Feni (born Mlengana) v Kondzani (508/2006) [2007] ZAECHC 15; [2007] 4 All SA 762 (EC) (8 March 2007)

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ no : 88

PARTIES:

NOKUZOLA ELIZABETH FENI (born MLENGANA) Plaintiff

AND

ZANELE KONDZANI Defendant

REFERENCE NUMBERS -

Registrar: 508/2006

Magistrate:

High Court: Eastern Cape Division

DATE HEARD: 1st and 2nd March 2007

DATE DELIVERED: 8 March 2007

JUDGE(S): Pickering J

LEGAL REPRESENTATIVES -

Appearances

for the State/Applicant(s)/Appellant(s):Adv Dela Harpe

for the accused/respondent(s): Adv. Cole

Instructing attorneys:

Applicant(s)/Appellant(s): Wheeldon Rushmere and Cole

Respondent(s): Mili Attorneys (Mr. Mili)

CASE INFORMATION -

Nature of proceedings : Damages Claim

Topic:

Keywords:

IN THE

HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 508/2006

In the matter between

JUDGMENT

PICKERING J:

In consequence of an unedifying incident which occurred on 29 November 2004 plaintiff instituted action for damages against defendant. The relevant portion of claim 1 is to the effect that on 30 November 2004 (such date being incorrectly cited) and at Extension 7, Joza township, Grahamstown, plaintiff was “wrongfully, unlawfully and intentionally assaulted by the defendant when she sprayed the plaintiff with teargas repeatedly in the face.”

In claim 2 it is alleged that defendant had alienated the affection of plaintiff’s husband inasmuch as during 2002 defendant had “enticed and persuaded plaintiff’s husband to desert the common home and live with the defendant.”

The particulars of claim then proceed to conflate the two claims in dealing with the issue of damages in respect of each such claim and it is accordingly somewhat difficult to deduce which alleged sequelae relate to which claim. For present purposes, however, nothing turns on this inasmuch as at the commencement of the trial Mr. De la Harpe, who appeared for plaintiff (and who, I hasten to add, did not draft the particulars of claim) and Mr. Cole, who appeared for defendant, requested me to make an order in terms of Rule 33(4) separating the issues of liability and quantum and the trial accordingly proceeded on the issue of liability only. Mr. De la Harpe furthermore withdrew claim 2, such withdrawal being accompanied by a tender by plaintiff to pay such wasted costs occasioned in respect thereof as may be determined on taxation.

In her plea defendant admits having sprayed pepper spray at the plaintiff. She denies, however, that the incident occurred at Extension 7, Joza and alleges that it in fact occurred at Extension 4, Joza. She pleads further that she sprayed plaintiff once with pepper spray but that her actions were justified “in that plaintiff swore at her continuously including reference to her private parts and further threatened to kill her while approaching her in an aggressive manner. The defendant pleads that the force used was reasonable under the circumstances.” This plea was amended at the outset of the trial by the deletion of the allegation relating to the alleged threat to kill defendant and by the substitution of the following paragraph:

“The defendant pleads that her actions were justified in that the plaintiff swore at her continuously including reference to her private parts by threatening to make her shit through her vagina, and by behaving in such an aggressive manner that the defendant believed that she was at risk of attack. The defendant pleads that the force used was reasonable in the circumstances.”

Defendant further filed a claim in reconvention in which she claims damages from plaintiff in the sum of R10 000,00 in consequence of plaintiff having allegedly referred to her as a “whore” in the presence of “two police officers being Inspector Mbunge and a Ms. Mthetho.”

It is now common cause that Ms. Mthetho is not in fact a police officer.

In her evidence plaintiff testified that at the time of the incident on 29 November 2004 she was estranged from her husband, a certain sergeant Feni. She and Feni had a child who had been born on 6 August 2002 by which time Feni had already left the common home, the marital relationship between herself and Feni having broken down at that stage. It is common cause that plaintiff and Feni were divorced during November 2005.

