1

CIV/T/19/97

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

MOEKETSISELLO
Plaintiff

vs

CANDI
RATABANE RAMAINOANE 1st Defendant

C.R.
COMMUNICATIONS(PTY)LTD 2nd Defendant

JUDGMENT

Delivered
by the Hon. Mr Justice M.L. Lehohla on the 22nd day of December

1999

The
plaintiff sues the above-named defendants for:

1. Payment
   of ninety thousand maluti (90 000-00) damages;

   
   

2. Interest
   at the rate of 18.5% per annum a tempore morae;

   
   

3. Costs
   of suit

   
   

4. Further
   and/or alternative relief.

   
   

2

PLEADINGS

It is
common cause that the 1st defendant is the editor of a newspaper
called MOAFRIKA whose offices at the time of the drafting
of the
plaintiffs declaration were at Fairways Centre Maseru.

It is
also common cause that the 2nd defendant is a company duly registered
as such and having, at the time referred to above, its
offices at
Fairways Centre Maseru.

The
defendants admit that the cause of action arose within the
jurisdiction of this Court.

The 1St
defendant denies being the author of "MOAFRIKA" newspaper
though no such suggestion was made in the plaintiff's
declaration to
which the 1st defendant purportedly proffers this reply. However he
emphatically denies being the author of an Article
appearing in
"MOAFRJKA" Newspaper's Vol.5 No:34 dated 13th September
1996 entitled "LITSITSO TSA SHAKHANE"
according as
reflected in the Declaration whereas the Article proper as reflected
in "Exh.B" that was handed in by the
plaintiff is entitled
"LITSITISO TSA SHAKHANE" meaning - SHAKHANE'S HINDRANCES as
against the other title which obviously
has a typographical error
which affects the translation thereof to the extent that it could be
rendered as SHAKHANE'S BENEFITS.

3

It is
however common cause according to pleadings that the 2nd defendant is
the proprietor of "MOAFRIKA" Newspaper, and
that this
newspaper is widely circulated and read by many people throughout the
Kingdom of Lesotho, the Republic of South Africa
and other countries
in Southern Africa.

The
contents of paragraph 8 of the plaintiff's declaration are hotly
denied and the plaintiff is challenged to furnish proof thereof.
The
1st defendant specifically denies ever writing the article complained
of and requires the plaintiff to furnish proof of his
allegations.

In his
allegations set out in the article in question the plaintiff states :

"In
the issue of 13th September 1996 the 1st defendant wrongfully and
unlawfully

wrote and
published the following defamatory matters concerning or about the
plaintiff; [The fair translation of the words from
Sesotho into
English is rendered as follows]:

'The Treasurer did not have proof of the collection and use of the
party's funds..... It was visibly (sic) that Shakhane was using
these
funds with Moeketsi Sello because Moeketsi was seen to have amassed
property which exceeded his means as a traditional healer......It
was
found that Shakhane and Moeketsi gave bribery to Botswana Police who
had arrested them for unlawfully trading in diamonds in
1980.... The
Commander of (LLA) were (sic) arrested in Qoaqoa, it is apparent that
the South African Police had been told about
them by one trator (sic)
............ The letters ......... and photograph of Lefatle
indicates that the source was the sons of
Sello...........'"

4

A copy of
that Article was annexed and marked "MS 1" when filed
together with the summons. A similar copy was handed in
by the
plaintiff during proceedings and marked Exh "B".

It is
significant that the contents of this article were repeated in a
subsequent issue of MOAFRIKA in Volume 13 of the 7th February
1997 in
reaction to the lawsuit that the plaintiff instituted against the
defendants. The particular issue was handed in during
the course of
the plaintiff's evidence-in-chief and marked Exh "D".

In
response to charges emanating from Exh "B" the 1St
defendant states at paragraph

4.2 that

".............Had the Article complained of been printed in full
the full text thereof would show that the Article is not
defamatory.

ALTERNATIVELY

4.3 First defendant avers that the article complained of is true and
it was for the public interest.

4.4. ALTERNATIVELY

First
Defendant avers that the statement complained of is but a fair
comment.

4.5 ALTERNATIVELY

5

First
Defendant avers that for the mere fact (sic) the author of the said
Article has pointed out that he quotes from a published
book, which
circulated widely, by his conduct of doing nothing about the said
publication he accepted the facts as true and thereby
consented to
their reproduction.

4.6
ALTERNATIVELY

First
Defendant avers that Plaintiff by not exercising his right under the
Constitution has thereby forfeited any cause of action
against the
Defendants".

In
paragraph 9 the plaintiff states that the words appearing in the
Summons are defamatory per se or at least in the context in
which
they were published. The plaintiff elaborates that these words were
read and understood by the readers of the said newspaper
as
concerning and/or as being about plaintiff.

In
response the defendants in paragraph 5 of the Defendants (sic) plea
admit that the article was published by the said newspaper
concerning
the plaintiff but deny the rest of the statements made by the
plaintiff who is put to proof thereof.

The
plaintiff further asserts in paragraphs 10 and 11 of his declaration
that the MOAFRIKA issue in question was widely circulated
like others
as shown above. He indicates that it was read by several people who
held the plaintiff in high esteem and

6

who have
thus understood the words to mean inter alia that plaintiff is a
dishonest person who has illicitly enriched himself out
of the (BCP)
Party's funds, a criminal who bribes police and a sell-out who gave
information to the enemy concerning the movement
of LLA leadership
and as such a person with perverse and degenerate understanding of
moral values.

Finally
the plaintiff asserts that the publication of this Article has
greatly impaired his dignitas and fame. In the result he
says he has
suffered damages in the sum of M90 000-00 for which he holds the
defendants jointly and severally liable.

The
defendants' simple and unqualified reaction to all this is that
contents of these paragraphs are denied and plaintiff is put
to the
proof thereof, and pray that the plaintiffs claim be dismissed with
costs.

It is to
be realised that the pleading especially by the 1st defendant
advances a rather novel concept in law to the extent that
it implies
that even if the publication is shown to be defamatory then the
Editor because he is not the author is entitled to be
freed from
liability.

7

Another
aspect of pleadings which appears to smack of inconsistency is that
the defendants should admit as they did that their product
"MOAFRIKA"
Newspaper enjoys wide readership in Lesotho, South Africa and
southern Africa and in the same breath make
a bare denial of this
very assertion when repeated by the plaintiff in paragraph 10 without
qualification in regard to categorisations
of defamatory aspects of
the matter set out by the plaintiff and consequent injury occasioned
to his dinitas by publication of
the defamatory matter pointed out.
In this regard a criticism is legitimate that the defendants seem to
be blowing hot and cold.

EVIDENCE

The
plaintiff testified under oath and narrated a simple story that he is
a traditional doctor. Further that before 1996 he was
living in
Botswana as a refugee and practicing his medicine in that country and
in other southern African countries as a way of
earning his living.

The
plaintiff testified that presently he is a Member of Parliament and
belongs to Lesotho Congress for Democracy (LCD).

