A Man Kills Himself After Discovering That His Sweetheart Saved His Name In Her Cellphone as “IMBWA” I am sure he disagreed with the conclusion of the Supreme Court in NDEBELE v NCUBE 1998 (1) ZLR 377 (SC) AN Inyati man committed suicide by taking a pesticide last week after he discovered that his wife had saved his name as Imbwa (dog) in her phone’s contact book. Police confirmed the incident. Moses Guri, 27, of Village 42 in Inyati, had a misunderstanding with his wife, Stembile Kanye, 25, after he discovered that she had saved his name as “imbwa” in her phone. This did not go down with Guri who confronted his wife over the matter. The two exchanged harsh words and had to call their aunt to mediate. Kanye later consumed a mixture of several tablets but later vomited and survived. But Guri was not so lucky. He went to the garage where he consumed some pesticide and later revealed what he had done to his wife. He was rushed to a nearby clinic but was pronounced dead on arrival. And this is what the Supreme Court said about being called “Imbwa” NDEBELE v NCUBE 1998 (1) ZLR 377 (SC) A Court Supreme Court, Bulawayo McNally JA & Muchechetere JA Civil appeal B 30 March & 16 April 1998 Judgment No. S-53-98 Flynote Delict - actio injuriarum - defamation - defamatory nature - insulting names - injuria only, not defamation - undesirability of awarding damages for minor insults arising out of altercations C- only small solatium justified Headnote To call someone a ``dog and ``a mad person might give rise to an action for injury to dignity, either under common law or under customary law. But people frequently exchange insults, arising out of grievances real or imagined, large or small. It would be intolerable if every insult were to be followed by a law suit, so a court should be very careful about awarding damages for abuse such as occurred in this case. A small solatium only could be justified. D Cases referred to: Gwebu v Sibanda S-219-97 Magigwana v Sibanda S-220-97 Manyenga v Muza S-145-95 E Case Information Appellant in person Respondent in person Judgment McNALLY JA: This was one of two appeals in Bulawayo which came from what was described as Plumtree Magistrates Court (Customary Law). Initially I thought the appeal should have F been heard by the provincial magistrate in terms of s 74(3)(a) of the Magistrates Court Act [ Chapter 7:10 ]. But it appears the case was heard by a senior magistrate, not an assistant magistrate, so the section does not apply. This is a defamation, alternatively insult, case in which damages were sought under customary law in the sum of $3 000. The magistrate awarded $600 plus costs. G I will call the respondent the plaintiff and the appellant the defendant. I have said on a previous occasion that magistrates must be careful about defamation cases. See Magigwana v Sibanda S-220-97 (not reported). I have also expressed concern about the quantum of awards - Manyenga v Muza S-145-95 and Gwebu v Sibanda S-219-97. H 1998 (1) ZLR p378 McNALLY JA I am under the impression that defamation actions A in the magistrates courts are on the increase. It is therefore correspondingly necessary for magistrates to familiarise themselves with the law as to defamation, both under the Roman-Dutch and the customary law systems. The vast majority of these cases are dealt with by parties appearing in person on one or both sides. So the commonest problem is, particularly when the pleadings are Brudimentary or non-existent, that the defendant will not realise the defences open to him or her. Often the defendant will simply admit or deny that the words were used. I dealt with this aspect in Magigwana supra . In the present case, the plaintiff is a Plumtree District Council employer, working as a project executive C officer. He says this involves him in the issuing of liquor licences. The defendant operated a liquor business and held an ordinary liquor licence, but seemingly did not have a licence to sell opaque beer. He had been required to pay a deposit fine by the police for selling opaque beer without a licence. He appears to have thought that the plaintiff had directed the police to his premises. He also asserted that the plaintiff had done this because he, the defendant, had refused D to pay the plaintiff a bribe to expedite the obtaining of the licence from the Ministry of Justice. The plaintiff did not make the matter very clear, but I understand him to mean that he is the officer in Plumtree District Council who organises the issue of these various liquor licences even though he does not actually issue them himself - that being the function of the Ministry of Justice. He denied the allegations against him. The allegation of defamation/insult as expressed in E the summons is as follows: ``Plaintiff is claiming $3 000 being defamation and insult damages rising from a liquor licence issue in which defendant accused plaintiff of inciting the police to arrest defendant for operating a shebeen. It is very doubtful whether this F reveals any cause of action at all. If a conscientious public servant who is involved in the organising of liquor licences becomes aware that someone in his district is selling opaque beer without a licence, I would think it is his duty to report that fact to the police licence inspectorate. To accuse someone