Heath Hilton Streak vs Tavengwa Mukuhlani

### Preamble
1
HH 658-18
HC 3798/18
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HEATH HILTON STREAK

versus

TAVENGWA MUKUHLANI

HIGH COURT OF ZIMBABWE

CHIRAWU-MUGOMBA J

HARARE 8, 9, 10 & 17 October 2018

T. Mpofu for the plaintiff

B.  Diza for the defendant (excipient)

Opposed Application – Exception

CHIRAWU-MUGOMBA J:  On 26 April 2018, the plaintiff issued summons claiming $1,000, 000 (One million dollars) being delictual damages for alleged defamatory utterances made by the defendant on national television and to a nationally distributed newspaper publication; an unconditional apology to the plaintiff on the front page of the Daily News; removal of an alleged defamatory article from the Daily News Website and costs of suit.  On 10 May 2018, the defendant through his legal practitioners made a request for further particulars.  On 20 May 2018, the plaintiff responded to the request by stating that the particulars requested were not necessary for purposes of pleading. On 5 July 2018, the defendant filed an exception to the plaintiff’s summons and declaration on the following basis:-

That there has not been established a valid cause of action against the defendant by the plaintiff in that:-

1.1 Plaintiff’s claim is based on alleged defamatory statements that are imputed to a third party other than the defendant.  The defamatory statement quoted by the plaintiff suggests that the utterances were sentiments of the Zimbabwe Cricket Board, not of the defendant himself. To the extent that the defamatory statements are not attributed to the defendant, the action must fail.

2.  That the requirements which one ought to necessarily plead in an action for defamation have not been pleaded with the result that the pleadings are patently defective in that:-

2.1 Plaintiff bases his claim on alleged defamatory statements broadcasted (sic) by the Zimbabwe Broadcasting Corporation and published by journalists from the Daily Newspaper. Plaintiff ought to have, but has failed to join the television producers, reporters and editors to his claim.

2.2 The alleged defamatory statement published in the Daily newspapers website was not pleaded in the plaintiff’s declaration. The court must itself form the opinion that the statements are indeed defamatory as alleged. This is not possible by reason of the plaintiff’s failure to quote the alleged defamatory remarks.

3. That plaintiff has failed to establish a factual foundation for his claim. His account of the publication in his declaration is in the form of questions asked which are stated as a comment/opinion instead of facts. Therefore the plaintiff’s claim lacks factual foundation against the named defendant and is fatally defective.

The defendant sought an order that the plaintiff’s claim against him be dismissed with costs.  In its heads of argument, the excipient perceived the two issues for determination as being the following: - whether or not the plaintiff has a valid cause of action against the defendant and whether or not the plaintiff’s summons and declaration disclose the essential elements for a defamation action. In its heads of argument, the plaintiff averred that contrary to the defendant’s assertions, the plaintiff’s claim is based on  the uncontroverted fact that the defendant uttered defamatory words to a third party concerning the plaintiff. The issue for determination is therefore whether or not the plaintiff’s summons establish a cause of action?

Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5th ed, Volume 2 @ page 630 state as follows:-

“An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain the specific cause of action or the specific defence to be relied upon.”

Order 21 of the rules of this court provides as follows:

“ORDER 21

SPECIAL PLEAS, EXCEPTIONS, APPLICATIONS TO STRIKE OUT AND APPLICATIONS FOR PARTICULARS

137. Alternatives to pleading to merits: forms

(1) A party may—

(a) …

(b) except to the pleading or to single paragraphs thereof if they embody separate causes of action or defence as the case may be;

As stated already, the defendant’s main bone of contention is that the plaintiff has not shown a valid cause of action against the defendant and that the plaintiff’s summons and declaration do not disclose the essential elements for a defamation action.

