HIGH COURT OF LESOTHO
'MAKOALI MAKOTOKO Plaintiff
NYAMEKYE GYASI AGYEI Defendant
by the Hon. Mrs Justice A. M. Hlajoane on 8th February.
summons was issued in this case on the 12th April, 2006. On the 12th
December the same year the parties were granted leave
to approach the
office of the Registrar for a date of hearing. It was allocated the
5th of September 2007 but it was on that day
crowded by a criminal
trial, and postponed to 7th and 8th February, 2008.
matter was placed before me on the 7 February 2008. Before the matter
proceeded I called both Counsel in chambers to make them
the Plaintiff in this case was once my Physician at Medi Clinic in
Bloemfontein. They both showed that they had no problem
proceeding with the case nonetheless.
Plaintiff who described herself as a divorcee and Medical doctor of
Hlotse in the district of Leribe, presently employed as
the Head of
Faculty of Medicine Universitas Bloemfontein in the Republic of South
Africa. The Defendant also a Medical Doctor,
presently practising and
carrying on business at Maputsoe in the district of Leribe.
Plaintiff sued the Defendant for payment of M500,000.00 (five hundred
thousand) as damages for defamation and interest at the
rate of 18.5%
per annum a tempore morae with costs. It was the Plaintiffs case that
the Defendant had unlawfully, wrongfully and
with intent to defame
her, published an article or story in an international website in the
internet about and concerning the Plaintiff.
publication aforesaid, Plaintiff has set out the following
allegations amongst others, about and concerning her:-
when she was looking for someone to take over her Practice, while she
went abroad to further her studies and for reasons
only known to her,
she preferred a non-citizen. Perhaps someone she could easily
manoeuvre. She had high political connections,
she was closely
connected to the King Moshoeshoe II and her mother the then Minister
of Interior. Dr Makotoko's mother, was growing
jealous and bitter by
the day, so she kept on shifting the goal posts and the level of the
playing field such that life was becoming
uncomfortable. To make
things worse, when Dr Makotoko came herself, she could not contain
her jealousy. She immediately on our
first meeting decided to raise
the goodwill fee from M1,000.00 to M2,000.00, and that rent was going
to be decided by her mother
at three (3) months intervals whether it
needed increase or not. As I was busy going up and down trying to
shape my own future
and destiny, the Makotoko's were equally busy
doing their best to let everything come to naught. They were
frantically using all
their political contacts to get me out of
Lesotho. The King Moshoeshoe IT was caught in the struggle. The then
Director of Health
Services, a Medical Officer himself, Dr Moji, took
upon himself to fight the course of the Makotoko's. Most people saw
as based on sheer jealousy and waiting to play for his
friend Dr Makotoko........................"
the Plaintiffs case that the publication had been and continued to be
read by thousands of people who held her in high esteem
and who have
understood and continued to understand same to mean inter alia that,
Plaintiff was unpatriotic, discriminatory, corrupt,
dishonest and immoral. That she favoured foreigners against her own
people, a person who discriminated and who was manipulative,
who was grossly greedy and unprofessional, who unjustly enriched
herself at the expense of others, who corruptly used
connections with persons in authority for her own financial gains and
to the detriment of others, an unscrupulous
person with perverse and
degenerated understanding of moral values.
the publication was and continued to be read by thousands of people
in Lesotho, the Republic of South Africa and Africa
as a whole, Asia,
Europe and the United States of America.
Plaintiffs counsel had called in the Plaintiff to give her evidence.
The evidence revealed how the Plaintiff came to know about
Defendant. The Plaintiff, a Senior Lecture at the School of Medicine
at the University of Free State in Bloemfontein and also
Specialist in the Department of Cardiology at Universitas in
her permanent home in Leribe and her father Dr Seth Makotoko was also
a medical doctor. After qualifying as a doctor, she
practiced at her
late father's surgery in Leribe. She later had the urge to further
her studies to become a specialist. She then
had to sell her practice
as she felt that she could no longer come and practice in Lesotho
once she was a specialist.
