CIV/T/1/2001 IN THE HIGH COURT OF LESOTHO
In the matter between:-
LIFELILE MATSOSO PLANTIFF
Delivered by the Honourable Mrs Justice Hlajoane Acting
Judge on 17 Day of September, 2001
In this case the plaintiff has instituted an action for
damages against the defendant in the following terms:
Damages for defamation in the amount of ten thousand
Damages for insult in the amount of thirty five
Damages for assault in the amount of five thousand
Interest at the rate of 18% a temporae morae
Cost of suit
Further and/or alternative relief.
In filing his plea, the defendant also filed his counter
claim, in which as Plaintiff in reconvention also claimed for damages
insults. In the counter claim, an amount of sixty thousand maloti
(M60,000) was claimed for contumelia.
The facts of this case were as follows:-
Both the plaintiff and the defendant are Lecturers at
the National University of Lesotho in the Faculty of Education. The
being a Lecturer and the defendant, Senior Lecturer.
It was common cause that there had been a Departmental
meeting on the 30th October, 2000 where both parties had
attended and other Lecturers in that Department of Education. The
meeting discussed amongst other
things, the promotion of the
defendant and/or filling of a vacant post in the Development Studies
Education. There had been a lot
of debate on this issue and the
arrived at was to advertise the position. The plaintiff
was recording the Minutes of the meeting. There had been another
to that of the 30th where this issue of
filling the position was discussed. The meeting had something to do
with the defendant who showed interest in
being offered the post.
Plaintiff in the meeting of the 30th requested that
members should stick to their initial resolution of advertising the
post. The plaintiff had defendant's curriculum
vitae and defendant
did not approve of the way the plaintiff was perusing his curriculum
vitae. Defendant left the meeting to teach.
It has not been disputed
that the defendant left the meeting of the 30th before
close of business, and when he so left, the plaintiff was on the
floor. The defendant went to plaintiff's office on the morning
November, 2000, a week after the meeting. According to the defendant,
he went there to get clarification on the meeting of the 30th
as the plaintiff was the one who was taking minutes. The plaintiff
disputed this and showed that the defendant's mission was that
confrontation. The defendant decided to via plaintiff's office as he
saw the door to her office open. On the other hand Defendant's
counsel had shown that the Defendant would state in evidence that
plaintiff's office door was closed, hence the reason why he could
hear as to who allowed him in. S v Gouws 1968 (4) S.A. 345 is an
authority in that statements that are admitted by party's counsel
proceedings are taken to be binding on the litigant. This is more so
in this case
where counsel has been in court when the statement was
made and did not object.
Defendant did not dispute the fact that P. W. 2 was
there when he entered P. W. 2's office, the dispute was only on
whether or not
the door was opened when he knocked and was allowed
in. Defendant said that P.W. 1 was on the telephone when he entered,
but P. W.
1 disputed this. What is not disputed is the fact that P.
W. 2 was in the same office and working on a computer and even came
the two parties and intervened by taking the defendant out.
The Primary issue for determination would therefore be,
which version is the court to believe as forming the true basis of
and the counter claim including of course the respective
defences raised by the parties. The plaintiff pleaded provocation
the defendant on the other hand raised a defence of rixa.
The plaintiff had called in evidence two witnesses,
being herself and another, Mr Raselimo. The defendant on the other
side has only
one witness, the defendant himself.
In order for the court to get an answer on the facts as
to who could have started
insulting the other, it has to look at the surrounding
circumstances of the case. Here is the defendant, out of his own
that he was not amused in seeing the plaintiff tear
apart his curriculum vitae (CV) during the meeting of the 30th
October, 2000. The meeting was not attended by only the two of them,
but there were other lecturers who had attended that meeting
including P.W.2.. The defendant entered the plaintiffs office,
according to him, to get how the meeting wound up. In asking the
about the meeting, he showed he was replied in a
disparaging manner by the plaintiff.
The defendant himself under cross examination began to
realise that he could have left at once on seeing that the plaintiff
want to give him the information about the meeting. He even
demonstrated to the Court how the plaintiff was twisting her mouth
talking to him, thus giving a clear indication that she was not
prepared to give any information, she was not being co-operative
all. Defendant could have left at that stage.
The question that one would tend to ask, would be, why
did the defendant choose to go to the plaintiff amongst all others
attended the meeting. He has himself shown that he had not
liked the way the plaintiff was tearing apart his
curriculum vitae. He said he felt offended by that act.
In his own words, the defendant showed that, the minutes for the
supposed to come from the office of the head of the
Department, but he chose to approach someone who had offended him.
was that the head of Department was not there, but he
did not take the trouble of getting to know as to who had been acting
absence. It would therefore not be unreasonable to infer from
his behaviour that he in fact went to the plaintiff to start trouble.
He had gone there for confrontation.
