granted and parts of plea struck out
No.: I. 1645/2000
THE HIGH COURT OF NAMIBIA
the matter between:
MARTHINUS SMITH PLAINTIFF/EXCIPIENT
AJ Heard on: 2000-10-30 Delivered on: 2000-11-09 JUDGMENT
is an exception taken by the Excipient (hereafter plaintiff) to a
Plea filed by respondent (hereafter defendant).
D Smuts acts for plaintiff and Mr T Mbaeva acts for defendant.
Smuts fded Heads of Argument but Mr Mbaeva failed to do so. Neither
party requested a postponement by reason of the aforegoing and asked
that the matter be argued forthwith. The
thereupon ruled that the matter proceed.
had issued a combined summons and particulars of claim against
defendant for damages for defamation alleging that defendant had
letter defaming plaintiff, to the editor of the New Era Newspaper. A
copy of the letter was annexed to the particulars of claim.
to the pleadings plaintiff is himself the editor of the newspaper
Windhoek Observer and the letter complained of quotes an editorial
which appeared in the aforesaid newspaper and defendants purported
the purposes of this judgment defamation can conveniently be defined
as the unlawful and intentional publication by a person of any matter
which injures the fair name and reputation of another. In respect of
the latter requirement the test is traditionally expressed in terms
of whether the words tend to lower the plaintiff in the estimation of
right thinking people generally.
and Others 1978(4)
SA 619 (D) and 1980(1) SA 835 (A)
word "publication" as used in the said definition, means
the communication or making known of thedefamatory matter to at least
one person other than the person defamed.African
Life Assurance SocietyLtd & Others v
& Co. Ltd & Another
NPD 277 at 295
person can bring an action for defamation unless the words complained
of refer to him personally.
Anjuman Ishaati - Islam Lahore (South Africa) v Muslim Judicial
Council (Cape) and Others 1983(4)
SA 855 (C) at 865 Goodall
v Hoogendoorn Ltd 1926
AD 11 at 15
plaintiffs name need not be mentioned if he can be identified from
the defamatory matter by reasonable readers.South
African Associated Newspapers Ltd and Another v Estate Pelser 1975(4)
(A) at 812
unworthy conduct is imputed to a newspaper, it was ruled that
evidence was permissible by members of the public that they
understood that the language applied to the editor of the newspaper.
Pers Bpkt v Long 1930
AD 87 Verwoerd
and Others 1943
if reasonable readers would regard an article which criticises an
editorial of the newspaper as referring to the editor, evidence would
of Court 18(3) provides:
pleading shall be divided into paragraphs (including subparagraphs)
which shall be consecutively numbered and shall, as nearly as
possible, each contain a distinct averment."
of Court 18(4) provides:
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his or her claim, defence or
answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto."
of Court 22(2) provides:
defendant shall in his or her plea either admit or deny or confess
and avoid all the material facts alleged in the combined summons or
declaration or state which of the said facts are not admitted and to
what extent, and shall clearly and concisely state all material facts
upon which he or she relies."
is essential that these requirements for a plea be read together. It
then becomes clear that a defendant who has several different
defences to a claim is obliged to plead each one of his defences in a
defendant is required to set out the defence clearly and concisely.
There can be no defence by implication. In Wildner
Yeast Ltd 1929
TPD 166, Tindall J (as he then was) said at p 170:
if the terms of the plea do indicate by implication that defendant
intends to rely upon a certain defence, then I think it is the duty
of the defendant to state clearly and concisely the material facts on
which the defence is based."
the Rules do not make provision for alternative pleas, both the
practice and decided cases indicate that this is permissible and that
even inconsistent defences can be pleaded provided that they are in
separate paragraphs or sub-paragraphs and are clearly and concisely
pleaded. If the plea fails to comply with the aforegoing, it is vague
and embarrassing and can be excepted to and struck out.
paragraph 1 of his particulars of claim plaintiff alleged that
defendant had "published" a letter to the editor of the New
Era Newspaper of and concerning plaintiff annexing a copy of the
letter. Defendant in his paragraph 2 in reply to this paragraph,
pleaded as follows;
defendant denies having published a letter about or concerning the
(This constitutes a defence but defendant continued with
sentence) "and pleads that he only reacted to an editorial
comment published by the Windhoek Observer Newspaper." (This
sentence is a different defence. It is in fact capable of several
meanings including that the letter is 'of and concerning plaintiff
but that it was a 'reaction' to an editorial written by plaintiff.)
defendant then pleads in the alternative but in the same paragraph 2
that "the defamatory letter" (i.e. he admits it is
defamatory) represents "fair comment".
