NetOne Cellular (Pvt) Ltd v Reward Kangai

### Preamble
1
HH 428-21
HC 6150/20
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NETONE CELLULAR (PVT) LTD

versus

REWARD KANGAI

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 17 May 2021 & 20 August 2021

Opposed Application

A Chimhofu, for the applicant

N Munetsi, for the respondent

MANGOTA J: On 5 September 2019, the respondent, who is a former chief executive officer of the applicant, sued the latter and five other defendants. He claimed certain specified sums of money against them. He alleged that the applicant, a legal entity which is registered according to the laws of Zimbabwe, and its co-defendants defamed him.

The applicant entered appearance to defend. It filed its plea on 27 November 2019. It filed this application on 23 October 2020. It filed it under Order 11 r 75(1) of the High Court Rules, 1971. It pleaded, in the same, that the claim of the respondent is frivolous and vexatious as against it. It premised its application for dismissal of the claim on the allegation that it did not:

publish the articles which constitute the respondent’s cause of action for the suit against it;

authorise the publication of the articles in question and – and that:

there is no legal principle upon which it is being sued for defamation damages which arise from articles which were published by a third party.

It moved me to dismiss the claim of the respondent with costs which are at an attorney and client scale.

The application succeeds.

Rule 75 upon which the application is premised is pertinent. It reads, in the relevant part, as follows:

“(1)	where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous and vexatious.”

The rule offers a discretion to the defendant to apply for dismissal of the plaintiff’s action. He can, however, only do so after he has filed his plea to the plaintiff’s claim and not before that stage.

The rule does not define the meaning and import of the phrase frivolous and vexatious.

Case authority comes in to define the two words. It has, for instance, been stated in Dube v Dube, HB 26/15 that an action is vexatious if it is impossible to succeed. MALABA JA (as he then was) remarked on the word in Rogers v Rogers & Anor 2008 (1) ZLR 330 where he said:

“... a plaintiff who commences action ... when he has no reasonable grounds to do so has no cause of action. An action without a good cause of action is obviously unsustainable”.

BOSHOFF J clarified the meaning of the two words which relate to the phrase frivolous and vexatious. He stated in S v Cooper & Ors, 1973 (3) SA 475 at 476 D that:

“The word frivolous in its ordinary and natural meaning connotes an action characterised by lack of seriousness, as in the case of one which is manifestly insufficient. An action is, in a legal sense, frivolous or vexatious when it is obviously unsustainable, manifestly groundless or utterly hopeless and without foundation.”

Whether or not the claim of the respondent against the applicant is frivolous and vexatious does, in a large measure, depend on what the applicant is alleged to have done vis-a-vis the reputation of the respondent. The applicant, it is alleged, is the author of the statements which, it is claimed, defamed the respondent. Whether or not the conduct of the applicant falls into the definition of the delict of defamation remains a matter for conjecture.

G Feltoe states in his Guide to the Zimbabwean Law of Delict 3 ed p 37 that:

“A defamatory statement is one which is published and injures the person to whom it refers by lowering him in the estimation of reasonable ordinary persons generally”

Publication of the defamatory statement is, according to the learned author, a sine quo non aspect of the delict of defamation. He states at p 39 of his Guide to the Zimbabwean Law of Delict that:

“If a defamatory statement about the plaintiff is published only to the plaintiff, he may be able to sue for injuria, but he cannot sue for defamation because, by definition, defamation is only committed when there is publication of the defamatory statement to, at least, one person other than the plaintiff.” (emphasis added).

Professor Feltoe does not define the meaning of the word publication. He leaves it to the reader to research on, and understand, it.  John G Fleming, however, provides the definition for the word. The learned author defines the word in The law of Torts, 7 ed, p 11, to mean communication of the disparaging statement to someone other than the person defamed.

The applicant states, and its assertion has not been challenged, that it did not publish any statement to anyone, let alone to its co-defendants. These, it insists, are third parties who have no connection at all with its operations. They, it asserts, did not have its authority to publish the statement complained of when they did.

If is accepted, as it should, that the applicant did not communicate the statement to anyone and that its co-defendants who published the statement did so without any instruction or authorization from it, the respondent’s claim would, therefore, fall short of the definition of the delict of defamation as against the applicant. He has no cause of action against it at all. It is, therefore, for the mentioned reason, if for no other, that the applicant continues to assert that the respondent’s claim as against it is without merit.

The respondent, it is observed, did not challenge the applicant’s statement which was to the effect that his action, as against it, was frivolous and vexatious. He provided no reason at all for not challenging the basis upon which the applicant’s case is premised. His lack of challenge of the very basis of the application leaves the same in an unscathed form.

