HIGH COURT OF LESOTHO
LEFA LEPHOLE - PLAINTIFF
EDITOR - MOHLANKA (NEWSPAPER) - 1st DEFENDANT
NATIONAL PARTY - 2nd DEFENDANT
by the Honourable Mr Justice W.C.M. Maqutu on the 22nd November 2004
case plaintiff Ephraim Lefa Lephole sued first defendant the Editor,
Mohlanka newspaper and the second defendant the Basotho
Party a political party that is the proprietor and publisher of the
Mohlanka Newspaper. Plaintiffs claim is for:
of the sum of Ml5 000.00 (fifteen thousand Maluti) damages for
and for alternate relief.
of the case
was issued on the 29th February 1996. According to the affidavit of
Lekhoana Jonathan the secretary of the Basotho National
summons was served on the 5th March 1996. Timeous action was not
taken consequently plaintiff obtained a judgment by default.
application for rescission of judgment was filed on the 9th May 1996.
This was opposed. The record of proceedings shows that
Guni J granted
the application for rescission of judgment on the 12th November 2001.
plea was filed on the 14th January 2002. This was followed by a
pre-trial conference dated 20th March 2002. On the 28th
the matter was struck off form the roll for lack of prosecution. The
matter eventually proceeded on the 28th April
2004. By this time
neither the plaintiff nor the defendants had a copy of the newspaper
publication which is the subject of the
action for defamation.
Consequently trial began based on the plaintiffs declaration of the
summons. It was agreed that the publication
could be handed in when
it had been found.
evidence was heard between the 28th April 2004 and 29th April 2004.
This evidence will be summarized and analysed later.
the problem of a complete copy of the publication that was the
subject of this case. Defendant applied for absolution
instance at the end of plaintiff s case. The parties were invited to
submit written heads of argument during argument.
The matter was
postponed to the 24th May 2004. On the 24th May 2004 after further
argument, the matter was postponed to the 7th
June 2004 and defendant
was directed to supply a copy
newspaper article within 14 day. Defendant was unable to find it.
Both parties promised to continue looking for a copy of
reserved judgment on the issue of absolution from the instance. On
the 16th June 2004 this court ruled that defendants
have a case to
answer. See the court's ruling.
plaintiff had closed his case he filed a notice of amendment to which
defendants objected. On the 4th November 2004, before
opened their case the application for amendment was made. The court
refused to grant the amendment. After that defendants'
heard. Defendants then produced a photocopy of the publication before
defence evidence was heard. The court congratulated
eventually locating a copy of the newspaper article after a long
plaintiffs counsel had by agreement with defence counsel agreed that
evidence be heard on the basis of the extracts from the
publication in the pleading. This had to happen because plaintiff
copy that had been handed in when default judgment
was granted had
burnt with the whole file when the High Court civil registry burned
during the 1998 riots.
gave evidence as the first witness for plaintiff. Plaintiff told the
court that in 1995 Fato-fato was a government scheme
money from the Lesotho Highland Development Authority. Money was
allocated to electoral constituencies for developmental
as the digging of
building roads. Plaintiff told the court he was the constituency
treasurer of the Basutoland Congress Party, which was
the party that
had won the general elections. He was a secretary of the Fato-fato
project in the constituency.
Boqate constituency the Fato-fato project consisted of digging dams.
They employed people and paid them by cheque for work
was a newspaper of the second defendant the Basotho National Party.
During October 1995 Mohlanka published an article
with the heading
"we would rather push each other at the fato-fato." It is
this article in which plaintiff claims to
have been defamed. The
extract which in the plaintiffs view defamed him read as follows:
"...those in authority in the constituency have decided to
reduce the number of dam projects but money still has to come in
as if it is intended for the planned projects. This would enable
those in authority to divide the balance among themselves."
" The constituency secretary Mr Lephole is reported to have
chased one Leeto with a firearm. The reason appears to be that
is alleged to have been employed twice at Boqate and at Berea plateau
and his child is employed in the self-help scheme."
showed he was one of the people in authority in the constituency and
what was said above referred to him and also that
he was referred to
by name. All what had been said was false. The money was in the
Lesotho Bank and payments were made by cheque
to those who had
worked. These cheques would be honoured by the Lesotho Bank.
time of publication of the article in Mohlanka it appears there was a
dispute about Fato-fato moneys. It was alleged there
was greed. Some
were going into constituencies to destroy each other. Other parties
were defaming them in that fato-fato project.
plaintiffs view a reader would conclude that plaintiff and two others
who were running the fato-fato project of the Boqate
were defrauding the government of Lesotho through corruption and
would go to the extent of killing a person. Plaintiff
saying he never shared constituency money with anybody nor did he
chase any person with a gun. Plaintiff denied that
what was said
about him was true and in the public interest.
said public esteem for him went down. He used to be treasurer of the
Basutoland Congress Party and chairman of the district
committee. After the publication people no more elected him.
