IN THE HIGH COURT OF LESOTHO In the matter
'MAMAHELE RADEBE Plaintiff
'MAKHAPHA MOLOINYANE Defendant
Delivered by the Hon. Acting Mr. Justice M. Lehohla on
the 2nd day of November. 1987.
Plaintiff sues defendant for damages in the amount of
M15,000, costs of suit and further or alternative relief.
The cause of action arises from oral publication of
certain wrongful and malicious statements allegedly uttered against
by defendant. These are :
"You say my husband has stolen the windscreen of a
government vehicle. You have eaten your husband so that you can go up
down. You have built your house through the use of the vagina and
the anus. You have also got employment through the use of the vagina
and the anus. You have taken away my site fraudulently with your dead
Defendant in her plea denies ever uttering defamatory
words against plaintiff. She further denies uttering words which made
suffer in her good name and reputation. She denies also
that plaintiff suffered damages in the amount of M15,000 which as
despite demand by plaintiff, the defendant refuses or
neglects to pay.
In all the above instances denied by her defendant puts
plaintiff to proof thereof.
Plaintiff and defendant are neighbours. Their
respective sites are separated by a security wire netting four feet
high topped by
two strands of barbed wire about an additional foot
high. This fence belongs to plaintiff. The distance between the fence
western side of defendant's house was estimated at between
one and half to two feet. This fence is about four paces from the
side of plaintiff's house.
On 15th February 1986 at about 10.30 a.m. plaintiff
arrived at her place from town in her car. Her children gave her a
defendant. Plaintiff saw defendant approach her and
stand at a point opposite her on the other side of the fence and
heard her say
to her "you go about saying my husband has stolen
a windscreen from a government vehicle. Is it because you have taken
fraudulently with your dead husband." Then defendant
started hurling a lot of abuse at plaintiff including the defamatory
appearing in the summons. Plaintiff denies that she ever said
defendant's husband had stolen the windscreen of the government
She further testified that defendant said her in-laws said
she had killed and eaten her husband. In response to this allegation
purported to have been made by her in-laws plaintiff explained that
her inlaws know how her husband had died. He died in a motor
accident. At the time the accident occurred at Ha 'Mantsebo
plaintiff was at the University a very far away place from the scene
of the accident. For this reason plaintiff denied that her in-laws
could have made the allegation ascribed to them by defendant for
could not have had any reason to implicate plaintiff thus.
Plaintiff stated that she has never sold her sexual
favours for money. To her understanding the building of her house
of the anus meant
that she is not a human being but a prostitute. She
pointed out that the house was built before her husband's death.
Plaintiff holds a degree of B. Com. from the
University of Lesotho. She is currently undergoing training as
philatelic manageress in the Lesotho Philatelic Bureau. This
with selling Lesotho stamps to other countries as well as issuing
commemorative stamps and souvenir sheets. She denies that
obtained this job by means of prostituting herself. She further
testified that her husband never obtained the site fraudulently
because he had a lease as proof of good title to the site.
Furthermore plaintiff has been living ad neighbours with defendant's
since February 1978. Defendant only came to live there
around 1984, Although the defendant's father-in-law left the place on
forgotten by plaintiff he is still alive but at no time did he
complain that the site was obtained fraudulently by plaintiff or her
husband before the letter's death.
Plaintiff testified that when the abusive words were
being uttered by defendant their respective children were present
passers-by and people who rent dwellings near
by. As a result of these utterances plaintiff's neighbours said what
had been said
about her lowered her. She said however that she and
her neighbours still regarded one another in a normal manner except
Plaintiff was subjected to a somewhat lengthy
cross-examination during the course of which she repeated in greater
detail what she
had stated in her evidence in chief. In reply to the
question put to her : "Do I understand you correctly to say you
because defendant said you ate your husband -?"
she said "Not only in respect of that but also in respect of her
that I have obtained the site fraudulently and built the
house from proceeds obtained from sale of my private parts."
An attempt was also made by defendant's attorney to
bring home to plaintiff that defendant was merely reporting to
her in-laws are said to have said about plaintiff.
However plaintiff indicated that from the mood that defendant
making that report taken along with the fact that her
in-laws would have no reason for making that statement because of its
defendant appeared to have either originated it or
associated herself with it.
