CIV/T/324/80

IN THE HIGH COURT OF LESOTHO

In the matter between :

ANTHONY CLOVIS MANYELI Plaintiff

and

VINCENT MAKHELE 1st Defendant

DESMOND
SIXISHE 2nd Defendant

JUDGMENT

Delivered by the Hon. Mr,
Justice B.K. Molai on the 29th day of August, 1983.

Plaintiff has filed with this
court a summons commencing action in which he sues the two defendants
for damages for defamation. In
his declaration to the summons as
amplified by further particulars, plaintiff has averred, in part,
that:

7.

On or about 28th JUNE, 1980 and
at MOKEMA, LESOTHO, defendants made and published the following
statement regarding the plaintiff,
namely, that he, together with one
BIEMANS, unlawfully stole the property of the members of the ROMA
VALLEY CO-OPERATIVE.

8.

On or about 13th JULY, 1980, in
the course of a meeting held at MAFEFOANE, LESOTHO, Defendants
repeated the said statement.

9.

At a meeting held at MOKEMA,
LESOTHO, on or about 28th JUNE, 1980, defendants,

2/ distributed ....

-2-

distributed and thereby
published a written statement in which plaintiff was accused of
endeavouring to bring communism into LESOTHO.
He was also accused of
raping women, murdering people and of robbing people of money,
vehicles and household goods. He was also
accused of burning down the
shop of Chief MASERIBANE, and that he injured the servants of the
said Chief MASERIBANE. He allegedly
spoke ill of the police force
and was a thief who stole livestock. They accused plaintiff of being
untrustworthy and an enemy of
Chief LEABUA JONATHAN. They alleged
that plaintiff spoke ill of the said Chief JONATHAN and other leading
members of the Party and
that plaintiff was not loyal to his own
party.

10.

All of the aforesaid statements
and/or publications:

5. 
   Were made with reference to the
   plaintiff
   and were so understood;

   
   

6. Were
   made and/or published unlawfully;

   
   

7. 
   Were made and/or published with
   the
   intention of defaming the plaintiff;

   
   

8. 
   Were defamatory per se,
   alternatively
   contain the innuendo that plaintiff is
   a
   criminal, murderer, thief, rapist,
   and that he is dishonest,
   untrustworthy,
   immoral and that he acts improperly.

   
   

9. 
   Were understood by the hearers
   and/or
   readers of the said statements and/or
   publications as
   referring to plaintiff
   and of being defamatory as set out
   above.

   
   

11.

As a result of the aforesaid
defamatory statements, plaintiff was injured in his good name and
reputation and has suffered damages
as follows :

11.1 In respect of the verbal
statement,
referred to, on 28th JUNE, 1980
R10,000,00.

-3-

11.2 As regards the verbal
statement,

referred
to, on 13th JULY, 1980...R10,000.00

11.3 In respect of the
aforesaid
written statement published on

28th JUNE, 1980 as aforesaid ...
R30,000.00

12.

Defendants are liable towards
plaintiff for payment of the aforesaid amounts in solidum.

WHEREFORE PLAINTIFF CLAIMS FROM
DEFENDANTS IN SOLIDUM:

1. Payment of the amount of
R10,000,00

2, Payment of the amount of
R10,000,00

5. Payment
   of the amount of R30,000,00

   
   

6. 
   Payment of interest on the
   aforesaid
   amounts at the rate of 6% per year from
   date of
   judgment herein to date of
   payment.

   
   

5. Costs
   of suit.

   
   

6. Further
   and/or alternative relief.

   
   

The defendants opposed the
action and to plaintiff's declarations as aforesaid,their plea, as
amended, was, in part, as follows:

"As paras 7,8,9,10,11
and 12 thereof

Defendants deny each and every
allegation herein contained as if specifically traversed and denied
and puts plaintiff to the proof
thereof.

ALTERNATIVELY and in the event
of this Honourable Court finding that one or both Defendants did
publish and distribute the said written
statement as alleged, which
is denied Defendants aver that the occasion of the publication
thereof was under the circumstances privileged.

Wherefore First and Second
Defendants pray for an Order in terms whereof Plaintiff's claims be
dismissed with costs."

4/ Two witnesses

-4-

Two witnesses were called in
support of plaintiff's case and he himself testified on oath.
Although they did not call any witnesses
on their behalf, the
defendants themselves gave evidence on oath.

The fons et origo
of the matter was an article, of which the plaintiff was admittedly
the author, that appeared in the "Moeletsi oa Basotho"
issue of 15th June, 1980. The article was written in the Sesotho
language and bore the heading in very prominent block letters :

"NAKO EA MORE BAKRISTE BA
IKHETHELE TSELENG TSE PELI."

