CIV/T/260/86
IN THE HIGH COURT 0F LESOTHO
In the matter of:
THABANG GEORGE KHOMO Plaintiff
V
REV. EDWIN CHAKA Defendant
JUDGMENT
Delivered by the Hon. Mr Justice Sir Peter Allen on the 31st day of March, 1988.
This is a claim for damages for defamation of character brought by a school teacher against a parish priest. It refers to a letter written on 17 December 1985 by the defendant and addressed to the Headmaster of St. Stephen's Diocesan High School at Mohale's Hoek where the plaintiff worked.
The letter is handwritten in English with no paragraphs on two large sheets of paper (exhibit 'A') and, in his summons, the plaintiff has extracted from it the parts to which he objects, as follows:
" I thought,when I started talking to you, we would reach something reasonable, which would help you in the morning, but Mr Khomo put you off completely up to now. Mahashe is coming back to St Stephen's High School to finish his Form D and E if he passes Form C. That school does not belong to Mr Khomo. It is an Anglican
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school and our children will be taught at that school. Do you still remember that Khomo pressed hard that Bishop Philip's son should be kicked out of that school and he succeeded. He kicked out Mrs Nkotzwana's son for nothing out of that school and others; you think he is a best man in that school. In the morning after meeting you previous night at your offices, Mr Khomo changed your mind, you thought he was telling you the truth ......(6 lines omitted) All these are Mr Khomo's allegations and hatred against Chaka. That friend of yours is trying hard to prove that the school does not belong to the Anglicans, but it is his. He did say this to me sometime ago while I was in Mohale's Hoek, that if we treat that school as Anglicans, he would better go away. He pressed hard that Chief Mohlalefi's boys to be kicked out of 5t Stephens and this was an indirect way of kicking out Fr. Ashling out of that school, and he succeeded. You are the next victim. (7 lines omitted) Headmaster, sir, do you still remember that Mr Khomo went to the Charge Office last year when Fr. Ashling had just left that I had stolen the school's building materials with my son Michael Teboho Chaka, and he was telling lies, you know this truth very well. Today he persuade you to expel my son at school, I am refusing, you are not going to do it, that school does not belong to Khomo (one line omitted) Let Khomo to court about Mahashe, I am sick and tired of him. (4 lines omitted)
Yours sincerely
Rev. E. Chaka Copy to the Bishop of the Diocese. "
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The Headmaster to whom this letter was addressed was Mr James Pocock (PW2) who testified on behalf of the plaintiff. Mr Pocock was deputy headmaster for two years until the end of 1984 when he took ever as headmaster on the departure of Father Ashling, the previous headmaster.
The defendant was parish priest and rector of St Stephen's Parish at Mohale's Hoek from 1979 to late 1983. As rector he was an ex officio member of what was then called the School Board. It has since changed its name to the Local School Committee, but to avoid confusion with any other committees mentioned, it will be referred to thoughout as the School Board or just the Board. At the time of writing the letter in 1985 the defendant was rector of Sekubu Parish in Butha-Buthe District. His son, Mahashe, referred to in the letter,was then a student at the school.
The defendant's letter was written in reply to one from the Headmaster (PW2) dated 10 December 1985 (exhibit 'B') as follows:
" Dear Fr. Chaka,
We decided at our end-of-year Staff Meeting to let the parents of the five boys on the C.I.D. list make a choice between paying M90 each, or having the case go forward to the Magistrate's Court and be settled there. Please let me know your decision as soon as possible.
One matter has been clarified by one of the witnesses. Mahashe and his
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friend are said to have put off the Dining Hall lights, not the main switch as I had understood from the C.I.D. report.
In view of this incident and others, including the shop-lifting at Jandrell's Supermarket, we shall not take Mahashe back into Form D. I enclose a Form E. 80A so that it can be filled with another school as first choice; this will make it easier for you to negotiate a place. Please return this form as soon as possible.