Plaintiff said he used to be a member of the consistory
Lesotho Evangelical Church even there too he was no more elected.
Plaintiff earned a living as a natural therapeutic practitioner
practice was affected by this defamation. The number of patients fell
drastically. Plaintiff consequently felt helpless because
believed these allegations.
also told the court that the apology and retraction of the
allegations made by Mohlanka dated 9th March 1996 did not come
attention. Plaintiff consequently claimed damages of M15 000.00 and
costs of suit.
cross-examination plaintiff said he was a treasurer of the BCP
constituency committee of about 12 members if he was not mistaken.
constituency the Development Committee of three members he was the
The other two member were 'Molotsi and Mopeli. He was included in the
article "we had rather push each other in
The development committee had no political complexion. The
publication was directed at the BCP (Basutoland
rather than the development committee that was politically impartial.
paragraph of the extract was directed at them because it said they
had reduced the dams so that they could eat the money.
refers to him directly is where it says he (plaintiff) chased Leeto
with a gun. The first portion refers to the three
of the collectively
- not to him alone.
continued and said they never employed Leeto. Plaintiff said he would
not dispute that paragraphs one and two of the extract
to do with each other. Paragraph 2 states he chased Leeto for the
money that belonged to him. Plaintiff withdrew that
statement and say
the money did not belong to him he was mistaken. Plaintiff added that
he more knows what was written.
continued his evidence and said he knows Leeto Litlhakanyane. Leeto
was a member of the Basutoland Congress Party. They
had met at the
Bus Stop a little before the publication of the article. Plaintiff in
answer to questions told the court that he
accused Leeto of having
said to Kori Masika that plaintiff employs relatives and is misusing
moneys. He denied saying he is not
Leeto's mother and that he would
show him his mother for speaking ill against him. Plaintiff said
Leeto had been spreading lies
about plaintiff saying he had employed
his wife. Plaintiffs son had just done Form C. It was not true that
four dams were built
but only two were
although money was available. 8 dams were built but Plaintiff said he
is not sure of the actual position on the plateau
Lithlakanyane lives. Plaintiff told the court that he forgets because
LCU took over. On the Thuathe plateau they built
2 dams. Some dams
were planned but executed by LCU. Government brought LCU for its own
reasons, they had not misused funds.
no specific words state they were bent on defrauding government or
that he was a fraudster, plaintiff still maintained
he was defamed by
Mohlanka. He conceded that paragraph 7 was wrongly taken to be
defamatory. Plaintiff did not often read Mohlanka,
could not know that defendants had published an apology on 9th March
1996. It was defamatory to say he chased Leeto
with a gun when in
fact that did not happen.
re-examination plaintiff said a reader does not read the article
separating paragraph - the reader takes what is published
Consequently plaintiff concludes the article, as a
whole is defamatory. In the affidavit in support of an application
of judgment Leeto admitted plaintiff did not chase him
with a gun.
second witness Pw2, was Litelu Kolonyane of Pitseng ha Tumo. Pw2 told
the court that he lives in a village close to that
of plaintiff. Pw2
told the court that in 1995 he was a forman in the dam constructing
scheme in the Boqate constituency. Plaintiff
was secretary of the big
working committee. That committee of which plaintiff was a member
paid people who worked in the scheme
through cheques. Two of the dams
were not yet
at the end of 1995 and the beginning of 1996. Those two dams were at
committee powers (according to Pw2) in the country as a whole were
seized by the government because there were complaints that
were missing and that there were abuses. In the Boqate constituency
there were no abuses or missing cheques. Pw2 further
said he read
Mohlanka in October 1995. That newspaper said those in authority in
the Boqate constituency had abuses. They had reduced
the number of
the planned dams so that they could keep money for themselves.
Furthermore the newspaper said plaintiff had chased
Leeto with a
is the work of building dams. What is written in Mohlanka according
to Pw2 teaches people that plaintiff is not a good
person. He divides
money meant for fato-fato with others secondly he chases people for
cross-examination Pw2 said only 2 dams out of 12 were completed.