A fair translation of that
article was handed in as annexure "C" to Exhibit "A".
It reads :

"Time Christians Chose
Between two Roads.

It is long, on many occasions
and even with comparisons, that I have advised and warned Leabua
Jonathan about the danger that will
befall him for befriending P.F.
which is his enemy, the enemy of B.N.P. and Basotho. All that I said
P.F. would do to him have been
fulfilled as I said. For how many
times have I advised him that P.F. would make all his friends turn
away from him. I have often
stated that the aim and intention of P.F.
is to capture Lesotho Government for communists.

Today it is clear that we have
come to crossroads. Chief Leabua has placed the B.N.P. members in
trouble by setting Sixishe at them,
whom I wonder if there is one
B.N.P. member who can tell us how he gets involved in the
administration of B.N.P. when his home is
in Thembuland in the Cape.
He has already been in Russia as he himself states. As I write this
he has again gone to the communists.
It seems like he is undergoing
a training to learn ways which a communist Government adopts in
oppressing a nation that does not
like communism. We of Maama area
say it will be our dead bodies which will go to communism.

5/ I wonder ....

-5-

I wonder if Chief Leabue is a
Catholic like myself. Is the insult that Sixishe has insulted the
Father of Catholics in all the world
(me inclusive) nothing to
Leabua? I say this because this insult came out of his messenger's
mouth. Chief Leabua is dead silent.

In Lesotho we say the messenger
does not have to bo blamed for messages he conveys, it is the person
who sent him that has to be blamed
- "moro-muoa ha a na lonya,
lonya le na le khaloli". His Excellency the Head of Catholic
Church in Lesotho has already
stated that the Catholic Church has
nothing in common with communism.

A testing time has come to
Christians. There has come a time when Christians have to choose
between two roads; to listen to the Church
or the Government, to hear
God or man. The B.N.P. members have to choose between two roads;
to adhere to the B.N.P. manifesto which says "We are
against leaders" who "work together with communist
countries in deliberately placing the future Lesotho in
danger" or to go with those "who through receiving monies
from communist countries have become
Russian and Chinese stooges.
Not through our own liking we have been brought to this point which I
call cross roads, and we have to choose between two roads.

At a pitso which was held at
Taung on 24-5-80, Chief Leabua said to the Bataung that a Nationalist
who publishes his news through
Leselinyana is a Judas Inscariot. All
Christians know from the Bible that Judas is the man who rebelled
against the Lord Jesus,
he befriended the enemies of Jesus and
planned with them to kill him. Chief Leabua should know that Bataung
(of whom I am a member)
have never been rebels and will never be.

6/ In Lesotho ....

-6-

In Lesotho history there have
been rebels. During the 1865 war (Ntoa ea Seqiti) the person who
rebelled against Basotho was Chief
Molapo (Mokoena, not a Motaung).
Was it not the sons of Molapo who lived at a place of one boer by the
name of Janefeke? During Gun
War (1880) it was the son of Molapo,
Jonathan who rebelled against the Basotho and joined their enemies to
fight them. It appears
like a Molapo it is a great pride to rebel
which even Chief Jonathan Molapo himself is proud of because when he
sings his praises
he says

"Tsukulu of Leribe rebels
Seoehla meets Mokutu half way. The Whirlwind of Lejaha's battalion!"

In 1865 when it was fierce
Molapo joined the enemy (Boers) to fight Basotho. In 1880 when it
was bad, Jonathan Molapo joined the
enemies (English) to fight
Basotho. Today in 1980, Chief Leabua when it is bad he joins the
enemy (communist Russians) to fight B.N.P.
members, Christians,
Basotho. For this reason and many others, if Chief Leabua still wants
rebels like Judas he should go to Leribe,
he will find them there,
not anywhere else.

A.C. Manyeli - Roma" (my
underlining)

Defendants' evidence was that
Plaintiff was Ex-Cabinet Minister in the ruling Basotho National
Party (B.N.P.) and one time the Party's
elected representative for
Maama constituency. In 1975, plaintiff lost favour with the party
and by the decision of the Executive
Committee was expelled from the
Party ranks. The decision was endorsed by the committee of Maama
constituency. Plaintiff was therefore,
no longer regarded as a B.N.P.
member. Notwithstanding the Executive Committee's decision which was
accepted by the committee of
Maama constituency,

7/ plaintiff was ...

-7-

plaintiff was holding himself
out as a member of B.N.P. and the Party's representative for Maama
constituency thus creating confusion
among the B.N.P. followers. The
article, annexure 'C' to Exhibit A, was a clear example of
plaintiff's persistent attempts to sow
the seeds of division among
the followers of B.N.P. by launching false attacks against the
leadership of the party.

