HIGH COURT OF LESOTHO
OF POLICE 1st RESPONDENT
GENERAL 2nd RESPONDENT
LETOOANE 3rd RESPONDENT
by the Honourable Mr. Justice W.C.M. Maqutu On the 23rd June 2006
6th August 2004 plaintiff initiated an action for:
of M100,000.00 (One Hundred Thousand Maluti) being damages for
of 18% a temporae morae;
and/or alternate relief.
a policeman is suing the Commissioner of Police (first defendant),
the Attorney General (as representative of the
Government and MOHAPI LETOOANE, a Senior Police Officer as third
Declaration summarises the facts on which the plaintiffs claim is
based as follows:
or around 21st April, 2004 at or near Roma Police Station in Maseru
district, the Third Defendant while acting within the
scope and cause
of his employment with First and Second Defendants, uttered the
following defamatory statements, before members
of Lesotho Mounted
Police Service and members of public; who had gathered at Roma Police
Station; Alternatively, the Third Defendant,
uttered the following defamatory statement:-
tennoe ke masholu ana a mapolesa. Nako ena kaofela ha re sebetsana le
masholu, re fumana lepolesa ka hare, ke ipotsa hore
na ha u se
lesholu, liphoofolo tsa hau li batla eng ka hara tsa masholu. Ha ke
fihla ho Mong'ka ke tla reng, re tennoe ke mapolesa
ana a masholu, le
lithunya lia nyamela liofising mona, li ntse li nyametsoa ke masholu
a kang uena tjena a mapolesa. Khale u tlositsoe
mona, ha ke tsebe
hore na liphoofolo tsena tsa hau,
ha oa li
tlosa mona ke eng, ha e se feela hore u ntse u utsoa le masholu ana.
Khale u leka batho mona ka bosholu bona ba hau} ke
hantle ba u
transfere, u ilo leka ba bang koana Berea ka bosholu".
translation of the defamatory statement:-
"We are sick and tired of these thieving Policemen. Whenever we
have problems with thieves, we find policeman among their
wonder why, if you are not a thief are your animals among those of
thieves. What will I say when I get to my Superiors.
We are sick and
tired of these thieving policemen, guns are disappearing in offices.
They are taken by these same thieving policemen
like you. . You have
long been transferred from this place. I do not know why you have not
removed your animals from this place,
if it is not because you are
assisting these thieves. People are tired of your thieving/stealing,
it is just as well they transferred
you, so that you can go and
bother people in Berea with your stealing".
Plaintiff pleaded with the Third Defendant to stop these utterances
however the Third Defendant went further to say:-
khathetse ke masholu ana a mapolesa, hona joale ofisi ea ka e
koetsoe. Haeba ua belaela, tsamaea u ee ho Commissionara,
belaela, ke tla u joetsa ka pela hae, hore ke khathetse ke masholu
ana a mapolesa a kang uena".
"We are sick and tired of these thieving policemen, my office
has since been closed. If you have any complaint, go to the
Commissioner, I will tell you in front of the Commissioner, that we
are sick and tired of the thieving policemen like you".
statement by the Third Defendant was uttered to Plaintiff in public,
as the Plaintiff was among the members of the public, who
gathered at Roma Police Station to identify their found stock.
statement by the Third Defendant is wrongful and defamatory of the
statement is wrongful and defamatory of the Plaintiff in that it was
intended and was understood by the addressees and/or listeners
statement, to convey the meaning and
that; Plaintiff is dishonest, a cheat and corrupt in the following
Plaintiff is a thief;
Plaintiff is a criminal;
Plaintiff is assisting thieves in criminal activities;
Plaintiff is using his position to steal police service guns for
statement was made with the intention to defame Plaintiff and to
injure his reputation.
result of the said defamation, Plaintiff has been damaged in his
reputation as a member of the Lesotho Mounted Police Service,
renowned farmer, a respected member of the community as well as a
family man and has suffered damages in the amount of M100,
(One Hundred Thousand Maloti) for which Plaintiff holds Defendants
liable to pay.
defendants are sued jointly and severally, one paying the other being
Attorney-General entered appearance for all the defendants and
undertook the defence of all of them.
defence of the defendants is contained in the Defendants5 Plea and
the most salient points of their defence is the following:-
therein are denied and plaintiff is put to the proof thereof. It is
particularly denied that plaintiff was called a thief.
defendant admits uttering some words but at no stage did he call
plaintiff a thief or intend to convey that plaintiff is
AD Para 7
defendant admits that he uttered some words to plaintiff in the
presence of other people, but whatever he uttered was only
defendant's capacity as plaintiffs senior officer. Third defendant
never intended to defame plaintiff.