There was a reduction in the number of dams that were supposed
built. What was stated in the newspaper was not correct. Pw2
conceeded that because he was not in the committee he had no
knowledge of the truthfulness of what was said in Mohlanka. Pw2
concluded that the people referred to in the newspaper were not
honest. Those in authority in the Boqate constituency were Jack
Mofeli, T. Molotsi and plaintiff. They were in charge of the
The words in the extract referred to the development
committee of the Boqate constituency dealing with Fato-fato.
a member of the party committee. According to Pw2
singles out Lephole the plaintiff as misusing the moneys. Plaintiff
is one of those in authority in that constituency.
associate plaintiff with fraud. Pw2 told the court he did not see
defendants retraction of what had been published
Pw2 said dams were not completed because the work was removed from
constituency development committees all over
the country. Pw2 said
irregularities had not been reported by planning officers who used to
come and check.
first defendant gave evidence he had the full article which was the
subject of the defamation action. He had just found a photocopy
it. It is convenient at this stage to read the entire certified
translation of the newspaper article:
had rather push each other in the fato-fato This is a statement
originating from Mahatammoho (Basutoland Congress Party)
the constituency of Boqate at their gathering at Ha Makube on the
Berea Plateau. They were very angry the cause being
grievance being discrimination in the way people are employed at the
fato-fato project. They were saying that they
have heard that those
responsible in the constituency have reached a decision that the work
of the dams should be reduced, but
the money should continue to come
in full as if it is coming to complete the entire project as
originally planned so that those
in authority may share the balance
of the money among themselves.
secretary of the constituency Mr Lephole is reported as having chased
around one Leeto with a gun. The reason was that it is
alone was alleged to have been employed
Boqate and at the plateau of Berea and his child is still employed in
the fato-fato project.
people who were involved in that anger wanted to meet the
constituency elected candidate Mr Ramolahloane whom they were unable
decision was to go and see the Honourable Prime Minister. They are
reported to have been so angry that they decided to march
to the office of the Prime Minister. It appears they were stopped
from marching (toi-toi) by being told that the great
one has said he
already knows their grievance, and he can only allow them to elect
five people to come to his office not that crowd.
these news really be true? If the affair of work atfato-fato has
discrimination all over the country since Basutoland Congress
members (Mahatammoho) say they are the only ones who have the right
to work, how will government reprimand and stop this?"
sworn first defendant said he was the editor of Mohlanka and had
written that article. First defendant said it did not defame
plaintiff at all. It was on pages 4 and of the Mohlanka newspaper of
October 1995. He got the information from Basutoland Congress
members. First defendant said he believes the information given to be
defendant referred the court to page 6 of the article where he had
asked the government if it was in fact true that there
discrimination in the fato-fato project. At the conclusion of the
article first defendant had asked government to reprimand
responsible for discrimination. Government acted and stopped the
Fato-fato work completely. Consequently first defendant
said what he
wrote was in Mohlanka was meant for the public to read and it was for
the public benefit. It was a fair comment. First
added that he was also exercising his freedom of expression and the
freedom of the press. Defendant handed in the article
and it was
marked defendant Exhibit "A1".
Defendant told the court that when he got a complaint from plaintiff,
he immediately wrote an apology because his intention
was not to hurt
any one. He handed in the apology and it was marked Ex "B. First
defendant told the court that his informant
was Leeto Litlhakanyane.
First defendant consequently asked the court to dismiss plaintiffs
claim with costs.
plaintiff said he did not meet plaintiff to hear plaintiffs side of
the story. There was no reason compelling him
to meet plaintiff
before he could publish the article because the complaint in the
article was known all over the country. First
defendant did not meet
the constituency authorities because he had no doubt about the
correctness of the information - if he doubted
the information he
could have approached the constituency authorities. First defendant
therefore found it correct to say he did
not verify the information
in question before he could publish it.
further questions first defendant said government stopped fato-fato
because of what first defendant had written. The reason
in the view
of first defendant was that all these projects in the constituencies
had the same problem. First defendant therefore
found it unnecessary
to make further investigations. Nor only in politics but in normal
life people say untrue things with ulterior
and the way money might not be used in the manner intended might have
led people to conclude that those
in authority in the constituency
were enriching themselves.
Defendant said in answer to further questions he never examined the
books of account of the dam projects. Plaintiff was one
of those in
authority in the Boqate Constituency if he was the secretary but
first defendant did not know him. First defendant
admitted he did not
know if plaintiff chased Leeto with a firearm. First defendant noted
that Leeto in the affidavit in support
of the rescission of judgment
had shown that plaintiff had not chased him with a firearm.
second defence witness was Leeto Lithlakanyane, Dw2. Duly sworn he
said he was from a neighbouring village from that of plaintiff
told the court that he was a member of the Basutoland Congress Party.