In his evidence, plaintiff
admitted that he was Ex-Cabinet Minister in the Government of the
ruling B.N.P. and in 1975 a decision
purporting to expel him from the
Party membership was taken. However, the people who took the decision
had no legal right to do so
and his purported expulsion was,
therefore, illegal and of no effect. He was, therefore, still a
B.N.P. member and the Party's representative
for Maama constituency.
As regards the article published in the "Moeletsi oa Basotho"
newspaper, plaintiff's contention
was that it was nothing but a
strong warning to the Prime Minister against the danger that would
befall him for befriending people
he (plaintiff) referred to as
members of the "Popular Front" which was his enemy, the
enemy of B.N.P. and the Basotho.
Asked what he meant by "Popular
Front", plaintiff said it was a name given to certain people (of
whom 2nd Defendant was
one) by their acts. Whatever that means I have
road plaintiff's article and there is no doubt in my mind that it is
not only critical
of but belittles the Party's leadership in the
minds of the right thinking people and the words I have underscored
in paragraph 5
of that article clearly indicate that it incites
division among the followers of B.N.P.

After reading the article, 1st
and 2nd defendants who were respectively the Secretary-General and
the

8/ Executive Secretary ....

-8-

Executive Secretary of the
B.N.P. concluded that it was an attack on the Party's leadership and
openly encouraged division among the
Party followers. They,
therefore, brought the article to the attention of both the Chairman
and the leader of the Party for their
necessary decision as to what
steps should be taken to counteract its inevitable effects. The
decision was that as a remedy to the
inevitable effect of plaintiff's
article, a reply should be made to give a lie to what he had said in
that article. To this end
the defendants were given a mandate to
convene Pitsos within the area of Maama constituency where plaintiff
was mainly operating.
Consequently two pitsos were held within Maama
constituency, the first at Mokema on 28th June, 1980 and the second
at Mafefooane
on 13th July, 1980. At both these pitsos, the
defendants were the guest speakers.

It was common cause that in his
speech at Mokema and Mafefooane pitsos, the 2nd defendant
concentrated on plaintiff's expulsion from
the party membership and
defended himself against the accusation made by the plaintiff in the
abovementioned article published in
the "Moeletsi oa Basotho"
newspaper that he (2nd defendant) had insulted the Pope by libelling
him a communist.

The crucial speech was that
given by the 1st defendant at Mokema and repeated at Mafefoane pitso.
He had admittedly opened his address
by reading out plaintiff's
article in the "Moeletsi oa Basotho" newspaper.

According to plaintiff's
evidence in the course of his speech, 1st Defendant accused plaintiff
of being disrespectful to the Prime
Minister by referring to him
simply as "Leabua" i.e. without attaching any Title.

9/ 1st Defendant also...

-9-

1st Defendant also said during
the term of his office as Cabinet Minister in the Government of
Lesotho, plaintiff had not been a successful
minister and, in fact,
did not do much for the people of Maama constituency. He uttered
and, therefore, published the defamatory
words or statements
complained of ad para 7 of the declarations to the
summons.

The defendants' version was that
after reading plaintiff's article in the "Moeletsi oa Basotho",
1st defendant commented
on the article paragraph by paragraph. It
was in the course of his comment on the article that 1st defendant
pointed out that plaintiff
was disrespectfully referring to the Prime
Minister simply as "Leabua" without attaching a title of
any sort. He also
mentioned that in his term of office as Cabinet
Minister in the Government of Lesotho, plaintiff had not been a very
successful minister
and illustrated the point by reminding the
constituents that it was plaintiff as a Minister of Education who had
introduced the system
of automatic promotion into the Educational
policy of this country which system turned out to be a complete
fiasco. 1st defendant
further mentioned that plaintiff was not doing
much for the people of Maama constituency and again illustrated the
point by pointing
out that plaintiff was the Chairman of Roma Valley
Co-operative Society in the Maama constituency but his (1st
defendant's) office
was being inundated with complaints that people
could only invest into but not borrow from the society. The affairs
of the Society
were known only to plaintiff and a certain Biemans but
no longer disclosed to the members. Plaintiff and Biemans had,
therefore,
changed the purpose for which the Society had been
established. As a reply to the complaints, 1st defendant, therefore,
assured the
people that he would cause what he termed an "audit
investigation" into the whole matter.

10/ Defendants denied ....

-10-

Defendants denied that in his
speeches both at Mokema and Mafefooane, 1st defendant had used the
word "stole" as alleged
ad para 7 of the
declaration to the summons. As the "audit investigation"
he had in mind had neither started its work nor submitted
any report,
1st defendant was, at that time, not in possession of facts on which
he could have based the accusation that plaintiff
and Biemans had
stolen the society's money or property.

