IN THE HIGH COURT OF LESOTHO
In the Appeal of :
RAMPHEI MPHEI Appellant
TSAANE RAMOCHELE Respondent
Delivered by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on the 15th day of January 1982
This is an appeal against the Judgment (dated 14th
February 1980) of S.L. Mapetla a Resident Magistrate sitting
at Mafeteng in which he awarded Tsaane Ramochele(respondent and
original plaintiff) the sum of M300 as damages for defamation.
Ramphel Mphei(the appellant and original defendant) is alleged
to have uttered the following words at a market place in
Mafeteng on or about the 6th June 1974.
"Tsaane Ramochele is a thief. I shall eventually
call in the police so as to have him arrested and
beaten to death. He is a proud one who takes
other people's animals without mercy".
I shall for convenience refer to the parties as plaintif:
The plaintiff did not issue summons until the 9th
December 1975, i.e. 18 months after the event. He demanded
M500 as damages.
In his plea, filed on the 26th January 1976, the
denied that he ever uttered the words complained of
at the market place and put the plaintiff to the
proof thereof, and
that if he did he was justified in doing so because
the plaintiff took his cow and used it without
permission and refused to replace it after promising
to do so.
The plaintiff replied on the 6th June 1976 that he never took
the defendant's cow as alleged and put the defendant to the
The trial started on 15th July 1977, but was not
completed until 19th October 1979, It is not necessary for me
to go through the evidence in detail suffice to say that two
witnesses, called by the plaintiff,testified that they heard
the defendant say this to a crowd of seven or eight people.
There was no evidence to show that those others had a clue who
the plaintiff was.
The defendant denied that he was at the market place on
that day at all saying he had been visiting a herbalist at
Gidion's and called his wife to support him. When the defendant
went into the box (apart from denying that he was at the
market place on 6th June 1974) his defence was that the
plaintiff was indeed a thief, and not only in respect of the
defendant's own cow referred to in the pleadings but also in
respect of sheep and cattle stolen from other persons as well.
Indeed the defendant did enlarge further upon other aspects
of the plaintiff's character.
was satisfied that the words were actually uttered
and believed plaintiff's two witnesses and rejected
the defendant's testimony and also his wife's, and
was satisfied that the defendant's allegation that
plaintiff stole his own cow was not true. The
record of evidence shows the reasons clearly.
I am not prepared to disturb findings of fact* An
appellate court is not in the same position as the trial court
on matters of credibility. I have not heard the evidence or
seen the witnesses the magistrate had. Unless there are
cogent reasons to do so an appeal court is loathe to interfere.
Now Mr. Kollsang's main submission is that the magistrate
was adversely influenced by the defendant's rather wild
allegations against the plaintiff when giving evidence in the
box. He submitted that what was said by the defendant against
the plaintiff in court was privileged. He referred to McKerron
on Delict 7th Ed. p. 194 wherein the learned author writes:
"Statements made in the course of judicial
proceedings by the parties to a suit, or by
witnesses, attorneys, advocates, magistrates
or judges are provisionally protected, provided
they are relevant to the matter in issue. A
similar privilege attaches to statements made
in the course of quasi-judicial proceedings.
The privilege is not easily defeated; especially
in the case of statements made by persons
appearing in a representative capacity before
judicial or quasi-judicial tribunals. As has
been pointed out, such persons must be allowed
considerable latitude as to what they say in
presenting their principal's case and trying
to persuade the tribunal to adopt a view
favourable to him".
Mr. Kolisang's argument is that the impressions that the
magistrate had formed about the defendant should not have been
taken into account when he had to assess his credibility on the
main issue of whether the words were actually uttered at the
market place, which was a separate issue from the views
expressed by the defendant when in the witness box.
With respect the qualified privilege the learned author
refers/has no relevance to a case of this nature. It applies
only if the plaintiff had lodged a separate action for defamation
based on the words allegedly uttered in Court. The point here
is that the plaintiff's witnesses were found more reliable than
the defendant's and what the defendant had said on cross-
examination was merely taken into account in assessing his
I myself would not have awarded R300, since only two
people appear to have been interested in the utterances. It
was not in permanent form, i.e. in a news paper or in writing.
However the plaintiff had not asked for interest and it had
taken the plaintiff quite a long time to have his character
I would affirm the award of M300 without interest and
dismiss the appeal with costs.
15th January 1982
For Appellant : Mr. Kolisang
For Respondent: In Person
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