HIGH COURT OF LESOTHO
COWSON SEIPOBI PLAINTIFF
EDITOR, MO-AFRIKA 2nd DEFENDANT
MOQHOLO 3rd DEFENDANT
by the Hon. Mr Justice T. Nomngcongo on the 3rd of September, 2003
This is a
ruling on an application for absolution from the instance after the
close of the plaintiff's case in action for defamation.
defamation complained of appears in an article published in the
Mo-Afrika newspaper (lst defendant herein) and its editor (2nd
of the words complained of is not denied and therefore one of the
essential elements of the delict is not in dispute.
The 1st and 2nd
statements are true and that either they are justified or are a fair
comment. It is not clear in this regard what the exact
plea is, but
for the purpose of this ruling this does not seem to me to be
important. Mr Khauoe further argued that no wrongfulness
proved at all.
article in question is headlined "Mohoebi o belaelloa ka peto"
(Businessman is suspected of rape". In the course
of the article
certain statements are complained of as constituting not mere
reporting but apparently statements of fact. I refer
to two in
particular - "After being raped the girl went to the police"
- "The doctor has confirmed that, that girl
has been raped".
These statements read on their own after a purported mere reporting
would seem to postulate what they contain
as a fact. Now this is
hotly denied by the plaintiff who says the words constitute a
defamation of his character.
test in a case like the present one is whether
"at the close of the case for the plaintiff there is a prima
facie case against the defendant.....; in other words, was there
evidence before the court upon which a reasonable man might, not
should give judgment against ....[the defendant.]" Gascoyne
Paul and Hunter 1917 TPD 170.
has been followed religiously ever since.
has been said further that" The court must consider the words
astute lawyer or super critical reader, but as an ordinary newspaper
reader would read them." Per Mcewan J. in HRH King
Kwazulu V.Mervis quoting with approval Wessels J.A. in Johnson v and
Daily Mails 1928 AD 190.
postulate as a fact, which apparently is not supported by evidence,
that a doctor has confirmed as a fact that rape has been
to instil in the mind of an ordinary reader that what he reads is now
not a mere report but actually what has happened.
Khauoe has urged that court must put the words in their context. I
could not agree with him more, were the application not
absolution from the instance when one carefully analyzes and goes
into the merits of the case with possibly the version
defendant at hand. But this is no such case. It is a case whether a
reasonable man might find not ought to find for the
is such a case and therefore there is prima facie case against the
defendant. Perhaps the defendant may be minded
to put the apparently
offending words in their proper context, but for now the plaintiff
has discharged the onus that rested on
the commission of a criminal offence and particularly one such as
would prima facie, in my view per se constitute defamation on which a
reasonable man might find for plaintiff
for absolution from the instance is accordingly dismissed with costs
against first and second respondents.
Plaintiff: Mr Khauoe
Defendant: Mr Mohau
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