Be that as it may, one thing
clear is that the complaints which 1st defendant said inundated his
office about the plaintiff and Biemans
were not a sort of laurels or
praises on their dealings in the affairs of the Society. They were
certainly complaints depicting
plaintiff and Biemans as dubious
characters and, in my view, publication of the existence of such
complaints together with the statements
that plaintiff had not been a
successful Cabinet Minister and had not done much for the people of
the constituency of Maama tended
to bring plaintiff into contempt and
diminish the esteem he ought to have been held as an ex-Cabinet
Minister and Chairman of the
Co-operative Society of the people of
Maama constituency. They were, in my opinion, defamatory statements
for as Mckerron says in his invaluable work, The law of
delict (7th ed) at p. 171

"A defamatory statement is
one which tends to diminish the esteem in which the person to whom it
refers is held by others."

It is important to emphasise at
this stage that, on the evidence, the defamatory statements were
alleged to have been uttered by the
1st defendant alone, in the
course of his addresses at Mokema and Mafefooane pitsos, and Mr.
Jordaan who appeared on behalf of the
plaintiff

11/ in this case ...

-11-

in this case conceded, rightly
so in my opinion, that should the court decide in favour of the
plaintiff damages should be awarded
against 1st defendant alone in
respect of these statements.

It was common cause that at the
Mokema meeting certain pamphlets (written in the Sesotho Language)
were distributed among the people
who had gathered for the meeting.
One of the pamphlets was handed in as annexure "A to exhibit
"A". A fair translation
thereof was also handed in as
annexure "B" and it reads as follows ;

" BASOTHO NATIONAL
PARTY

Mr. Antony Manyeli is an
enemy of B.N.P.

You will remember that the
committees received a letter that was informing you about the
decision of the Executive Committee, through
which letter all members
of our Party were made aware that an ex-Minister of Education, A.C.
Manyeli, is no longer a member of Basotho
National Party (B.N.P.).
This decision to expel Mr. A.C. Manyeli was reached and put into
effect by the Executive Committee on the
11th November, 1975 under
section 7(2)(li) of our Party Constitution.

Although it is now over five
years since Mr. A.C. Manyeli was expelled from the Party, he still
goes about deceiving the BNP members
and some other people who do not
know that he is no longer a Party member, he also creates confusion
among our Party members.

The Committee at Maama's
constituency No. 27 where Mr. A.C. Manyeli once stood for elections
as a BNP member also agreed with the
decision of the Executive
Committee in this regard that it should have nothing to do with Mr.
A.C. Manyeli because of the enemity
which he now has towards our
party. Mr. A.C. Manyeli has tried for a long time

12/ and with ....

-12-

and with many methods to sneak
through to the leadership of the party - under the boers' deceit -
and also tried to depose our Party
leader, Chief Leabua Jonathan,
from his post but he hope­lessly failed.

When Mr. A.C. Manyeli became
aware that his intention of insergency had failed today he is out on
campaign of deliberately hurling
blatant lies against Chief Leabua
Jonathan and some of our Party members who are in the executive.
Manyeli says Chief Leabua Jonathan is a communist and that
he sells Basotho to the communists.

This is a lie similar to the one
that was fabricated by the Basotho Congress Party (BCP) and
Marematlou Freedom Party (MFP) a few
years ago, when they said you
should not elect Basotho National Party (BMP) because Chief Leabua
would sell you to the Boers. The
BNP members refused to heed those
lies, they elected Basotho National Party to lead them to an
independent Lesotho; to date (under
BNP) Lesotho still belongs to
Basotho. The development and success that have been reached by Chief
Leabua Jonathan's government
is admired by the whole world which have
aroused envy in the minds of the enemies of this country.

We all know that Chief Leabua
Jonathan is a perfect Christian who is firm to his religion and who
has always disagreed with the parties
that wanted to turn Lesotho
into a communist country and a spring board for those who wanted to
fight South Africa with fire-arms;
this is the reason why ho stopped
Communist Party of Lesotho to function in 1970.

It is Chief Leabua Jonathan who
is still figh­ting a fierce battle to day against communism which
Manyeli himself and Ntsu (assisted
by the boers) are trying to
introduce into Lesotho.

EXAMPLE
N0.1

By raping people's wives (as
they did with Basotho women in Butha-Buthe district and raped an
Indian woman at Mafeteng).

13/ Example 2.

-13-

EXAMPLE NO. 2

It is Manyell and Ntsu Mokhehle
who fight and kill Basotho Chiefs (as they did with the late Chief
Lepatoa 'Mou in Butha-Buthe district).

EXAMPLE NO. 3.