10 & 11
Third defendant never intended to defame plaintiff or injure his
basis of what has been pleaded above, defendants cannot be held
liable for any damages alleged to have been
by plaintiff WHEREFORE it is prayed that this action ought to fail
straight away point out that the plea of the defendants was not
properly drafted. In particular issue is not clearly joined
words uttered. We do not know in advance whether defendants admit all
the words alleged uttered except calling plaintiff
a thief. Such
vagueness is excipiable and calls for a request for further
particulars to clarify issue before an exception is filed.
appears that an impression is given that all the words spoken are
admitted except only the words that convey the meaning that
is a thief. If that is so that should be clearly and unambiguously
pleaded. It is also clear that the quantum of damages
(One Hundred Thousand Maluti) is not challenged. That is most unusual
minutes of the pretrial conference are just as unhelpful I quote only
the relevant paragraphs.
counsels agree that the event occurred on the 21st April 2004.
counsels agree that there were other people gathered on the material
of statements Both counsels have exchanged witnesses' statements.
of damages Defendants deny plaintiff is entitled to damages.
The defendants deny liability.
appears therefore from the plea defendants admit plaintiff is
entitled to damages of M 100,000.00 (One Hundred Thousand Maluti)
defendant is found liable. Plaintiff does not have to prove the
quantum of damages. This failure to challenge quantum of damages
most unusual and I would say unwise. This is particularly so because
courts usually say the parties are bound by their pleadings.
23rd May 2006 the matter proceeded before me. Plaintiff duly
swornp^ave evidence and said on the 21st April 2004 he went
Police Station to release his impounded animals.
told the court that he is a policeman who joined the police force in
1997. His rank is that of a trooper. He is presently
stationed at TY
Berea Police Station.
animals had been driven from the cattle post at Makhaleng by the
people from Ha Mokhou. These people belonged to the
stock theft organization. Plaintiff told the court that his cattle
were at the cattle post of Gerard Malefane. Plaintiff
court he did not know why his cattle had been driven away from that
cattle post. Later Gerard told him why? It was
as if (according to
what plaintiff was told by Gerard) Gerard's brother was once
suspected of stock theft - stealing from one of
the members of the
prevention of stock theft organization. It was these people who drove
away animals from Gerard Malefane's cattle
post to compensate
to information plaintiff got these the sheep and goats were first
driven to Ha Mokhou. Some of these animals belonged
to plaintiff. He
had learned of this around the 18th and 19th April 2004. Later Gerard
telephoned plaintiff and told plaintiff
that the animals had been
taken to Roma Police Station. On the 20th April 2004 plaintiff went
to Roma and the Roma police found
his sheep there. The Roma police
told him to bring documents proving the cattle were his.
came back on the 21st April 2004. He reported himself to the Roma
police with his documents in order to release his animals.
says the Roma police told him to wait for the Mabote police who would
come and deal with the matter. Eventually the Mabote
led by third defendant Inspector Letooane. Among them were Trooper
Mpasi, Trooper Molisana and new policemen. They
were ten (10) in
defendant, Inspector Letooane called all people who had animals in
the pound kraal to come close to the kraal. About fifty
came to the kraal, these included the ten (10) policemen from Mabote
Police Station. Among these people plaintiff says
he recognized two
(2) policemen from Roma, namely Sergeant Setoki and Trooper Motsoane.
defendant invited plaintiff to produce his documents. Plaintiff did
so and they entered the kraal to select and identify the
doing this he was assisted by junior policemen. Plaintiff told these
policemen that not all his animals were there. The
said plaintiff should report this to Inspector Letooane - the third
defendant. Plaintiff did so. This defendant
said to plaintiff:-
"Phafa you are a nuisance with this theft of yours. How are you
going to explain that your stock is among the
livestock of a thief. Now, what will I say to my superior who sent me
to come and release the animals of a policeman - when a policeman
says they are not all there? Every time we deal with affairs of
thieves, we find a policeman like you among the things we are dealing
with among thieves.