Signed (J. M. Pocock)
Headmaster "
Firstly I shall briefly refer to the allegations against the plaintiff contained in the defendant's letter. The first is with regard to the defendant's son Mahashe whom it was alleged that the plaintiff had persuaded the Headmaster to expel. Apparently in October 1985 there was to be a film shown in the school dining-hall but the projector broke down and there was also a power failure for a time. The students we disappointed and, as Mr Pocock said, they behaved unreasonably. Mahashe switched off the hall lights and other students smashed the windows. The police arrived before Mr Pocock had been informed of the incident. He did not call them in. The decision that the boys concerned (or their parents) should pay M90 each as a contribution to repairing the windows, and that Mahashe (and others) would not be readmitted to the school was taken at a staff meeting chaired by the headmaster. The plaintiff was only one of those attending it and it was thus not accurate for the defendant to say that the
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plaintiff was alone responsible for Mahashe's expulsion. It was in fact really a non re-admittance after completing his JCE rather than an expulsion.
The second allegation is with regard to the son of Bishop Philip Mokuku, a boy named Chaba. The Bishop by virtue of his office had considerable influence over the school and it was he who was responsible for appointing headmasters. However, this son of his was apparently very mischievous and he was expelled. He was later re-admitted after pleading by the Bishop. Then in 1983, Chaba and some other senior boys took offence because the school matron prevented them from meeting girl students as often as they wished. In retaliation they broke several windows and placed a toilet bucket outside the matron's door one night. Chaba was also involved in other incidents and the then headmaster, Fr. Ashling, requested the Bishop to withdraw the boy from the school and this was done.
The plaintiff was not involved in that matter, but Chaba's first expulsion was for drunken and rude behaviour on a school trip to Durban. The plaintiff did not go on that trip but, as the staff representative on the Board as well as a member of the Staff Disciplinary Committee, he received the teachers' reports on the incident and passed them on to the Committee for consideration. It was thus inaccurate to blame him alone for Chaba's earlier expulsion.
The third is the allegation that the plaintiff was responsible for the expulsion in 1983 of one of Mrs Nkotzwana's son called Sandile at the end of Form D. Mr Pocock explained that the decision to expel Sandile was taken by Fr. Ashling, who announced it at a staff
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meeting and nobody opposed it. Mr Pocock agreed with the plaintiff that the plaintiff had nothing to do with the matter and the allegation was thus untrue. The defendant in his testimony admitted that he did not know the details of this affair.
The fourth is the allegation that the plaintiff tried hard to have Chief Mohlalefi Bereng's sons expelled. Mr Pocock explained that the two boys completed JCE but only obtained third class passes and it was not the policy of the school to admit students to form D with such low grades. Fr. Ashling refused to admit them and their father appealed to the Bishop, who asked for reasons, which were supplied in a memorandum prepared by Mr Pocock as deputy headmaster. The plaintiff apparently had nothing to do with the matter. The defendant stated that he felt that the Bereng boys were unjustly treated by Fr. Ashling and that the plaintiff was much to blame for over-stressing, their "naughtiness" to the headmaster. However, the impression I received from the various witnesses in Court was that Fr. Ashling was a man who made up his own mind about such matters and that he was also a fairly strict disciplinarian. Moreover, a teacher like the plaintiff, who is concerned about school discipline and who reports student misbehaviour to the headteacher is merely performing his duty to the school and to the parents and he should not be blamed for doing so, provided he acts fairly.
The fifth allegation was that the plaintiff had reported the defendant to the police for allegedly stealing school building materials from the headmaster's garage. Mr Pocock explained that this matter concerned some fencing
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materials and tools left in Fr. Ashling's garage by a church-warden named Daniel who put up fences for people in the week-ends. Apparently Fr. Ashling allowed him to keep his things in the garage with other items belonging to the headmaster. Then, when Fr. Ashling departed, he left most of those items behind and told the defendant that he could help himself to anything he wanted in the garage. Among the items taken by the defendant were included some of Daniel's materials and tools in the mistaken belief that they were also part of Fr. Ashling's property. Daniel reported to the police that the items had been taken and Mr Pocock was informed and the matter was soon sorted out. Mr Pocock said that the plaintiff in fact was not involved in that affair.