8

While in
Botswana he was a member of the Basutoland Congress Party (BCP) and
had been forced into exile by hostile political climate
back home in
Lesotho.

The
plaintiff said he came to Lesotho in 1995 when bringing for burial
the remains of his wife who had died in exile.

The
plaintiff seems to have been doing fairly well in his practice as a
traditional doctor because it was while he was in Botswana
that he
was able to donate vehicles to the leadership of the BCP as a
contribution to their struggle against the then regime in
Lesotho.

Indeed
the plaintiff has handed in Exh "C" a letter dated
25-11-1977 signed by the then Secretary General of the BCP
Ntsukunyane Mphanya thanking the plaintiff for his generous
contribution. The letter was written from the BCP office in Lusaka
Zambia.

9

The
plaintiff testified that it was when he was back in Botswana in 1996
having resumed normal life with the rest of his remaining
family
members that someone brought to his attention contents of Exh "B".
The plaintiff testified that though this Article
is written in
Sesotho many people read the Newspaper in which it is published in
Botswana. He said the paper has a wide circulation
in that country.
He said some people receive it monthly there.

He told
the Court that this Article affects him painfully for it says
"................The paper says Shakhane was mishandling
BCP
funds and that it seemed he was misappropriating them for his and for
Moeketsi Sello's own good. It is said I was involved
in the
misappropriation of those BCP funds". See page 4 of Courts
manuscript.

The
plaintiff denies any involvement in the misappropriation of BCP funds
while he was in Botswana. He goes further to show that
as he was
working he was able to financially sustain BCP members who were
there; finding them in food and clothing. Thus no how
could he have
had the urge to help himself unlawfully to the BCP funds.

10

He
highlighted the fact that the publication caused him great pain when
it alleged that he was involved in illicit diamond dealing
as a
result of which he and Shakhane were arrested whereupon the plaintiff
bribed the Botswana police. He asserts that he never
dealt in any
diamond sales. He does not even know diamonds. He denies ever being
arrested by Botswana Police as a result of illicit
diamond dealing.
In fact he asserts that he has never been arrested in connection with
anything from birth. This indeed is a telling
record of leading a
clean life when account is taken of the fact that PW1 testifies that
he is 64 years of age.

It was
during his firm denials of any involvement with things alleged in
this publication that the Court observed tears rolling
from his eyes
and therefore ordered a short adjournment for the witness to resume
his earlier composure.

After the
witness had resumed his composure he said : "I am 64 years old.
I was never arrested in all these years.

I don't
get easily touched [emotionally] but today I saw the man who wrote
the article and I got moved to tears".

11

The
atmosphere generated by this scene and the spectacle that was then
discernable are factors which could never be lost to this
Courts
attention. True enough PW1 may not be accurate referring to the 1st
defendant as the one who wrote the article, but it is
ultimately a
legal question who is to be held liable for publication of defamatory
matter whose author is undisclosed.

PW1
denied that he acted as a stool pigeon for purposes of entrapping the
Military wing of his colleagues who were en route from
Welkom to
Qwaqwa and ensuring that they were caught napping by the South
African police.

The
plaintiff said as a result of this publication many people including
very important people such as Chief Masupha Seeiso accosted
him with
the newspaper article while others shunned him. He felt very hurt and
was unable to venture out. He felt withdrawn and
miserable. He
shunned public appearances. The plaintiff indicated that before then
he used to feel happy and enjoy people crowding
around him whenever
he stopped in Maseru or South Africa because of the good he did. They
used to crowd around him in appreciation
of his good deeds towards
them.

12

He said
the above picture contrasted sharply with subsequent attitude of
people towards him because "after publication even
someone who
is used to me would just raise his hand and say hello and pass off'.
See page 8 of the Courts manuscript.

The
plaintiff said he is aggrieved that the allegations made in that
Article associate him with someone who is said to have squandered

M55. Million Maluti gambling.

The
plaintiff denounced the alternative pleas by the defendants that the
contents of the Article were true or alternatively in the
public
interest or alternatively that they were a fair comment.

It is
important to note that the Article in Exh "B" is written by
someone who calls himself "Oa Mohlakeng".
The plaintiff
testified that his efforts and indeed those of his Counsel to
identify this character were foiled.

Exh "A"
a letter handed in evidence by the plaintiff and written by his
Counsel bears testimony to their efforts. I wish
to refer to it in
full :

13

1st Floor
Mohlaka House

P.O. Box
036

Maseru West
105

16th
October 1996

The
Editor

MOAFRIKA

FAIRWAYS
CENTRE

Maseru

Dear Sir,

re:
Defamatory Article in your issue of the 13th September 1996. Mr
Moeketsi Sello.

We are
the legal representatives of Mr Moeketsi Sello who has instructed us
to sue on the Article above.

We thus
require you to disclose the full names and address of the author of
the Article appearing in your said issue and entitled
LITSITISO TSA
SHAKHANE.

You are
required to furnish this information within 7 days hereof failing
which we shall have no option but to sue you and your
newspaper
alone.

Yours
faithfully,

signed :
S. Phafane Chambers"

I believe
the plaintiff's testimony that his counsel's request was unrequited.
Instead what amounted to cocking a snook at this
request appeared in
the MOAFRIKA issue of 7th February 1997 Exh "D" under the
heading"

14

"Moeketsi
Sello sues MOAFRIKA he wants M90 000-00 compensation".

As stated
above this Article repeated by way of reference to the paragraphs
complained of, what was written by "Oa Mohlakeng"
in Exh
"B".

The
Article in Exh "D" makes game of the fact that the
plaintiff never bothered to sue the writers of the book Lesotho
and
the Struggle for Azania Exh "E" (handed in later by 1st
defendant in his evidence) yet it appeared, so the 1st defendant

maintained in his evidence, that this book was sold right here in
Lesotho. It would require little imagination and effort to conclude

that the 1st defendant fully associated himself with contents of Exh
"D" which are in any case to the same effect. The
contents
go further to issue what amount to threats or intimidation to the
plaintiff in the sense that the Article in Exh "D"
after
stating that the plaintiff sues defendants over trifles the
defendants would claim swinging costs in respect of cases that
the
defendants are going to win. It is significant that the defendants
allow for no possibility that they might lose the so-called
cases
that they threaten to institute against the plaintiff for damages.
One senses even at this early stage, a high degree

15

of
presumptuousness founded on a culture of impunity and untouchability
which are unmistakable in all this boast he holds the plaintiff's

concerns and hurt to ridicule. Indeed under cross-examination of the
1st defendant by Mr Phafane the latter, no doubt appreciating
the
arrogance contained in the above statement sought to water it down by
saying damages would only be awarded if the defendants
won the case.
But Counsel was swift to point out to the 1st defendant that nowhere
is the word "if suggested even remotely
for the text refers to
"cases that we are going to win". Accordingly the 1st
defendant backed down after this sobering
realisation of the true
meaning of what is in the unerring text of Exh "D".

