HIGH COURT OF LESOTHO
by the Honourable Mrs Justice Hlajoane Acting Judge on 17 Day of
case the plaintiff has instituted an action for damages against the
defendant in the following terms:
for defamation in the amount of ten thousand maloti (M10,000)
for insult in the amount of thirty five thousand maloti (M35,000)
for assault in the amount of five thousand maloti (M5000)
at the rate of 18% a temporae morae
and/or alternative relief.
his plea, the defendant also filed his counter claim, in which as
Plaintiff in reconvention also claimed for damages for insults. In
the counter claim, an amount of sixty thousand maloti (M60,000) was
claimed for contumelia.
of this case were as follows:-
plaintiff and the defendant are Lecturers at the National University
of Lesotho in the Faculty of Education. The plaintiff being a
Lecturer and the defendant, Senior Lecturer.
common cause that there had been a Departmental meeting on the 30th
October, 2000 where both parties had attended and other Lecturers in
that Department of Education. The meeting discussed amongst other
things, the promotion of the defendant and/or filling of a vacant
post in the Development Studies Education. There had been a lot of
debate on this issue and the resolution
at was to advertise the position. The plaintiff was recording the
Minutes of the meeting. There had been another meeting prior to that
of the 30th where this issue of filling the position was discussed.
The meeting had something to do with the defendant who showed
interest in being offered the post. Plaintiff in the meeting of the
30th requested that members should stick to their initial resolution
of advertising the post. The plaintiff had defendant's curriculum
vitae and defendant did not approve of the way the plaintiff was
perusing his curriculum vitae. Defendant left the meeting to teach.
It has not been disputed that the defendant left the meeting of the
30th before close of business, and when he so left, the plaintiff was
on the floor. The defendant went to plaintiff's office on the morning
of 6th November, 2000, a week after the meeting. According to the
defendant, he went there to get clarification on the meeting of the
30th as the plaintiff was the one who was taking minutes. The
plaintiff disputed this and showed that the defendant's mission was
that of confrontation. The defendant decided to via plaintiff's
office as he saw the door to her office open. On the other hand
Defendant's counsel had shown that the Defendant would state in
evidence that plaintiff's office door was closed, hence the reason
why he could not hear as to who allowed him in. S v Gouws 1968 (4)
S.A. 345 is an authority in that statements that are admitted by
party's counsel in proceedings are taken to be binding on the
litigant. This is more so in this case
counsel has been in court when the statement was made and did not
did not dispute the fact that P. W. 2 was there when he entered P. W.
2's office, the dispute was only on whether or not the door was
opened when he knocked and was allowed in. Defendant said that P.W. 1
was on the telephone when he entered, but P. W. 1 disputed this. What
is not disputed is the fact that P. W. 2 was in the same office and
working on a computer and even came between the two parties and
intervened by taking the defendant out.
Primary issue for determination would therefore be, which version is
the court to believe as forming the true basis of the claim and the
counter claim including of course the respective defences raised by
the parties. The plaintiff pleaded provocation whilst the defendant
on the other hand raised a defence of rixa.
plaintiff had called in evidence two witnesses, being herself and
another, Mr Raselimo. The defendant on the other side has only one
witness, the defendant himself.
for the court to get an answer on the facts as to who could have
the other, it has to look at the surrounding circumstances of the
case. Here is the defendant, out of his own mouth showing that he was
not amused in seeing the plaintiff tear apart his curriculum vitae
(CV) during the meeting of the 30th October, 2000. The meeting was
not attended by only the two of them, but there were other lecturers
who had attended that meeting including P.W.2.. The defendant entered
the plaintiffs office, according to him, to get how the meeting wound
up. In asking the plaintiff about the meeting, he showed he was
replied in a disparaging manner by the plaintiff.
defendant himself under cross examination began to realise that he
could have left at once on seeing that the plaintiff did not want to
give him the information about the meeting. He even demonstrated to
the Court how the plaintiff was twisting her mouth when talking to
him, thus giving a clear indication that she was not prepared to give
any information, she was not being co-operative at all. Defendant
could have left at that stage.
question that one would tend to ask, would be, why did the defendant
choose to go to the plaintiff amongst all others who had attended the
meeting. He has himself shown that he had not liked the way the
plaintiff was tearing apart his
vitae. He said he felt offended by that act. In his own words, the
defendant showed that, the minutes for the meeting were supposed to
come from the office of the head of the Department, but he chose to
approach someone who had offended him. His explanation was that the
head of Department was not there, but he did not take the trouble of
getting to know as to who had been acting in his absence. It would
therefore not be unreasonable to infer from his behaviour that he in
fact went to the plaintiff to start trouble. He had gone there for
has been supported in her evidence by P.W.2, who confirmed that the
defendant was in fact very arrogant when he got to P.W.l's office.