The sixth allegation was that the plaintiff was responsible for having Fr. Ashling "kicked out" of the school. The plaintiff denied having anything to do with the headmaster's departure. Mr Pocock, who was then Fr. Ashling's deputy, explained that Fr. Ashling left in January 1985 because he was then aged about 54 and he wanted to return to church parish life in England before he became too old to secure a suitable post. In addition, he was apparently very upset at losing two friends by suicide, a student whom he had sponsored through his schooling and a priest, Fr. Phoofolo. He gave nine months notice and then left. It would appear that the plaintiff had nothing to do with it.
The seventh allegation was that the plaintiff was claiming that the school did not belong to the Anglican church and that it was not only meant for Anglicans. The
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plaintiff agreed that the whole Board, except himself, was composed of Anglicans and that the Anglican Bishop and the Rector were very influential. Moreover, it was a diocesan school. The plaintiff, however, is a member of the Lesotho Evangelical Church (LEC) and he had argued on several occasions with members of the Board, including the defendant; that the school should follow Government policy and admit and educate every Mosotho child eligible for admission regardless of his religious faith. This allegation of the defendant was admitted by the plaintiff, but it was nothing more than a difference of stronglyheld opinions and I find that there was nothing defamatory about the accusation.
The plaintiff has complained that the above selected passages from the defendant's letter were defamatory and that their publication by the defendant was without lawful justification or excuse, as a consequence of which the plaintiff claims damages.
A defamatory statement is one which tends to diminish the esteem in which the person to whom it refers is held by others. A statement which tends to bring another into contempt or undue ridicule, or which reflects upon his fitness or capacity in his profession, or which tends to lower the plaintiff in the estimation of right-thinking members of society generally, is defamatory.
In this case the plaintiff is by profession a teach:.-. The defendant in his letter suggested or implied that the plaintiff vindictively and unfairly was responsible for the expulsion of various students; that he made unjustified and unfair reports about students to the headmaster; that he had been responsible for the departure of a previous
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headmaster and that he was a threat to the present headmaster and that he had wrongly accused the defendant of stealing school property. All these statements would be likely to lower him in the eyes of his colleagues and of education officials in addition to the students' parents. They would certainly reflect upon the plaintiff's fitness to be a teacher and would indicate a lack of professional responsibility. I am therefore satisfied that the passages complained of in the defendant's letter were in law defamatory of the plaintiff.
The next point to consider is whether the letter was published. This means that the contents were made known to some person or persons other than the plaintiff himself. The letter was addressed to the Headmaster and copied to the Bishop. The Headmaster (PW2) certainly received his copy and so it was published to him. There was no evidence at all as to whether or not the Bishop received his copy and this cannot be presumed. It must therefore be disregarded.
Mr Pocock stated that he showed the letter to the plaintiff but this, in any case, was not publication in law. Copies were also supplied to other members of the Board by the headmaster so that they could consider its contents at a Board meeting, after the plaintiff himself had raised the matter. Consequently publication of the contents to the Board members was effected at the instance of the plaintiff himself. The defendant testified that he wrote a private letter to the headmaster with a copy to the Bishop and that he did not contemplate it being read
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by anyone else, even by the plaintiff. He was very upset about his son Mahashe being forbidden to return to the school and so he wrote to the headmaster and put his "points strongly". There was no evidence that he foresaw or intended that his letter would be shown to the Board members. That particular decision seems to have been taken by the headmaster with the approval of the plaintiff himself. I do not see how the defendant can be held liable or responsible for such further publication. Thus the only actual publication of the letter by the defendant that was proved and, indeed, admitted, was to the headmaster. There was nothing else.
The obvious defence in such circumstances is one of qualified privilege. It seems strange that the defendant did not put this forward as his defence in his written plea, but it was not mentioned. Mr Mofolo, however, did rather belatedly offer it as a defence in his final (written) submissions. But a proposed defence must always be set our, in the defendant's written plea. Counsel should have known this.
There are several instances of qualified privilege, but the only one we are concerned with here is where a statement is made in the furtherance or protection of a legitimate interest to another person who has a corresponding legitimate interest or a duty to receive it. The interest must be in respect of some matter which affects the defendant personally and not just the Community at large. Thus, the present defendant, as a parent of a boy attending school, had a ligitimate interest in writing to the headmaster of that school about his son; just as the headmaster had a legitimate interest as well as a duty to receive such a letter.