Plaintiff stated that during 2002 she knew defendant only as a police colleague of her husband’s but knew nothing more of her. She stated that she met defendant personally for the first time during 2004 and that it was only during 2004 that she discovered that defendant had been having an affair with Feni. This discovery came about in the following way. At some time prior to 29 November 2004, the precise date of which plaintiff could not recall, but which it is now common cause was 5 August 2004, plaintiff was, so she said, walking from her home to a shop when she took a short cut past a certain block of flats. In the yard of one of these flats she happened to see washing hanging on the washing line. She had no idea to whom the flat belonged but she recognised some of the items of washing as clothes belonging to her husband which she herself had bought for him. According to her her attorney needed evidence for purposes of her divorce action against Feni and she accordingly removed the washing from the line and took it to her attorney, although she had no idea to whom the flat belonged. Her attorney, not unexpectedly, was very angry with her and told her to take the washing back. She decided, however, to take it to the police station. It is common cause, as appears from a police docket (Exhibit D) that on the same day as plaintiff took the clothing from the line defendant opened a case of theft of the clothes. It is further common cause that after plaintiff handed in the clothing at the police station the charge of theft was withdrawn.

Plaintiff conceded under cross examination that at that stage she had already charged Feni with rape and assault and had obtained an interdict against him and had caused him to be arrested. In these circumstances she conceded that the attorney had ample evidence at his disposal for purposes of the divorce action but she stated that in her view the clothing would have constituted additional evidence.

A statement, exhibit C5-11, made by plaintiff under oath to a police inspector on 8 December 2004 was put to her under cross-examination.

It appears clearly therefrom that at the time plaintiff removed the washing from the line she in fact well knew that the flat belonged to defendant. In attempting to evade the consequences of this contradiction between her evidence and the contents of the statement plaintiff alleged that after the incident on 29 November her mind “did not function properly” and that she “lost 100% functioning of mind.” She alleged further at one stage in her evidence that defendant might have caused this averment to be put into her statement but then she retracted this allegation.

She insisted in her evidence in chief that despite the contretemps concerning the washing there was, prior to 29 November 2004, no friction whatsoever between herself and defendant. She initially maintained this stance under cross-examination before conceding that there was “a little bit of friction” over the issue of her husband’s clothing but “not much friction.” She reiterated that she had no idea that the flat where the washing was hanging belonged to defendant and that it was purely “by chance or luck” that she happened upon the flat.

She testified that between 8 and 9 pm on the night of 29 November 2004 she travelled alone by car to extension 7 in Joza in order to visit a sick child at the home of the Antonie family. She stopped to ask directions to the house before continuing on her way. Whilst driving in extension 7 she noticed in her rear view mirror that a police motor vehicle was driving behind her flicking its lights. It also hooted. Because it was a police motor vehicle she stopped her own car and the police motor vehicle stopped opposite her on the other side of the road, facing in the same direction. Defendant was seated in the passenger seat of the police vehicle. Another police woman, one Nomhle Mbunge, was the driver of the motor vehicle. Defendant got out of the police vehicle and approached plaintiff’s vehicle, folding her arms in front of her chest as she did so. Plaintiff wound down her side window in order to talk to her at which defendant suddenly unfolded her arms, produced a canister of pepper spray which she had been holding under her armpit, and sprayed a strong burst of pepper spray into plaintiff’s face. At the same time defendant swore at her in extremely crude and vulgar terms adding also that plaintiff was a rubbish and, in a reference to Feni, saying “when will you give up on this man.” According to plaintiff she ducked in an unsuccessful attempt to avoid the spray. She managed to wind up the window and drive away. Although the spray did not immobilise her she suffered great pain and could not breathe or see properly and was obliged to seek treatment at the hospital. Thereafter she reported the matter to Superintendent Moyake and laid a charge of assault against defendant which charge is apparently still pending.

