JENSEN v ACAVALOS 1993 (1) ZLR 216 (S)

Flynote

Appeal — notice — notice not complying with rules — fatally defective and incurable — correct procedure for rectifying situation — late noting of appeal — application for condonation — principles

Delict — defamation — defamatory statement — what is — allegation that professional man of several years' experience is inexperienced and acting unethically — defences — where more than one pleaded, they should be pleaded in the alternative — justification — what must beshown — qualified privilege — plaintiff a municipal employee — defamatory statements made to his superiors

Headnote

A notice of appeal must comply with the mandatory provisions of the Supreme Court Rules. If it does not, it is a nullity and cannot be condonedor amended. What should be done is that an extension of time within which to comply with the relevant rule must be applied for. Whether such an application will succeed will depend on well-established principles: the extent of the delay; the reasonableness of the explanation proffered for the delay; and the prospects of success on appeal. The longer the delay, the more certain the court must be that there is a real chance of the appeal succeeding.

The applicant was a professional engineer of some 18 years' experience. He was employed by the Harare City Council and was the engineer in charge of projects to construct reservoirs for the City. The respondent was the managing director of a company which had won contracts to carry out some of the work.

The applicant, without notifying the respondent of his intention to do so, re-valued the work done by the respondent's company and informed the respondent that his company had been overpaid. The respondent disputed this assertion; an acrimonious correspondence ensued, at the end of which the respondent wrote a number of letters to the applicant's superiors, in which he referred to the applicant as "a junior engineer" who had "no practical experience" and described the applicant as being intransigent, unrealistic, biased and unprofessional. He also ascribed to the applicant "an unethical approach to contract procedure" and said that the applicant wished to penalise him financially for reasons best known to himself. The applicant brought an action for defamation against the respondent.

The respondent admitted publishing the words complained of, but denied that they were defamatory. He also pleaded that there was no intention to defame or injure the applicant, that he bona fide believed that the words were true and that he had a duty or right to publish them to the persons named, who had a duty to receive them.

In dismissing the applicant's claim, the trial judge held that certain of the statements were, in any case, not defamatory.

Held, that while it is permissible to raise more than one defence to an action for defamation, it is desirable, if more than one defence is pleaded, that such defences be pleaded in the alternative. A "rolled-up plea" is objectionable because the plaintiff will be unsure of what defence is being set up. In this case, it appeared that the defences raised were justification and qualified privilege.

Held, further, that the statements were all defamatory. To describe a professional engineer of 18 years' experience as "a junior engineer" is to hold him up to ridicule by suggesting that he is inexperienced. To describe him as "intransigent and unrealistic" infers that he is incapable and inexperienced in his profession and office. To impute a breach of ethics or to allege that the applicant wished to penalise the respondent for unknown reasons imputes dishonest conduct, and such an imputation is defamatory.

Held, further, that in order for the defence of justification to succeed, it is not necessary to prove the truth of every word; only the substance of the defamatory statement need be justified. It must also be established that the publication was to the public benefit.

Held, further, on the facts, that the applicant had acted unfairly, unethically and punitively towards the respondent. His re-assessments of the work done were biased and unprofessional. Even after a mediator and the Council's legal adviser had supported the respondent, the applicant's refusal to authorise the correct payment to the respondent showed his intransigence. The defamatory words were thus substantially true in every part.

Held, further, that in any event the defence of qualified privilege would apply. Complaints about the conduct of those in authority or with responsibilities to the public may be seen as made from a duty to bring the facts to the attention of those who control or are concerned with the conduct in question or in the furtherance of the interests of those affected in securing redress. The respondent had an interest to protect by making the statements to officers of the City Council who had a corresponding interest to receive them and to inquire into them and take such steps as would prevent a recurrence of the misconduct.