Dw2 said further that he supplied the information to
the editor of
Mohlanka and that the publication dated 4th October 2004 is based on
the information he supplied.
he was the member of the constituency committee of which plaintiff
was the secretary. There was a fato-fato project in
constituency that constructed dams. A suspicion developed among
Basutoland Congress Party members that its employment
discriminatory. Some members of the committee were hiring their wives
and children repeatedly. These people were
being employed on a
monthly basis. Their elected member of Parliament was not available
for consultations about the fato-fato project.
the court that there was quarrelling and fato-fato work was not going
well. One of the complaints was that dams were being
money would still came in full. It was part of what Dw2 told the
editor of Mohlanka that the balance of the money would
be shared by
those committee members that operated the fato-fato project. Dw2
further told the court that this part of their Basutoland
Party Committee that ran the fato-fato project was hiding information
about how the moneys of fato-fato were spent. Consequently
decided to approach the member of Parliament to find out what was
discontented Basutoland Congress Party members went to Parliament but
did not find their member of Parliament. They then went
to the Prime
Minister's office where (after the advice they were given) a
delegation of 5 people who included Dw2 met Mr Tom Thabane
been assigned to meet them. Mr Tom Thabane informed them that the
Prime Minister was aware of their complaint as the matter
before him. Action was taken and the fato-fato construction of dam
was stopped immediately.
way to see their member of parliament Mr Ramolahloane, Dw2 had met
Plaintiff at a Bust Stop. Plaintiff had called him and
(Dw2) why he was going about saying plaintiff was consuming public
money with his family. Dw2 asked who plaintiffs informant
plaintiff said it was Kori Masika. Plaintiff would not answer Dw2's
question of why he had not brought them together with
reached out for a gun which Dw2 actually saw. Dw2 held the door of
the motor vehicle in which plaintiff was, to
stop plaintiff from
getting out of the motor vehicle.
at the time was in a fighting mood and said to Dw2 - he was not Dw2's
mother. In the Basotho culture (to which counsels
on both sides, the
and the court belong) - when a person refers to somebody's mother, he
is taken as insulting that person. Dw2 ran away plaintiff
got out of
his motor vehicle and stopped behind it and flexed his arm that was
holding a firearm. Dw2 who was some distance away
and had stopped,
retorted and said, plaintiff was referring to defendant's mother
because plaintiffs mother was beautiful. That
remark was meant to
insult plaintiff in return.
affidavit Dw2 made in support of an application for rescission of
judgment is not correct where it says plaintiff did not actually
produce a firearm. The report in Mohlanka was not accurate when it
said Dw2 had been employed in the Fato-fato together with his
was plaintiff that Dw2 had said had been working with his family in
the fato-fato - not Dw2 Leeto himself. The editor of
misheard him. The information he gave to the editor Mohlanka was
otherwise correct and good for public consumption.
Dw2 said the editor Mohlanka substituted him (Dw2) for plaintiff in
the report. It was plaintiff who was hiring his
family in the fato
fato. Dw2 and his child were never hired in the fato-fato.
fato-fato project according to Dw2 (in answer to questions) was run
by a section of the Basutoland Congress Party committee
Boqate constituency. The fato-fato project began when there was
already disagreements in the Basutoland Congress Party.
the fato-fato project was run by the chairman, the secretary and
treasurer of the Boqate constituency of the Basutoland
Committee. These three people did not want to hear anything from
other members of t
Dw2 Leeto was the publicity officer of the Boqate constituency in
that committee, while plaintiff was its treasurer.
began plaintiff became its secretary. The chairman, the secretary and
the treasurer had appointed themselves as
administrators. Dw2 told the court that he could not participate in
fato-fato because quarrels had begun and consequently
he hated the
faction to which plaintiff belonged. Dw2 Leeto and other members of
the committee were kept in the dark about what
was happening in
fato-fato by the clique of the above-mentioned three officers who
Mohlanka was the newspaper of another political party, he did not
care. All the wanted was a journalist who could publish
grievance because plaintiff and his two colleagues were keeping them
in the dark about the fato-fato moneys from government.