It is Manyeli and Ntsu Mokhehle
(assisted by the Boers) who have gone out on campaign mercilessly
slaughtering innocent Basotho (as
they did to our Party members at
Kolo, that is the late Mr. Sello Mpakanyane and Mrs. 'Mathabo
Kolonyane; they also cruelly murdered
a young woman by the name of
'Manyeoe Leloha of Butha-Buthe district).

EXAMPLE NO. 4.

They are the ones who burnt the
two boys of Mr. Kopano Chere in his cattle post hut at Ralobisi at
Marakabei.

EXAMPLE
NO. 5.

They are the ones who took away
by force monies, vehicles and some other business and household
property from Basotho (as they did
to Tseliso M. Makhele and Mr.
William Mbangula and many business people in the country).

EXAMPLE NO.6.

They are the ones who burnt
Chief Maseribane's shop and caused injuries to his employees.

EXAMPLE NO. 7.

They are the ones who go about
speaking ill of our respectable police and misrepresenting them to
the nation with the intention of
spoiling relations between the
police and Basotho.

EXAMPLE NO. 8.

They are the ones who go about
stealing Basotho's livestock and stealthily going to religious
ministers and some Christian organisations
under guise of sheep while
in fact they are wolves in sheeps' skins.

14/ The BNP members ...

-14-

The BNP members have always said
Manyeli is not trustworthy and that his talks and movements were
questionable. Some even said Manyeli
wanted to usurp the party
leadership and to depose Chief Leabua Jonathan and his Deputy, Chief
Sekhonyana Maseribane because (Manyeli)
hates the Chiefs.

It has now become cristally
clear and plain that Manyeli has bitter hatred towards our Leader,
Chief Leabua Jonathan and some other
Party members who are in the
executive. He speaks ill of them and calls them by shameful names.
Manyeli is on campaign to mar the
BNP leadership to the nation. He
has recently shamefully lied that the Party Executive Secretary, Mr,
Desmond Tsepo Sixishe, said
the Pope Joannes II of the Catholic
Church is a communist. Mr. D.T. Sixishe, as we all know him, is an
Englican and therefore cannot
in any way insult or distort what the
Holy Father, the Pope, stands for.

There is no person who is not
aware that in recent years, when the members of BCP were attacking
the Catholic Church trying to burn
it and also at the time when the
same BCP members wanted to bring it to an end (because they alleged
that it was the Catholic Church
Ministers who had made BCP lose the
elections) it was Mr. Sixlshe (this very one) through his newspapers
who said and uncompromisingly
protected the church and the ministers.

In his acts of valour you will
recall how Mr. Desmond T. Sixishe was called by many names such as a
refugee who had been bribed by Roman Catholic Ministers and
staunch catholic women government to go about telling lies.
This is what is said by Mr. Manyeli today when he emphasises how Mr.
Sixishe is not a Mosotho and a BNP member.

According to Mr. Manyeli the
only people that are Basotho are those of Bataung clan like himself.
A person who is possessed of sober
and sound mind may pause here and
quickly ask himself how Mr. Sixishe could somersault and insult the
Pope!

15/ After Manyeli ...

-15-

After Manyeli was rejected by
Maama people and had been expelled from the party, he visited one
boer by the name of Van der Berg, and that boer advised him
that if the BMP members refused to dance to his tune - he should use
teachers and ministers who were his
friends (like Ntsu Mokhehle did
when he wan­ted to use the Lesotho Evangelical Church as a means
to achieve his goal) to start
on a low scale a party called
"Christian Democratic Party" and then say how Chief Leabua
Jonathan and BMP are now communists.

At all places where Manyeli
sneaks in to speak ill of Chief Leabua and our party, Christians
refuse to be deceived; Manyeli failed
and left in an embarrassing
manner as the devil did when he had failed to beguile the Lord Jesus.
Manyeli is ridding himself of the
embarrassment by writing dreams and
lies about our leader in the boers' newspapers and the local
newspapers like "Moeletsi"
and "Leselinyana".

We end up by expressing our
gratitude to people at Maama's and other places in Lesotho who
refused to swallow this bait of Manyeli
and other enemies of Basotho.
We convey to you the hearty gratitude of our leader Chief Leabua
Jonathan for the hard work, courage
and trust which the BNP members
have shown him and also for supporting our government during-trying
times. The leader says you should
be vigilant and hold fast in your
prayers to your All-mighty God. It is through your untiring work,
being firm to your religion and
your support to the government up to
this stage that we have succeeded to defeat the enemies of Basotho.
The Leader assures you all
of his loyalty to you, the Party and to
consider your wishes foremost.

"Forward ever even
amidst the hardships" "Victory over Basotho nation
hardship".

BASOTHO NATIONAL PARTY, P. 0.
Box 124, MASERU, 100. LESOTHO."

It was not disputed that the
words describing plaintiff as a criminal, murderer, thief, rapist,
etc.

