IN THE H IGH COU RT OF SOUTH AFR ICA
GAU TE NG DIVISION , PR ETOR IA
(1) REP ORTAB LE: N O
(2) O F INTEREST TO O THER JUDG ES: NO
(3) REVISED : YES
8 Septemb er 2025
DATE SIG NATURE
Case No. 050392/24
In the matter between:
MBUSISENI THOLITHEMBA BRIGHT
SHABALALA
and
NOMAKHOSAZANA PAMA SIHUNU
NEUKIRCHER J:
Plaintiff/Respondent
Excipient/Defendant
1] On 9 May 2024 the plaintiff served a comb ined summons on the defendant. In
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it he claimed an amount of R1,000,000 in respect of reputational damages suffered as
a result of alleged defamatory utterances made by the defendant.
2] The allegations in the particulars of claim are as follows:
a) that during or about the period of 12 May 2021 the defendant “conveyed
statements” to the Johannesburg Society of Advocates (JSA) and the
Advocates for Transformation (AFT) who have a “ substantial
membership in South Africa”;
b) “the nature and extent of the statements were, into alia, to or about the effect
that the plaintiff repeatedly perpetrated rape of the defendant's daughter...”;
c) that the statements are in their ordinary meaning wrongful and
defamatory of the plaintiff and were conveyed with the intention of
defaming and injuring the plaintiff's name and reputation;
d) that the statements were published to various members of the advocates
profession including memb ers of the JSA and AFT and the
subcommittees thereof;
e) the statements were understood to mean that the plaintiff had
perpetrated sexual misconduct of a criminal nature; and
f) as a result of the deformation the plaintiff has suffered damages to his
personal and professional reputation in the sum of R1,000,000.
3] On 2 July 2024, the defendant f iled a notice of exception on the basis that the
particulars of claim lacked averments that are necessary to sustain a cause of action.
The exception is the following:
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“1. The plaintiffs claim against the defendant is for damages allegedly caused to
his ‘personal and professional reputation’ ”;
2. The plaintiff alleges that the damages suffered were as a result of alleged
defamatory statements “conveyed” by the defendant.
3. In failure of the duty upon the plaintiff to sustain a cause of action through the
particulars of claim, the plaintiff omits:
3.1 to allege in what manner did the defendant allegedly convey the
statements. If the plaintiff alleges the defendant conveyed the alleged
statements in writing, the plaintiff failed, refused and/or neglected:
3.1.1 to attach the document containing the alleged defamatory
statements; and/ or
3.1.2 to plead the ipsissima verbi of the alleged defamatory
statements that were so conveyed;
3.2 to identify, name or otherwise point out the person to whom the
defendant allegedly conveyed the statements;
3.3 to identify the date on which the defendant allegedly conveyed the
statements; and
3.4 to identify the location where the defendant allegedly conveyed the
statements.
4. Further to the above, the plaintiff claims payment of the global amount of R 1
million arising from alleged damage to his “ personal and professional”
reputation.
5. In failure of the duty upon the plaintiff to sustain a cause of action in respect of
the damages claimed, the plaintiff omits in the particulars of claim:
5.1 to apportion or allege an apportionment in terms of the alleged damages
to the plaintiff's personal reputation, and the plaintiff's professional
reputation; and
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5.2 to a llege whether the damage to his “professional reputation”
constitutes patrimonial [pure economic] loss.
6. In the absence of the allegations set out above, regarding the publication of
allegedly defamatory statements, the plaintiff has failed to allege facts that are
necessary to sustain a cause of action of defamation.”
4] The plaintiff has refused to amend his particulars of claim to satisfy the grounds
of exception raised, and thus the exception was set down for hearing.
5] The argument by the excipient is that the essential facta probanda upon which
the cause of action of defamation and the action iniuriarum are based are missing from
the plaintiff’s particulars of claim. Further, inasmuch as the entirety of the facta
probanda are required in order to form a complete cause of action, the absence of
even one element is sufficient to render the pleading excipiable on the basis that there
is no proper cause of action set out. In essence, the argument presented before me
is that the plaintiff has failed to plead:
a) when the defamatory remarks were made;
b) the actual words used;
c) the method by which the words were communicated1;
d) precisely to whom the defamatory utterances were made or conveyed;
e) facts upon which the plaintiff appears to be claiming both damages for
loss of reputation under the action iniuriarum and patrimonial damages
under the lex aquilia. If the claim is based on the latter, the complaint is
1 Whether via a written document (and then a copy provided of that document) or other means
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that the particulars of claim fails in toto to set out any facts upon which
the claim is based.