It is
important to note that the plaintiff stated under oath that he didn't
know of the Works of Leeman the author of Exh "E".
He had
never heard of Leeman or his works. He only came to know of
allegations which defamed him in Article B whereupon he instituted

proceedings against the Newspaper and its Editor after being
vouchsafed no reply to his effort to seek from those two the true

identity of the writer of the Article in question.

16

PW1 was
cross-examined. But the cross-examination as indicated in the Ruling
on Application for Absolution from the Instance handed
down on 7th
June 1999 was devoted to matters which were not contained in the
plaintiff's summons.

At that
stage of proceedings this court observed that........"evidence
has shown that

none of
the material complained of as material published in MOAFRIKA has been
put to the plaintiff as having been put to the plaintiff
as extracts
obtained by MOAFRIKA from Leeman's Works............". See page
3 of the said Ruling.

It was
only when the 1st defendant was being led in his statement given on
Affirmation that for the first time the extracts from
MOAFRIKA
appearing in the summons were pointed out in Leeman's Works and DW1
the 1st defendant was asked by his Counsel to comment
on them. I
would hasten to say the Court was denied the opportunity to see the
plaintiff's reaction to these statements which then
tended to have a
bearing on him, or as maintained by the defence affected his case
adversely.

Maisels P
in Phaloane vs Rex 1981(2) LLR 246 at p 252 makes salutary reference
to Small vs Small 1954(3) SA 434 where Classen J
neatly said :

17

"It is, in my opinion, elementary and standard practice for a
party to put to each opposing witness so much of his own case
of
defence as concerns that witness, and if need be, to inform him, if
he has not been given notice thereof, that other witnesses
will
contradict him, so as to give him fair warning and an opportunity of
explaining the contradiction and defending his own character.
It is
grossly unfair and improper to let a witness's evidence go
unchallenged in cross-examination and afterwards argue that he
must
be disbelieved".

Needless
to say and no doubt after the Court had made its adverse comments in
the Ruling on this issue was it deemed necessary to
lead the
defendant on specific pages in Leeman's Works where Articles
complained of in MOAFRIKA were said to emanate. This in no
way can
help fill in the gap created by letting the plaintiff go without
having been tackled on relevant material related thereto.

In his
evidence the 1st defendant admits publication complained of both in
the pleadings as earlier indicated and in oral evidence.

He stated
that his function as Editor is to see to it that news coming into his
Newspaper is correct. He stated that he is a member
of the team of
MOAFRIKA Newspaper.

18

He
highlighted the fact that the article complained of was not written
by him but by one "Oa Mohlakeng". He affects surprise
why
the plaintiff sues him in his personal capacity when in fact matters
perceived as defamatory relate not to the plaintiff but
to Shakhane.

The 1st
defendant said that when the Article came to his attention he made
investigations as to the truth of its contents. He found
that the
contents were true as they were extracts or quotations from the Works
of Leeman. He says the steps he took were to verify
if there is such
as a book as Lesotho and the Struggle for Azania by Leeman. He
managed to get hold of it and read it. He got it
from people who had
it and found that the news emanated from it.

He
referred to portions in that book one of which is at page 81 where
reference is made to the fact that the plaintiff became suddenly

prosperous. It is reflected that his success is attributable to his
prowess as a herbalist. But that the big house, the funds to
buy a
minibus and business that he suddenly had were out of all proportion
with what he had previously. Further that as an elderly

semi-illiterate Moeketsi seemed not able to control the finances.

19

With
regard to allegations in the summons saying Shakhane and Moeketsi the
plaintiff gave bribery to Botswana police, DW1 ran the
relevant
portion to earth in the same book at page 81. Indeed the reference to
a traitor who led the armed wing of BCP - (LLA)
to their ill-fate is
made there too.

The 1st
defendant stated that when he caused the article to be published he
had no intention to defame the plaintiff. Moreover he
had been
referred to this book by then leader of the BCP Ntsu Mokhehle
himself. He learned of this Book in 1989 he said.

The book
was handed in marked Exh "E".

Under
cross-examination DW1's version was typified by evasiveness and
inclination to fence with questions. For instance :

"This that you call Leeman's Book is a photo-copy. Is that
correct ........? It is correct.

Have you the original text............? Mine burnt last year. 20
Meaning you don't..................? I can make it available though

not mine. Please give me straight answers. This is your
Exhibit............? Yes. You opted to rely on this
photocopy............?
I relied on the book."

Court had
to intervene before he could reply "yes".

Referred
to a suggestion that the book is said to have been published by the
University of Azania and asked if he knew any such
University he said
among other things. "..............I don't know all
Universities.

I take it
that you can't dispute that there is no such University......? Thats
your

opinion".

I merely
refer to the above examples as a prelude to the time wasted by DW1 in
his avoidance to give straight answers to simple
questions. The Court
warned him time and again about adverse inferences that courts of law
are apt to draw against witnesses who
manifested his particular brand
of attitude.

Indeed a
fairly legitimate question following from his evidence in chief was
that:

"If
I understood you correctly up till August 1996 you didn't know there
was such a Book hence you went to verify.............?
I knew before
being told".

21

DW1
insisted that he knew of this book before he received Exh "B"
yet the record of proceedings reveals him as having
said after
receiving this "letter Exh "B" "I wanted to find
out if there was such a book". Having admitted
that he was
correctly recorded it escapes me then how he could have gone to
verify the existence of such a book years before 1996
when in fact he
only came to be alerted to its existence by Exh "B" which
he received in 1996; whereupon he sought to
establish if it existed.

Mr
Phafane's pursuit pursuit of this aspect of the matter was logical
and the precise moment he sought to step off it had done enough

damage to DW1's fortifications saying nothing of his credibility.

Learned
Counsel said in putting his questions to the witness :

"Isn't it then obvious that up until you got that Article you
didn't know of such a book........? What is true is that I had
known
of the existence of such a book. What I was trying to do was to
compare. But how could you go to look to find out if there
was such a
book if you knew of its existence. Is there sense in
that................? (Court observed signs of discomfort from
the
witness here)"

22

Learned
Counsel was quick to seek to simplify the question which was indeed
very simple and said :

"Up
till receiving Exh "B" you hadn't seen this Book..........?
I had already

seen the
Book.

You
had..............? I had.

Yet you
are recorded as having said 'I wanted to find out if there was such a
Book after receiving Article "B".
Correct..................?
Yes.

I leave
it at that. Are you serious........................? I am".

On the
evidence before Court and due weight being accorded to what is
credible in it, it is inescapable to conclude that DW1 could
not have
known of the existence of Exh "E" before he received Exh
"B" in 1996. The Court regarded with amazement
the 1st
defendants failure to appreciate that the hear-says that he sought to
rely on are valueless and therefore play no part
in Court
proceedings. Time and again this was brought to his attention and at
some stage he appeared to appreciate it.

