CIV/T/312/84 IN THE HIGH COURT OF
In the matter between:
NGAKA MAKHALANYANE )
SEKESE SEKESE ) Plaintiffs
TIMOTHY NQOSA )
P.K. MEYER )
E.E. BROWN )
Delivered by the Honourable Sir Peter Allen, on the 8th
day of April, 1987.
The three plaintiffs brought this action for damages for
defamation against the four defendants. All parties were working for
same firm of Moshal Gevisser (or Frasers) in February 1984.
The first plaintiff testified first before Cotran C.J.
on 7 February, 1986 and he was cross-examined. The hearing was then
and the then Chief Justice left the country.
When this part-heard case came before me for hearing the
plaintiffs were represented by different counsel and I had on record
former Chief Justice's notes of the examination and
cross-examination of the first plaintiff.
However, at the request of both counsel I agreed to
start the trial all over again and the first plaintiff commenced his
before me. He did not get very far before counsel for the
plaintiffs applied to amend the pleadings. I gave two rulings as a
of that and a subsequent application and the effect was that
the proposed amendments were not allowed, and the plaintiffs' attempt
to withdraw was also refused.
After some further testimony by the first plaintiff, in
the course of which I held that my first ruling was being ignored,
for the plaintiffs decided to close the plaintiffs' case.
Mr. Edeling for the defendants then closed the defendants' case
calling any evidence and he applied for dismissal of the
plaintiffs' claim with costs.
The pleadings, in the declaration, asserted that the
first three defendants on 22 February, 1984, made a defamatory
that the three plaintiffs
were thieves and that they had stolen goods belonging to
The defendants' counsel had no opportunity to
cross-examine the first plaintiff when he testified this time because
of the sudden
closing of the plaintiff's case. Thus that testimony
was of little value. However, before Cotran C.J on 7 February, 1986,
was cross-examined thoroughly. The trial judge's record
shows on page 5 of the handwritten notes (at the top of the page) the
was asked about what happened at the gate when the alleged
accusation was made. The . witness replied, "I was busy at my
I only noticed that the lorry was sent back to the yard. I
did not hear conversation at the gate."
Then further down on the same page the witness was asked
if the second and third defendants said anything that he (P.W.1)
His reply was: "Kepa and 3rd defendant and I met at
Meyer's and Botha's office on the same day." When it was pointed
that the witness had not mentioned this in his evidence-in-chief,
"Well nothing happened." Whereas before me
witness alleged that in the office at that time the
defendants had accused him of stealing the property.
This was a clear contradiction and, in view of the
earlier testimony,about which he was cross,examined, I
find it is not credible.
There was no evidence at all to support the
allegation made in para 6.2 of the further particulars
that the statement was made to 5 named persons in the
presence of members of the public.
Para 5.1 of the plaintiffs' declaration alleges the
exact words said to have been spoken by the first,
second and third defendants, but there was no evidence
of this at all.
Para 5.2 alleges that the defamatory statement was made
to the fourth defendant but, again, there was no evidence of this.
The three plaintiffs claimed substantial damages in
their summons, M30,000 and M20,000 and M15,000 respectively but there
was no attempt
to prove that any damage at all was suffered by any of
them, let alone the
actual amount of such damage.
Accordingly I find that the plaintiffs have failed to
prove their claims against the defendants and their whole claim is
P.A.P.J. ALLEN JUDGE
For Plaintiffs : Mr. Ngakane For Defendants : Mr.
Edeling Judgment delivered.
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