IN THE HIGH COURT OF LESOTHO
In the matter of
'MALEEPELA MAKOANYANE Plaintiff
MPEKE MOSESE Defendant
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 12th day of February, 1988
The plaintiff brought this action for damages in defamation against Mpeke Mosese, who is the father and legal guardian of his minor son Peter Mosese, who is the real defendant in the suit.
The plaintiff is a 34 years old housewife who lives in Upper Qeme ha Selonyane in Maseru District. Her husband works in a gold mine in the Republic
The boy's father was served with the summons on 6 April 1987 but he neither entered an appearance nor did he file a defence on behalf of his son. Hence this action was set down for the hearing of formal evidence and assessment of damages ex parte.
This was unfortunate because it meant that the Court has not been able to see and hear the boy and, in particular, to discover his age. The alleged defamation occurred on 7 May 1986 which is nearly two years ago. The plaintiff and her
witness, 'Malineo Mahao (PW2), both claimed to know the boy, but their opinions as to his age differed considerably. The plaintiff stated that Peter is about 21 years old now, so he was about 19 years at the time of the incident. 'Malineo said that he is a short boy about 15 years old now, so he was about 13 years at the time of the incident. There is a six years difference and I find it very difficult to believe that they are speaking about the same person, since there is usually a considerable difference in appearance between boys aged 13 and 19 years. One of the witnesses was either greatly lacking in the power of observation or otherwise unreliable
Not having had the advantage of seeing the boy in Court I can only find that he was a teenager at the time and therefore either a child or a youth.
According to the plaintiff on the evening of 7 May 1986, just before it got dark, she was leaving a cafe in Upper Qeme. The boy, Peter, came past and spoke in a voice loud enough to be heard by those nearby. He said, "If a woman is a witch I can ride on her. The last time she killed Makhaola by lightning. But as for me, she will never kill me," then he added, "I am referring to 'Maleepela who killed Makhaola by lightning."
The plaintiff claimed that Peter was referring to her by name and that she had caused a boy called Makhaola of them village, to be killed by lightning in the mountains.
The plaintiff was related to Peter, as he was her maternal grandfather's son. Thus, although the boy was much younger than the plaintiff, he was her uncle She also knew the deceased boy Makhaola, who was a friend of Peter's. The
plaintiff explained that Peter and his parents do not like her because they were opposed to her marriage She added that she had never done anything to upset them.
Her witness was a friend of hers from the same village, 'Malineo Mahao, a 35 years old widow, who testified that she was inside the cafe when she was called outside by one 'Maletsela to listen to what the boy was saying. This witness alleged that she heard Peter speak in a loud and high voice saying, "I maintain that 'Maleepela is a witch for she has killed Makhaola." She did not hear anything else, but it would appear that the boy had spoken other words before she was called out, and this was the last part.
She knew that the boy Makhaola had been killed by lightning in the mountains and she asserted that she was shocked by what Peter said. She added that she was also shocked and disgusted to hear the plaintiff called a witch. She described the plaintiff as a person of some status in their village and a church-going Christian.
The plaintiff testified that she was respected in the village and nobody believed that she was a witch 'Malineo said that nobody else in the cafe reacted to the boy's words There was no comment and no denial. Neither she nor the plaintiff said a word at the time.
I find this rather surprising since it would surely be normal for anyone who was upset, annoyed or disgusted buy such a public accusation to make some sort of immediate response, such as an angry denial or at least a rejection of the allegation Why should the plaintiff, and her friend, and those sitting
nearby, all have kept silent? Perhaps it was felt that he was just a foolish child who should be ignored.
At any rate there was no explanation or defence offered and so, presumably, the accusation was made, though the exact wording used is not clear. The Plaintiff's Declaration filed refers to an accusation that the plaintiff was a witch and that she had killed Makhaola with lightcing. But such reported speech is not proper or sufficient in such a claim, which must always contain the exact words spoken, and in the language used, together with a translation where necessary. This was not done in this case.
I have no doubt that calling anyone a witch and saying that she was responsible for another's death is grossly defamatory. There was publication of this defamatory statement when it was spoken in public at the cafe and so the words were actionable.