Dw2 Leeto did
not know if there was money left as a credit balance when number of
dams were reduced.
not know that a son of plaintiff Tsepo was a trained forman for
fato-fato project and that he was trained by the LCU for
purpose. Cross-examined about his averment that plaintiff did not
point a gun at him. Dw2 said that was wrongly stated in
- plaintiff did in fact point a gun at him. Plaintiff, 'Molotsi and
Mopeli who administered Fato-fato were not there
at the meeting he
told the editor Mohlanka about. Dw2 had made the affidavit in support
of an application for rescission of judgment
in May 1996. Dw2 Leeto
confirmed that it was him who told first defendant the editor
Mohlanka that those in charge share the money.
He was told by Kori
Masike that those in charge of the fato-fato project would share the
money. Kori Masike was not running fato-fato.
In re-examination Dw2
plaintiff became secretary when the trio appointed themselves to run
fato-fato. Dw2 told the court that he believes what was
Mohlanka was the truth.
and freedom of expression
following are the guidelines that have to be followed in exercising
the right of freedom of expression:
Lesotho's constitution there is no separate and specific freedom of
the press. See Section 14 (!) of the Constitution. The
recognizes the press as one of several means of expression. See
section 14 (4) of the Constitution which speaks
of media of
of expression like other enumerated rights under section 4 (1) of
the constitution have specific limitations. These limitations
"Limitations designed to ensure the enjoyment of the said rights
and freedoms by any person does not prejudice the rights
of others or the public interest.".
people are in terms of section 11 (1) "entitled to respect"
for their private lives. Consequently the constitution
11 (2) upholds laws that interfere with individuals right "for
the purpose of protecting the rights and freedoms
Section 11 (2) (b) of the constitution.
right which the editor or a newspaper or any medium of expression
enjoys in Lesotho is in fact an individuals right of expression.
This individual's right includes in term of Section (14) (1)
"freedom to communicate ideas and information without
(whether the communication be to the public generally
or to any person or class of persons)..."
constitutional court of South Africa has crisply sumarised the
correct approach to the application of rights under the Constitution
in SvMakwanyane]995 (3) SA 391 at 431 at 436 as follows;
"The limitation of constitutional rights for a purpose that is
reasonable and necessary in a democratic society involves the
weighing of competing values, and ultimately an assessment based on
proportionality...there is no absolute standard which can be
down for determining reasonableness and necessity."
JA in Ramainoane v Sello 1999 - 2000 Lesotho Law Reports and Legal
Bulletin 411 at page 413 crisply put this principle
are no closed number of defences available to such a defendant in a
defamation action." Kumleben JA relied on National
others v Bogoshi 1998 (4) SA 1196 at page 1208 D".
which the press has to follow:
the rights and duties of the press in exercising the freedom of
expression are those of the individual, the common law
of Lesotho has
recognized that the press is a social and public asset. See E.R.
Sekhonyana v M. Morrison & another 1991 -96
LLR 1431 at 144 1. In
the United States of America basing itself on the First Amendment,
the role of the press "is regarded
as essential to the smooth
functioning of a representative government, and the main function of
the media is said to be the control
of state action." See Burns
Communication Law (Butterworths 2001) at page 27. This view was
clearly expressed in Maseko v
Attorney General & Others 1990 - 94
LAR 13 where newspapers were encouraged in the public interest to
publish information of
misdeeds by ministers and people in public
plaintiff was a public officer and politician (although a minor one)
the guidelines will be approached form the vantage
of politicians and
the law of defamation.
Cape case of Mackay v Phillip 1 Mez 455 at 463 it was held that
where plaintiff was public officer and his misdeeds are observed,
was " the duty of every honest man to publish such misconduct
of plaintiff, and through the powerful medium of the press
public voice..." In Maseko v Attorney General & another
1990 -94 LAR 13 at page 36 Ackermann JA put the same
"The article was an attack on the probity of a Minister of
state. I fail wholly to see why attempting to expose corrupt acts
a Minster of state is detrimental to national security unless
sufficient material is placed before the court to establish that
second respondent had reasonable grounds for suspecting that the
allegations made were deliberately or recklessly false."
the exercise of freedom of expression which the press and
individuals enjoy, other people enjoy a right not to be unlawfully
defamed. "The law had devised a number of defences, such as
fair comment, justification (i.e. truth and public benefit)
privilege, which if successfully invoked render lawful the
publication of matter which is prima facie defamatory" Argus
Printing and Publishing Co Ltd v Esselen 's Estate 1994 (2) SA 1 at
page 25 per Corbert CJ. See also E.R. Sekhonyana v Morrison
another 1991 -96 LLR 1436 at 1448.