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In Van Nes v Du Toit (1916) TPD 336, the defendant had a child attending the plaintiff headmaster's school end wrote to the school board making various charges against the headmaster. It was held that so long as the parent had an honest belief in the charges and a desire that they should be investigated, the communication would be privileged provided that the parent was not actuated by any malice, which means any indirect or wrong motive such as spite, ill-will or anger.
In Calder v King (1910) EDL 224, it was held that the fact that a school master is employed and paid by a school board gives the board members a mutual interest in discussing his competency both inside and outside actual board meetings.
Thus, even if the publication of the letter to the Bishop (who apparently appointed the headmaster) and to the school board had been proved against the defendant, this same defence would have been available to him; for they each had a legitimate interest in the subject matter. However, here we are only concerned with publication to the headmaster. In the circumstances I am satisfied that the defence of qualified privilege is available to the defendant.
Now this privilege is "qualified" because it is conditional upon the statements complained of having been made by the defendant with an honest purpose. In other words this defence fails and the defendant is not entitled to the protection of this privilege if he uses the occasion for some indirect and wrong motive (see: Clark v Molyneaux (1877)3 QBD 237).
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Since the defendant has established that the occasion. upon which the communication was made was one of qualified privilege, the law presumes that he used the occasion for the reason which rendered it privileged. Consequently the burden is on the plaintiff to destroy the effect of the privilege by proving that the defendant wrote the letter with a malicious motive. This is usually a matter of inference from the facts. As a general rule a person is privileged to state only what he believes to be true. So proof that the defendant had no honest belief in the truth of what he stated will in most cases be conclusive evidence of malice (see: Maude v Whittle 1958(1) SA 594 (AD)). Mere negligence or unreasonableness in making a statement can never amount to malice.
The defendant was, perhaps, naturally rather upset about his son Mahashe being sent away from the school, but this decision was taken by a staff meeting chaired by the headmaster and not as a result of the plaintiff acting alone. Apparently the defendant believed that the plaintiff was mainly responsible and this seems to have triggered off the other allegations of incidents in which the plaintiff sometimes played a part and sometimes no part at all, but for which the defendant stated that he held the plaintiff responsible.
The defendant testified that when he wrote the letter he was not being malicious or angry. He was just putting his points very strongly. He asserted that they were truthful statements and he believed that he had sufficient grounds for making the allegations against the plaintiff. I am of the opinion that, on the evidence before me, the defendant
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in his anger made unreasonable and even negligent statements without first checking his facts. However, I am satisfied that they were not made maliciously in the sense meant in the law of defamation. Consequently the defence of qualified privilege succeeds and I shall make no award of damages. Indeed the plaintiff suffered no actual damage since he continued with his work and apparently nobody showed any lack of esteem or sign of contempt towards him, nor did his reputation suffer as a consequence of the letter.
I will add, though, that in my opinion this suit should not have been brought to trial. The plaintiff is a respectable and long-serving school master and the defendant a respectable and even longer-serving parish priest. Both are people of high standing in their communities. The defendant described himself as a good friend of the plaintiff and added that he did not intend to hurt him at all. If both counsel had brought these two together at a meeting and advised the defendant to apologise and withdraw his allegations, and the plaintiff to accept such an apology, the matter might well have been settled long ago without proceeding any further. In such cases the parties should always be encouraged in the direction of reconciliation.
The defendant certainly did not act like the good friend of the plaintiff that he claimed to be. As a priest and a Christian, he ought to have realised that he had gone too far in his letter. He should have been prepared to admit this and to have asked the plaintiff to forgive him. It ought not to be necessary for me to say this to two such reasonable and intelligent people. In my view it was
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unnecessary for the plaintiff to have brought this matter to Court but, in any case, the defendant should have been quick to apologise and prepared to be conciliatory. In fact he has not apologised at all.
I find that both parties were in the wrong, the defendant because he wrote an unnecessarily defamatory and hurtful letter, and the plaintiff because he dragged the matter through the Court when it was not necessary to do so.
In the circumstances this claim is dismissed and each party will pay his own costs.
P. A. P. J. ALLEN
JUDGE
31 March 1988
Mr. Mda for plaintiff
Mr. Mofolo for defendant
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