Plaintiff also indicated that apart from the fact that
her neighbours told her that what was said about her degraded her
their attitude towards her showed that they despised her
as a result of the defamatory words. She however at a later stage
that immediately after the incident they regarded her as a
prostitute but only after some time did their relations come back to
She didn't indicate what they did though to show that they
regarded her as a prostitute. For some obscure reasons she appeared
to say who her neighbours at Setakaneng were and what takes
place in that place. The place situated only 20 paces away
plaintiff's house is itself a run down poor looking, squalid and
depressing neighbourhood consisting of partly roofless walls and
partly ruined flats built of raw and dilapidated bricks: a place
which no gentle folk would be enthusiastic to be associated with
to dwell in. Indeed plaintiff after much pressure to say who her
neighbours in that place are said one Sello a blind-man is a
at Setakaneng. Having initially said she knew nobody from that place
she later said she knew Sello because he usually comes
to draw water
from the tap in her yard. It was only one of plaintiff's witnesses
who was forthright about what takes place in that
place, namely that
beer is sold there and further that loud music is played there as
well especially on week-ends.
I was somehow astounded that despite her high level of
education plaintiff was not readily able to make fair estimations of
between her house and places adjacent to it.
She was asked in cross-examination "How far does
'Madlamini live from you -? I don't know how many kilometres".
intervened "Is it so far away as to warrant
calculation in kilometres -? No. It is close. Why make reference to
-? I heard them being mentioned." Defence
Counsel correctly put to her: "Nobody made reference to
kilometres in this Court.
You are the only one -? I don't know
distances hence I refer to kilometres. Can you then give an
estimation -? It is 50 metres."
On this aspect of the matter it may well be that P.W.3
Mamoholi Maholl's contention is accurate in that when taxed about the
hoggling disparity between her estimation of the distance given
in Court and her reference to the same distance at the inspection
the place she said "Basotho women are not able to measure
distances." In my experience however it is doubtful whether
Basotho men do fare any better in this regard.
It appears that when plaintiff arrived from town P.W.2
'Madlamini had temporarily suspended her washing at the tap in her
gone into her house from where she was attracted by
defendant's voice saying "Yes your house is the devil's place,"
asked defendant what the matter was whereupon defendant replied
that "this woman says my husband has stolen the government
windscreen. This woman whose shoulders are hunched like
testicles of an old man."
P.W.2's evidence corroborates that of P.W.1 not only in
this regard but also in many material respects constituting the basis
action. I need not repeat them here,
She further corroborates plaintiff's version that
plaintiff hearing that her late husband's death was referred to in
by defendant she pleaded with defendant not to
deride her about the sad bereavement for defendant would not be
pleased if she be
derided should the same fate befall her own
There and then the defendant's husband was heard to say
to plaintiff "you should not involve me in women's affairs or
twist your neck until you excrete."
P.W.2 denied that P.W.1 at any stage said defendant's
features are like her front passage. She also denied that plaintiff
defendant by the latter's mother's private parts. She
denied that plaintiff said defendant is a vagabond who went to Cape
she got impregnated by Coloured men as a result of which
she produced coloured children. She also denied that plaintiff said
was destined to slave for Roman Catholics till the crack of
In all these respects P.W.3 is supported not only by the
plaintiff but also by P.W.2 'Mamoholi whose house is as correctly
out by P.W.1 some 50 yards away from plaintiff's house.
P.W.2 testified that when she came out of her house she
saw the parties speaking to each other. When she came nearer to them
plaintiff inquire of defendant "Why do you say mine
is the devil's place in reply to which defendant said "it is in
the devil's place and hellish. How do you account for your
statement that my husband has stolen the windscreen of a government
Is it because you have fraudulently taken our site, you and
your dead husband. You will only afford to point at it with your
like your dead husband is doing from the grave."
Thereafter there was reference to the unwholesome
means through which plaintiff obtained employment and built her
It was when plaintiff mentioned that defendant's husband
might suffer the same fate as plaintiff's husband and warned that
would not be pleased should anybody deride her on her
bereavement that Lesoli threatened to twist plaintiff's neck with
consequences and that PW.3 speedily asked PW2 to take
plaintiff to her house. P.W.2 complied.
Although P.W.1 earlier had said after the quarrel was
over she and a 5½year old son got into the car to report at the
she later in her evidence said she proceeded to the
chief's place only after she had been escorted into her house by
It is not denied though that she did go to the chief's
place to report.