The 1st
defendant indicated that it is not standard practice to take trouble
to ascertain people who submit articles for publication.
But I must
hasten to indicate

23

that the
answer was not a direct response to what the cross-examiner wanted to
get from him. The question had simply been if the
witness takes such
trouble. In typical fashion when asked if he did ascertain who "Oa
Mohlakeng" was he said he didn't
want to see "Oa
Mohlakeng's" face.

However
he said he knew the latter's names and surname though he declined to
give them when asked so to do.

DW1 was
referred to Exh "A". He admitted receiving that letter i.e.
letter from the plaintiff's Counsel. Told that he
didn't reply to
this letter or respond to the request contained in it, he said he
thought he did give particulars requested and
concluded that

"..........in
other words I did reply".

Then it
was put to him that the plaintiff who gave evidence in his presence
before Court said the letter had not been replied to
and that on this
aspect of the matter nothing was preferred from the defence side to
gainsay that piece of damning evidence. His
response to this fact was
that he couldn't recall well.

24

He
admitted though that had he replied, his answer would be as stated in
Exh "D", namely that he couldn't disclose who
the writer
was. He went further to say he is prepared to take full
responsibility for the suit made as a result of the publication
and
sought to water down and explain that by saying that he meant since
he came to an agreement with the author of the article
not to
disclose his name he would take the responsibility for publishing it.

Learned
Counsel for the plaintiff was not to be easily fobbed off by any such
tactics the purpose of which was to avoid the obvious.
Thus Mr
Phafane very aptly brought to DW1's attention and reading from the
Article in Exh "D" the following phrases :

"You
go further in that Article to say.............you are going to claim

costs
from plaintiff..........? Yes.

Because
according to you you were going to win this case................? Yes
Sir; but where I am reading it says when I have won
not that I have
won the case.

I'll read
in Sesotho the last sentence saying 'we shall indeed do so (claim
costs) when we have won these cases that we are going
to win'.

Having
read what is written there are you now going to change your
evidence................? I accept what is written here.

25

Good. You
made this publication when this case was pending before his
Lordship............? Yes."

After
fencing with the question by seeking refuge behind what he repeatedly
referred to as professional ethics DW1 eventually conceded
that
because of the stance he took he was to take the consequences. His
crisp answer was "It is my unfortunate duty"
See page 49 of
the Courts manuscript.

The 1st
defendant furnished the information that the 2nd defendant, i.e. C.R.
Communications is the name of the Company publishing
"MOAFRIKA"
Newspaper. Its directors are the 1st defendant himself, 'Maphakiso
Mphaololi(a woman) and the 1st defendants
wife 'Matabane Ramainoane.
He stated that this company does not own any property.

The 1st
defendant conceded that the Article in Exh "B" was written
in Sesotho for purposes of directing attention, in
as far as those
who had not known or read Leeman's Works, to the material published
therein. Though not in so many words he conceded
also that the other
purpose was so as to revive the recollection of those who had read
Leeman's Works but due to lapse of time
their memories of the
contents thereof had faded. Again he was hard put to it to provide
any more meaningful

26

answer
than that the other purpose appears to have been so as to induce
persons who had not read Leeman's book to acquaint themselves
with
the contents of the publication. His brief response to this was "the
author said so".

Then came
the crunch.

"By
publishing this article you helped to accomplish this purpose....?
Because I am permitted by the Constitution of this Country".

I may
just say in passing that it would lead to the highest form of anarchy
if the Constitution of this Country provided for any
such thing as
DW1 suggests. No wonder in addresses Mr Khauoe better of advancing
any submission based on this grotesquery and merely
contended himself
with saying that whether wrongly or rightly, the fact is that the 1st
defendant believes this to be the case.
1 may dismiss this submission
as clearly made with tongue in cheek.

The
section relied on in this regard is s.14(4) of the Constitution
reading :

"Any
person who feels aggrieved by statements or ideas disseminated to the
public in general by a medium of communication has
the right to

27

reply or
to require a correction to be made using the same medium, under such
conditions as the law may establish".

Clearly
nothing in this provision imposes a duty on the offended party to bow
down, so to speak, in the house of Rimmon. (More of
that later).

DW1 was
taxed on whether he knew it for a fact that PW1 was involved in
illicit diamond dealing and he stated that he knew nothing.
He just
read it in the newspaper.

Instead
of finding out, before publishing this Article, if the story was true
he contented himself with the fact that "Oa Mohlakeng's"

story emanated from Leeman's book. It appears to me that he didn't
find it his duty to go further and verify the correctness of
the
contents of this article. DW1 was thus placed in a cleft stick when
reminded of the fact that PW1 said those things alleged
about him in
Exh "B" were false and that indeed PW1 was not challenged
with DW1's version, if any or at all, that PW1's
assertion is itself
false. Again when this deliberate omission was pointed out to him DW1
finding himself in an awkward position
where his story that is
inconsistent with the plaintiffs was not put to the plaintiff, he
found himself with

28

no option
but to say "I am not certain on that". What is certain is
that because his version here runs counter to the
salutary dictum
outlined in Small vs Small above it must be rejected on the score of
absurdity.

An
attempt by Mr Phafane to lift DW1 out of his predicament failed.
Learned Counsel had suggested to DW1 that it was never in the
first
place DW1's case that allegations against plaintiff were true, that
is why Mr Khauoe didn't tax PW1 about them. DW1 said
that this in
fact is his case and repeated his surprise at plaintiff suing him
about matters relating to Shakhane Mokhehle. See
page 55 of Courts
manuscript. When this suggestion was repeated DW1 responded by saying
may be they (allegations) are true for
they were written by Leeman.

The 1st
defendants miscomprehension of what the case is about deepened
despite the cross-examiner's patience to make him appreciate
what is
in issue.

"You
said this morning you don't know if what is published is true or
false..........? I said one who knows is Leeman.

This is
consistent with the fact that it was never put to plaintiff that the
allegations about him are true.............? Yes. Because
1 am not
Leeman.

29

Your
defence is that the one who knows is the writer of the book Leeman
................? True.

You as
defendant are in no position to contradict plaintiff when he says
they are false................? I contradict him.

Your only
reason for saying so is that he didn't challenge
Leeman................?

Thats
right".

It was
immediately after the 1st defendant gave his penultimate answer
immediately above that this Court observing that he had been
dodging
giving straight answers, but feeling that surely he couldn't have
cast caution to the wind to the extent that he was tempted
to give
such an answer that it allowed him 15 minutes' break to mull over it
when he expressed a desire to marshal his thoughts.

One of
the vital aspects of this case relates to the question whether the
alleged statements written by "Oa Mohlakeng"
are statements
of fact or opinions. The 1st defendant said he understood them as
stating facts as extracted by "Oa Mohlakeng"
from Leeman's
Works.

30

He
admitted participating in the publication of these facts. See page 57
of Courts manuscript. It would be fruitful in due course
to refer to
Prof. R.G. Mackeron's Book entitled The Law of Delict.