The law
6] I do not intend to set out the legal principles applicable to an exception of this
nature in any great detail as this has been traversed in many judgments and the
principles are, by now, trite:
a) the exception must go to the root of the entire claim;
b) a pleading is excipiable if no possible evidence led on the pleadings can
disclose or make out a cause of action2;
c) “Furthermore, in approaching these exceptions, I shall bear in mind the
following general principles:
(a) minor blemishes are irrelevant;
(b) pleadings must be read as a whole; no paragraph can be read in
isolation;
(c) a distinction must be drawn between the facta probanda, or primary
actual allegations which every plaintiff must make, and the facta probantia ,
which are the secondary allegations upon which the plaintiff will rely in support
of his primary factual allegations. Generally speaking, the latter are matters for
particulars for trial and even then are limited. For the rest, they are matters for
evidence;
(d) only facts need be pleaded; conclusions of law need not be pleaded;
(e) bound up with the last-mentioned consideration is that certain allegations
2 Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) at 706
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expressly made may carry with them implied allegations and the pleading must
be so read.”3
7] In actions for defamation the following must be alleged in the particulars of
claim4:
a) the plaintiff must set out the words alleged to have been used by the
defendant. But it is not necessary to plead the actual words and the
plaintiff may allege that the words are “more or less” the words used;5
b) if the defamatory statements are contained in a document, that should
be attached6;
c) the plaintiff must allege publication of the defamatory statement to a
person other than themselves. It is however not necessary to state the
names of all the persons in whose presence the defamatory statement
was made;7
d) the plaintiff must allege that the defamatory words were published “of
and concerning” him or her;
e) although the plaintiff must allege that the statement is defamatory, it is a
question of law whether the words complained of are reasonably capable
of conveying to the reasonable reader a meaning which defames the
3 Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 902I – 903E
4 I do not intend to deal with what must be eventually proved as that is not relevant to the exception
itself
5 International Tobacco Co of SA Ltd v Wolheim 1953 (2) SA 603 (A) at 613 - 614
6 Kruger v Johnnic Publishing (Pty)Ltd and Another 2004 (4) SA 306 (T) where the offending publications
were attached.
7 International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (4) 1955 (2) SA 40 (W) – although
a failure to specify to whom the utterances were made may hamper the plaintiff in who he/she may call
as witnesses. In Amler’s Precedents of Pleadings 7th ed at pg 162, the author states: “If publication
takes place in a publicly distributed document, it is not necessary to list the name or names of readers
because it is factually presumed that publication took place.”
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plaintiff;8
f) if the plaintiff relies on innuendo the facts and circumstances warranting
the innuendo pleaded.9
8] In Le Roux v Dey10 the Constitutional Court explained as follows:
“[84] … In Khumalo and Others v Holomisa this court stated that the elements of
defamation are '(a) the wrongful and (b) intentional (c) publication of (d) a defamatory
statement (e) concerning the plaintiff'…
[86] 'Publication' means the communication or making known to at least one person
other than the plaintiff. It may take many forms. Apart from the obvious forms of speech
or print, the injurious information can also be published through photographs,
sketches, cartoons or caricatures.
[87] Statements may have primary and secondary meanings. The primary meaning is
the ordinary meaning given to the statement in its context by a reasonable person. The
secondary meaning is a meaning other than the ordinary meaning, also referred to as
an innuendo, derived from special circumstances which can be attributed to the
statement only by someone having knowledge of the special circumstances. A plaintiff
seeking to rely on an innuendo must plead the special circumstances from which the
statement derives its secondary meaning. But an innuendo must not be confused with
an implied meaning of the statement which is regarded as part of its primary or ordinary
meaning.