Plaintiff has been supported in her evidence by P.W.2,
who confirmed that the defendant was in fact very arrogant when he
got to P.W.l's
office. Even if for a second, we were to take
Defendant's story as a true reflection of what in fact transpired on
that day, defendant
himself showed that when Plaintiff asked why he
left the meeting yet all who attended had to go and teach also; then
in reply defendant
in his own words when giving evidence said, "If
you think you are so smart why haven't you completed your studies
a long time". He showed he said these because the
plaintiff had gone for further studies. Defendant went further to
evidence that he then said, "moreover no one has seen
your Curriculum Vitae, why were you literally tearing mine apart."
It must be noted that, when the defendant was saying
these words, the plaintiff had said nothing about his qualifications.
made me doubt if I had to believe that in fact the
defendant had to be believed when he said he had gone to plaintiff's
get a feedback of how the meeting ended. The only
reasonable inference to be drawn would be that, the defendant had
gone there to
confront the plaintiff and give her a piece of his
The evidence of P.W.1 and P.W.2 have been the same in
material respects. That the door was open when defendant was allowed
defendant's counsel, had shown in cross-examining P.W.1
that defendant was going to say when giving evidence that the door
that is why he did not even know who between P.W. 1 and 2
asked him in. That P.W.1 was not on the telephone as alleged by the
as he entered P.W.1's office. That the defendant was the
one who started insulting the plaintiff by calling her a "bitch",
a "whore". That it was after these insults that plaintiff
began to be emotional and insulted the defendant back saying
must be silly, you are a mother fucker".
The defendant on the other hand had said he went to
P.W.1's office because he saw her door opened, but through his Lawyer
examination he had said
plaintiffs office door was closed. Again in his
evidence-in-chief defendant had said he went to plaintiffs office to
as to how the Departmental meeting had wound up, but
under cross examination he then said the purpose of his visit to P.W.
was to collect minutes of the meeting. If these were true
it could have been stated in evidence.
The defendant had under cross examination shown that he
did not leave even when he could realize that P.W.1 was not prepared
him any information of how the meeting wound up . He did not
leave even after he could realize that P.W.1 was then angry or
instead he went on to insult her by showing he had fucked
many women around including P.W.1 herself. The defendant has raised a
of rixa, not fair comment or justification.
The plaintiff has not specifically said that she had
been provoked, but has claimed damages for defamation. Provocation
has only been
inferred from the behaviour of the defendant, starting
from the day when he left the meeting for whatever reason it was
Intention is a requirement for defamation. But there are
that provocation has on one hand been regarded as
excluding aninus injuniandi (or intention) or on the other hand
would otherwise have constituted unlawful conduct.
The defendant raised a defence of Rixa, but his behaviour and
reaction after the
altercation was inconsistent with his
explanations. As if all were still normal after the altercation, he
managed to go and teach.
A normal reaction would have been to go and
report to a colleague or to the authority. But because he had managed
to vent out his
anger and frustration of the meeting, he acted
normally and went to teach.
The behaviour of the plaintiff after the altercation
clearly demonstrated an attitude of someone who had just experienced
occurrence . She was crying and immediately rushed to
report to the head of the Department and to her husband. Even in her
she did not deny that she too had insulted the Defendant,
but it was after she had been provoked by being insulted first. This
demonstrated her factual allegations of provocation. It was the
defendant who came to plaintiff's office with a clear intention.
The Court is not convinced that the principle of
compensatio applied in this case for the following reason. The two
parties have insulted
each other or defamed
one another, but the defendant had acted out of
proportion because he started the whole episode by going to
plaintiffs office yet
the same person had some days back offended
him. He did not even back off when he noticed that plaintiff was not
going to co-operate.
The Court in Bestee v Calitz 1982 (3) S.A. had this to
say, that "in a claim for damages arising from an insulting
in anger where this was elicited by a provocative insult
of a similar nature, then provocation in such circumstances is a
defence because the elicited response is not unlawful."
In our case, the defendant is taken to have deprived himself of the
redress as he had brought upon himself nothing more than what he
should have reasonably expected as a result of his own prior unlawful
conduct. The plaintiff acted in a natural human reaction of a most
reasonable man to an unwarranted attack on his person by being
a "whore" , a "bitch".
In his evidence P.W. 2 showed that, from that day, he
was no longer holding plaintiff in that high esteem as before as
had said, he had flicked many women around including
plaintiff herself. The defendant in his evidence showed that he had
to the office of his head of Department and asked about
of the 6th November, 2000. He was also
advised to write a letter to the plaintiff, which he did, Exhibit
"A". In that letter he had
asked for an apology. He said, "
I don't know exactly why I behaved in such an unbecoming manner. I am
sorry something just
snapped. I lost control and things just got out
of hand." He went further and said, "let me reiterate and
say how sorry
I am for having brought about this sorry situation."