DW1 was
taken to task by Mr Phafaane with regard to DW1's claim that PW1 had
become aware of the book whose author he didn't sue.
He was asked
when actually PW1 became so aware. He replied that this was the case
when Ntsu Mokhehle himself became aware of it.
The next logical
question was whether the 1st defendant was living with the plaintiff.
He replied "No". The purport of
this question which to my
mind the 1st defendant failed to comprehend was whether he had
first-hand knowledge of his claim. The
disarming response to a
further question in this line revealed the baselessness of his claim.

He was
thus asked :

"Who
brought it to his (plaintiffs) attention if anybody at
all..........?Ntsu Mokhehle.

On what
date..............? I don't know.

Were you
present..............? I was absent.

31

Who told
you the late Mokhehle told him............? My understanding in view
of the evidence he gave".

Needless
to say there is nothing in the evidence that PW1 gave from which it
could even remotely be suggested he obtained any such
information
from the late Ntsu Mokhehle as claimed by the 1st defendant. I may,
while at this, hark back to the other claim that
the 1st defendant
got to know of the existence of Leeman's works from Ntsu Mokhehle
and, bring attention to bear on the fact that
authorities are clear
on claims made by litigants about uncorroborated statements made by
dead people who cannot be summoned to
testify to the truthfulness of
such claims.

Be that
as it may the long deferred answer was eventually given in the next
text set out immediately below :

"The
nett effect of your evidence is that you don't know if Sello [the
plaintiff] knows of publication of this book ..........?
I don't know
personally.

I put it
to you he is not aware of this publication by Leeman..............? I
can't

say that
he now knows".

32

The 1st
defendant was taken to task regarding his startling proposition that
the plaintiff did not approach him regarding "Oa
Mohlakeng's"
Article. He persisted in this view. Asked if the plaintiff was bound
to do so he replied "The Constitution
is his right" asked
further "Does the Constitution say he is bound to come to you in
such circumstances.............?
(the answer was incomprehensible.
What was obvious was that 1st defendant lacked basic understanding of
the distinction between
right and duty. But this would not be
surprising in view of the fact that a good many students of law
stumble on this rather crafty
and mischievous pons asinorum.)

Accordingly
the Court intervened in part with a view to impressing on the
cross-examiner the futility of asking a layman a question
which goes
to the root of jurisprudence. Indeed happily the learned counsel
appreciated this.

In its
intervention the Court asked :

Ct: "But
do you understand the distinction between right and
duty..............?

Right is
what you are bound to do. Duty is what you do from day to day.

"No.
You got your lines crossed there. Right is what you may do if you
like. Duty is what you do whether you like it or not.
Then did he
have

33

to come
to you whether he liked it or not.............? He had. Or he could
send his lawyer".

Thus with
the sort of misapprehension of the simple explanation made for his
benefit saying nothing of the subtlety of this legal
concept it can
scarcely be surprising that the 1st defendants train should thus
leave the metals.

Needless
to say further attempts by Mr Phafane to make simple examples of what
is implied in either of these two concepts merely
drew comical
answers. For instance :

"It is your right to join a political party of your
choice.................Yes Are you obliged to join apolitical
party..........?
Yes if I like my country. If you don't join are
there any sanctions................? No one can punish you but you
will be in the
dark".

I can
dismiss this aspect of the matter by indicating that a right is what
the holder thereof can enforce against another or others;
while a
duty is what one is obliged to do or forbear from doing on pain of
undergoing some penalty in the event of failure. It
would be clear
therefore that the Constitution does not impose a duty on

34

anybody
claiming that he has been defamed to go virtually cap in hand to the
culprit to seek to know why and wherefor.

Thus the 1st defendant was clearly in a cleft stick when it was put
to him by learned Counsel Mr Phafane that "Constitution
of this
Country does not deprive the plaintiff of his right to sue you if you
say that he didn't come to you".

Cross-examination
revealed that for well over two years that have passed since this
suit was launched the 1st defendant never published
an apology to the
plaintiff. His reason being that the plaintiff never asked for any
apology. It also revealed that the 1st defendant
never approached the
plaintiff to find his side of the story. Further that MOAFRIKA
Newspaper is read by thousands and thousands
of people.

Coming
now to the matter of vital importance that I referred to earlier
hinged on Small vs Small I wish to cite the text in extenso
as it
indeed helps make the picture handsomely clear.

"In your evidence you referred to page 81
extensively....................? If it is the page containing "Oa
Mohlakeng's"
Article thats correct. Then you heard plaintiff
give evidence.............? Yes.

35

You heard
your case being put to him................? Yes. But I was not in
Court when he was asked certain portions of his evidence.

Had you
caused part of the evidence referred to in Leeman to be put to him
.................? I don't know Court procedure.

You do so
by giving all I the information regarding your defence to your
counsel .............? I did put all the facts of the case
to my
lawyer.

Saying so
you are surprised that this important part of your case was not put
to plaintiff.............? I said when I put my case
to my lawyer he
knows court procedure and he is the one to put my case correctly.

You
expect him to put your side's story....................? If that is
the way yes.

None of
the things reflected on page 81 [of Leeman's Book] were put to
plaintiff. Are you surprised....................? I rather
think the
things reflected there are well-known and the writer thereof is not
at odds with the plaintiff.

Whatever
you intended saying it is not the answer to my question. If I am
correct he [plaintiff] was denied the opportunity to react
to
allegations on page

81.............?
Hence my saying if that is the procedure then those questions ought
to have been put".

I may
only say regrettably they were not; and the authorities are very
clear on that aspect of the matter. The defaulting side cannot
stand
to benefit from such omissions especially when they relate to what it
regards to be of vital importance to its case.

36

The 1st
defendants evidence under cross-examination was typified by long
silences which were occasioned, no doubt, by his attempt
to do the
impossible i.e. reconcile the truth in the purport of the question
with the voidness of his replies. After stone-walling,
weaving and
ducking when it was pointed out to him that he takes rather long
before answering questions he said he doesn't take
equal time to give
his answers. But clearly this reply missed the essence of the simple
question put to him.

However
when once more he was in agony to respond to a simple question within
a reasonably short time put as follows :

"Does
the Constitution say if a person who has been defamed does not
approach one who has defamed him, he cannot have recourse
to
law........? (After a long pause)" he replied "my
understanding".

"You
agree you take a long time to answer simple questions ....? Ill
agree."

This to
me implies nothing else but the realisation on the part of the 1st
defendant that his reactions and answers could not pass
muster. He
was as earlier stated, trying to defend the indefensible. Coupled
with the fact that it seemed in regard to the question
that it is not
the 1 st defendants case that these allegations are

37

true
hence Mr. Khauoe's decision not to cross examine the plaintiff to
that effect (p.55), he and his counsel were holding conflicting

position the 1st defendant was bound to fall between two stools.