Under cross-examination she was taxed as to her reason for having visited extension 7 on the night in question. She was referred in this regard to a further statement Exhibit C14-15, made by her under oath to inspector Fetman at 00h50 on 30 November 2004, some three to four hours after the incident. In this statement plaintiff stated:

“On Monday 2004-11-29 at approx 21:45 I went to Ext. 7 to the house where my husband Ncebisile Feni stays. I went to attend the

appointment which I have made with Zanele Kondzani. I was going with my car. When I was there waiting for Zanele Kondzani they arrived with Nomhle Mbunge. They were driving the state vehicle which was driven by Nomhle. Zanele came to me with folded arms. I opened the window of my car. When it was half way open Zanele took a spray and sprayed me with it on my face. She said that she was going to shoot me because I do not want to surrender to be with my husband.”

Plaintiff denied having told Fetman that she had made an appointment to meet defendant and said that the contents of the statement had been manufactured by somebody. She said further that at the time of making the statement she had been nervous, could not see properly, signed the statement under pressure and did not read it properly. She initially denied having said anything about defendant having threatened to shoot her but then said that although it was not true she might have mentioned it because, so she reiterated, she was not “100% right” in her mind and could not remember everything.

She insisted that her visit to extension 7 had been in order to visit a sick child. Her later statement, exhibit C 5-11, was again put to her. In this statement plaintiff stated as follows:

“Last week Monday I saw Zanele in Shoprite. She greeted and said hi sisi and want to see you. I said what is wrong. She said she wanted to see me later. I asked her where and she said at my husband’s flat and I said I could not go there and she said no outside at 20h00. At about 19h45 I left the house and I went to Joza. I parked a distance away from flat. At 20h00 I saw a Crime Prevention combi. My husband parked the car and went to him. I waited to before 20h00 and Zanele did not come. I then saw a police van stop. I saw my husband go to the van chatting. The van drived to me and the man said they have a problem and my husband phoned them and said I was waiting and I must leave. I asked them what I was doing wrong because I am far from the house, they said please I must leave because we are separated. I then said it was municipality ground but I did not want to make problems and loose my dignity. I then left on my way home. While driving on the road I noticed a police vehicle. Mbunge was driving and Zanele was next to her in the vehicle. Mbunge hooted. Kondzani winked me to follow them. I followed them to Feni’s house. They parked next to the gate. I then parked far away again. I waited in the car. Zanele approached me with folded arms. I winded my window down. When the window was down, she took out a spray can and sprayed me.” (sic)

Plaintiff denied that the contents of this statement were correct but was quite unable to furnish any rational explanation for the fundamental contradictions existing between her evidence and the contents of the statement beyond reiterating that her mental faculties had been impaired in consequence of having been sprayed with the pepper spray. She added that she had in fact been hospitalised at a mental institution for some time. She stated that she was astounded by the contents of the statement.

For good measure Mr. Cole raised with plaintiff her claim for R5 000,00 per month in respect of past loss of earnings calculated from 30 November 2004. I should mention that although the summons was issued some 15 months after the incident had occurred the claim for past loss of earnings was inexplicably calculated in respect of a period of two years. Be that as it may, plaintiff averred that had it not been for the pepper spray incident she would have been able to work. In the light of this averment Mr. Cole drew to her attention the particulars of claim in a High Court action instituted by plaintiff in July 2006 against Harry’s Laundry in case no 2066/06. (Exhibit B) In that matter plaintiff had claimed an amount in respect of past loss of earnings “calculated at the rate of R2 000,00 per month from October 2003 when the plaintiff lost her employment at Telkom because of health problems until date of issue of summons” (i.e. July 2006). Confronted with this plaintiff resorted to evasiveness, stating repeatedly that she was not in Court to talk about the Harry Laundry’s case. She was quite unable to explain, in the light of the averments contained in her particulars of claim in the Harry Laundry’s case, as to why she had stated that she would have been able to work had she not been sprayed with pepper spray. She was similarly quite unable to explain why her claim for past loss of earnings against defendant was greater than the claim by her against Harry’s Laundry save for eventually stating that the claim against the present defendant was larger because she had been temporarily “mentally retarded” and had spent time in a mental hospital.