16/ in the above

-16-

in the above quoted pamphlet
were defamatory per se. However, the defendants' denied that
they were the authors of the pamphlets nor had they anything to do
with its distribution at
the Mokema Pitso.

It may be observed right away
that in this article 2nd defendant is referred to as a third person.
From this, it may safely be inferred
that the article was apparently
not written by the 2nd defendant himself. It could have been written
by someone who was endevouring
to defend the 2nd defendant and the
BNP leadership from the accusation levelled against them by the
plaintiff presumably in his article
published in the"Moeletsi oa
Basotho."

Plaintiff's evidence supported
by that of P.W.3, Shale Shale, was that they were among the people
who had attended the meeting at
Mokema. Shortly after their arrival
at the meeting, they noticed that some pamphlets were being
distributed. The distributors were
apparently the school children
but the 2nd defendant was difinitely one of them. However, plaintiff
and P.W.3 decided to go and
greet the 1st defendant who was seated at
a table on which there was a bunch of pamphlets. They presumed that
it was a bunch of
pamphlets that were being distributed by the 2nd
defendant and others. On greeting him, plaintiff therefor asked 1st
defendant for
one of the pamphlets. 1st defendant obliged and at the
same time gave a copy to P.W.3 who was next to him (plaintiff). As
plaintiff
and P.W.3 were returning to take their places in the crowd
and before they could even have time to read their pamphlets, the
former
was accosted by certain women who forcibly took away his
pamphlet claiming that contents thereof were filthy and they were
therefore,
going to burn the

17/ pamphlet

-17-

pamphlet. Having boon deprived
of his pamphlet, plaintiff requested one Paulosi to go and get him
another copy from 1st defendant
and secretly place it in his
(plaintiff's) vehicle. After the meeting plaintiff returned home
where he had a chance to read the pamphlet.
Ho was shocked to find
that such defamatory allegations could be written and published about
him. I must confess that I found it
difficult to believe plaintiff
that ho had waited until he had arrived home to read the contents of
this pamphlet. He had already
received the pamphlet in his hands. Its
very title "Mr. Antony Manyeli is an enemy of the BMP" must
have strongly appealed
to his curiosity at a mere glance. Indeed,
after the pamphlet had been forcibly taken away from him, plaintiff
made sure that he
obtained another copy which according to his own
evidence was secretly placed in his vehicle by Paulosi. A clear
indication, therefore,
that he was anxious to read the contents of
that pamphlet. Unless he had had a chance to read the pamphlet from
one of the people
who had gathered for the meeting, it seems to me
that a natural thing for the plaintiff to do would have been to read
the pamphlet
as soon as he returned to his vehicle.

As has been pointed out earlier,
the defendants denied that they had written or published the
pamphlets. According to 1st defendant,
after he had returned home on
the evening of the pitso, one of the copies of the pamphlet was
handed to him by his driver. It was
only then that he read it for
the first time. Later that evening 2nd defendant called at his house
to assess the success of the pitso
and he showed him the copy of the
pamphlet. They were both surprised by the contents thereof. Although
the pamphlet purported to
support

18/ the cause for.......

-18-

the cause for which the BNP
stood, the defendants considered its contents to be immature and
irresponsible. This was confirmed by
2nd defendant who further told
the court that genuine publications issued by the B.N.P. always bore
a signature, Party's stamp and
were written on official paper bearing
the Party's letter heads. As the Executive Secretary, he should know.
Since the pamphlet did
not answer to those identification marks, it
could not, therefore have been an official document issued by the
B.N.P.

The defendants were, however,
perturbed by the fact that the pamphlet, admittedly defamatory of
plaintiff purported, on the face of
it, to have been issued by the
B.N.P. Headquarters. They, therefore, made investi­gations to
trace its author but all in vain.
They concluded that it was one of
those anonymous pamphlets often disseminated in this country. They,
however, decided to call
the attention of both the Party chairman and
the leader to the existence of such pamphlets. The decision was that
as it was anonymous
nothing could be done about the pamphlet.

Although the defendants denied
that they had distributed the pamphlets at the Mokema pitso, the
evidence of plaintiff and P.W.3 that
they did, was corroborated by
P.W.2, Fanana Rock Fobo, who testified that after he had arrived at
Mokema in plaintiff's vehicle,
he parted company with him. He then
walked to the spot where people were gathering for the pitso. As he
came to the crowd, P.W.2
noticed that certain pamphlets were being
distributed by 2nd defendant and some other people. He approached 2nd
defendant and asked
for one of those pamphlets. 2nd defendant
actually gave him one. Annexure "A" to exhibit 'A' was one
of those pamphlets.

19/ I have observed ....