It is
important to note that the outwork that was being hedged around him
by the 1st defendant who repeatedly expressed surprise
that he was
being sued by the plaintiff also gave in to pressure of effective
cross-examination. It will be recalled that he repeatedly
said
Shakhane is the one who has been referred to in the material
complained of. Thus Mr Phafane proceeded :

"Though
you keep saying that the matter really affects Mr Shakhane Mokhehle
you do concede that the parts that plaintiff has
sued on are parts
which affect him..................? Yes some of them relate to him.

You
concede that in the absence of evidence before this Court that these
publications are true they remain defamatory of
plaintiff..................?
Yes if

there is
no evidence. Next part is I regard the letter of "Oa Mohlakeng"
as evidence of where they were extracted from.

You miss
the point..............you say "Oa Mohlakeng" repeated what
was said by someone else but you have no proof at
your disposal that
these are true ..........? Things published don't bind the Editor to
search around to find if they are true
or not".

The
damage done by this cross-examination could scarcely be cured or
remedied in re-examination.

38

I may
also deal briefly with the perception that because Shakhane Mokhehle
is the one who has been referred to in Leeman's works;
the plaintiff
is wrong in suing the defendants. First this perception is itself
wrong because the plaintiff has also been directly
referred to in Exh
"B". Next, the fact that Shakhane has not sued does not bar
the plaintiff from doing so in pursuit
of his rights for protection
of his good name.

THE
SUBMISSIONS AND THE LAW

The Court
has been favoured with useful heads of arguments by both counsel. The
Court is greatly appreciative of this.

Mr Khauoe
for the defendants submitted that the defendants have said that they
have not defamed the plaintiff This assertion stems
from the fact
that they only published the article which was a translation of the
published works of Leeman.

Learned
Counsel posed a three-pronged question:

(4)1 Is there any defamation, and if so

(4)2 by whom?

(4)3 What is defamation.

39

(4)4

To answer
the more important parts of this question it would be fruitful to
have recourse to authorities. J.M. Burchell in his invaluable
book
The Law of Defamation in South Africa gives the following definition
of defamation at page 35 :

"Defamation
by an individual, in the light of the above definitions and the
contemporary case law, is therefore:

The
unlawful, intentional, publication of defamatory matter (by words or
conduct) referring to the plaintiff, which causes his reputation
to
be impaired. "

Coming
closer to the matter at hand the Learned writer goes further to say :

"The Appellate Division has recently held that the press, radio
and television are strictly liable for defamation. In other
words,
animus injuriandi(or even negligence) on the part of the mass media
is not essential. Defamation by the media would therefore
be defined
in the same way as defamation by an individual except that the
requirement of intention would have to be omitted."

I am in
respectful agreement with this definition.

I may
hasten to also observe that the words which falsely attribute
dishonesty and or criminality to an individual are defamatory
per se.

Mr Khauoe
promptly addressed the Court on this subject against the back- drop
of the fact that the plaintiff is a politician and
as such therefore
a public figure. He indicated that the plaintiff

40

held the
said position even before the Article was published. He won the
election after the Article was published and he is now
a
parliamentarian.

Learned
counsel referred the Court to Mandela vs Falati 1995(1) SA 251 at 260
for the proposition that the law now is that no politician
should be
permitted to silence his critics as criticism of such person must be
free, open, robust and even unrestrained. I am in
agreement with what
is highlighted in what amounts to characteristic aspects of the
criticism outlined and do note happily that
the characteristics of
criticism set out do not include "false or malicious".

I have
also had regard to the important decision of the supreme Court of
Appeal of South Africa in Natonal Media Limited and 3 Ors
vs Bogoshi,
Nthedi Morole Case No.579/96A (unreported) where it is stated that
for the plaintiff to succeed in a case for defamation
one of the
elements to be proved is animus injuriandi. Mr Khauoe stressed that
the test according to this case is objective. Long
as this decision
is I have noted that at page 14 the learned Hefer J.A. says :

"Defendants counsel rightly, in my view, accepted that there are
compelling reasons for holding that the media should not
be treated
on the same footing as ordinary members of the public by permitting
them to rely on the absence of animus injuriandi,
and that it would
be appropriate to hold media defendants liable unless they were not
negligent in the circumstances of the case".

I have
also noted that this decision is largely based on the Interim
Constitution of South Africa. I have not been addressed on
whether
the Lesotho Constitution on the subject is on all fours with that of
south Africa. I would hesitate to act on the presumption
that this is
so. Moreover the

41

remarks
of the learned Hefer J.A. are telling in the sort of caution that he
adopted at page 18 where he said

"The Constitutional Court unanimously held in Du Plessis that
the Interim Constitution did not 'turn conduct which was unlawful

before it came into force into lawful conduct.............the
defendants are not entitled to invoke s. 15 as a defence to an action

for damages for defamation published before the Constitution came
into operation' ".

The
decisions of Superior Courts of South Africa especially the Appellate
Division are of great persuasive value to our Courts.
But that is not
to say even where the law relied upon in that country is based on a
statute that does not necessarily coincide
with ours, as our
constitutions differ; we should feel obliged to blindly follow their
decisions. It behoved learned counsel therefore
to refer this Court
to provisions in our constitution that are similar to those of South
Africa on which this decision is patently
based But regrettably he
didn't.

The
learned counsel submitted that the role of the press is to contribute
to the exchange of ideas already alluded to and to advance

communication between the governed and those who govern. I agree with
this submission.

He went
on to highlight the fact that the concept of strict liability in the
modem law, does no longer apply in cases of defamation;
and concluded
that in the light of this it is apparent that the defendants did not
have animus injuriandi when they allowed the
publication of Exh "B".
Further that the 1st defendant was not negligent in allowing the
publication of this article
as he was led to the

42

source
Leeman's Works by the Leader of the BCP. He finally submitted that
the plaintiff could not be heard to say that his reputation
was
injured when he mounted a successful campaign for a parliamentary
seat even in the aftermath of the publication of the offending

article.

Learned
Counsel for the plaintiff Mr Phafane after neatly submitting that the
law of defamation protects reputation, submitted that
this is part of
the law which is concerned with the reconciliation of a citizen's
right to enjoy the reputation which he deserves
and a citizen's right
of freedom of speech.

After
referring the Court to The Law of South Africa Volume VII page 195
paragraph 235 where W.A. Joubert aptly says:

"The delict of defamation is the unlawful publication, animus
injuriandi of a statement concerning another person which has
the
effect of injuring that person in his reputation"

the
learned counsel submitted that publication of a defamatory statement
about a person constitutes an invasion of his right to
reputation,
and prima facie unlawful. I agree with this submission.

Indeed it
is trite law that publication of defamatory statements proved or
admitted results in two inferences arising, to wit; (a)
that the
publication was wrongful, and (b) that the defendant acted animus
injuriandi. See S.A. Uitsaai Korp vs Malley 1977(3)
SA p. 394. The
head note at 396 is of particular interest.