The letter clearly showed that the defendant was
admitting that he was at fault because he had started the whole
thing. Though under
cross examination defendant wanted to be taken as
having only written that letter of apology because he realised that
was not a good one. He also wrote because Dr Matela
had asked him to.
The matter for consideration here would be whether the
apology was a genuine one. It would be genuine if it had been freely
The defendant in our case only tendered his apology after he
had been asked to. In his letter of apology, the defendant went
and said, "I am aware that this issue has been passed
over to the higher authorities and that I shall appear before
There are authorities illustrating a point that usually
an apology is a factor which has to be taken into account in
damages recoverable by the plaintiff for defamation;
Norton and Others v Ginsberg 1953 (4) S.A.537 at 540. But the
further to show that such an apology to pass the test
must have been timeous and spontaneous, not to take place
must enjoy the same prominence as the defamatory
words. In Kuper (1983) SAL Jat 480 the author observes that an
apology is offered
too late if it was done only after the plaintiff
had to make a request or at a stage where the defendant realized that
position was already hopeless.
An apology which has been offered too late loses much of
the effectiveness which it otherwise would have had Gelb v Hawkins
S.A. 687 at 693, where the apology was only made 11 months
after the accusations.
The defendant in our case wrote a letter of apology only
after he had been called to the head of Department's office and
to make an apology. He has shown that when he so wrote the
letter of apology, he was aware that a disciplinary case was
Had the defendant not been aware that he was facing a
disciplinary action and also not been asked by Dr Matela
to write that letter of
apology, he could not have apologized. The defendant in
our case wrote a letter only after he had been called to the head of
office and requested to make an apology.
Though plaintiff has said under cross examination that
her reputation might not have been reduced she had shown that P.W.2
to respect her initially, lately after the events of the 6th
November, 2000 is having some reservations about her because of the
names which the defendant called her, "bitch', "whore"
and that he, the defendant having fucked many women around and the
plaintiff being one of them. Surely under normal circumstances
would call her husband just to inform him that the truth has been
made known about her sleeping with other men outside her
Now coming to the words used, would it be said that the
words were per se defamatory. Wood, N. O and Another vs Branson
S.A 369 at 372
showed that, "everything depends on the context,
the tone, the circumstances, the setting and the locality. The words
be regarded in abstracto" The parties in our case are
Lecturers at the National University of Lesotho, an Institution of
learning. P.W.2 before whom the words were uttered showed
examination that he considered P.W. las his colleague.
The words would therefore not bear any different meaning from what
heard them to mean. P.W. 2 is not just an ordinary man
who could have just taken the words to be uncouth and coarse
Wood vs Branson, Supra. It is true that in our case as
in Wood's case, there is no evidence to prove how the words
would have been understood. It is not the learned
bookish meaning that the words must be given, but the meaning they
convey to the
man in the street. Wood's goes further to say, 4tthe
ordinary man does not carry about with him a pocket dictionary which
he consults to see whether or not he has been defamed, but
case for someone as learned as the plaintiff there was no need for
her to consult a dictionary because she knew the meaning,
that is why
she became so mad as running from one office to the other reporting
about the incident immediately after it had happened.
wrote a report the same day and submitted it.
In the result, plaintiff's claim succeeds and the
defendant's counter claim is dismissed with costs. On the issues of
costs, the defendant
had argued that the special power of attorney
had not authorized the claim for "interest" and "costs".
- Vrystaatse Guivel - Korporassie Bpk vs Bondesio 1971 (3) S.A.
110 is the authority which shows that "a summons may validly
include a prayer for costs
even though the power of attorney made no particular
On the question of interest, the defendant had further
argued that the power of attorney did not authorize the claim for
Indeed failure to file power of attorney or irregularities
therein will usually, entail an application to set aside the
as being irregular, but the court has wide powers of
condonation, Northern Assurance Co. Ltd vs Somdaka 1960 (1) S.A. 588.
In dealing with quantum of damages in Hassen vs Post
Newspapers (Pty) Ltd and Othersl965 (3) S.A. 562, despite the wide
of the newspaper, the Court held that, in the eyes of a
comparatively small number of its readers only that the plaintiff''s
could have been injured. Plaintiff's damages were thus
In our case, the plaintiff has succeeded in her claim,
she is awarded:
(i) M10,000 as damages for defamation
(ii) M25,000 damages for insult on the authority of
Hassen's case above as it was only P.W.2 who was present when the
(iii) Claim for damages, for assault fails as the
wagging of defendant's finger at plaintiff is taken to have been a
gesture for purposes
of emphasis on what the defendant was saying
(iv) Interest at 18% a tempore morae plus costs.
A.M. HLAJOANE ACTING JUDGE
Plaintiff: Mr Mosae
Defendant: Mr Mosito
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