Even if for a second, we were to take Defendant's story as a true
reflection of what in fact transpired on that day, defendant himself
showed that when Plaintiff asked why he left the meeting yet all who
attended had to go and teach also; then in reply defendant in his own
words when giving evidence said, "If you think you are so smart
why haven't you completed your studies after such a long time".
He showed he said these because the plaintiff had gone for further
studies. Defendant went further to show in evidence that he then
said, "moreover no one has seen your Curriculum Vitae, why were
you literally tearing mine apart."
be noted that, when the defendant was saying these words, the
plaintiff had said nothing about his qualifications. This therefore
made me doubt if I had to believe that in fact the defendant had to
be believed when he said he had gone to plaintiff's office to get a
feedback of how the meeting ended. The only reasonable inference to
be drawn would be that, the defendant had gone there to confront the
plaintiff and give her a piece of his mind.
evidence of P.W.1 and P.W.2 have been the same in material respects.
That the door was open when defendant was allowed in, though
defendant's counsel, had shown in cross-examining P.W.1 that
defendant was going to say when giving evidence that the door was
closed, that is why he did not even know who between P.W. 1 and 2
asked him in. That P.W. 1 was not on the telephone as alleged by the
defendant as he entered P.W.l's office. That the defendant was the
one who started insulting the plaintiff by calling her a "bitch",
a "whore". That it was after these insults that plaintiff
began to be emotional and insulted the defendant back saying "you
must be silly, you are a mother fucker".
defendant on the other hand had said he went to P.W. l's office
because he saw her door opened, but through his Lawyer under cross
examination he had said
office door was closed. Again in his evidence-in-chief defendant had
said he went to plaintiffs office to get information as to how the
Departmental meeting had wound up, but under cross examination he
then said the purpose of his visit to P.W. l's office was to collect
minutes of the meeting. If these were true it could have been stated
defendant had under cross examination shown that he did not leave
even when he could realize that P.W.1 was not prepared to give him
any information of how the meeting wound up . He did not leave even
after he could realize that P.W.1 was then angry or provoked, instead
he went on to insult her by showing he had fucked many women around
including P.W.1 herself. The defendant has raised a defence of rixa,
not fair comment or justification.
plaintiff has not specifically said that she had been provoked, but
has claimed damages for defamation. Provocation has only been
inferred from the behaviour of the defendant, starting from the day
when he left the meeting for whatever reason it was worth.
is a requirement for defamation. But there are authorities showing
provocation has on one hand been regarded as excluding aninus
injuniandi (or intention) or on the other hand justifying what would
otherwise have constituted unlawful conduct. The defendant raised a
defence of Rixa, but his behaviour and reaction after the altercation
was inconsistent with his explanations. As if all were still normal
after the altercation, he managed to go and teach. A normal reaction
would have been to go and report to a colleague or to the authority.
But because he had managed to vent out his anger and frustration of
the meeting, he acted normally and went to teach.
behaviour of the plaintiff after the altercation clearly demonstrated
an attitude of someone who had just experienced an unexpected
occurrence . She was crying and immediately rushed to report to the
head of the Department and to her husband. Even in her evidence she
did not deny that she too had insulted the Defendant, but it was
after she had been provoked by being insulted first. This thus
demonstrated her factual allegations of provocation. It was the
defendant who came to plaintiff's office with a clear intention.
is not convinced that the principle of compensatio applied in this
case for the following reason. The two parties have insulted each
other or defamed
another, but the defendant had acted out of proportion because he
started the whole episode by going to plaintiffs office yet the same
person had some days back offended him. He did not even back off when
he noticed that plaintiff was not going to co-operate.
in Bestee v Calitz 1982 (3) S.A. had this to say, that "in a
claim for damages arising from an insulting remark made in anger
where this was elicited by a provocative insult of a similar nature,
then provocation in such circumstances is a complete defence because
the elicited response is not unlawful." In our case, the
defendant is taken to have deprived himself of the redress as he had
brought upon himself nothing more than what he should have reasonably
expected as a result of his own prior unlawful conduct. The plaintiff
acted in a natural human reaction of a most reasonable man to an
unwarranted attack on his person by being called a "whore"
, a "bitch".
evidence P.W. 2 showed that, from that day, he was no longer holding
plaintiff in that high esteem as before as defendant, had said, he
had flicked many women around including plaintiff herself. The
defendant in his evidence showed that he had been called to the
office of his head of Department and asked about the events
6th November, 2000. He was also advised to write a letter to the
plaintiff, which he did, Exhibit "A". In that letter he had
asked for an apology. He said, " I don't know exactly why I
behaved in such an unbecoming manner. I am sorry something just
snapped. I lost control and things just got out of hand." He
went further and said, "let me reiterate and say how sorry I am
for having brought about this sorry situation."