-19-

I have observed all the
witnesses as they testified from the witness box before this court.
Nothing in their demeanor made me suspicious
that plaintiff and his
witnesses were not testifying to the truth when they said they had
seen the defendants distributing the pamphlets
in the manner they
described. It should also be borne in mind that the major role in the
distribution of those pamphlets was attributed
to the 2nd defendant
and not the 1st defendant. If it were suggested that plaintiff and
his witnesses were out to incriminate the
defendants falsely on this
point, one would expect them to have attributed a major role to the
1st defendant who was both the Minister
and the Party's
General-Secretary and not the 2nd defendant who was, at the time a
mere Executive Secretary.

From the witness box the
defendants impressed me as shrewd persons. It may well be true that,
as they claimed, anonymous pamphlets
are often found scattered about
in this country and Annexure "A" was one of such pamphlets.
On that basis, it could, therefore,
justifiably be said there was no
conclusive evidence that the defendants were the authors of the
pamphlet, Annexure "A".
There was, however, evidence that
the defendants were seen distributing and, therefore, publishing the
defamatory pamphlets. I
could find no good reason to doubt such
evidence. Even if it were true that the defendants had not written
the pamphlets, I find
it highly improbable that they could have
failed to observe their contents until long after the pitso.

The onus of proof, that the
defendants had published defamatory statements and/or pamphlets about
him vested in the plaintiff on the
well known principle that he who
avers bears the onus of proof. From the

20/ From the

-20-

From the foregoing, it is clear
that I take the view that plaintiff has satisfactorily discharged his
onus on this issue. It seems
to me that once it has been proved that
the defendants published the defamatory statements against the
plaintiff a legal presumption
arises that they did so animo
iniuriandi i.e. they published the defamatory statement
intentionally and with the object of injuring or defaming the
plaintiff. That presumption
is, however, rebuttable.

As has been pointed out earlier,
the trouble

in this matter started as a
result of plaintiff's own article, annexurc 'C', published in the
"Mocletsi oa Basotho" which
article clearly criticised the
leadership and incited division among the followers of the B.N.P.
Plaintiff had, so to speak, enlisted
in a battle against the
leadership of the B.N.P. and like any other combatant should have
expected to receive some blows from his
opponents. As Milne, J.
put it in Matiwane v, Cecil Nathan, Beattie & Co.
1972(1) S.A. 222. at p. 227:

"persons who 'enter the
list' are not entitled to expect an over-tender regard for their
feelings".

However, as indicated in their
plea defendants relied upon the defence of privilege and not
justification.

There was evidence scarcely
challenged by the plaintiff himself that in 1975 a decision was taken
to terminate his membership from
the B.N.P. He, however, challenged
the legality of that decision and, notwith­standing defendants'
claim to its validity, regarded
himself not only as a member of the
B.N.P. but also as the Party's lawful representative at Maama
constituency.

21/ There could ....

-21-

There could be no doubt,
therefore, that plaintiff was a controversial figure in the politics
of the B.N.P. That being so, it must
be accepted that there was a
confusion among the constituents of Maama constituency as regards
plaintiff's true position in the B.N.P.
and the constituency. In my
view that confusion created the need for clarification.

In the circumstances, the
important question was whether there was a reciprocal legitimate
interest between the defendants and Maama
constituents to communicate
and receive such clarification. Having decided that plaintiff was a
controversial figure in the politics
of B.N.P. and Maama
constituency, it seems to me obvious that the constituents had a
legitimate interest to know whether or not plaintiff
was their party
representative and/or his standing in the B.N.P.

Every political party can
ill-afford controver­sial figures in its leadership as this is
bound to sow the seeds of division among
the party followers. It
follows, therefore, that in the interest of unity among its members,
the B.N.P. had a legitimate interest
to clarify to the constituents
of Maama constituency the confusion created by the controversial
position of the plaintiff. It was
not disputed that the defendants
had their party's mandate to communicate to the constituents
clarification regarding plaintiff's
true position in relation to
Maama constituency and the B.N.P. as a whole. The question whether
there was a reciprocal legitimate
interest between the defendants and
Maama constituents to communicate and receive the claridication on
the confusion regarding plaintiff's
controversial position must,
therefore, be replied in the affirmative.

22/ That granted, ....

-22-

That granted, it must be
accepted that, in the circums­tances of the present case, the
occasion under which the defamatory statements
and/or pamphlets were
published by the defendants at Nokema and/or Mafefooane pitsos was
privileged. As Innes, C.J. once put it in Ehmke v.
Grunewald, 1921 A.D. at p. 581 :

"where a person publishing
the defamatory matter is under a legal, moral or social duty to do so
or has legitimate interest in
so doing and the person to whom it is
published has a similar duty or interest to receive it, then the
occasion of the publication
would be privileged."