[88] To add to the confusion that sometimes arises from all this, plaintiffs often wish to
point out the sting of a statement which is alleged to be defamatory per se. The
particular defamatory meaning contended for is then emphasised by a paraphrase of
the statement which is referred to as a 'quasi -innuendo'. 'Quasi' because it is not a
8 Amler’s Precedents of Pleadings 7th ed at pg 160 - 171
9 New Age Press Ltd v O’Keefe 1947 (1) SA 311 (W)
10 2011(3) SA 274 (CC)
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proper innuendo or secondary meaning. Background circumstances need not be
pleaded. The disadvantage of relying on a quasi -innuendo, as opposed to
the contention that the publication is defamatory per se, is that the plaintiff is bound by
the selection of meanings pleaded. In this regard reference was made with approval
in Demmers v Wyllie and Others to the following statement in HRH King Zwelithini of
Kwa Zulu v Mervis and Another:
'(O)nce a plaintiff has selected the meanings of the offending words upon which he relies, he
is bound by that selection and, if he should fail to establish that the words bore or bear such
meaning or meanings, he cannot then fall back on any other defamatory meaning or meanings
which he contends that the words bear per se, unless he has pleaded the selected meanings
as an alternative to a general allegation that the words are defamatory per se.' “
9] Bearing this in mind, I intend to deal with each complaint separately.
When the defamatory remarks were made
10] As stated, the argument is that the plaintiff has failed to set out the precise date
when the defamatory remarks were conveyed. But this is, in fact, incorrect. The
particulars of claim state:
“3. During or about the period of 12 May 2021 the Defendant conveyed statements
to …”
11] In my view, this is entirely suffic ient and there is therefore no merit in this
complaint.
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The precise words used
12] As stated supra, it is not necessary to plead the actual words used and the
plaintiff may allege that the words are “more or less” the words used .11 In this case,
the plaintiff has pleaded that
“the nature and extent of the statements were, into alia, to or about the effect that the
plaintiff repeatedly perpetrated rape of the defendant's daughter...”.
13] Instead of pleading that the statements were “more or less to or about the effect
that the plaintiff repeatedly perpetrated rape on the defendant’s daughter ”, he used the
words “ the nature and extent of the statements were …”. In my view this is simply
semantics. It is very clear what words were used and what the allegations were. There
is therefore no merit in this argument.
The method of communication
14] This complaint relates to the fact that the plaintiff has failed in toto to set out
how the communication occurred - whether it was communicated v ia an email or an
oral communication or in any other document. The complaint is further that, were
publication to have taken place via a written form of communication, that has not been
attached to the particulars of claim which is necessary.
15] Rule 18(4) states:
“Every pleading shall contain a clear and concise statement of the material facts upon
which the pleader relies for his claim, defence or answer to any pleading, as the case
may be, with sufficient particularity to enable the opposite party to reply thereto. ”
11 International Tobacco Co of SA Ltd v Wolheim 1953 (2) SA 603 (A) at 613 - 614
10
16] Defamation is ‘the unlawful publication, animo iniuriandi of a statement that has the
effect of injuring a person’s reputation, that is, lowering it in the estimation of right -thinking
members of society.”12
17] “Publication” means the communication or making known to at least one person
other than the plaintiff.13 In Kruger v Johnnic Publishing (Pty) Ltd and Another14 , as in
many other matters where the words were in the form of a written statement, this was
attached to the particulars of claim. In my view this is necessary and there may be
several reasons for this, not the least of which is to ascertain the context in which the
words were used and any meaning or innuendo that should be attached to them.
18] In the present particulars of claim, the plaintiff merely alleges that the words
were “conveyed”, but in my view that is insufficient and therefore this complaint is valid
and it goes to the root of the claim.
The recipients of the defamatory statement
19] In Crots v Pretorius15, the SCA stated the following:
“Publication is an essential requirement of defamation that must be pleaded and
proved. The names of the persons to whom the defamatory remarks were made and
who were to be called as witnesses have to be pleaded and disclosed during cross -
examination. The reasons are apparent. Apart from avoiding surprise, the identity of
the persons involved is also relevant to enable the Defendant to raise appropriate
12 Botha v Marais 1974 (1) SA 44 (A)
13 Le Roux v Dey 2011 (3) SA 274 (C) at par 86
14 2004 (4) SA 306 (T)
15 2010 (6) SA 512 (SCA) at par 15
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defenses. For instance, depending on who the person is, the Defendant may reply on
privilege.”
20] The defendant argues that the plaintiff simply does not go far enough in his
particulars of claim in order to satisfy this requirement: to simply state that the
statements were conveyed to members of the JSA and AFT and subcommittees “who
have substantial membership in South Africa” does not sufficiently identify the
recipients of the statement. At first blush, the argument seems to be overly technical .