right of people in public life such as politicians was summarised by
Hartzenberg J as follows in the case of Mangope v Asmal
another 1997 (4) SA 277 at 289 (1)
"A defamatory statement even about a politician aimed at his
personal dignity and his reputation, and not aimed at his public
conduct and policy, cannot be justified under the guise of freedom of
speech and is therefore actionable."
the defence of truth and in the public benefit was relied upon, the
statement alleged to be true need not be true
in every minute
detail, but ... at the very least be substantially true. That indeed
has been laid down in various authorities
-" per Leach J in
Kemp & another v Republican Press (Pty) Ltd 1994 (4) SA 261 at
person who publishes defamatory matter cannot escape liability by
saying he merely passed on a defamatory rumour but did not
it or endorse it. Farrar v Madelay 1913 CPD 888 at 890. See also the
Newspaperman 's guide to the law 3r Edition at page
publisher must avoid publishing defamatory statements that are
deliberately or recklessly false" even when he is discussing
political issues and dealing with actions of politicians. See Maseko
v Attorney General & another 1990 -94 LAC 13 at page
36 FG. In
Holomisa v Argus Newspapers Ltd 1996 (2) 601 at page 618 regarding
falsehood this was said:
"A defamatory statement which relates to free and fair political
activity is constitutionally protected, even if false, unless
plaintiff can show that, in all circumstances of its publication, it
was unreasonably made."
To put this in the words of Kumleben JA in Ramainoane v Sello 1999
-2000 Lesotho Law Reports and Legal Bulletin 411 at page 413
"obversely stated, that it was not recklessly and negligently
there is reason to doubt the correctness of a report and it is
practical to verify the correctness thereof, it should be
This is because freedom of the press does not belong to the
journalist alone, it is part of the public right to know.
the public must as much as possible rely on the press. See The
Newspaperman's guide to the Law 3rd Edition. See also
& Ors v Bogoshi 1998 (4) SA 1196 or page 1212 I where Hefer JA
"What will feature prominently is the nature of the information
on which the allegation is based and the reliability of their
as well as steps taken to verify the information" my underlining
Plaintiff's submission Mr Mohau argued that the defendants
beyond fair comment when they said:
The money intended for the originally planned projects this showed
enable those in authority to divide the money amongst
He quoted Neethling Portgieter & Visser. The Law of Delict 2nd
Edition page 326.
defence of truth and public interest Mr Mohau argued that the above
statement need not have been literally true - all that
was that the remark be substantially true. Mr Mohau further conceded
that the press is allowed a reasonable latitude
quoting from Corbett
CJ's words in Argus Printing & Publishing Co. Ltd v Esselen 's
Estate 1994 (2) SA 1 at page 25 C Mr Mohau
"But it is trite that such freedom cannot be unrestrained. The
law does not allow the unjustified savaging of an individual's
reputation. The right of free expression enjoyed by all persons,
including the press, must yield to the individual's reputation.
right of free expression enjoyed by all persons including the press,
must yield to the individual's right, which is just as
to be defamed."
further argued that defendants never took reasonable steps to see
what they published was reasonable. He referred the court
Media Ltd v Bogoshi, 1998 (4) SA 1196 at 1212 I where Hefer JA said:
"What will also figure prominently is the nature of the
information on which the allegation is based and the reliability of
the source, as well as the steps taken to verify the information.
Ultimately there can be no justification to publish untruths,
members of the press should not be left with the impression that they
have a licience to lower the standards of care which
must be observed
before defamatory matter is published in a newspaper."
Mphalane agreed with what Mr Mohau had said. But Mr Mphalane argued
for the defendants that plaintiff must rely on the ordinary
of the words complained of, alternatively the alternative meaning he
has selected. Burchell the Law of Defamation in SA
Mphalane argued that the public interest involved is "having
public affairs known by all." Consequently " a conduct
which would otherwise be actionable is to escape liability because
the defendant is acting in furtherance of some interest of social
importance ... even at the expense of harm to plaintiffs reputation.
Prosser & Keeton on Torts page 815.
I take is that the literal meaning what was said about plaintiff
sharing fato-fato money is per se defamatory in an unlawful
unless it is true. There could be defences - these I shall proceed to
analyse. I note that the article which is the subject
of this action
is on page 4 of the newspaper. This I have to take into account in
assessing its effect. I have also to take into
account that a
newspaper of a political party was attacking members of
governing party. In other words I am dealing with politics and
clear that the digging of dams in the Boqate constituency was run by
members of a political party. It is also clear that allegations
discrimination in employment were being hurled left right and center.
