GOWORA
JA:
BACKGROUND
FACTS
[1] The
respondents are husband and wife. They are before this Court pursuant
to a suit for defamation instituted by them in the High Court against
the appellants herein. In the declaration, the first respondent is
described as an Ambassador. It is a description which appears common
cause. The first appellant is the editor of the Newsday Newspaper,
with the second appellant being the publisher, printer and
distributer of the publication.
[2] On
19 May 2014, the respondents, as plaintiffs instituted proceedings by
way of summons claiming damages for defamation arising out of an
article published by the second appellant on 6 July 2012.
[3] On
23 November 2016, the High Court dismissed with costs an exception
filed by the appellants in answer to the claim for defamation damages
instituted by the respondents herein. The court also ordered the
respondents to furnish the appellants with the particulars of the
exact words being relied on in the defamation suit within a specified
period from the date of judgment. This appeal is against that
judgment.
[4] In
their declaration in the suit described above, the respondents
alleged that one Francis Mhere had, on 5 July 2012, written a letter
to the first respondent imploring him to rein in his spouse, the
second respondent. The letter alleged that the second respondent was
meddling in, and involving herself in child custody issues between
Mhere and his wife.
[5] The
respondents alleged that, without establishing the veracity or
truthfulness of allegations in the letter, the appellants had gone
ahead and published an article on 6 July 2012 in the Newsday
publication of that day. The respondents alleged that the article was
defamatory of and concerning them. It is alleged that despite the
falsity of the article, the appellants published the statements in
the letter which were made with the intention of making a public
spectacle of the first respondent in the office of Ambassador with
the intention of injuring his reputation.
[6] It
was further alleged that the statements were understood by the
ordinary reasonable man within the readership of the Newsday
newspaper to mean that the second respondent was out of control,
meddled in other people's affairs, was selfish and cruel,
vindictive in nature and was not a law abiding citizen and lacked
moral fibre.
[7] Based
on the above allegations, the respondents claimed damages for the
article published by the appellants in the sums of USD120,000.00 and
USD80,000.00 respectively.
[8] The
appellants did not plead. They jointly filed an exception and
application to strike out in the form set out hereunder:
“A.
No cause of action disclosed.
1.1.
First Defendant is cited as Constantine Chimakure cited herein in his
capacity as the Editor of Newsday Newspaper.
1.2
First Defendant as cited does not exist and no cause of action is
consequently disclosed against first defendant. Alternatively, the
proceedings are as against first defendant a nullity. (sic)
1.3
First plaintiff does not allege that the publication on which he sues
and its unnamed words were published of and concerning him. No cause
of action is consequently set out in favour of first plaintiff.
(sic)
1.4
Second plaintiff does not allege that the publication of 6 July 2012
was made of and concerning her. No cause of action is consequently
set out in favour of second plaintiff.
B.
Vague and embarrassing
1.5
Plaintiff alleges in para 9 of the declaration that -
'Defendant
went ahead and published a damning article on 6 July 2012 on page 2
of that publication to the Plaintiff's mortification and
detriment'.
In
paragraph 11 they allege -
'The
article contained falsehoods of a venomous type'.
1.6
The words complained of which are alleged to appear in the said
article are not set out and their effect cannot be ascertained.
1.7
The claim is consequently vague and embarrassing.
C.
Application to strike out
1.8
Plaintiffs tell a story in a declaration made up of 21 paragraphs.
The declaration is argumentative, superfluous irrelevant is crafted
in breach of the rules of court and must be struck out.(sic)
Wherefore
defendants pray in the main that the exception be upheld and the
claim be dismissed with costs. Alternatively, defendants pray that
the declaration be struck with costs.”
PROCEEDINGS
BEFORE THE COURT A QUO
[9] Before
the court a
quo,
the parties made the following contentions. As regards the
appellants, it was contended firstly that the summons and declaration
did not disclose a cause of action primarily because the first
appellant, as defendant, did not exist. It was argued that the
improper citation rendered the proceedings a nullity.