letter clearly showed that the defendant was admitting that he was at
fault because he had started the whole thing. Though under cross
examination defendant wanted to be taken as having only written that
letter of apology because he realised that the encounter was not a
good one. He also wrote because Dr Matšela had asked him to.
matter for consideration here would be whether the apology was a
genuine one. It would be genuine if it had been freely made. The
defendant in our case only tendered his apology after he had been
asked to. In his letter of apology, the defendant went further and
said, "I am aware that this issue has been passed over to the
higher authorities and that I shall appear before disciplinary
authorities illustrating a point that usually an apology is a factor
which has to be taken into account in determining the damages
recoverable by the plaintiff for defamation; Norton and Others v
Ginsberg 1953 (4) S.A.537 at 540. But the authorities go further to
show that such an apology to pass the test must have been timeous and
spontaneous, not to take place reluctantly, but must enjoy the same
prominence as the defamatory words. In Kuper (1983) SAL Jat 480 the
author observes that an apology is offered too late if it was done
only after the plaintiff had to make a request or at a stage where
the defendant realized that his legal position was already hopeless.
apology which has been offered too late loses much of the
effectiveness which it otherwise would have had Gelb v Hawkins 1960
(3) S.A. 687 at 693.
apology was only made 11 months after the accusations.
defendant in our case wrote a letter of apology only after he had
been called to the head of Department's office and requested to make
an apology. He has shown that when he so wrote the letter of apology,
he was aware that a disciplinary case was forthcoming. Had the
defendant not been aware that he was facing a disciplinary action and
also not been asked by Dr Matšela to write that letter of
he could not have apologized. The defendant in our case wrote a
letter only after he had been called to the head of Department's
office and requested to make an apology.
plaintiff has said under cross examination that her reputation might
not have been reduced she had shown that P.W.2 who used to respect
her initially, lately after the events of the 6th November, 2000 is
having some reservations about her because of the names which the
defendant called her, "bitch', "whore" and that he,
the defendant having fucked many women around and the plaintiff being
one of them. Surely under normal circumstances no one would call her
husband just to inform him that the truth has been made known about
her sleeping with other men outside her marriage.
coming to the words used, would it be said that the words were per se
defamatory. Wood, N. O and Another vs Branson 1952 (3) S.A 369 at 372
showed that, "everything depends on the context, the tone, the
circumstances, the setting and the locality. The words cannot be
regarded in abstracto" The parties in our case are Lecturers at
the National University of Lesotho, an Institution of higher
learning. P.W.2 before whom the words were uttered showed under cross
that he considered P.W. las his colleague. The words would therefore
not bear any different meaning from what the plaintiff heard them to
mean. P.W. 2 is not just an ordinary man who could have just taken
the words to be uncouth and coarse according to Wood vs Branson,
Supra. It is true that in our case as in Wood's case, there is no
evidence to prove how the words complained of would have been
understood. It is not the learned bookish meaning that the words must
be given, but the meaning they convey to the man in the street.
Wood's goes further to say, 4tthe ordinary man does not carry about
with him a pocket dictionary which he consults to see whether or not
he has been defamed, but in our case for someone as learned as the
plaintiff there was no need for her to consult a dictionary because
she knew the meaning, that is why she became so mad as running from
one office to the other reporting about the incident immediately
after it had happened. P.W.2. also wrote a report the same day and
result, plaintiff's claim succeeds and the defendant's counter claim
is dismissed with costs. On the issues of costs, the defendant had
argued that the special power of attorney had not authorized the
claim for "interest" and "costs". Midde -
Vrystaatse Guivel - Korporassie Bpk vs Bondesio 1971 (3) S.A. 110 is
the authority which shows that "a summons may validly include a
prayer for costs
though the power of attorney made no particular mention thereof."
question of interest, the defendant had further argued that the power
of attorney did not authorize the claim for interest. Indeed failure
to file power of attorney or irregularities therein will usually,
entail an application to set aside the proceedings as being
irregular, but the court has wide powers of condonation, Northern
Assurance Co. Ltd vs Somdaka 1960 (1) S.A. 588.
dealing with quantum of damages in Hassen vs Post Newspapers (Pty)
Ltd and Othersl965 (3) S.A. 562, despite the wide circulation of the
newspaper, the Court held that, in the eyes of a comparatively small
number of its readers only that the plaintiff''s reputation could
have been injured. Plaintiff's damages were thus reduced.
case, the plaintiff has succeeded in her claim, she is awarded:
as damages for defamation
damages for insult on the authority of Hassen's case above as it was
only P.W.2 who was present when the insults were hurled
for damages, for assault fails as the wagging of defendant's finger
at plaintiff is taken to have been a gesture for purposes of
emphasis on what the defendant was saying
at 18% a tempore morae plus costs.
Plaintiff: Mr Mosae
Defendant: Mr Mosito
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