With regard to defendant’s counter claim she denied having called defendant a whore or having sworn at her in any way.

In her evidence defendant stated that she is an Inspector in the South African Police Services and presently station commander of Fort Brown police station. She has 15 years experience in the South African Police Services.

She stated that she knew plaintiff, having first met her during June 2004 when plaintiff had stopped her on the pavement outside her flat and had told her that it had come to her attention that defendant was involved with her husband. Defendant had denied this and had told plaintiff that it was untrue. Although defendant had admitted that she was presently living with Feni she stated that her relationship with him had only begun during November 2005 after his divorce from plaintiff.

As to the incident involving the removal of the clothes from her washing line defendant stated that the clothing in fact belonged to her nephew and not to Feni.

She stated that on Monday 29 November 2004 she had been at work. She was intending to visit Nomhle Mbunge and Queenie Mthetho and she obtained a lift in a combi with Feni and sergeant Yalo. As they left the police station she noticed plaintiff’s motor vehicle following them. They proceeded to extension 5 in Joza to drop off sergeant Yalo and then went to extension 4 to Mbunge’s house where she was dropped off. Plaintiff’s motor vehicle followed them the entire way. At Mbunge’s house they watched a television programme. Mbunge was intending to take a police motor vehicle back to the police station and it was accordingly agreed that she would drop defendant off at the house of one Andiswe in extension 4, Joza, on the way. As they proceeded towards Andiswe’s house defendant again noticed plaintiff’s car following them. Mbunge parked the motor vehicle on the right hand side the road opposite Andiswe’s gate facing towards a cul-de-sac some 10 metres further down the road. Plaintiff’s motor vehicle had pulled up on the left hand side of the road opposite the police vehicle. Plaintiff shouted at defendant calling her “a rubbish” and “a whore” and saying that defendant was “not going to get her man tonight.” She further said, and it is unfortunately necessary to record this, that defendant would “shit through your vagina.”

Defendant asked Mbunge to fetch Queenie Mthetho whilst she looked after the police vehicle. Mbunge left and came back in the company of Mthetho. They both got into the police vehicle and the three of them sat there trying to decide what to do. Throughout this time plaintiff was yelling at defendant. According to defendant plaintiff appeared to be in an uncontrollable rage and she abused defendant and threatened her. Although in her original particulars of claim and in her evidence in chief the allegation had been made that plaintiff had threatened to kill her, defendant stated under cross-examination that plaintiff had not directly threatened to kill her but that the nature of the threats made by her were such that defendant had deduced therefrom that she might be killed.

Defendant was concerned about the police vehicle, thinking that the situation was such that plaintiff might damage it. She accordingly suggested that Mbunge remove the vehicle and take it to the police station.

She took a canister of pepper spray from her handbag and gave her handbag to Mthetho to take inside the house and she herself alighted from the police vehicle and went to stand outside Andiswe’s house whilst Mbunge proceeded in the police vehicle to the cul-de-sac in order to make a u-turn. At this plaintiff drove her own motor vehicle next to the pavement in front of Andiswe’s gate and stopped some two metres away from defendant. Plaintiff’s upper body was protruding through the open window of the motor vehicle whilst she continued to hurl abuse at defendant. Plaintiff then withdrew her body from the window and, whilst seated behind the steering wheel, looked down. She was making certain movements inside the car and appeared to defendant to be attempting to open the door of her vehicle although defendant could not actually see what she was doing. Defendant stated that because of plaintiff’s violent rage, her continuous swearing and the nature of the plaintiff’s threats she felt intimidated and threatened and was concerned that she would be badly assaulted. She said that she could not run away because she was wearing high heeled shoes and the gravel pavement was uneven. The gate to Andiswe’s yard was closed and defendant did not want to turn her back on plaintiff in order to open it. It was also clear to her that plaintiff was not going to leave the area of her own

accord. Defendant accordingly stepped forward one pace and sprayed one burst of pepper spray through the open window at plaintiff’s face. Plaintiff reacted by screaming and covering her face before winding up the window of the car. She then started her car and drove down to the cul-de-sac where she turned. In the meantime Mbunge had already turned her car at the cul-de-sac and had passed by and left the scene. Plaintiff then returned in her motor vehicle from the cul-de-sac, stopped her car and again swore at defendant in crude terms. She then left.

