HIGH COURT OF LESOTHO
Appeal of :
by the Hon. Mr. Justice B. K. Molai on the 8th day od August, 1988.
appellant and the Respondent were, respectively Plaintiff and
Defendant before the magistrate court of Maseru where the former
instituted against the latter a civil action in which he claimed the
sum of M2,000 being damages for defamation, costs of suit,
and/or alternative relief.
appear from the pleadings that Defendant intimated intention to
defend the action but failed to file his plea timeously
after he had
been duly served with the notice of bar. Consequently the Plaintiff
applied for, and obtained judgment by default.
The judgment was,
however, rescinded by consent. The defendant was allowed to file his
plea and defend the action. The matter then
went for trial at the end
of which judgment was entered for the Plaintiff. He was awarded
nominal damages in the amount of M10
against the award of nominal damages in the sum of M10 that the
Plaintiff has now appealed to the High Court. The defendant
filed a cross-appeal on the ground that Plaintiff failed to prove his
case on a
preponderance of probabilities and the trial court should not,
therefore, have entered judgment in his favour.
declaration to the summons Plaintiff stated that on 30th June, 1983
Defendant came to him and uttered the following defamatory
"Ke utloile hore ke uena ea utoitseng liphahlo tsa ka le
lepolesa le leng, etsa here u nthuse ka tsona, kea li batla."
loosely translated: "I have heard that you and one policeman
did steal my property, you better see to it that you restore
property because I need it."
to the declaration to the summons the words were uttered in the
hearing of other people and with intention to defame the
alternatively they were insulting and abusive language published
against him. In the result Plaintiff suffered damages
defendant was liable in the sum of M2,000. Wherefor, Plaintiff
claimed against the defendant as aforesaid.
plea defendant did not really dispute that he had uttered the words
complained of. He denied, however, that the words
defamatory and uttered in the hearing of any other person besides the
Plaintiff nor were they uttered with intention to defame
plaintiff, wherefor he put plaintiff to proof thereof. Alternatively
defendant raised the defence of justification.
it is common cause from the evidence that the two litigants were
employees of the National University of Lesotho. The defendant
employed as the Assistant Registrar (Academic) whilst the Plaintiff
was one of the Security Officers. On two occasions prior
June, 1983 Defendant had some of his clothings stolen from his house.
According to him, Defendant learned from a certain
clothings had been stolen by the Plaintiff and a certain policeman.
however, significant that the name of the administrative officer
concerned was not disclosed nor was he called to testify
trial. What he was alleged to have told the Defendant remained
hearsay and, therefore, inadmissible evidence.
as it may, it is common cause that on 30th June, 1983 Defendant went
to Plaintiff who was on duty at the main gate of the
uttered the words complained of or words to the effect that Plaintiff
and a certain police officer had stolen his
Although in his plea he denied that he had uttered the words
complained of in the hearing of any other
person besides the
Plaintiff, in his evidence Defendant conceded that at the time he
uttered those words Plaintiff was in the company
of another security
officer by the name of Paulus Mpeta and two police officers one of
whom was Teboho Kotelo, passed next to them.
Indeed, both Paulus
Mpeta and the police officer, Teboho Kotelo, testified on oath that
they had heard the defendant telling Plaintiff
that he (Defendant)
had information that he (Plaintiff) and a certain policeman had
stolen his property which Plaintiff ought
already been pointed out earlier, it was not disputed that defendant
had uttered the words complained of. The question that
arose was whether or not the words admittedly uttered by the
Defendant to Plaintiff were defamatory.
the correctness of my finding that Defendant did utter the words
complained of viz. that Plaintiff and a certain policeman
his clothings which he (Plaintiff) ought to return it must be
accepted that the words so uttered attributed to Plaintiff
commission of a crime and were, therefore, defamatory per se.
defendant claimed that there was no other person besides the
Plaintiff when he uttered the defamatory words the evidence
Plaintiff that they were uttered within the earshot of at least two
other people was corrobated by Paulus Mpeta and Teboho
Kotelo both of
whom testified on oath before the trial court. In my view, there was
nothing unreasonable in the trial court accenting,
as it did,
Plaintiff's story supported by two other witnesses and rejecting
defendant's uncorroborated version as false on this
defendant himself did eventually concede in his evidence that he saw
Paulus Mpeta and Teboho Kotelo at the time he
was talking to
that defendant uttered the defamatory words in the presence of Paulus
Mpeta and Teboho Kotelo it seems to me there can be
no doubt that the
defamatory words were made known to at least two other persons
besides the Plaintiff and publication thereof
was, therefore, made.
is established that defendant published the defamatory matter against
the Plaintiff a legal pre-sumption exists that he
did so, animo
injuriandi. The presumption is, however, rebuttable. In the instant
case defendant contended that he had received
information from a
certain administrative officer that Plaintiff hod stolen his
clothings. When he uttered the words complained
of he was,
however, carrying out investigations about his missing or stolen
property. Even if it were correct that the words complained
defamatory, he was justified in uttering them. In his contention
defendant had, therefore, successfully rebutted the animus
As it has
been stated earlier, the defendant did not call the administrative
officer concerned to testify as a witness before the
What the administrative officer allegedly told defendant
remained hearsay and of no evidential value. It fellows, therefore,
that as he had no knowledge that Plaintiff had in
theft of his clothings, defendant had no justification to publish the
defematory statement against the plaintiff.
In the circumstances, I
am unable to agree with defendant's contention that he successfully
rebutted the legal presumption that
he had published the defematory
state-ment animo injuriandi.
of proof that defendant had published, against the Plaintiff,
defamatory statement animo injuriandi, and the latter suffered
damages for which the former was liable in law, rested squarely on
Plaintiff's shoulders. By and large, I am convinced that Plaintiff
had, on a balance of probabilities, satisfactorily discharged that
onus. That being so, it necessarily follows that the defendant's
cross-appeal cannot be allowed to stand.
now to the question of quantum of damages, it is to be borne in mind
that, on the evidence, publication of the defamatory
matter was made
to only two people. That being so, the amount of M2,000 claimed by
the Plaintiff was somewhat inflated.
other hand I could not turn a blind eye to the fact that by virtue of
his position at the Uniniverty campus Plaintiff was
the security of the University community and its property. The
Defendant could not, therefore, attribute to him
the commission of a
crime of theft which involved dishonesty, without serious
repercussions. There was no suggestion that defendant
had made any
apology to minimise the amount of damages.
opinion this was not a proper case in which only nominal damages in
the sum of M10 could be awarded. I take the view that
the justice of
the case would hove been met by awarding Plaintiff damages in the
M300 with costs. Consequently the award of nominal damages in the sum
of M10 mode by the trial court is set aside and damages
in the amount
of M300 plus costs substituted therefor.
appeal is allowed with costs.
Appellant : Mr.Nthethe
Respondent : Mr. Monaphathi.
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