a first line manager. He was in charge of prosecution in the special serious crime investigations branch commonly referred to as Lukhozi. He had worked for the Royal Swaziland Police for thirty five years. He climbed the ladder of all cadre having acquired vast experience in a number of departments within the police force. He worked in the general duty, criminal investigations, administration, operations and intelligence units.

The defendants

[2] The first defendant and second defendants have been defined in the plaintiff’s particulars of claim as:

“2. The Times of Swaziland Group of Companies duly registered in terms of the laws of Swaziland with its principal place of business in Mbabane, in the Hhohho Region.

3. The 2nd Defendant is the Editor, Swazi News Group of Companies (PTY) LTD a company registered in terms of the laws of Swaziland with its principal place of business in Mbabane, in the Hhohho Region.”

[3] The first and second defendants, as we know them, are the owners and authors of the newspaper called “The Times of Swaziland” and “The Swazi News or Sunday Times.” The third and forth defendants are the printers and publishers of the said different types of newspapers.

Oral evidence

[4] The plaintiff testified under oath that during the morning reports meetings, the Station Commander, Matsapha Police station, enquired from him as to why he had not reported a shooting incident of the previous night. The incident was said to have happened at Mbikwakhe. He was the deputy Commander at that time. He informed the Station Commander that he was not aware of the incident following that the shift officer had not reported it to him. The Station Commander assigned him together with another officer to investigate the incident and report to him. He complied.

[5] Plaintiff with another police officer proceeded to Mbikwakhe at Mavundla homestead. They did not receive a warm welcome from this family. They had to convince them of their neutral role as investigators of their colleagues. After much persuasion, the family agreed to talk to them as they were adamant at first that they could not entertain them following that they had handed over the matter to their attorneys. The victim of the shooting incident, one Sibusiso Mavundla recorded a statement, narrating the events of that evening. They thereafter left to the shebeen homestead where the shooting took place. They recorded statements from the people who were present.

[6] They returned to the police station where they opened an enquiry file and all the statements recorded were filed. He then summoned the officers who were on duty that night. The shift officer in charge was one Constable Ntfuba Dlamini. He querried him for failing to report the incident.
The officer tendered an apology but pointed out that he had reported to Sergeant Langa who was superior to him.

[7] He ordered the police officers who were involved with the shooting to give him the rubber bullet emitted during the shooting. He further requested them to write a report of what transpired. Inspector Banda enquired on the whereabouts of the trouser the victim was wearing for purposes of keeping the same as an exhibit. He decided to go back to the victim to collect it.

[8] On arrival at the Mavundla homestead, he had difficulty securing the trouser. After much pleading, he eventually received the trouser. He took it and labeled it as an exhibit. He then transferred the enquiry file to the relevant department. The file was eventually taken to the Director of Public Prosecutions for directions as to whether it should be converted into a docket or be closed.

[9] On 29th January 2011 he was shocked to read from the first and second defendants’ newspaper, the Swazi News, at page 12, the caption: “A trigger happy cop’s boss transferred.” In order not to burden this judgment, I shall refer to the rest of his evidence and his cross examination under adjudication.

[10] Treatwell Matsebula was called as plaintiff’s witness. On oath, he told the court that he was stationed at Matsapha (Sigodvweni) police station. He was on duty on 26th November 2010 from 22:45 hours to 07:00 hours. His shift officer was 3848 Constable N. Dlamini.

[11] Around 02:00 hours a report was received through 999 toll free line upon which they proceeded to Mbikwakhe at laMhlanga’s homestead. They found many people indulging in liquor. As they entered the main entrance, they were attacked by the group which was drinking. They reasoned with them that they had responded to a case of an assault with intent to do grievous bodily harm. They were desirous to conveying the victim to hospital. Their plea fell on deaf ears. They were compelled to drive the car to the main road and enter the premises on foot in order to pick up the victim. They were then pelted with stones. It is then that they reverted to the use of force. They went back to their motor vehicle to get a firearm. They fired warning shots but the rowdy crowd could not be deterred. The victim was injured in the process. He was rushed to hospital. The shooting incident was reported to their supervisors.

[12] He did read the article under issue. He disputes that plaintiff was his boss as asserted by the publication. It was his conclusion that the article was lacking in facts in regard to Sergeant Shiba whose only function was to investigate the shooting incident and compile an enquiry file.

[13] The third witness on behalf of plaintiff was one Boy Phesheya Sifundza. His evidence was brief. He testified that he was a tenant at plaintiff’s one roomed flats at Mbikwakhe. He saw the article which is the subject matter in this case. He read it and showed it to other tenants. They held a meeting. They discussed plaintiff’s actions. They paid much attention to the version that plaintiff had taken the victim’s trouser to conceal evidence of the shooting and further advised the family not to solicit the assistance of an attorney. What made them to believe the story was that the article recorded that such allegations were confirmed by the police public relations officer. They all decided to vacate plaintiff’s rented flats as they felt that they were no longer safe. The plaintiff closed his case and the defendants opened their case.