On the matter of quantum of damages, the plaintiff is claiming M10,000. This puts her reputation in a very high category. The only case cited by Mr. Ramodibedi on her behalf was from the Court of Appeal, Manyeli v Makhele & Anor. C of A (CIV) No.10 of 1983 (unreported). This was a claim by a 70 years old former government minister for serious defamatory statements contained in a pamphlet published at a large public meeting by the respondents, one of whom was also a minister and the other was the secretary of a political party. The defamatory statement was quite widely publicised and the plaintiff was a well-known and prominent person in the country, not just in his community. The circumstances were thus quite different from the present case and I do not find it to be helpful. The plaintiff was awarded M.8000 damages
In another Court of Appeal case, Matsela & Anor v Sello, C of A (CIV) 6 of 1986 (unreported),the two appellants/ defendants were husband and wife and neighbours of the female respondent. The husband came out of his house alone to where the plaintiff was sitting and called her a witch and it seems that very few people were present. That was in July 1981.
On the second occasion, the wife was not with her husband, and she attended a pitso held by the chieftainess, and she too accused the plaintiff of practising witchcraft and of being a witch. There were many more people present on that occasion The trial judge awarded damages of M 1500. This was upheld by the Court of Appeal except that the total amount was divided between the defendants on the ground that the second publication was much more widespread than the first. Thus the husband was to pay M.500 and the wife M.1000 in damages.
The circumstances of the first and less wide-spread publication of the defamatory statement by the husband are similar to those in the present case. This present plaintiff is an ordinary housewife in a village community outside Maseru. She has the same right as anyone else to the protection of her reputation and dignity as a citizen in her community But she stated in Court that her friends and acquaintances would not and did not believe that she was a witch, and there was no evidence that her local reputation was in any way harmed or even affected. But she did suffer a loss of dignity and considerable embarrassment at the time.
However, it is also necessary to consider the position of the boy Peter Mosese. He was a mere teenager who could not seriously be expected to command much in the way of respect
locally. Nor could there be much expectation that he would behave as a responsible and mature citizen. Indeed such youngsters are quite commonly irresponsible and unwise. It is, after all, a part of the growing-up process.
Not many adults would be inclined to take their statements and opinions very seriously. I find it rather surprising that the plaintiff did not simply ignore or dismiss what the boy said as a typical piece of childish nonsense coming from an irresponsible teenager. It seems to me that by bringing this case before this Court the whole matter has been blown up out of all proportion to its relative lack of seriousness.
Bearing in mind the positons of the plaintiff housewife and the offending boy within their small community and the fact that they are related to each other, I would have thought that, if there must be a court action, then it ought to have been brought in the local court or in the magistrate's court. There they are in a much better position to assess the damage, if any, to the ordinary person in a case of this nature.
I do not think that this particular action should have been brought in this Court and I really cannot see how the plaintiff could seriously have expected to be awarded such huge damages of the sort claimed, nor indeed anywhere near that amount.
The offending boy has no money and his father is apparently without a job and he does not own any valuable property. This is a typical example of a defendant who is not really worth suing in court. The best advice that the plaintiff could have been given, in my opinion, would have been to go home and ignore the matter, especially as it apparently had no
consequences affecting her in any way adversely.
With due respect to the plaintiff and her reputation, I am not prepared to make any substantial award against the defendant in these circumstances.
In the Matsela case (supra) the husband defendant was ordered to pay M.500 damages because of the very limited nature of the publication of his accusation that the plaintiff
was a witch. But that defendant was a mature adult and one from could expect or require him a much higher sense of responsibility and/ a more dignified type of behaviour than from a teenaged youth. Consequently I am of the view that even that quite low award would be excessive in the present instance
Accordingly, judgment is entered in favour of the plaintiff in the sum of M.200 (two hundred maloti) general damages with interest at the rate of 6% from the date of judgment, and costs in the suit at the magistrates courts rate only.
P. A. P. J. ALLEN
12 February, 1988
Mr. Ramodibedi for plaintiff ex parte
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