However, given the fact that the method of publication must be sufficiently identified,
it may well be that (for example) were publication to have been via email, the recipients
of the email would have to be identified. Thus, there is merit in this ground.
The lex acquilia
21] The plaintiff claims damages for the loss of his personal and professional
reputation. He has not specified how much he claims in respect of each. The complaint
is that the plaintiff appears to claim damages under the lex aquilia and absent a
formulation of the grounds upon which this action is based, the cause of action is
lacking.
22] As was stated in Media 24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd16
“[8] Despite the absence of any pertinent decision by this court in favour of the
appellants, the respondent conceded that its claim for special damages can only
succeed if it satisfies the requirements of the actio legis Aquiliae . I believe the
concession was rightly made. As was explained by De Villiers JA in Matthews v Young
16 (437/2010) [2011] ZASCA 117; 2011 (5) SA 329 (SCA); [2011] 4 All SA 9 (SCA) (5 July 2011)
12
1922 AD 492 at 503-505, the rule of our law, in principle, is that patrimonial damages
must be claimed under the actio legis Aquiliae , while the actio iniuriarum and its
derivative actions, including the action for defamation, are only available for
sentimental damages. In theory, the person injured by a defamatory publication would
therefore have to institute two actions: a defamation action for general damages a nd
the actio legis Aquiliae for special damages. But, as further explained by De Villiers JA,
even at the time when Matthews was decided, two actions were no longer required by
our practice. Accordingly, so De Villiers JA held, if one suffers an injury to your reputation,
you can claim both kinds of redress in the same action, provided, of course, that the
requirements of both actions are satisfied.
[9] The decision in Matthews was followed in a number of older provincial judgments
(see eg Bredell v Pienaar 1924 CPD 203 at 213; Van Zyl v African Theatres Ltd 1931
CPD 61 at 64-65). These decisions have been supported by most of our academic writers
on the subject (see eg Burchell The Law of Defamation in South Africa (1984) 40-41;
Neethling, Potgieter and Visser Law of Delict 5 ed (2006) 298 and the authorities there
cited). More recently, Magid J considered – in Minister of Finance v EBN Trading (Pty)
Ltd 1998 (2) SA 319 (N) at 325G – whether the fundamental legal position had changed
since Matthews. The conclusion he arrived at is that it had. I find no reason to disagree
with that conclusion. What this means, of course, is that a plaintiff who seeks to recover
special damages resulting from a defamatory statement, must allege and prove the
elements of the Aquilian action…”
23] But there is no indication in the particulars of claim that the plaintiff intends to
claim patrimonial damages. It is apparent that the plaintiff is claiming sentimental
damages for the loss of his reputation on a personal and professional level in terms of
damages for the loss of his reputation on a personal and professional level in terms of
the action iniuriarum. That is the only cause of action pleaded and that would be all to
which he may be entitled were he able to prove his claim.
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24] Given this, it is not necessary for him to particularise his loss.
25] Thus this ground of exception must be dismissed.
Summary
26] Thus, as is set out supra, two of the necessary grounds to properly formulate a
claim for defamation are lacking. This being so, the exception must succeed.
27] As the particulars of claim are bad in law, it must be struck out. However, I am
however of the view the plaintiff must be given an opportunity to file a n amended
particulars of claim and must be given a period of time within which to do so.
Costs
28] Although not all of the defendant’s grounds for exception have been upheld, the
defendant has been substantially successful in the exception and therefore is entitled
to her costs. The exception is not a simple one and so I am of the view that costs on
scale B should be awarded.
ORDER
1. The exception is upheld.
2. The particulars of claim is struck out.
3. The plaintiff is afforded a period of 20 days from date of this order within which
to file an amended particulars of claim.
4. The plaintiff is ordered to pay the defendant’s cost of the exception which costs
are to be taxed in accordance with scale B.
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____________________________
NEUKIRCHER J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected, and
is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on CaseLines. The
date for hand-down is deemed to be 8 September 2025.
Appearances
For the appellant : Adv A Jansen van Vuuren
Instructed by : Davids Attorneys Inc
For the respondent : Adv LCM Morland
Instructed by : Manitha Naran Attorneys Inc
Matter heard on : 2 September 2025
Judgment date : 8 September 2025