[14] DW1, Wini Siphicile Mncina on oath testified that on 27th November 2010 he went to the Mazibuko homestead where they were selling liquor. Around 9:00 p.m. police officers arrived in a van and parked it near the house. Two police officers embarked, each carrying a firearm. One of the police officers entered the room where he was and instructed his group to go and sleep. The officer fired once. People went out but others remained. On his second shot, one person shouted saying he was injured. This was Sibusiso Mavundla. They confirmed that he was shot. He disputed plaintiff’s case that when the police went to the Mazibuko’s homestead it was for purposes of attending to an assault matter and that they were pelted with stones.

[15] His cross examination concentrated on the veracity of his story. The plaintiff’s version that the police had gone to attend an injured person instead of doing general patrols was put to him. He maintained his evidence in chief.

[16] The second witness for the defendants was Bonisile Nelisiwe Makhubu. She was employed by first and second defendants. She is the author of the article under issue. During the course of her employment, she received information about a shooting incident. The informant had disclosed to her that the victim of the incident had been abandoned by the police.

[17] She proceeded to Kwaluseni area. She held an interview with him. He was Sibusiso Mavundla. He narrated how he was shot while at a night club at Mbikwakhe. The police arrived while on routine patrol. They instructed everyone to leave the premises as the shebeen operator did not have a trading licence. They obliged, taking different directions. As he was walking with his friend, he felt a sharp pain on one of his legs at the back. He fell on the ground, while his friends ran leaving him behind. As he realised that the police were, by then, heading for their car while his companions had disappeared, he shouted for help. The residents alerted the police. The police responded by taking him to the Raleigh Fitkin Memorial Hospital.

[18] At the hospital, the doctor removed the bullet from his leg and gave it to him. However, one of the police officers took it away from him together with the medical report which recorded his condition. As it was during the night, he could not access medication. The police drove him back home. They dropped him a few paces away from his home as they said that they were rushing to Zombodze to another incident. He crawled back home.

[19] On another day, two police officers arrived. One was known to him as he was the resident of Mbikwakhe. He was interviewed on the shooting incident. During the interview he pointed out that he intended to acquire the services of an attorney as he had been shot for no reason. The resident police officer advised him not to do so as court processes took long to complete and most attorneys were not to be trusted when dealing with clients’ claims.

[20] On another day, upon his return from hospital, he was advised by his mother that police came to take away the trousers he had worn during the shooting. He protested the taking away of his trousers. He did approach the police for its return but endless excuses were given to him. He was told that it would be returned upon completion of investigations.

[21] Mavundla’s mother confirmed the version by Mavundla of police taking his trouser. She informed her that she could not resist the police taking away the trouser as she was physically disabled.

[22] DW2 proceeded to the shebeen homestead to verify the shooting incident. She also went to Raleigh Fitkin Memorial hospital to examine Mavundla’s medical record. She could not get any except for those recording Mavundla’s changing of dressing.

[23] She then contacted the police public relations officer. She gathered the name of the senior officer who was in charge and that was plaintiff. Shiba was also identified as the police officer who took Mavundla’s trousers. This witness then handed to court a copy of the article she wrote.

[24] The third witness on behalf of defendants was Thabisile Cecilia Dlamini. She is Sibusiso Mavundla’s mother. She received a report early in the morning one day that his son Mavundla had been shot. The following day, plaintiff arrived to get Mavundla’s trousers which he wore when he was shot. Mavundla had gone to hospital at that time. Plaintiff told him that the court needed the trouser. He left in the company of another police officer.

[25] During her cross examination, it transpired that plaintiff, upon taking the trouser, left a number for Mavundla to call. She did not know whether Mavundla did call the number as she gave it to him.

[26] The last witness was Sibusiso Mangaliso Bhembe who testified that he is called Mavundla following his praise name, Bhembe. He testified that he was at Mazibuko’s homestead when the police arrived to close down the shebeen. He left to hide behind one of the houses with an intention of returning after the police had left. It was his evidence that police would occasionally come around to close down the drinking spot and they would hide and return once the police had left. However, on this particular day, a police officer by the name of Nhlabatsi fired a shot. He ran, following Wandile Shongwe. He suddenly felt a sharp pain. He shouted, indicating that he had been injured. The police attended him. He was taken to hospital. The doctor removed the bullet saying it had not penetrated the bone. He gave it to him. He wrote him a prescription. He went out and he found the police waiting for him. Officer Nhlabatsi took the bullet and the prescription. He instructed him to board the police van. They drove with him to the Sigodvweni police station where they said they were laying charges of obstructing the course of justice. He protested the charge, claiming he had been wrongly shot at. He undertook not to sue them. It is then that they ordered him to board their van and they dropped him a distance away from home. He hopped home. He found that his mother was already aware of his condition. After a day, he called a community police to complain that his leg was complicating following that officer Nhlabatsi took away his prescription record. The police were called. They arrived and took him to hospital.