[10]
It was also contended that the summons was vague and embarrassing
because the exact words published were not set out in the
declaration. It was argued further that the declaration told a story
which was superfluous, irrelevant and argumentative contrary to the
rules of court. To that end, it was only right that the declaration
be struck out as being vague and embarrassing.
[11] Premised
on the above arguments, the appellants prayed that the exception be
upheld with the claim being dismissed with costs. In the alternative,
the appellants prayed that the declaration be struck out with costs.
[12] The
respondents countered by arguing that the first appellant, a natural
person had been properly cited. The description of the first
appellant as Editor of the newspaper did not render the citation
defective in any manner. As to the objection that the summons and
declaration did not allege that the publication was made of and
concerning the respondents, it was contended that the declaration
alleged that the publication made reference to a letter wherein
certain specific allegations were made of both respondents. It was
argued that the exception to the summons and declaration should, as a
consequence, be dismissed with costs.
[13] Turning
to the allegation that the summons was vague and embarrassing, it was
argued that the claim was not vague or embarrassing. In this regard
it was argued that the prayer for the striking out of the declaration
should be dismissed with costs.
[14] It
was further contended that the prayer for the dismissal of the claim
in the event of the exception being upheld was misplaced. The proper
course, it was argued, would be to afford the respondents an
opportunity to amend the declaration.
[15]
The court a
quo
reasoned as follows:
“The
defendants do not know which words are defamatory according to the
plaintiff and this is 'embarrassing' to them. See National
Union of Distributive Workers
v
Cleghorn & Harris Ltd 1946
AD 984;
Sutton v
Brown
1926
AD 155 @ 163;
Demmers v
Wylie & Ors 1980
(1) SA 835 @ 842D. In the alternative the objection taken is that the
declaration is argumentative, superfluous, irrelevant, and is
crafted in breach of the rules. The declaration tells a story, it is
not a pleading. See
Masukusa v
National Foods Ltd & Anor,
Taruona v
Zvarevadza
& Ors HH87-12,
Mwayisa v
Jumbo & Ors HH3-10,
Morris
v
Morris
& Anor HH71-11.
Rule
99 (c) of the rules of this court provides that:
'A
pleading shall -
…
(c)
contain a statement in a summary form of the material facts on which
the party pleading relies for his claim or defence, as the case may
be, but not the evidence by which they are proved'.
It
is trite that a pleading which is irrelevant must be struck out. See
Stephens
v
De Wet 1920
AD 279 @ 282,
Golding v
Torch
Printing & Publishing Co (Pty) Ltd & Ors 1948
(3) SA 1067 (C) @ 1090.
It
is my considered view that the defendants' remedy lies in an
application for further particulars if they are of the view that the
exact words relied upon by the plaintiff's ought to form part of
the summons and declaration. This would cure the defendants'
embarrassment, if any. An exception which goes to the root of the
mater and is calculated to divest the plaintiffs of any vestige of a
cause of action is ill conceived in these circumstances, and
inappropriate. We find merit in the submission made on behalf of the
plaintiffs that the case law which is relied upon by the defendants
is distinguishable from the circumstances of this case and
inapplicable. That case implies that the court must exercise its
discretion in the circumstances of the case before it, and in this
case, it is my view that the defendants are not embarrassed by the
plaintiff's claim to the extent that the plaintiff's case should
be dismissed by the upholding of the exception. Rather than delay
the resolution of this matter further, the court directs that the
plaintiffs set out the exact words that they allege to be defamatory
as they appear in the letter which they refer to in the
declaration.”
[16] The
court a
quo
dismissed the exception with costs being made to be in the cause. The
respondents were ordered to furnish the appellants within a period of
ten days, with the particular words on which the claim for defamation
was premised.
THE
APPEAL
[17] With
the leave of this court, the appellants have noted an appeal on the
following grounds:
“1.
The court a
quo
erred in holding that the appellants' exception did not go to the
root of the respondents' claim. At law, where a party fails to
plead and set out actual allegedly defamatory statements upon which
its claim for defamation is based, then such pleading is patently
defective and cannot be amended.
2.
The court a
quo
further erred in holding that the appellants' exception was without
merit and worthy of dismissal. Such holding was at law anomalous on
account of the finding by the same court that the respondents'
pleadings were deficient and called for better particulars.