In the words of ZHOU J in Hickey vs. DMC Holdings (pvt) ltd and others HH-137-17,

“In determining whether a pleading is exceptionable the court looks to that pleading alone.  The proper approach for the court is not to be overly critical of the pleading but to read it benevolently bearing in mind that drafting skills differ from legal practitioner to legal practitioner. In the case of Kahn v Stuart & Ors 1942 CPD 386 at 391-392 the following authoritative warning is given:

“It used to be thought that the object of an exception was to embarrass your opponent.  That is not the true object of an exception at all.  The true object of an exception is either, if possible, to settle the case, or at least part of it, in a cheap and easy fashion, or to protect oneself against an embarrassment which is so serious as to merit the costs of an exception.  In my opinion, the Court should not look at a pleading with a magnifying glass of too high power.  If it does so, it will be almost bound to find flaws in most pleadings . . . except formal replications, but certainly including the present exception itself.”

Rule 11 of the Rules of the High Court provides the basis for setting out the cause of action as follows:-

“Before issue every summons shall contain

……….

……….

a true and concise statement of the nature, extent and grounds of the cause of action and the relief or remedies sought in the action.

I pause to quote part of paragraph 4 of the plaintiff’s declaration, 
   ‘ Streak was a coach and selector, he was entitled to change the team as he found it fit but the question is why did he change the team in the manner he did? The white players knew PJ (Moor) was going to play and none of the blacks knew about it. Cephas (Zhuwao) was told during warm up and why didn’t he inform the whole team? The board is saying what was the motive behind?

You earn US$25 000.00 a month, you make unilateral decision to change a team. You lose an important game. You cost the nation a palace (sic) to the world cup? I think that is the highest level of corruption, its treasonous…”

The defendant contends that according to the plaintiff’s declaration, the defendant was speaking on behalf of the board when he made his utterances and therefore they cannot be imputed to the defendant. Furthermore, the statement consists of questions addressed to the plaintiff seeking an answer concerning the plaintiff’s decisions that led to the national team losing an important game. These were not stated as facts but rather questions which cannot be said to be defamatory.  The plaintiff therefore ought to have proceeded against the board.

Let me again pause and quote paragraph 10 of the plaintiff’s declaration,

“On the 5th of April 2018, at 4:53pm an article was published on the website of the Daily News Website (sic) https://www.dailynews.co.zw/articles/2018/04/05/racism-row-erupts-at-zim-cricket authored by Austin Karonga under a headline entitled, Racism now (sic) erupts at Zim cricket.”

With particular reference to this paragraph, the defendant averred that plaintiff did not state in his summons and declaration the facts necessary to prove his claim. He failed to plead the alleged defamatory statement published in the Daily News website in his declaration.

In my view, the issues of whether or not the plaintiff has a valid cause of action and whether or not the plaintiff’s summons and declaration disclose the essential elements for a defamation action cannot be separated. Therefore essentially the only issue as pointed out in the plaintiff’s heads of argument is whether the plaintiff’s summons and declaration establish a cause of action.

The law has defined what the court needs to look at in a defamation suit were an exception that the summons and declaration do not disclose a cause of action is taken. J.M Burchell in The law of defamation in South Africa @ pp 102-3 puts it succinctly as follows:-

“Where an 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 understand these words as meaning that the plaintiff has 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.”

This test has been adopted in our jurisdiction – see Zvobgo v Mutjuwadi & Ors 1985(1) ZLR at 335-5 and Mnangagwa v Alpha-Media Holdings (pvt) Ltd and Anor 2013(2) ZLR at 116.

According to Feltoe G, in A guide to the Zimbabwean Law of Delict, October 2017 @ page 103

“Defamation causes harm to reputation, that is, the estimation in which a person is held by others (his good name and standing). A defamatory statement is one which is published orally or in writing which injures the person to whom it refers:

by lowering him or her  in the estimation of reasonable, ordinary persons generally;

by diminishing his or her esteem or standing in the eyes of ordinary members of the general public;

by causing the person to be shunned or avoided or exposing him or her to hatred, ridicule or contempt;

by casting aspersions on his character, trade, business, profession or office.”