Those in authority in the Boqate constituency included
was even mentioned by name. Even if he was not mentioned by name, if
plaintiff could show that a reader would not
have any doubt that the
publication referred to him, he had a title to sue. This fact has
been demonstrated. The defendants as
a political party and its
newspaper were entitled to take full advantage of divisions in the
Basutoland Congress Party that was
running the fato-fato dam digging
project. Consequently Hefer JA in National Media Ltd & Others v
Bogoshi 1998 (4) SA 1198
at 1212 it said:
"In considering the reasonableness of the publication account
must obviously be taken of the nature, extent and tone of the
allegations. We know for instance, that greater latitude is usually
allowed in relation to political discussion..."
therefore obliged to take the political atmosphere in which the
article was written. I also note that issue has not been joined
the discrimination in the way those in authority were alleged to
employ people. The sting in the nepotism alleged against plaintiff
was dissipated because Leeto's name was substituted for that of
clear that only people in the constituency of Boqate would know that
plaintiff as party secretary or treasurer of the Boqate
is one of
authority in the Boqate constituency where the fato-fato dams
projects were taking place. People in the country as a whole
not easily relate the report in the Mohlanka newspaper to plaintiff.
The sting of the article is that those in charge of
constituency had decided to reduce the number of dams so that they
could share the money. People who were not in the
would not necessarily know that plaintiff Mr Lephole is being
referred to. Yet people in the Boqate constituency
among them Pw2 had
no problem in deducing that what was being said about
misappropriatingT&fo-Tafo money referred to plaintiff.
also be people of the Boqate constituency who would associate the
chasing around of Leeto with the illegal sharing of the
money and the
way fato-fato was being run. I have already shown the sting of
nepotism had been taken out of that second paragraph
by the fact that
the editor Mohlanka mixed up the facts. It however seems plaintiff
did not sufficiently focus on the false allegation
that he chased
Leeto with a gun to sufficiently highlight the defamatory nature of
appears in a newspaper cannot be understood in the same way by people
living in different parts of the country. The understanding
reader will depend on the reader's knowledge of the subject matter
and of the people involved. In defamation this has to
be taken into
account. The resident of the Boqate constituency know the type of
fato-fato they had in their constituency. They
also knew the people
who administered it. They also would know plaintiff as a person. The
sting of the newspaper publication and
its defamatory meaning would
be clear and unambiguous to
while the whole publication to the rest of the people of Lesotho
might not have the same impact.
case Good v Smith 1964 (4) SA 374 Milne JP noted at page 375 that
sometimes without the requisite prior knowledge on the
persons who heard a statement, the statement would be incapable of
conveying a specific defamatory imputation. At page
376 GH Milne JP
"It was accepted by Mr Feetham that words or gestures are not
defamatory unless they impute to the person concerned conduct
would lower him in the estimation of right -thinking members of
also common cause that fato-fato had problems, cheques were being
misplaced and corruption was accepted as occurring in some
Eventually government had to hand over fato-fato projects to LCU.
This is bound to have an impact on the way a reasonable
man will view
the publication in Mohlanka. In Rhodesian Printing & Publishing
Company & Others v Howmann N.O 1967 (4) SA
1 the minister of
Information had defamed the press in general merely because it did
not tow the government line. Fieldsend J noted
that the press must
expect " to get as good as they give." The Minister had
accused the press of a high degree of irresponsibility.
At page 18 CD
Fieldsend J continued:
"Whilst obviously the imputation I have found to be conveyed by
the words is not nearly as serious as an imputation of dishonesty,
is still a serious imputation to make of a man in his profession..."
imputation that plaintiff and his co-administrators in the fato-fato
project reduced the number of dams so as to divide the
money among themselves is a definite imputation of dishonesty. It
goes beyond fair
It is not a vehement criticism or even an exaggeration. If what was
said above is the truth then it was the duty of the
press to expose
that group of swindlers in the public interest. In such circumstances
the press can legitimately claim that it
had no animus injuriandi
towards plaintiff. In such a situation the press would be acting in
the public interest.
v Post Newspaper (Pty) Ltd 1965 (3) SA 565 the head-note reads:
"A high degree of care is required of those who act for a
newspaper whom they are proposing to publish or cause the publication
therein, of matter injurious to the reputation of someone."