of doing his duty is not defamation. Nor is it an insult. In fact, that was no more than part of the G background to the actual allegations of defamation/insult. In his evidence the plaintiff said: ``He insulted me saying I was a dog and a mad person who did not know what he was doing in the office. Now, the first part of that allegation - that he was called a dog and a mad person - would not be treated as defamatory in Roman-Dutch law on the H 1998 (1) ZLR p379 McNALLY JA grounds that it is ``mere vulgar abuse or ``meaningless abuse. See Burchell The Law of Defamation in South A Africa p 126. An action for injury to dignity may be available, and certainly in customary law there is such an action. See Goldin & Gelfand African Law and Custom in Rhodesia Chapter 27 p 200. But one must be very careful about awarding damages for this kind of abuse. People engage in the exchange of insults very frequently, arising out of grievances real or imagined, large or small. If every insult is to be followed by a law suit, life will become intolerable. If every altercation B in a bar at the weekend is to lead to the civil courts we will have a new breed of lawyers to rival the well-known ``ambulance-chasers of American practice. The relationship between the public and the public service is a difficult and sensitive one. Neither side should be encouraged to resort to litigation when that relationship occasionally boils over. C The evidence from witnesses on both sides in this case is that the parties were exchanging harsh or violent words. On the other hand, it is apparent that the defendant started the quarrel, and he has not justified his conduct. The second part of the allegation is more serious. To say of someone that he is ``a person who does not know what he is doing in the office is prima facie D defamatory. But what the magistrate overlooked is that there is no corroboration of the allegation. The plaintiffs witness recalled only the use of the word ``dog by the defendant of the plaintiff. So there is no corroboration of the defamatory words being used. And therefore, in a defamation context, there was no publication of the defamation, and thus no defamation. ``There is no doubt says Burchell op cit p 67 ``that in contemporary law an element of the delict of defamation is publication. E Insult without publication may be a ground for damages in Roman-Dutch law, and is sufficient for the purposes of customary law as already stated. But since the magistrate did not address his mind to the specific question whether these particular words were proved to have been used, this court must come to its own conclusion. In my view, lacking F corroboration by the one person called who might have been expected to hear and remember these words, we must find that their utterance was not proved. Finally, it must be noted that the magistrate has wholly ignored the defence of justification or ``truth for the public benefit. The defendant, perhaps unwisely, made a very serious allegation against the plaintiff - that he had G demanded a bribe for processing the application for a licence to sell opaque beer, and that his action in reporting the defendant to the police was intended as a punishment of the defendant for refusing to pay the bribe - and presumably as an incentive to force him to pay it. Now, I must make it clear that there was no proper attempt made to establish this defence. The allegation was simply made and denied. But the H 1998 (1) ZLR p380 McNALLY JA magistrate was, with respect, a little naive to say, as he A did in his reply to the grounds of appeal: ``Plaintiff is a mere employee of the District Council and has no financial interest in the District Councils beer outlets so he has no reason to victimise defendant over his bottle store. District council officials, in B common with all officials who deal with the public, are in a position to abuse their power and authority. They can and, as we know from our legal and judicial practice, they do from time to time demand bribes. ``Unless you pay me, I will not process your application. They must not be allowed to protect themselves by using the action for defamation or abuse against frustrated members of the public. I do not in any way wish to suggest that the C allegation to this effect in this case is true. The onus was on the defendant to prove it and he did not do so. I raise the point simply because, in the lower courts when the pleadings are often grossly inadequate, and the evidence often misdirected because the defences are not understood, great care must be taken by the presiding officer to ensure that justice is done. In the present case, I conclude that all that was D proved was that an angry member of the public in a heated exchange with a District Council official, called the latter ``a dog, which insult was heard by another official and probably by some members of the public. No justification or excuse, partial or otherwise, was proved. A small solatium for the insult is all that was justified. The claim for defamation was not established. In the circumstances, I would reduce the award of E damages to $50, with costs. In this court each party is to pay his own costs. F MUCHECHETERE JA: I agree
Posted on: Tue, 07 Oct 2014 08:37:03 +0000
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