Defendant stated that she had no other option but to spray the pepper spray at plaintiff’s face in order to subdue her. She stated that the means used by her were commensurate with the threat faced by her. She accordingly averred that in spraying plaintiff she had acted in self defence.

Nkosazana Queenie Mthetho also testified on behalf on defendant. She is an administrative clerk in the South African Police Services. She confirmed that Mbunge and defendant arrived at Andiswe’s house in extension 4, Joza at approximately 9 pm on 29 November 2004. She stated that she was called from the house by Mbunge. When she went out to the street she saw that plaintiff’s car was parked adjacent to the police motor vehicle. She did not know plaintiff at that stage. She confirmed that the woman in the vehicle was screaming a torrent of abuse at defendant and shouting at the top of her voice that defendant was “a rubbish” and “a whore” who was going “shit through her vagina.” Defendant was sitting silently in the police motor vehicle. Mthetho and Mbunge joined defendant in the police motor vehicle. The woman continued to hurl abuse at defendant and eventually Mthetho took defendant’s handbag and went back into the house. Defendant disembarked from the car as well but stopped at the gate. Mthetho knew nothing more of the incident.

Plaintiff was an appallingly bad witness. Her evidence was fraught with inconsistencies, improbabilities and contradictions and was, in very material respects, contradicted by the statements made by her shortly after the incident under oath to police officers. She was also extremely evasive and refused to answer questions which were entirely proper and relevant stating that she was only in Court to testify as to the actual spraying incident. It is not necessary to set out here details of such evasions, contradictions and inconsistencies insofar as they do not appear from the summary of her evidence which I have set out above because Mr. De la Harpe very fairly and properly conceded at the outset of his address to the Court on the merits that he was unable to submit that her evidence should be accepted in preference to that of defendant. Indeed, plaintiff’s evidence was, in my view, in many respects clearly a fabrication.

In contrast defendant was, in my view, a good witness. She testified in a calm composed manner and, although there were certain inconsistencies in her evidence she was able to explain these in a satisfactory manner. I have no hesitation in accepting her evidence. I accept too the evidence of Mthetho who was similarly a good witness.

Claim 1

Mr. De la Harpe submitted, however, that even on an acceptance of defendant’s version she had failed to discharge the onus upon her of establishing that in spraying plaintiff with the pepper spray she was acting in self defence.

The requirements to be satisfied before a plea of private defence will be upheld are well known and are neatly summarised in Ntsomi v Minister of Law and Order 1990 (1) SA 512 (C) at 526H as follows:

“(1) There must have been unlawful attack or threatened attack and the victim must have reasonable grounds for believing that he was in physical danger.

The means of defence must have been commensurate with the danger and dangerous means of defence must not have been adopted when the threatened injury could have been avoided in some other reasonable way.”

The second such requirement has been formulated as follows by Madlanga AJP in Ntamo and Others v Minister of Safety and Security 2001 (1) SA 830 (Tk) at 836H-J:

“To state something trite, where the threatened harm can be avoided without the use of force, private defence cannot succeed. Where force is necessary to neutralise the threat of harm, the force used must not be more than is reasonably necessary to achieve that purpose (the proportionality principle or doctrine – see R v Molife 1940 AD 202 at 204; R v Attwood 1946 AD 331 at 340).”