Defendant was introduced to her as a potential buyer by her
accountants who happened to come from Ghana as the Defendant. They
negotiated their deal and came to its final conclusion. She then left
for her studies. She came back as the first mosotho Cardiologist.
also told the Court that she was the first black woman Cardiologist
in the whole of South Africa, thus suggesting a high academic
Plaintiffs evidence revealed that the publication subject matter in
this case came from the internet, from a website of a College
Ghana called Prempeh College. She had explained to the Court about
this modern technology of dealing with a Computer, feeding
accessing information from the internet. The website waswww.google.com. She had down loaded the information from that website
and produced a document which she handed in as an exhibit. It was
accordingly marked as an exhibit.
further in her evidence to show that once information is entered in a
website from anywhere, it becomes accessible to everybody
world. It can be accessed by going to some two known search sites,www.google.com and www.yahoo.com. Once a person enters
those search, he is open to the whole world.
for her to demonstrate how widely the information about her must have
circulated, she mentioned that the usage of the internet
become so common that even at Primary and High Schools children are
exposed to the Information Technology (IT) as one
of their subject.
Computer Literacy has become a must rather than an option. She said
for professionals the use of a computer is
Plaintiff had given her evidence the matter was stood down to the
following day as the time was up. But because before
the matter was
stood down, Counsel for the Defendant had objected to the handing in
of the document downloaded from the internet,
I had given both sides
an assignment to go and make a research on the admissibility or
otherwise of such documents from the internet.
next resumed the next day, Counsel for the Plaintiff showed that he
was ready with the authorities but Counsel for the Defendant
intimated that they wanted to see me in chambers before we could
were in chambers, Defendant's Counsel with his head lowered, was
asking me to recuse myself from the case. I had thought he
to come up with reasons not known to us as to why I had to recuse
myself at that stage. His reason was that because the
once my Physician there was some likelihood of bias. There was no
mention at this stage that when I informed both Counsel of my
association with the Plaintiff, the Defendant did not ask that
allowed time to go and consult his client, not even after he had met
his client before we commenced the proceedings. We proceeded
case without any interruptions.
Application for recusal was strongly opposed by the Plaintiffs
Counsel showing that the Court had been fair to them by mero
informing them of the relations before the case commenced. The
Application only came after the Plaintiff had led evidence
about to be cross examined.
also be worth mentioning at this stage that, that information from
the internet alleged to be defamatory had mentioned
the Plaintiff by
name and her mother, the King and other people.
the Court could give a ruling on the Application for recusal, Counsel
on both sides asked for some ten minutes break for
discussing the matter. When they came back after 30 minutes or so,
they did not allow me anymore time to give my ruling
Application for recusal which Application was made from the bar.
for the Plaintiff after the break showed that they had reached a
settlement which they wished to be made an order of the
terms of the settlement between the parties and their Counsel were as
the Defendant shall pay to the Plaintiff a sum of M100,000.00
damages in full settlement of the matter.
the Defendant pays a sum of M20,000.00 on or before the 1st March,
2008 and that the balance be paid by way of sixteen instalments
M5,000.00 each payable with effect
from the 1st April 2008, and thereafter on the 1st of every month.
that, this balance be paid by way of sixteen post dated cheques all
of which are to be delivered to the Plaintiffs counsel
the M205000.00 referred to in 2 above.
Defendant shall publish in the Prempeh College Website a retraction
and apology to the Plaintiff in the form and text to be
agreed to by
the parties within seven days hereof.
the agreed text of retraction and apology shall be published at the
instance of the Defendant within fourteen days of such
amount to be without interest.
each party bears its own costs.
the agreement be made an order of this Court.
agreement between both parties was thus made an order of this Court.
Plaintiff: Mr Phafane
Defendant: Mr Snyman
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law