CIV/T/214/81

IN THE HIGH COURT OF LESOTHO
In the matter
of.

'MAMPOETSENG SELLO Plaintiff

V

PONTSA MATSELA 1st Defendant

'MAPONTSA MATSELA 2nd Defendant MASIASIANE
MAKHATE 3rd Defendant

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
11th day of April, 1986.

Plaintiff in this case claims against the Defendants
jointly and severally M10,000, costs of suit, further and/ or
alternative relief
as damages for defamatory words alleged to have
been uttered by the Defendants. The words complained of in the
declaration to the
summons are that on 4th and 7th July, 1981 the 1st
Defendant and the other two Defendants respectively said Plaintiff
was a witch
and/ or practiced witchcraft.

In their plea 1st and 2nd Defendants who arc husband and
wife denied to have uttered the words complained about. The 3rd
Defendant
died after the summons had been instituted and could not
file his plea. The action against him has, therefore, lapsed.

In his evidence 1st Defendant testified that prior to
the 4th July, 1981 he and a certain Maluke in the village had not
been in the
best of terms. His cattle had trespassed into the arable
land of Maluke who then threatened that he would do something big.
Consequently
one of 1st Defendant's cows mysteriously developed a
swollen stomach and died. 1st Defendant's son also died in the
mines. The
families of 1st Defendant and Maluke then accused each
other of practising witchcraft. The matter was referred to the chief
before
whom Maluke confessed

/that

-2-

that he was the one bewitching 1st Defendant's family.
2nd Defendant, however insisted that she and Maluke should be
referred to "Mohloahloeng"
( a kind of heed diviner or
traditional witchdoctor) who would smell out or establish with some
certainty the person who was actually
bewitching her family.
Accordingly the chief detailed a messenger to take 2nd Defendant and
Maluke to "Mohloahloeng".
That was before 3rd July, 1981.

On her return from "Mohloahloeng" all that 2nd
Defendant reported to 1st Defendant was that "Mohloahloa"
had said
it would have been better if all the village women had been
brought before him. She reported nothing about what "Mohloahloa"
had said about Maluke whom they suspected of bewitching their family.
1st Defendant also did not ask 2nd Defendant whether the
"Mohloahloa"
had said anything about Maluke.

The evidence of 2nd Defendant was slightly different.
According to her, it was Maluke who had been complaining that she and
1st Defendant
were bewitching his family. They never complained that
he was bewitching their family. When they were before the chief,
Maluke even
apologised for having said 1st and 2nd Defendants were
bewitching his family and she (2nd Defendant) was satisfied with the
apology
Nonetheless Maluke suggested that he and 2nd Defendant
should be referred to "Mohloahloeng" so that it could be
determined
decisively whether she was not bewitching his family.

I must say I find the evidence of 2nd Defendant that she
and 1st Defendant never complained that Maluke was bewitching their
family
highly improbable. According to

/1st Defendant's

-3-

1st Defendant's evidence which was not disputed by 2nd
Defendant their family had had a misfortune of losing a son and a
cow. They
had, therefore, a reason to suspect that their mishap was
the result of some one practising witchcraft on their family. The
evidence
of 1st Defendant that they too accused Maluke of bewitching
their family is more probable than that of 2nd Defendant and I am
inclined
to accept it as the truth.

Again, there seems to be no logic in 2nd Defendant's
evidence that after he had made a confession that he was the one
practising witchcraft
on the family of 1st and 2nd Defendants and
tendering an apology therefor Maluke on the same breath, suggested
that a "Mohloahloa"
should be consulted to smell out
whether 2nd Defendant was not the one bewitching his family. If
indeed he suggested so then Maluke
was clearly not sincere in his
apology for having practised witchcraft on a family which was also
bewitching his family. There was,
therefore, no motive for 2nd
Defendant to bo satisfied, as she wants this court to believe with
the apology of this kind. In the
circumstances I find the evidence
of 1st Defendant, that it was not Maluke but 2nd Defendant who
insisted on the consultation of
"Mohloahloa" more probable
for she had made no confession and tendered no apology. I am
prepared to accept it as the truth.
1st Defendant's evidence that on
her return from "Mohloahloa", 2nd Defendant did not report
anything about what "Mohloahloa"
had said about Maluke nor
did he ask her anything about it cannot, however, be the truth. It is
only natural that they should have
discussed this point for they
were, no doubt, anxious to know what the revelations of "Mohloahloa"
were about Maluke, the
self-confessed witch, who had been practising
witchcraft on their

/family

-4-

family.

