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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:
Payment of ninety thousand maluti (90 000-00) damages;
Interest at the rate of 18.5% per annum a tempore morae;
Costs of suit
Further and/or alternative relief.
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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.
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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...........'"
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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
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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
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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.
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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).
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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.
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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.
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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".
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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.
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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 :
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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"
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"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
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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.
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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 :
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"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.
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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.
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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".
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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)"
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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
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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".
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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
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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
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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.
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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.
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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
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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.
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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.
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(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
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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
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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
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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.
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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
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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.
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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
the statement refers to him, and;
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.
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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
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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
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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 :
that what has been published must be true
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
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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
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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.
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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
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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 :
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"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
M90 000-00 compensatory damages for defamation jointly and severally one paying the other to be absolved.
M15 000-00 punitive damages jointly and severally one paying the other to be absolved. I also order the defendants to pay
interest on the above amounts at the rate of 18.5% per annum a tempore morae plus
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