Comment" is a recognised defence but it requires the allegation
(and proof) of several preconditions which are not alleged by
reference in his plea to a "reaction"
will be considered hereunder. It may in certain circumstances be
another and different defence. There are therefore certainly more
than one defence in one and the same paragraph that is, in paragraph
2 of the Plea. Furthermore these defences are vaguely pleaded the
necessary facts not being set out.
paragraph 2 does not comply with Rules of Court and is vague and
embarrassing containing several defences it should be struck out.
his Paragraph 3, defendant raises three further defences. Firstly he
denies that "he intended" the letter to be defamatory. This
is an admission that the letter is defamatory but it was his
that it should not be so. Where a defendant does not intend to be
defamatory e.g. where he cracks a "joke", he is not liable
in damages for defamation. However, the defendant must allege and
prove why the defamatory matter was not intended to lower plaintiff
in the eyes of the public. This defence defendant has conjoined with
an allegation that he did not "intend to denote the meanings
assigned thereto by plaintiff. Because a defendant "intends"
that the words used by him which are per
do not have the per
meaning "denoted by plaintiff, does not constitute a defence.
Where the words are ambiguous and one of the meanings is defamatory
the other not the plaintiff cannot escape responsibility by pleading
that he did not "intend"
to defame the defendant. In any event defendant has not pleaded the
meaning which he allocates to those words which he pleads do not have
the defamatory meaning of which plaintiff complains. Paragraph 3
therefore contains more than one defence and does not have sufficient
factual allegations to substantiate his several defences.
3 is therefore vague and embarrassing and falls to be struck out.
turn now to paragraph 4 which purports to invoke the provisions of
21(l)(a) [and not 21(l)(b) as pleaded by defendant] enshrines the
right of persons to freedom of expression but this fundamental right
is specifically made subject to the provisions of Article 21(2) which
provides as far as relevant:
fundamental freedoms referred to .... shall be exercised subject to
the law of Namibia, in so far as such law imposes reasonable
the exercise of the rights and freedoms conferred , which are
in a democratic society and are required in the interest of the
sovereignty and integrity of Namibia, national security, public
order, decency or morality, or in relation to content of court,
or incitement to an offence." (My emphasis)
Speech therefore is specifically subject to the laws of defamation.
this reason paragraph 4 constitutes no defence and must be struck
paragraph 4 defendant again refers to his reason for writing the
letter namely his reaction to the "editorial comment" which
"concerned defenceless fallen heroes". In other words this
editorial comment "provoked" him, and I shall accordingly
deal in detail with the question of provocation as a defence to an
action for damages based on defamation.
is doubt in legal circles as to whether provocation can ever be a
defence to defamation. One thing is certain if it is a defence, it
can only arise where there is a "verbal assault" on a
defendant personally, invoking an immediate response from him in
proportion to the verbal assault on him. On this point in respect
Zietsman AJP in Winterbach
v Masters 1989(1)
SA 922 at 925 said,
is my opinion that, in a case where self-defence is not involved, to
hold that provocation which does not affect the defendant's mental
capacity may render lawful an otherwise unlawful assault is
tantamount to accepting the principle of an eye for an eye and a
tooth for a tooth, and is contrary to our legal principles. I do,
however, consider that provocation on the part of the plaintiff will
mitigate his damages, and that in a proper case it may be held that
his provocation was such as to reduce to nothing the damages
recoverable by him, or that it was such as to justify an award to him
of nominal damages only coupled perhaps with an order that he be
deprived of his costs, or even that he pay the defendant's costs."
paragraph 5 of the Plea, defendant admits having published the
aforesaid letter but only to the editor of the New Era Newspaper.
This would still constitute "publication" and is
inconsistent with defendant's paragraph 2 where he denies
publication, and furthermore does not constitute a defence, except
perhaps to reduce the quantum of damages. It is however not pleaded
with the latter purpose in mind. It is pleaded simply as a defence.
Inasmuch as it is not a defence and inasmuch as it conflicts with
paragraph 2 of the plea it must be struck out.
gave notice to defendant in terms of Rule 23(1)
the Plea was in certain respects vague and embarrassing and that he
should remedy the plea. Defendant failed to remedy the plea.
the reasons set out above, paragraphs 2, 3, 4
5 of the Plea are struck out with costs and defendant is given 20
days from date hereof to file an amended Plea.
the plaintiff/excipient; Adv D F Smuts
by: Messrs P F Koep & Co
& Hinda Law Office