43

In
Pakendorf en Andere vs De Flamig 1982(3) SA 146 at 156-158 fit is
emphatically laid down that in the case of defamation by the
media as
against an individual strict liability applies and the presence of
"animus injurandi" is not a pre-requisite
for liability. I
however note that in National Media Limited above Hefer J.A. has
expressed the view that Pakendorf should be overruled.
But it is
stimulating to observe that the defendant still bears the onus of
rebutting animus injuriandi subject of course to the
qualification
that there is no requirement of animus injuriandi in publication
media. Thus strict liability has been retained.
This accordingly
disposes of the contention in the 1st defendants evidence that he
didn't intend defaming the plaintiff. It goes
without saying
therefore that once it has been proved that publication was
defamatory the defendants are liable whether or not
it is their
intention that it be so.

Mr
Phafane illustrated that the 1st defendant is mistaken if he thinks
that he can escape liability on the grounds that he is not
the author
of the article Exh "B". It is common cause that the 1st
defendant received the article from a faceless person
"Oa
Mohlakeng" whose names he knows but refused to disclose to the
plaintiff's counsel prior to the institution of this
action or even
to Court. But Prof R.G. McKerron in The Law of Delict at page 184
makes it plain that a person in the position similar
to that of 1st
defendant is liable. The learned Author says :

"Every person who takes part in publishing, or in procuring the
publication of defamatory matter is prima facie liable. Thus
where
defamatory matter is published in a newspaper, not only the writer,
but also the editor, printer, publisher and proprietor
can all be
made liable. Such persons cannot be heard to say that they were

44

not aware
that the newspaper contained defamatory matter, for it is their duty
to acquaint themselves with the contents of the newspapers
which they
put into circulation" Emphasis supplied.

The 1st
defendant sought to escape liability by saying that he was merely
quoting a certain writer. But in this exercise he has
promoted
reading of material that is defamatory, drawn attention of other
persons to it and revived recollections of those who
might have read
and forgotten it, and has induced those who knew nothing about the
material to acquaint themselves therewith. See
Mckerron at pp 184 and
185. Indeed as shown earlier the 1st defendant admits as much under
cross-examination. The very heading
of Exh "B" is indeed to
that effect. The article is itself translated into Sesotho in order
for those who do not know
English to acquaint themselves with the
kind of person the plaintiff is. Needless to say an imputation of
dishonesty and or criminality
including treachery smack of high moral
turpitude. Publishers are thus discouraged from reviving memories,
that may have faded,
of past defamatory material. Thus it cannot
avail a publisher or editor to hide behind what appears to be a stale
source if he
constitutes himself an amplifier of something that could
otherwise have scarcely attracted attention of others. McKerron's
submissions
at p 154 are important in the light of the defence raised
i.e. that this is a publication by Leeman. Defendants only reproduced

and translated it.

".................a person who directs attention to defamatory
matter which has been published, or otherwise promotes the
reading of
it, may be held to have taken part in its publication".

See alsO
African Life Assurance Society vs Robinson Co. 1938 N.P.D. 277.

45

The
defendants contend in their plea that even if they are found to have
published matter that is defamatory their defence to this
is that of
justification.

In my
humble view this plea cannot be raised here because the defendants
failed to discharge the onus that was on them that the
publication is
true. It is a matter of simple logic and common sense that if the
defendant fails to establish that his or her defence
is true that
defence falls away. On the other hand the plaintiff is required to
prove that, viewed fairly by reasonable men

1. the
   statement refers to him, and;

   
   

2. that
   it is defamatory of him.

   
   

See
Williams & another vs van der Merwe 1994(2) SA 60 at p.64 A.

I may
just comment that the plaintiff in the instant matter met the two
requirements shown in (a) and (b) above.

In head
7.1 Mr Phafane referred the Court to S.A Associated Newspapers vs
Yuter 1969(2) SA 442 at 451 the dictum of which is that
it is lawful
to publish defamatory statements which are true, provided that the
publication is for public benefit. At page 186
McKerron also makes
the point that the onus is on the defendant to show that the material
published is true.

Applying
these tests to the facts of the instant case presents one with
startling revelations that fall short of the requirements
which ought
to be satisfied if the defendants are to escape liability.

46

The
plaintiff is said to have been involved in embezzlement of BCP funds
with Shakhane. But DW1 says he does not know whether this
is true.
That mere admission, inescapable as evidence turned it out to be, is
fatal.

Neethling
vs The Weekly Mail & Another 1994(1) SA 708-9 is authority for
the proposition that the onus is upon the defendant
to establish
either some justification or excuse for the defamatory language used.
He is encumbered with a full onus in regard
to the defences of (a)
truth, (b) in the public benefit and of (c) privilege bearing in mind
though that in our law there is no
general newspaper privilege.

The next
startling feature in the face of the legal requirements which have to
be satisfied is the fact that DW1 does not know whether
it is true or
not that the plaintiff was involved in illicit diamond dealing in
Botswana; further whether indeed the plaintiff
was engaged in the
bribery of police in Botswana or even was arrested there for illicit
diamond dealing yet DW1 publishes the Article
without caring whether
or not it is true.

It is
relevant therefore to consider this publication against the
background of Moolman vs Slovo 1964(1) SA 760 at p 762 where it
was
thought that a publication similar to Exh"B" may very well
have been actuated by malice. If the publication is made
recklessly
then malice is presumed. Enough has been revealed in evidence to lead
to an inescapable conclusion that the defendants
in the

47

instant
case caused publication of the defamatory matter in Exh "B"
without caring whether it is true or false.

The 1st
defendant was indeed reckless in the sense that having received the
letter that constituted this Article Exh "B"
from the
"faceless" "Oa Mohlakeng" who is his confidante,
and having found that it purports to derive its root
from the
writings of Leeman, he did nothing to find if it is correct. Needless
to say, responsible media would have gone to the
plaintiff in order
to verify the correctness of this article.

I accept
Mr Phafane's submission that this is what a responsible Editor or
Newspaper should have done. But the failure to do so
can be traced
from no further than the defendants' plea where the defendants'
perception is that the Constitution requires the
plaintiff to come
tip-toeing to the defendants instead and ask that a proper
publication be made about him. While on the one hand
and in a sense
it could be said to be understandable though not in the least
excusable that the defendants entertained this strange
notion to the
extent that they could proffer it in evidence, on the other hand
drawing of pleadings is the office and function
of legal
practitioners who are experts in that field. It therefore beggars
description that this oddity of a cuckoo in the nest
was allowed to
form part of the pleadings.

I accept
Mr Phafane's submission that in this instance the Constitution is
being abused as there is no Common Law requirement of
the nature that
plaintiff should have acted as envisaged by

48

the 1st
defendant. In fact a Constitution is a mere frame work within which
all the laws are to operate consistently with it.

The
defendants have pleaded justification and alternatively fair comment.

The
requirements for defence under these headings are :

1. that
   what has been published must be true

   
   

2. that
   it must be an expression of opinion not a statement of fact and must
   be recognisable as such to the ordinary reasonable men.
   It is
   expressions of opinion only, and not statements of fact which are
   protected by a plea of fair comment. See McKerron at
   p.200.