There was also evidence that a complaint about
defendant's swear words was lodged with the police and a criminal
charge was laid against
her at Matala Local Court but that because
counsel for defendant had no audience there the case was transferred
to a Subordinate
Despite the tenor of her evidence that it was plaintiff
who swore at her defendant did none of the basic things that she
done if her story is to be believed. She never complained
to the chief or to the police to take proceedings against plaintiff
had allegedly wronged her or committed a crime against her. In
the proceedings presently before this Court she has not counter
This makes her story totally suspect.
In her evidence she revealed new matters which should
have been put to the plaintiff but were not. By this attitude she
counsel in a rather uncomfortable position. The rest of
her story was briefly a charge against her counsel's incompetence. I
prepared however to conceal my disagreement with the slurs
cast by defendant on Mr. Khauoe's competence.
Apart from asserting as correct the version put
plaintiff and her witnesses the defamatory utterances levelled
against defendant by plaintiff, defendant and her witnesses brought
litany of new abuse and said it was hurled at her and at her husband
Defendant said among other things that plaintiff said
that she is a child conceived of urine mixed with pus. The sought of
referred to here may be what is scientifically termed pyuria.
Defendant's witness D.W.2 'Majohannes Ratiea repeated in the main
abuse is alleged to have been hurled at defendant by plaintiff
and went further to include fresh brands of swear words such as that
defendant was referred to as child of plastic penis and Sconfana
urine in response to which she alleges defendant only said "you
too" or "so you are". Apparently incensed by
defendant's failure to live up to plaintiff's , proficiency in the
of foul language D.W.2 says plaintiff made a mock mimicry of the
phrase "you too."
Mr. Khauoe conceded that this case turns on
credibility and also stated that the position in law as set out in
Mr. Maqutu's heads of arguments
10 accurate on the nature of delict
of defamation. I need therefore not repeat it in detail.
I agree that defamation is a species of a claim against
the violation of a person's privacy. The action for defamation is
against the impairment of a plaintiff's dignitas. It is an
essential element in defamation that the hurtful words were said with
malice against the person, dignity or reputation of another. SeeMaisel vs Van Nacren 1960(4) SA at 843.
In Young vs Kennedy 1940 A.D. at 277-8 Tindall
J.A. says :
"As the court cannot look into the mind of the
speaker, it starts with the principle that a person is presumed to
natural consequences of his acts and, therefore, that a
person who uses defamatory language of another is presumed to
As stated earlier it was contended for defendant that
the words to the effect that plaintiff's in-laws said she had killed
her husband was a report to plaintiff. The agency of the
report was not unequivocally revealed as the defendant. But the
in which these words are alleged to have been said
cannot be ignored. It would be idle to disregard the perspective
participants in the encounter. If the defendant
conveyed these particular words as a mere conduit, it would be
expected that she
would summon plaintiff's in-laws to support her on
this aspect of the matter against plaintiff. She did not. Yet it
behoved her to
give local colour to her version. The court should
have been told in what circumstances she felt obliged to make this
at all she did. But she left this hanging in the air.
Having failed in this regard it is not difficult, taking the
of the case into account that, she uttered
the other defamatory statements against the plaintiff,
I consequently believe the plaintiff's version and
disbelieve that of the defendant.
It is clear from the evidence that the defamation was
heard by all sorts of people i.e. the immediate neighbours of the
who seem to be elderly ladies who shun immorality and
therefore who can correctly be regarded as self-respecting citizens
character, the children of tender years who must have
recoiled with shock and disbelief to hear the abuse including the
dwellers who may not necessarily have reacted with any
form of interest in the matter save that they might have felt that
was not as good as she held herself to be in relation to
themselves. What is uppermost in my mind however is that the words
of were defamatory. There was no innuendo in them. It is
highly defamatory to say that another person is dishonest for
and criminality are closely related. It is equally
defamatory to say that a lady of plaintiff's status and education is
who sought and obtained employment and also managed to
build her house through prestitution and sodomy.
Much as it is difficult to measure in monetary terms the
degree of plaintiff's hurt, regard being had to the fact that the
which plaintiff was defamed does not consist of the
class of persons to which she belongs, I make an order
that defendant is liable to plaintiff in the sum of M3,5OO plus
ACTING JUDGE. 2nd November, 1987.
For Plaintiff : Mr. Maqutu For Defendant : Mr.
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