3.
The court a
quo
erred in granting to the respondent's relief that was not sought or
pleaded. There was no cause for the amendment of the respondents'
pleadings and the court went beyond the purview of its
jurisdictional mandate in ordering an amendment and particularizing
the details of such amendment.
4.
Additionally, the court again erred in disregarding the mis-citation
of the first
appellant.
At law a summons that cites a non-existent person or capacity is a
nullity.
5.
The court a
quo
grossly misdirected itself and erred in holding that the
respondents' declaration was capable of being pleaded to. Once a
declaration is vague and embarrassing the defendant ought not to be
required or compelled to plead to it.”
[18] Three
issues for determination emerge from the grounds set out above. First
and foremost is whether or not the citation of the first appellant is
defective rendering the summons and declaration a nullity as
contended by the appellants. The last two issues are whether or not
the summons and declaration do not establish a cause of action
rendering them subject to an exception and also vague and
embarrassing and liable to be struck out.
ARGUMENTS
ON APPEAL
[19] Mr
Mpofu
abandoned the fourth ground. He was wise to do so. To argue that the
first appellant as cited is irregular would be an exercise to test
human logic. The first appellant, cited by name, was further
identified by the occupation in which he is sued. Such description
cannot by any stretch of the imagination turn him into a non-existent
person.
[20] On
the substance, the argument for the appellants went as follows. The
court a
quo
misdirected itself and erred in affording relief which had not been
sought and which amounted in the order of things to an acceptance
that the exception was well taken. It was suggested that the court a
quo
purported to be exercising a discretion which it was not imbued with.
For this proposition Mr Mpofu
sought reliance on Forestry
Commission v Moyo
1997 (1) ZLR 254 (S).
[21] As
regards the alleged absence of a cause of action, it was argued that
the law was clear that a party must set out in its declaration the
words that it alleges to be defamatory. To that extent it was
suggested that reference to the actual words used is indispensable to
the existence of a proper cause of action, and that without it, the
pleading is vague and embarrassing.
[22] Miss
Mahere
submitted that the relief afforded by the court was correct and that
the court was empowered to exercise its discretion in the manner it
did. She submitted that even where an exception is upheld, a
plaintiff is afforded the opportunity to amend its declaration.
ANALYSIS
OF THE DISPUTE ON APPEAL
[23] For
the sake of convenience, I will begin with the nature of the relief
ordered by the court a
quo.
The court dismissed the exception. It found that the pleadings were
not excipiable. Once the court found that the exception was not well
taken it could not exercise the discretion of affording the
respondents an opportunity to file further particulars. Such
indulgence could only follow upon a finding that the exception was
well taken. To that extent it is my view that the court was guilty of
a misdirection.
[24] I
turn now to the substance of the appeal. What a plaintiff to a claim
for defamation is required to allege in the summons was settled in
Taylor
& Another v Chavunduka & Ors
1995 (2) ZLR 22, by CHATIKOBO J, at p27C-F wherein the learned judge
stated:
“It
is true that before a person can be held liable for defamation the
words complained of must have been published of and concerning the
plaintiff. In everyday parlance, the article must refer to the
plaintiff.
Before
the defendants can be held liable the '……. plaintiff must
therefore identify himself as the person defamed, that is, he must
allege and prove that the statement complained of referred to him
as an ascertained or ascertainable person. The test is whether the
ordinary reasonable man hearing or reading the statement would be
likely to understand the statement to apply to the plaintiff': per
R G McKerron The Law of Delict 7 ed p 178-9. See also SA
Associated Newspapers Ltd & Anor v Est Pelser 1975
(4) SA 797 (A) at 810C.
The
complaint at this stage of the inquiry is on the need to allege in
the declaration that the article refers to him. In this regard it
has been averred in par 6 that the article in Parade was published
of and concerned the plaintiffs. But as I stated earlier, the
article does not identify the plaintiffs either by name or by
description. McKerron supra at p 179 states that;
'Where
the statement contains no reference on the face of it to the
plaintiff as an ascertained or ascertainable person, the plaintiff
must set out in his pleadings the special facts and circumstances
which he relies upon as supporting the allegation that the statement
referred to him. Having thus alleged facts connecting himself with
the defamation, the plaintiff will be entitled to call witnesses to
prove that they understood the words complained of to refer to him.'