Be that as it may, 2nd Defendant confirmed that she and
Maluke were referred to "Mohloehloeng" where they were told
that
they were not bewitching each other. Two women in the village
were in fact the ones practising witchcraft on the family of Maluke.
The women shared a fence with 2nd Defendant, one on the upper side
and the other on the lower side of her house. They washed with
medicine water which they spilt behind Maluke's house so that it
might appear as if he were the one practising witchcraft,

2nd Defendant and Maluke then returned home. They went
to the chief's place where the messenger who had been detailed to
accompany
them to "Mohloahloeng" gave a report about their
mission.

It is common cause that two women who share a fence with
1st and 2nd Defendants, one on the upper side and the other on the
lower
side of their house, are respectively the Plaintiff and one
'Makoena.

1st Defendant told the court that their relations with
Plaintiff had always been very peaceful and this was confirmed by
Plaintiff,
however, 1st Defendant himself conceded that shortly
before 4th July, 1981, he realised that the relations had
deteriorated for Plaintiff
would no longer respond to his greetings.

According to Plaintiff on 4th July, 1981, she and
Puseletso Leoatle were sitting outside her house when 1st Defendant
emerged from
his house and started hurling abusive language at her
viz. that she always ran to church

/saying

-5-

saying she prayed and yet she was a witch preying to her
witchcraft, or words to that effect. Plaintiff's evidence in this
regard
is corroborated by that of Puseletso Leoatle who testified as
P.W.3 before this court.

On 5th July, 1981 a chief's messenger summoned Plaintiff
to attend a pitso to bo held on 7th July, 1981 at the chief's place.
On
7th July, 1981, Plaintiff, accompanied by Puseletso Leoatle,
accordingly proceeded to the chief's place where there was a large
gathering
of villagers.

At the pitso the chief's messenger who had accompanied
2nd Defendant and Maluke to "Mohloahloeng" gave his report
about
their mission. 2nd Defendant confirmed the report and added
that the two women who lived on the upper side and on the lower side
of her house were respectively the Plaintiff and 'Makoena. Plaintiff
then stood up and explained that she was sorry to have been
called to
the meeting to be connected with witchcraft of which she knew
nothing. She tearfully told the gathering that God knew
that she was
not a witch and had nothing to do with witchcraft. To this 2nd
Defendant retorted that it was all that a witch was quick
to do,
first to invoke the name of God and then shed tears. She added that
she, herself was satisfied that Plaintiff was a witch
and if any
mishap befell her family plaintiff would be held reponsible. The
gathering burst into laughter when 3rd Defendant remarked
that a
witch would never admit that she was a witch and even where she was
seen actually dropping down from the roof top of a house
a witch
would say she was merely playing.

/The meeting

—6-

The meeting was dismissed by the chief telling Plaintiff
to go back home and stop practising her witchcraft. In as far as it
is material
Plaintiff's evidence, as to what happened at the pitso,
was confirmed by Puseletso Leoatle and Moeti Ramakatsa, who also
testified
as P.W.2 in this case.

1st and 2nd Defendants told the court that on 4th July,
1981 the former was not at home. He had gone to a place called Mount
Tabour
in the district of Mefeteng. He could not, therefore, have
insulted the Plaintiff on that day. This was, however, not put to
Plaintiff
and Puseletso Leoatle while they were in the witness box.
It came as a surprise during the Defendants' case. It seems to me
that
the fact that 1st Defendant was not at home and had gone to
Mount Tabour on the day in question was such an important point in
their
defence that 1st and 2nd Defendants would not have missed to
disclose it to Plaintiff and Puseletso whilst they were in the
witness
box. Failure to do this leaves me with no doubt in my mind
that it is an after-thought on the part of 1st and 2nd Defendants. I
have no hesitation therefore in dismissing it as a sheer fabrication
and accepting as the truth Plaintiff's evidence, corroborated
by that
of Puseletso, that on 4th July, 1981 1st Defendant did in fact insult
the Plaintiff by calling her a witch who prayed to
her witchcraft.

