IN THE HIGH COURT OF LESOTHO
In the Matter of
SEANAMARENA MPHUTLANE T/a
S. MPHUTLANE & Co. Plaintiff
LESOTHO NATIONAL DEVELOPMENT
BANK ....................... Defendant
Delivered by the Hon. Mr. Justice B.K. Molai on the 18th day of March, 1988.
Plaintiff who is a practising attorney has claimed against the defendant Bank payment of M50,Q00, costs of suit, further and/or alternative relief, being damages for defamation. Defendant has intimated intention to defend this action and duly filed his plea.
It is common cause from the facts disclosed by both the declaration to the summons end the place as amplified by further particulars that plaintiff maintains a trust account with the defendant bank. Some time prior to 1st May, 1987 Plaintiff drew a trust account cheque No.21 for the amount of M300-00 in favour of Messrs. D.K. Mofolo and company. On 1st May, 1907 the cheque was duly presented for payment but the defendant dishonoured it by writing thereon the words "refer to drawer".
According to Plaintiff the words "refer to drawer" written on the cheque means that he was in financial embarrassment in his trust account.
They are, therefore, defamatory per se. By writing the words complained of on his trust account cheque defendant published defamatory matter against him (Plaintiff). Consequently Plaintiff was defamed and suffered damages in his professional good name and reputation for which damages the defendant was, in law, liable in the sum of RM50,000. Wherefore Plaintiff claimed as aforesaid.
As has been pointed out defendant concedes that on 1st May, 1987 cheque No.21 for the amount of M300 drawn by the Plaintiff was dishonoured by writing the words "refer to drawer" on it. In his plea defendant stated that this was a mistake made by a clearing clerk in his employ. The circumstances of this incident were duly explained and apology tendered by the bank manager to the Plaintiff who accepted it (apology). In any event defendant denied that the words "refer to drawer" written on a cheque are defamatory per se. He denied, therefore, that Plaintiff had been defamed end suffered damages for which he (defendant) was liable as alleged. Wherefor, defendant prayed that Plaintiff's claim be dismissed with costs.
Following Defendant's plea, Plaintiff has filed a notice of exception based on grounds that are somewhat argumentative but can be summed up in that the plea discloses no defence in as much as it does not raise any of the recognised defences available to an action for defemation viz. justification, privilege, fair comment and rixa. Instead the plea makes allegations that the defamatory words "refer to drawer" were written on the cheque by mistake and apology was tendered. In the contention of the Plaintiff mistake and apology constitute no defence to an action for defamation. The plea must, therefore, be dismissed with costs on attorney and client scale.
In the first place I am unable to agree that the words "refer to 8 drawer" placed on a cheque necessarily mean that the drawer thereof 10 in financial embarrassment and they are, therefore, defamatory per se. All that la meant by the words "refer to drawer" placed on a cheque by a banker is that the bank is not prepared to pay the cheque for a variety of reasons e.g. it may be that the bank is not prepared to pay because the cheque has become stale or payment has been countermanded or, of course that there are insufficient or no funds - see Burton v. Roth 1915 T.P.D. 81 et seq. If at all, the words "refer to drawer" will be defamatory not pe se but in the second sense and that is a matter to be properly resolved by evidence.
Coming now to the question whether or not the plea of mistake raised by the defendant discloses valid defence to an action for defamation, it is to be observed that on pages 203 et seq of his invaluable work The Law of Delict (7th ed.) by R.G. McKerron the learned author lists a number of miscellanous defences to an action for defamation and mistake is certainly one of the defences therein mentioned. It seems to me, therefore, that although justification, privilege, fair comment and rixa may be recognised defences to an action for defemation, they are not exhaustive. As McKerron clearly puts it at pages 203 op cit
"mistake may also be a good defence if the defendant is able to show that he never intended to use the words complained of at all."
Whether or not in the instant case, the defendant intended to use the words complained of is in my judgment, a matter for evidence. From the forgoing it is obvious that the view that I take is
that the question I have earlier posted viz. whether or not the plea of mistake admittedly raised by the defendant discloses a valid defence to an action for defamation must be answered in the affirmative.
That being so, I come to the conclusion that the exception ought not to succeed and it is accordingly disallowed with costs,
18th March, 1988.
For Plaintiff Mr. Mphutlane,
For Defendant Mr. Holloa.
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