The trite position of the law is that what is not denied in affidavits is taken as having been admitted. Reference is made in the mentioned regard to Fawcett Security Operations v Director of Customs & Excise, 1993 (2) ZLR 121 (SC), DD Transport v Abbot, 1988(2) ZLR 92 as reiterated in Remo Investment Brokers (Pvt) Ltd v Securities Commission of Zimbabwe, SC 13/15 wherein it has stated as follows:

“The effect of a formal admission made in pleadings was underscored in Gordon v Turnow 1947(3) SA 525 (AD) at 531-532 where DAVIS JA said:

“But this admission in the plea is of the greatest importance for it is what Wigmore [paras 2588-2550] calls a judicial admission [of the confession judiciallis of Voet 42.2.6 which is conclusive rendering it unnecessary for the other party to adduce evidence to prove the admitted fact, and incompetent for the other party making it to adduce evidence to contradict it.”

The respondent appears to have approached the application with some emotion and a sense of exasperation. The emotion which accompanied his response to the application threw him off the balance, so to speak. He dedicated one half of his notice of opposition to matters which were irrelevant to the application.

The applicant’s alleged non-payment to him of his terminal benefits, its coming to court with alleged dirty hands as well as its alleged violation of his constitutional rights were all irrelevant to what had been placed before me. Those matters were for the Labour Court and not for this court. With proper legal advice, the respondent should have enforced his rights against the applicant.

This application was all about whether or not the claim which the respondent filed against the applicant was with merit. All the respondent should have shown was that his claim against the applicant was not devoid of merit. That would have made his claim to fall outside the category of frivolous and/or vexatious claims. He failed to discharge the onus which had been shifted to him in a dismal way.

The respondent missed the point of the application in a very serious manner. He misconstrued r 75(1) for r 236(3)(b) of the rules of court. The two rules are not synonymous. They are separate and distinct from each other.

Whilst r 75 refers to dismissal of an action, r 236(3)(b) refers to dismissal of an application. The reasons for the two forms of dismissal are not the same. Dismissal of an action is premised on the ground that the claim of the plaintiff does not disclose any cause of action as against the defendant. Dismissal of the application, on the other hand, rests on the applicant, in the main application, failing to file his answering affidavit or to set the application which he filed down for hearing within thirty (30) days after the respondent (the applicant in the interlocutory application for dismissal) has filed his notice of opposition and opposing affidavit.

It follows, from a reading of the foregoing that, whilst the end-result of an application which is filed under r 75(1) is the same as of that which is filed under r 236(3)(b) of the rules of court – namely dismissal of the suit- the former dismisses the action of the plaintiff and the latter dismisses the application of the applicant. The long and short of the observed matter is that an application under r 75(1) is action-based and the one which is filed under r 236(3)(b) is application-based, if a comparison may be favoured.

It is, accordingly, pertinent for litigants who fall into the category of the current respondent not to fall into the trap of confusing the two rules. There is a world of difference between them. A confusion of one for the other, as the respondent did in casu, brings about disastrous consequences on the part of the confused party.

That the respondent misconstrued rule 75(1) for rule 236(3)(b) of the High Court rules, 1971 requires little, if any, debate. The statement which he makes in para 28.3 of his opposing affidavit betrays the error which he committed in his approach to the application. He states, in the same, that he has prepared his discovery affidavit as well as his replication to the applicant’s plea, his summary of evidence and his pre-trial conference issues for case number HC 7395/19.

The statement, it is observed, does not in any way provide an answer to the application which I was called upon to determine. It leaves the application in an intact state. It, in other words, offers on a platter, to the applicant what the latter is asking for, so to speak. The opposite of what Herbstein and van Winsen state in their Civil Practice of Superior Courts in South Africa, third edition, p 80 applies to the circumstances of the respondent. The opposite which is stated as a general principle of law is that a respondent must stand or fall by his opposing affidavit and the facts alleged therein, …. because these are the facts which the applicant is called upon to either affirm or deny in his answering affidavit which he is at liberty to file or not to.

The opposing affidavit of the respondent leaves a lot to be desired. It left the statement of the applicant intact. It was as if there was no opposition to the application at all. I, therefore, had very little, if any, difficulty agreeing with the applicant which narrated the events of its case in a clear, cogent and straight forward manner.

The respondent’s submission which is to the effect that the originator of the defamatory message is delictually liable for defamation is misplaced. The status of Neethling whom he makes mention of in para 16 of his heads remains undefined and, therefore, unknown. Equally unmerited is what Neethling states in whatever source of his work.

I had the occasion to read the case of van Viet’s Collection Agency v Schrader, 1939 TPD 265, 268-269 to which the respondent made reference on the matter which relates to the liability, in delict, of originators of defamatory statements. I came across no passage which supports the proposition which he makes. Nor is the name Neethling mentioned anywhere in the case.

The observed matter left me wandering as to where the respondent unearthed what he stated in his submissions on the point in issue. Wherever he unearthed it from, the proposition cannot, in my view, hold. It cannot do so because one essential element of the delict of defamation is publication of defamatory matter to third parties. The applicant published no statement, let alone a defamatory one, to anybody.

I considered all the circumstances of this application. The applicant, in my view, proved its application on a balance of probabilities. The application is, therefore, granted as prayed.

Matsikidze Attorneys-At-Law, applicant’s legal practitioners

Tendai Biti Law, respondent’s legal practitioners