2nd Defendant denied that at the pitso of 7th July,
1981, she and the 3rd Defendant referred to Plaintiff as a witch.
Their families
have, however not been in good terms for a period of
over ten (10) years and Plaintiff

/was

-7-

was in the habit of falsely implicating her and 1st
Defendant. The reason behind it was that Plaintiff and her children
had once cut
down her fence She (2nd Defendant) reported the matter
to the chief before whom it was still pending.

It will, however, be recalled that in his evidence 1st
Defendant asured the court that until shortly before 4th July, 1981,
the relations
between his family and that of the Plaintiff had always
been cordial and that was confirmed by the Plaintiff herself.
Plaintiff's
evidence that 2nd and 3rd Defendants called her a witch
at the meeting of 7th July, 1981 was also confirmed by Puseletso
Leoatle
and Moeti Ramaketsa who corroborated Plaintiff's evidence
that they too were present at the meeting. 2nd Defendant advansed no
convincing
reason why Puseletso and Moeti would falsely implicate her
and 3rd Defendant in this matter. I am prepared to accept as the
truth
Plaintiff's story corroborated by that of Puseletso and. Moeti
that 2nd and 3rd Defendants also celled her a witch during the
meeting
of 7th July, 1981.

From the foregoing it is obvious that the view that I
take is that 1st and 2nd Defendants did utter against the Plaintiff
the defamatory
words complained of in the declaration to the summons.
To say Plaintiff is a witch or associate her with witchcraft, in the
manner
the Defendant did, was, in my opinion, defamatory per
se. Indeed, the parties themselves did concede, in the minutes of
their pre-trial conference, that the words complained of in the
declaration to the summons were defamatory per se. That being so,
the presumption is that the defamatory words were uttered animo
injuriandi.

/There is

-8-

There is evidence which I accept that the defamatory
words were uttered in the hearing of Puseletso Leoatle and. a large
gathering
of villagers by the 1st and the 2nd Defendants
respectively. There can be no doubt, therefore, that there was
publication of the
defamatory words.

It was contented in argument that if it were found that
2nd Defendant did in fact utter the defamatory words then the
occasion was
privileged. She could not be said to have acted from an
improper motive and, therefore, liable. I am unable to agree.
Assuming,
for the sake of argument, that the occasion was privileged
it must be remembered that in her plea 2nd Defendant never pleaded
the
defence of privilege. Her plea was a bare denial that she uttered
the words complained of in the declaration to the summons. Indeed,
2nd Defendant told the court on oath, that she herself did not
personally believe that Plaintiff was a witch or in any way
associated
with witchcraft. As Schreiner J.A. put it in Basner v
Trigger, 1946 A.D. 83 p. 105 .

" a person who on a privileged

occasion publishes defamatory matter which he knows to
be untrue or in the truth of which he does not believe will be held
to have
acted from some improper motive. For generally, a man can
have no legitimate motive for saying what he knows to be false or
does
not believe to be true."

I am satisfied that the defendants in this case are
liable and the only question that remains for the deter­mination
of the court
is the quantum of damages.

It is common cause that Plaintiff is a widow with a
number of children some 'of whom are already married.

/She is

-9-

She is a church goer and a member of the mothers union,
in her church. Defendants themselves concede that Plaintiff is a
respectable
woman in their community. No doubt by publicly calling
her a witch and/or associating her with witchcraft the Defendants
have caused
Plaintiff grief and loss of reputation for which she is
entitled to claim damages.

The quantum of damages is, however, a matter for the
discretion of the court. In my opinion, the amount of M10,000
claimed by the
Plaintiff is, in the circumstances of this case,
somewhat inflated and the justice of the case will be met by awarding
her a lump
sum of M1,500 for grief and loss of reputation.

Judgment is accordingly entered for the Plaintiff in the
amount of M1,500 plus costs as preyed.

JUDGE.
11th April, 1986.

For Plaintiff : Mr. Pheko
For Defendant : Mr.
Maqutu.