It was not disputed that at the
material time 1st defendant was the minister of Rural Community
Development and Co-operatives. There
was also evidence that numerous
letters were being addressed to 1st defendant's office from the
people of Maama constituency complaining
that the purpose for which
their co-operative society had been established was being altered by
the manner in which plaintiff (as
the chairman) and a certain Biemans
were conducting its affairs. The co-operative society was, as a
result, facing the danger of
collapse. In that event, it seems to me
that it cannot be seriously disputed that the people of Maama
constituency had a genuine
interest to know what steps the
authorities were proposing to take to correct the irregularities
complained of in the running of
their co-operative society and thus
save its impending collapse.

As the Minister responsible for
the Co-operatives one of the functions of 1st defendant must be to
ensure the welfare of the co-operative
societies in this country. He
had, therefore, a legitimate interest, if not an obligation, to
answer the complaints of the people
of Maama constituency, regarding
the alleged irregularities in the conduct of the affairs of their
co-operative society. Assuming
the existence of the

23/ complaints, it

-23-

complaints, it seems to me that
there was a reciprocal interest between the 1st defendant and the
people of Maama constituency to
give and/or receive an explanation as
to proposed remedies to regularise the conduct of the affairs of the
co-operative society and
thus save it from demise. That granted, it
seems to me that on the authority of the decision in Ehmke v.
Grunewald, supra, it must be accepted that the occasion
under which the defendants are alleged to have published the
defamatory words complained of
ad para 7 of the
declaration to the summons was also privileged.

It now remains to determine
whether or not the defendants had abused the privileged occasion

under which they had, in my
finding, uttered or published defamatory statements about the
plaintiff.

As has been pointed out earlier,
plaintiff had testified before this court that he was the B.N.P.
representative for Maama constituency,
a fact which was denied by the
defendants. In the article he wrote in the "Moeletsi oa
Basotho" plaintiff has invited
the followers of the B.N.P. :

"to choose between two
roads; to adhere to the B.N.P. manifesto which says 'we are against
leaders' who ' work together with
communist countries in deliberately
placing the future Lesotho in danger' or to go with those who
through receiving monies from communist countries have become
Russians and Chinese stooges."

It is clear from the above
quotation of plaintiff's article that the choice is to be made
between the adherers to the B.N.P. manifesto
(of whom plaintiff
claims to be one) and the B.N.P. leaders whom he describes as
Russians and Chinese stooges. A

24/ description ....

-24-

description which is clearly
defamatory and far from being complementary to their esteem in a
Christian country like Lesotho. In
my view, if they were to make an
intelligent choice, the members of the B.N.P. were entitled to a full
knowledge of the people from
whom they were to make a choice of their
leaders. In his article published in the "Moeletsi oa Basotho"
plaintiff had given
his side of the story that the B.N.P. leaders
were Russian and Chinese stooges. They were therefore, unworthy of
the choice of the
B.N.P. followers. It was only fair that the B.N.P.
leaders (of whom the defendants claim to be) should also give their
side of the
story. It should be borne in mind that "Moeletsi
oa Basotho" is one of the main newspapers in this country. It
has a
wide circulation both inside Lesotho and beyond the boarders.
Although plaintiff had written and published his article which was
defamatory of the B.N.P. leadership in that newspaper, the defendants
confined publication of their equally defamatory statements
about the
plaintiff whithin Maama constituency where plaintiff was mainly
operating.

Contrary to what plaintiff had
said in his newspaper article, the defendants' professed aim was to
clarify to the people of Maama
constituency the confusion created by
plaintiff's article and to show that it was the plaintiff who was
unworthy of their choice.
This point 1st defendant illustrated by the
examples of how the plaintiff was a failure as a cabinet minister in
the Lesotho Government
and the chairman of the Roma Valley
Co-operative society. The defendants denied that they were the
authors of the pamphlet annexure
'A*. In my finding, they had,
nevertheless, distributed it at the Mokema pitso. The information
contained in this pamphlet was in
my view important in as much as it

25/ revealed how

-25-

revealed how, at least in some
quarters, the plaintiff was regarded, rightly or wrongly. If they
were to make an intelligent choice
between the plaintiff and the
B.N.P. leaders, the constituents were entitled to know the full story
not only about the B.N.P. leaders
but the plaintiff as well.

In the premises, I come to the
conclusion that it would not be proper to hold, in the circumstances
of this case that the defendants
have abused their privileged
occasion.

Plaintiff's claim is, therefore,
dismissed with costs.

B.K. MOLAI, JUDGE

29th August, 1983.

For the Plaintiff : Mr. A.F.
Jordaan

(instructed by Webber Newdigate
& Co.) For the Defendants : Mr. D.J. Lombard

(instructed
by Harley & Co.).