Mr. De la Harpe submitted that the defendant’s belief that plaintiff was about to disembark from her motor vehicle in order to assault her was unreasonable and that defendant accordingly had no reasonable grounds for believing that she was in imminent danger. I disagree. It appears from defendant’s evidence that plaintiff, who was in an uncontrollable rage, was leaning half way out of her car window hurling violent abuse at defendant. Included in the torrent of abuse was the threat that defendant would “shit through her vagina”, a threat which carried with it the implication of serious bodily harm being occasioned to the person of defendant. Plaintiff thereafter withdrew her body inside the car and made movements such as to cause defendant to think that she was about to open the car door. In my view the circumstances were such that a reasonable person in the position of the defendant would have had reasonable grounds for believing that plaintiff was attempting to open the car door in order physically to attack her. That, however, is not the end of the matter.

The defence of private defence can only succeed if the use by defendant of the pepper spray in order to subdue plaintiff was commensurate with the danger she was facing and if she could not have avoided the threatened attack by some other means. In deciding this question I bear in mind that I “must be careful to avoid the role of the armchair critic wise after the event, weighing the matter in the secluded security of the Courtroom” (Ntanjana v Vorster and Minister of Justice 1950 (4) SA 398 (C) at 406 A) and that persons “faced in moments of crisis with a choice of alternatives are not to be judged as if they had both time and opportunity to weigh the pros and cons” (Union Government v Buur 1914 AD 273 at 286).

Mr. De la Harpe suggested that defendant had reasonable alternatives open to her other than to spray plaintiff with the pepper spray. He submitted that defendant could have fled the scene by retreating into Andiswe’s house or by getting back into the police motor vehicle which had not yet left or that she could have summoned assistance from her police colleagues.

Defendant in her evidence stated that she could not flee because of the uneven terrain and the fact that she was wearing high heeled shoes and because the gate to Andiswe’s house was closed although she did not know whether or not it was bolted shut. She stated further that it was quite clear that plaintiff was in any event not going to leave the scene of her own volition. In these circumstances the probabilities are, in my view, overwhelming that had defendant retreated into Andiswe’s house she would have been pursued there by plaintiff who had tracked defendant’s movements all evening and who was clearly seeking a confrontation with her. To flee would have been merely to postpone that confrontation.

In my view defendant has established that the use of force was the only reasonable remaining option to her.

The force used by her was further, in my view, reasonably commensurate with the threat and danger. In other words it was proportional to the threatened harm. Defendant had received training in the use of pepper spray and stated that it was used by members of the police services in order to subdue and control persons who were otherwise uncontrollable. In the present case the pepper spray had the desired effect of subduing plaintiff and of putting an end to the threatened attack. I am satisfied that in spraying one regulation burst of pepper spray at plaintiff defendant did not in the circumstances use excessive force.

In the circumstances defendant has satisfied the requirements for the upholding of her plea of private defence and plaintiff’s claim must therefore be dismissed.

Claim in reconvention

Defendant has proved that plaintiff said of her that she was a whore. It was common cause between counsel that it is per sedefamatory to call a woman a whore. The only issue therefore to be decided is whether there was publication of the defamatory statement, publication being the act of making known the said statement. In her claim in reconvention defendant alleged that the defamatory statement had been made in the presence of Mbunge and Mthetho. No averment is made of there having been any wider publication of the statement.

It is clear from the authorities that a plaintiff must, as a general rule, state the names of the persons to whom the defamatory words were uttered or identify them in some way. See Benson and Simpson v Robinson 1917 WLD 126 at 130; Burchell: The Law of Defamation in South Africapage 70-71.

In Benson and Simpson v RobinsonsupraWessels J stated the following with regard to pleading in a case where the plaintiff does not know the identities of the persons to whom the statement was uttered:

“If the words are addressed by the defendant to the plaintiff himself in the presence of a crowd of people whom the plaintiff does not know, then it is sufficient to say that the words were addressed to the plaintiff in the presence and hearing of divers persons unknown to the plaintiff. The occasion must, of course, be clearly stated.”

This requirement as to pleading puts paid to Mr. Cole’s submission that the statement was published to the residents of the neighbouring houses in extension 4 who, so he submitted, must have heard what was being said. Such publication has, quite simply, not been pleaded.