   
   

The
learned author elaborates the defence of fair comment by saying :

"It is right of every man to comment freely, fairly, and
honestly on any matter of public interest, and this is not a
privilege
which belongs to particular persons in particular
circumstances".

See also
Crawford vs Albu 1917 AD 102atp 114. This authority is adamant that
the comment must be fair, that is to say relevant,
honest and free
from malice. It is fair if it is a genuine expression of the critic's
real opinion. Needless to say the 1st defendant
in the instant matter
insisted that the publication he made constituted statements of facts
about the plaintiff. It stands to reason
that he and the 2nd
defendant fall outside the pale of protection afforded reliance on
genuine expression of the critic's real
opinion. These statements of
fact must have affected the plaintiffs reputation and

49

reduced
the esteem with which he was held in that he was perceived as a
crook, as a man who embezzled BCP funds and as a man who
bribed
police in Botswana and dealt in illicit diamond transactions in that
country as a result of which he was even arrested apart
from
betraying his colleagues.

When the
1st defendant made the admission that what is published in Exh "B"
is a statement of fact and not an opinion
then that was the end of
the defence he was seeking to rely on.

The Court
has come to the conclusion that the defendants are unable to prove
the defence they are seeking to rely on. All they are
clinging on is
that they have merely repeated what someone else has stated in Exh
"E". But as shown earlier this runs
counter to the
dependable authority of Arican Life Assurance Society Ltd above. Thus
this cannot avail as a defence in law. They
further seek to raise as
a defence the fact that the plaintiff has not sued Leeman, yet the
1st defendant blazed the trail in conceding
that he doesn't even know
if the plaintiff was ever aware of Leeman's alleged publication.

In the
light of the findings I have made above 1 conclude that the plaintiff
has discharged his onus and the defendants are held
liable to him for
defamation.

DAMAGES

50

The
question of ascertaining quantum of damages has always presented an
irksome hurdle to Courts of law. But it is inevitable that
the
plaintiffs remedy lies in damages. He has claimed M90 000-00 in his
summons to compensate his injured feelings as well as his
hurt to his
dignity and reputation resulting from this wanton attack to his good
name. 1 have already found for a fact that for
all the 64 years of
his life he has enjoyed an unblemished reputation. That indeed has to
be protected. In the straightforward
and unchallenged evidence he
gave he indicated that he received plaudits from rank and file
including a letter of appreciation
from the leadership of the BCP for
his devotion, help and generosity towards that organisation. Such
high esteem in which he was
held ought not to have been sullied
without cause.

Authorities
are ad idem that if publication makes an imputation of serious crime
and dishonesty as also political unreliability
punitive damages are
called for. See See Buthelezi vs Poorter 1974(2) SA 831 at pp
833-838.

Punitive
damages may be awarded where there is deliberate attempt to destroy
the plaintiffs reputation without any foundation. The
present seems
to be the case that fills the bill.

Indeed
even where the Court finds that there is justification for
publication the scales are turned at once when there is persistence

in the defence of truth, public interest etc particularly as in this
case this persistence is indulged in recklessly and irresponsibly.

51

The
defence of truth stands out in the defendants' empty bulwark as
indeed it appears in their plea. The Court thus does have regard
to
the fact that from as early as at the time of filing plea the
plaintiffs contention that the allegation was not true was met
with
persistence by the defendants who pleaded justification and fair
comment.

Mr
Phafane accordingly made a submission which I accept that this
persistence in defence of truth and public benefit is justification

for an award of punitive damages.

Mr Khauoe
argued that politicians being public figures are not to be
overzealously protected against criticism. I agree but every
case
turns on its own merits. For instance while in C. of A(CIV)No.10 of
1983 Clovis Manyeli vs Vincent Makhele and Another (unreported)
the
High Court had found that the applicant then had been paid in the
same coin that politicians like himself pay each other the
Court of
Appeal awarded the appellant damages of M8 000-00 for defamation; a
fairly huge amount by those days' standards.

I have
also taken into account the fact that in C. of A. (CIV) No. 13/98
Lesotho University Teachers and Researchers Union vs National

University of Lesotho (unreported) where the Court of first instance
had hesitated on the brink against awarding costs on attorney
and
client scale the Court of appeal awarded such costs. I say this
bearing in mind that the Court of first instance has at all
times
been credited with having the feel of the case at first-hand and in a
case involving viva voce

52

evidence
observation of the demeanour of the witnesses is a factor that it
alone enjoys while the appellate Court is denied this
important
feature of the case it presides on at a later stage.

I must
thus confess to surprise, even to some degree of indignation that
despite the passage of time and sheer likelihood that the
case might
well go against them the defendants remained obdurate and failed to
tender to the plaintiff the smallest expression
of regret at the
extraordinary sullying of his good name without justification.

However
the question of damages is in the discretion of the Court. Indeed as
authorities aptly state in the absence of justification
for
defamatory publication malice is imputable.

Burchell
above at p.293 says :

"There
may be more to be said for allowing 'punitive' or 'exemplary' damages
in a

system of
law.........where the judge, not a jury, has control over the
ultimate extent

of the
damages, but retribution or deterrence are nevertheless not
convincing or desirable purposes of an award of damages.

In
essence, the controversy surrounding punitive damages is one of
emphasis. The critics of punitive damages rightly stress that
the
court in a civil case must not make an award of damages or a portion
of an award purely to penalize the defendant for his conduct
or to
attempt to deter people in future from doing what the defendant has
done: punishment and deterrence are functions of the
Criminal law,
not delict. But even the critics of 'punitive' damages would, I
think, accept that factors aggravating the defendants
conduct may
serve to increase the amount awarded to the plaintiff as
compensation, either to vindicate his reputation or act as
a
solatium". I respectfully agree with this last sentence in the
above quotation.

This
learned writer states at p.30 that :

53

"There are obvious disadvantages in the traditional methods of
obtaining redress for an impaired reputation. It is clear that,

rather than limiting our options, we should be looking for more
effective ways of achieving harmony between freedom of expression
and
the right to reputation. It is acknowledged that an award of damages
may play an important role in the vindication of reputation,
or at
least satisfaction or partial satisfaction of the injured plaintiff,
but there may be additional ways of achieving this end".

Having
considered all factors which I could humanly afford to do I order
that both defendants pay the plaintiff the sum of

1. M90
   000-00 compensatory damages for defamation jointly and severally one
   paying the other to be absolved.

   
   

2. M15
   000-00 punitive damages jointly and severally one paying the other
   to be absolved. I also order the defendants to pay

   
   

3. interest
   on the above amounts at the rate of 18.5% per annum a tempore morae
   plus

   
   

4. costs
   a quarter of which should be on attorney and client scale while the
   balance thereof should be on party and party scale.

   
   

JUDGE

22nd
December, 1999

For
Plaintiff: Mr Phafane

For
Defendants : Mr Khauoe