And
later at p 28F-G;
'All
that has been pleaded in para 6 is that the words were published of
and concerning the plaintiff. ……………………………………………………………………..
That is not so with the ordinary man and woman of normal
intelligence reading the article in Parade unless he was, at the
time, aware of the contents of the report.'”
[25] Going
by the test set out in the above authority it cannot be denied that
the respondents alleged in the declaration that on 6 July 2012 the
Newsday newspaper published a statement of and concerning them.
Paragraphs 6, 11, 12, 13, and 14 are pertinent. It is my considered
view that the exception on this aspect was not well taken. The
declaration was not framed in elegant terms. What it does however is
identify who the plaintiffs are, the circumstances under which the
article came about and the allegation that a defamatory statement was
published of and concerning them.
[26] Next
it falls for me to consider whether or not the appellants were
embarrassed by the failure on the part of the respondents to set out
the exact words which are alleged to have appeared in the article and
which defamed them. For the proposition that the exact words
complained of should have been set out in the declaration Mr Mpofu
sought
reliance on International
Tobacco of SA Ltd v Wollheim & Others
1953 (2) SA 603. This authority received attention in this
jurisdiction in Munyai
v Chikasha
1992 (2) ZLR 31 (S). At p 32B-F, this court stated:
“It
was submitted that it was therefore incumbent upon the appellant to
prove that those words were uttered and it was not sufficient merely
to show that words substantially similar were uttered. It was
submitted that the appellant's declaration did not allow him to
depart from the ipsissima
verba
rule. The case of International
Tobacco Co v Wollheim
1953 (2) SA 603 was cited in support of this proposition. If
anything, this case is authority for the opposite position, that is
to say, what is required is to show that substantially the same
words were used. It is therefore no longer necessary to plead
ipsissima
verba.
All that is necessary is to plead the substance and effect of the
words.
Although
it would have been advisable for the appellant's legal
practitioners to have included the words 'or words to that
effect', the failure to do so did not render the appellant's
case fatally defective. Indeed, as was said in the case of
International
Tobacco Co v Wollheim
supra at 604G:
'The
pleading of ipsissima
verba
leads to artificiality and disingenuousness in pleading because a
witness can rarely recollect the ipsissima
verba
but only the substance or effect of the words spoken, and the
versions of two or more witnesses as to the ipsissima
verba
may differ in detail but not on the substance or effect thereof.'”
[27]
I am mindful of the fact that in the above mentioned authority the
words complained of were not published in a newspaper article. In my
view however, the substance of pleading is the same. A plaintiff no
longer needs to set out the exact words complained of.
[28]
Erasmus, Superior Courts Practice, states:
“An
exception that a pleading is vague and embarrassing will not be
allowed unless the excipient will be seriously prejudiced if the
offending allegations were not expunged. The effect of this is that
the exception can be taken only if the vagueness relates to the cause
of action. Such embarrassment may occur where the admission of one
or two sets of contradictory allegations in the plaintiff's
particulars of claim or declaration, destroys the plaintiff's
cause of action. In other words, averments in a pleading which are
contradictory and which are not pleaded in the alternative are
patently vague and embarrassing.
The
test applicable in deciding exceptions based on vagueness and
embarrassment arising out of lack of particularity can be summed up
as follows:
(a)
In each case the court is obliged to first of all consider whether
the pleading does lack particularity to an extent amounting to
vagueness. Where a statement is vague it is either meaningless or
capable of more than one meaning. To put it simpler: the reader must
be unable to distill from the statement a clear single meaning.
(b)
If there is vagueness in this sense the court is then obliged to
undertake a quantitative analysis of such embarrassment as the
excipient can show is caused to him or her by the vagueness
complained of.