In this regard Mr. Cole referred, however, to the evidence of Mthetho that after the incident someone arrived and asked what the shouting had been about. Even on the assumption that such evidence was covered by the pleadings there was, however, no evidence to the effect that this unknown person had actually heard the content of the shouting and this evidence does not therefore assist defendant.

Mbunge did not testify. It is clear from defendant’s evidence, however, that Mbunge was present throughout most of the incident and that she was clearly within earshot of the defamatory statement at the times that it was uttered by plaintiff. In Whittington v Bowles 1934 EDL 142 the words “you bloody whore” were spoken in a loud voice within the earshot of certain persons standing at a bus stop 15 yards away. In these circumstances Pittman J, with whom Gutsche J concurred, stated as follows at 146:

“Since, therefore, the evidence at its lowest is that these people were within earshot, then on the authorities cited by Mr. Back the presumption is that they actually heard the words uttered – see Spencer Bower, Actionable Defamation (2nd Ed, p 6) and Holdt v Meisel ([1927] SWA 45). It was for the defendant to establish that they did not hear the words.”

In the present matter plaintiff has not established that Mbunge did not hear the defamatory statement and accordingly publication of the statement to her has been proved.

Mthetho testified to the effect that she heard the defamatory statement but that she did not believe it. In Burchell: Personality Rights and Freedom of Expressionat p204 the following is stated:

“The element of causation in defamation, unlike the element of causation in the Aquilian action, has not deceived the attention of the South African Courts. This is entirely understandable because, on the publication of defamatory matter referring to the plaintiff, the latter is presumed to have suffered injury to reputation. General damages for sentimental loss will be presumed to flow from the publication of defamatory matter referring to the plaintiff.

The fact that general damages for sentimental loss are presumed does not detract from the principle that the defamatory conduct must cause the plaintiff loss of reputation. The presumption of general damage for loss of reputation simply means that the plaintiff is considerably assisted in the task of proving that the conduct of the defendant caused loss

It is, strictly speaking, possible for the defendant to argue that the imputation in question had no real effect on the estimation which the plaintiff’s associates had of him, either because they already held him in low esteem or, conversely, because they retained their high estimation of him despite the imputation. It may be extremely difficult for the defendant to rebut the presumption of general damage suffered by the plaintiff in the end, but the theoretical possibility of doing so exists. If the defendant does not succeed in rebutting this presumption, the evidence that the plaintiff’s reputation has not in fact been impaired may be relevant in mitigation of damages.”

In the circumstances the statement by Mthetho to the effect that she did not believe the defamatory statement is of no assistance to plaintiff at this stage of the trial. That evidence may be relevant in mitigation of damages at the stage when the issue of quantum is considered. The fact remains, however, that defendant has proved the publication to Mbunge and Mthetho of the defamatory statement of and concerning her and plaintiff is accordingly liable to defendant for such damages as defendant may eventually prove she has suffered.

Costs

Defendant has been successful in her defence of plaintiff’s action on claim 1. She has also succeeded on the merits in respect of her claim in reconvention. Although the quantum of her damages in respect of the latter claim will in all probability fall far below the jurisdiction of the High Court the fact remains that the defendant was obliged to litigate thereon in the High Court by virtue of plaintiff having instituted her claims against defendant in this Court. In these circumstances defendant is, in my view, entitled to all the costs of the trial on the merits on the High Court scale.

As mentioned above plaintiff withdrew claim 2 at the outset of the trial and tendered the wasted costs occasioned by such withdrawal.

Accordingly the following order will issue:

1. Plaintiff’s claim in respect of claim 1 is dismissed.

2. In respect of defendant’s claim in reconvention it is ordered that plaintiff is liable to defendant for such damages as defendant may prove she has suffered in consequence of the defamatory statement made by plaintiff of and concerning defendant in the presence of Nomhle Mbunge and Nkosazana Queenie Mthetho on 29 November 2004.

3. Plaintiff is ordered to pay the costs of the trial on the merits, including the wasted costs occasioned by the withdrawal of claim 2, on the High Court scale.

___

J.D. PICKERING

JUDGE

OF THE HIGH COURT