Paragraph four of the plaintiff’s declaration sets out with sufficient particularity the cause of action from the point of view of the plaintiff that there was publication by the defendant to journalists from the Daily News and reporters from the ZBC, the words imputed to the defendant are particularised, that context of the utterances as a whole were made with the intention to convey an innuendo that the plaintiff is in fact racist. The utterances cast aspersions on the plaintiff’s trade i.e. coaching of cricket; that the plaintiff’s reputation was injured and also particularise how the statement was understood by the addresses. The fact that the plaintiff quoted verbatim the statement by the defendant to include the words, “the board is saying what the motive was behind? does not infer at all that the plaintiff has concluded that the defendant was speaking on behalf of the board. If that is the defendant’s position, then he is not precluded from pleading such defence. In any event, the defendant in the same statement is alleged to have given his own opinion when he stated as follows, “I think that is the highest level of corruption, its treasonous…” This cannot be attributed to the board. I therefore fully associate with Herbstein and Van Winsen (supra) @ p 638 when they state as follows:

‘In order to disclose a cause of action, the plaintiff’s pleading must set out every fact (material fact) which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved’

Regarding the second rung of the exception relating to the article that appears on the Daily News Website titled, “Racism now (sic) erupts at Zim cricket”, the defendant’s contention is that the alleged defamatory statement on the website was not pleaded in the plaintiff’s declaration and that the court must itself form the opinion that the statements are indeed defamatory as alleged and that this is not possible by reason of the plaintiff’s failure to quote the alleged defamatory remarks. In Mateko vs. Medical Investments (Pvt) Ltd and anor HH-324-88, reynolds j stated as follows, “ It has been held that a person who publishes a defamatory matter may be liable not only for the original publication, but for any republication of the same matter by others”. In that same case, reynolds j cited the case of Speight v Gonsay (1891) 60 LJQB 231 where three instances were identified as creating consequential liability for republication. These are (1) where the defendant authorised or intended the repetition (2) where there was a moral duty, to the defendant’s knowledge on the other person or persons to repeat the matter; or (3) where the repetition flows in the ordinary and normal course of events from the original publication. Going further, reynolds j stated as follows;

“It is my view that if a person makes a defamatory statement against another in the course of an interview with a newspaper reporter, all three of these circumstances would apply, and the person concerned would be fully liable for any subsequent report of the interview. This is probably so whether the cause of action is based on the original utterance or the republication, provided that in the latter event, one of the three circumstances is applicable” (Cutler v McPhail, (1962) 2 QB 292 @ 299.

The plaintiff’s declaration sets out in a clear and unambiguous manner that the article has connotations of racism being at the centre of the row at Zimbabwe cricket; that ZBC broadcast snippets of the defendant’s remark; that when the defendant addressed journalists he ought to have known fully well that his words were baseless and that they were malicious and were intended to tarnish the reputation of the plaintiff; that due to the defendant’s utterances this information is now on the world wide web and the plaintiff’s reputation continues to be tarnished.  The source can be traced to the defendant, in other words, had the defendant not uttered those words, they would not have been broadcast and they would be no web article.  This places the plaintiff’s claim in the realm of a republication.

As aptly stated in Mckelvey v Cowan NO 1980(4) SA 525 (Z) @ p 526:

‘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 pleadings, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action’

Regarding the non-joinder of television producers, reporters and editors, r 87 (1) states that non-joinder is not fatal to the cause of action. In terms of r 87 (2) (b), at any stage in the proceedings, the court may on such terms as it thinks just and either of its own accord or on application allow joinder of a party.  I do not read the judgement of reynolds j as precluding a plaintiff who sues on the basis of republication from also pursuing a claim against others in the chain who may be television producers, the television station, reporters, and editors. What is pertinent to note from the Mateko case is that there is liability on the part of the person who originates the defamation if such words are republished.  Therefore the question of whether or not other defendants should be joined is not a basis of an exception as long as the plaintiff has clearly laid out as has been done in this case, the basis for holding the defendant liable for republication.

On the question of costs, T Mpofu submitted that the defendant by filing an exception had taken the court on an academic exercise that has put the plaintiff out of pocket. Such conduct deserves an order of costs on a higher scale.  In response, B Diza averred that the plaintiff had been requested to provide further particulars and had not responded adequately to these. As has been stated in a plethora of cases, costs are always at the discretion of the court. I do not perceive anything to be amiss in the filing of the exception by the defendant that would warrant an order of costs on a punitive scale.

Accordingly the exception is hereby dismissed with costs.

G.N Mlotshwa and Company, Plaintiff’s Legal Practitioners

Mhishi Nkomo Legal Practice, defendant’s Legal Practitioners