(c)
In each case an
ad
hoc ruling must be made as to whether the embarrassment is so
serious as to cause prejudice to the excipient if he or she is
compelled to plead to the pleading in the form to which he or she
objects. A point may be of the utmost importance to the case, and
the omission thereof may give rise to vagueness and embarrassment,
but the same point may in another case be only a matter of detail.
(d)
The ultimate test as to whether or not the exception should be upheld
is whether the excipient is prejudiced.”
[29] Whenever
a pleading is vague or lacking in precision it is susceptible to an
exception only if the alleged vagueness renders the whole pleading
unintelligible. A defendant is, as a consequence, under a burden to
establish that the pleading has embarrassed him or her in pleading
thereto. In Pete's
Warehousing and Sales CC v Bowsink Investments CC
2000 (3) SA 833 at 834H, the following is stated:
“The
test to be applied in determining an exception is as follows:
The
excipient has the duty to persuade the court that upon every
interpretation which the pleading in question, and in particular any
document on which it is based, could bear no cause of action or
defence, failing this, the exception had to be dismissed.”
[30] It
is not sufficient to merely allude to lack of clarity or
particularity as was alleged by the appellants in this case, a
defendant must show how he was embarrassed. The appellants have not
met the onus
on them to establish that the declaration is excipiable. In this
instance, the respondents pleaded an innuendo and the appellants have
not shown that they have been embarrassed.
[31] It
only remains for me to deal with the arguments made by the parties on
the application to strike out the declaration. The appellants
submitted that the declaration was crafted in breach of the rules of
court and on that premise ought to be struck out in its entirety. It
is argued by the respondents that the application was not in the
proper form and as a result was not before the court a
quo.
It seems to me that counsel on both sides of the appeal have
overlooked one fundamental issue, that there is in fact no appeal
against the refusal by the court a
quo
to strike out the declaration. None of the grounds speak to issue of
the alleged irrelevant, superfluous or argumentative nature of the
declaration. The court a
quo
has not been impugned for its decision not to strike out the
declaration. In the absence of a ground of appeal on that aspect this
Court cannot embroil itself in a matter not in contention.
[32] I
turn to the nature of relief sought by the appellants. The appellants
have sought that the appeal succeeds and that the exception be upheld
with the claim being dismissed. As rightly submitted by Miss Mahere
the prayer for dismissal in circumstances such as these is, as a
matter of law, incompetent. In Adler
v Elliot 1988
(2) ZLR 283 (S), at 292B-C, this court said:
“Finally,
although of no significance in view of the conclusion I have reached,
Mr Gillespie
justly criticized the order made by the learned judge. A claim should
not be dismissed on an exception where it is possible that the party
affected may be able to allege facts that would disclose a cause of
action. See Green
v Lutz
1966 RLR 633 (GD) at 641A. He should be given leave to amend, within
a specified period, if so advised. Such an opportunity was not
afforded to the plaintiff.”
(See
also Auridiam
Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd
1993 (2) ZLR 359 (H), at 373D-E; R
M Insurance Co (Pvt) Ltd v G C M (Pvt) Ltd
1993 (2) ZLR 407 (S) at 408; Taylor
& Anor v Chavunduka & Ors 1995
(2) ZLR 22 (H).)
DISPOSITION
[33] The
court a
quo
ordered the respondents to furnish further particulars to the
appellants. This was despite the finding that the exception had not
been successful. In my view the court, having found that the
appellants had not been embarrassed, should have confined itself to
dismissal of the exception. That said, it is my considered view that
no prejudice will ensue if the order for the provision of the letter
is left untouched. The respondents have not appealed that order and I
see no reason to interfere with it.
[34] In
my view the appeal lacks merit and is accordingly dismissed with
costs.
MAKONI
JA:
I agree
BERE
JA:
I agree
Gill,
Godlonton & Gerrans
legal practitioners for the appellants
Sawyer
& Mkushi
legal practitioners for the respondents
1.
1983 (1) ZLR 232 (H) @ 236F-237A where it was held that;-“Procedure
by way of notice of motion, though often convenient, is far less
disciplined than procedure by action. A good novelist can write a
series of exciting affidavits and at the end claim large sums of
money. It takes a lawyer to draw a declaration”.
2.
B1-154-154A
