The
defendants (who are the excipients in this matter) have excepted to
the plaintiff's (who is the 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
paragraphs(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.”…,.
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…, 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 BURCHELL, The Law of Defamation in South Africa,
Juta & Co Ltd was adopted in our jurisdiction by SANDURA JP…,
in Zvobgo v Mutjuwadi & Ors 1985 (3) SA 1055 (ZH)…, 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)…, 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 p 32
– 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 p 204.”
The
learned judge went on, at 371 C-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 context 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…, 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.”
Counsel
for the defendants 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.
Counsel
for the defendants 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.
Counsel
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
counsel for the plaintiff, 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 v Modus Publications (Pvt) Ltd 1993 (2)
ZLR 359 (H), 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 counsel for the defendants 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 NO 1980 (4)
SA 525 (Z). I am therefore unable to uphold the exception.
I,
however, take the view expressed by BEADLE AJ…, in McKelvey v Cowan
NO 1980 (4) SA 525 (Z) 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.