defendant told the court that he was sure that the information he got
from Leeto Litlhakanyane Dw2 was correct that he did
not take any
steps to verify it. It turns out that first defendant's informant had
no basis to make the allegation or to impute
that plaintiff and his
two co-administrators of the fato-fato project funds were asking for
the whole of budgeted amount despite
the reduction of dams so that
they could divide the balance among themselves.
counsel agree with what is stated in the rubric of Hassep-2Xn v Post
Newspaper Ltd 1965 (3) SA 562 that:
"A defamation is not actionable if it was published in the
honest, though mistaken belief in the existence of circumstances
which would have justified or excused its publication; but that is to
say only if the mistake is not attributable to recklessness
negligence of the defendant, or of those for whose acts or omission
he is responsible."
defendant had to show that there are circumstances which would have
justified the publication. There are circumstances that
cause of maladministration, corruption even loss cheques, and
discrimination in the employment of people in the Boqate
constituency. However first defendant has also to show the court the
grounds on which the imputation that the whole budgeted amount
asked for so that plaintiff and his colleagues who administered the
fato-fato project would divide the balance among themselves.
which the court has to determine is whether the unsubstantiated
defamatory allegations in the publication were not attributable
the recklessness or negligence of first respondent. As Colman J said
in Hassen v Post Newspaper Ltd & Others 1965 (3) SA
562 at page
"Thus a newspaper cannot escape liability for damages merely
because the defamatory matter published by it was put forward
more than a repetition of a speech made at a political meeting, or a
statement made to its reporter by someone."
first respondent and Dw2 Leeto Litlhakanyane say first defendant has
merely reproduced what Leeto Litlhakanyane told the editor
Mohlanka. This of course does not relieve first respondent from
liability. The first respondent might however, escape liability
certain circumstances. Hefer JA in National Media Ltd & Others v
Bogoshi 1998 (4) SA 1196 at 1212 says "the reliability
source, as well
as steps taken to verify the information" could help first
defendant. It turns out that Dw2 Leeto hated plaintiff and had
access to any information about the financial
of fato-fato in the Boqate constituency. In Hassen v Post Newspaper
(Pty) Ltd (supra) at page 574 H Colman J said:
" The law clearly does not sanction such publication if it is
made out of spite or ill-will. But, nor, I think, does the law
sanction a defamatory publication which, though not tainted by spite
or ill-will, was made unreasonably or negligently."
credential Leeto had was that he was a member of the Basutoland
Congress Party constituency committee along plaintiff,
belonged to the faction of that Committee hostile to plaintiff and
his two colleagues that administered the fato-fato
Unfortunately first respondent did not take any steps to verify the
information supplied by Leeto Dw2 as he was (as a
expected to do. This is surprising because political party factions
are notoriously inclined to hurl insults, polemics
defamatory statements against each other.
to verify the information is taken along with other factors to
determine whether first respondent acted reasonably. Consequently
Cameron J in Holomisa v Argus Newspaper Ltd 1996 (2) SA 588 at 617
"The reasonable standard offers a powerful tool for resolving
difficulties inherent in protecting reputations while at the
time giving recognition to the role the constitution accords free
speech and expression. It will not be reasonable to publish
untrue statements of fact. Only due enquiry and application of
reasonable care will mark such conduct out for protection."
to me first respondent has not supplied this court with sufficient
facts that render his conduct in publishing the words
Consequently I agree fully with what Hefer JA said in National Media
Ltd & Others v Bogoshi page 1212 J to the effect
"Ultimately there can be no justification for publication of
untruths, and members of the press should not be left with the
impression that they have the licience to lower the standards of care
which must be observed before defamatory matter is published
first defendant does not dispute that he did not check whether what
he published is true or not, I have no difficulty in concluding
first respondent acted recklessly and negligently when he published
an untrue defamatory statement about plaintiff. Second
owner of Mohlanka is vicariously liable for first defendant's conduct
as first defendant was engaged in second defendant's
already found that the rest of Lesotho would not have appreciated the
real sting in the defamatory statement. They would
have taken it as a
criticism against the widespread corruption and discrimination in the
fato-fato project. My award of damages
will center around the injury
to plaintiffs good name in the Boqate constituency in which he lived.
The injured feelings and the
lowering of his esteem in his community
and among his neighbours in the Boqate area.
taken into account that plaintiffs claim was moderate. He claimed
only Ml5 000.00 when most claimants claim considerably
are ordered jointly and severally to pay M10 000.00 (Ten Thousand
Maluti) damages for defamation of Plaintiff.
are similarly directed to pay costs of this action.
THE HIGH COURT
Plaintiff: Mr Mohau
Defendant: Mr Mphalane
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