At the moment firearms vanish taken by policemen like you".
says he asked third defendant "What have I stolen -now that you
call me a thief?"
"I knew you would ask me a question like this. You have long
been transferred - I do not know why you have left your animals
behind. You have done this because your intention was to continue
stealing with these thieves. They did well to transfer you so
you can bother other people. You have long been irritating people
with this theft of yours - now you will bother people in
told the court that he understood third defendant to be calling him a
thief and a criminal. And that he assists thieves
to steal stock and
guns in his capacity as a policeman.
words that showed him as untrustworthy were said in a loud voice in
the presence of many people. Every one could hear. Third
was in uniform and had come in a government landrover.
told the court that he has never been convicted of stealing. He never
stole and never appeared before the courts. Plaintiff
added that he
has never even appeared before a disciplinary body on any charge.
told the court he was asking for damages of M100,000.00 (One Hundred
Thousand Maluti) for being called a thief, collaborator
and an abuser of his position as a policeman. These words have had a
negative impact. At work his colleagues whisper
that he is a thief.
His colleagues that heard third defendant must have spread this
allegation. His colleagues are now watchful
when they approach him
because they regard him as a thief. A policeman called Montsi asked
plaintiff whether he was a thief or
not. He concluded that an
impression has been created that he is a thief. That is why he is
claiming the damages he is claiming.
plaintiff admitted that he had difficulty remembering the surname of
Gerard. Plaintiff said he did not hesitate because
Gerard has another
name. Gerard was there on the 21st April 2004 when plaintiff
identified his animals.
had also gone to identify his own animals. Plaintiff disagreed with
what third defendant would say words to the effect that
who was there and claimed the cattle post was his was Leronti.
Plaintiff told the court he knows Leronti. Leronti is
person from Gerard. Plaintiff said he has no knowledge if Leronti has
a cattle post.
in answer to questions said he does not know if third defendant and
his witnesses would say the cattle post that was raided
which the animals which included those of plaintiff belong to
Leronti. Plaintiff also said he does not know this raid
because these people were fed up with Leronti whom they were accusing
of stock-theft. Plaintiff also does not know these
people had been
complaining that plaintiff, a policeman kept his animals at the
cattle post of Leronti. Plaintiff had not heard
that they had
complained that plaintiff had been stopping them from looking for the
animals at Leronti's cattle post. Such a complaint
had never been
made to him, furthermore plaintiff had no knowledge of such a
dealing with the allegation that the complaint was made to the police
of Simione, Roma and Mabote said it is the first
time he hears that
such a complaint was made. If such a complaint had been made
plaintiff would know of it. His police superiors
would have called
him and informed him of it.
told the court that he does not know that Leronti is a notorious
thief. Plaintiff admitted he told the court that the
stock theft organization had raided the cattle post where he kept his
animals because Gerard had told him that those
people had an old
complaint of stock-theft concerning Gerard's brother. Plaintiff said
Leronti is one of Gerard's brothers, although
plaintiff does not know
the number of Gerard's brother. Plaintiff said he does not know that
Leronti told the police that the cattle
post was his. On the 21st
April 2004 Leronti was not there. The police are wrong when they say
Leronti was there - the person who
was there was Gerard.
said he does not know if Leronti was ever charged of stock theft
before a criminal court. Plaintiff said he does not know
Leronti is. He last saw him in June 2003. Plaintiff does not know if
Leronti is in prison at the moment. Plaintiff said he
did not know
details about a 1998 complaint against Gerard's brother suspected of
stock-theft - he does not remember clearly whether
Leronti was the
suspect. All he remembers is that this was the alleged cause of the
raid on his cattle post.
were 50 people at the kraal of the pound. Plaintiff said he knows
Khanyapa. He does not remember Khanyapa reporting to the
a stock-theft allegation
Leronti. If Khanyapa says he reported this in plaintiffs presence
plaintiff denies this. Plaintiff also denies that he
Khanyapa from going to any cattle post of Khanyapa to identify his
animals. Plaintiff admitted that there is a practice
anti-stock-theft organization raids other people's cattle-posts and
bring animals to police stations. At first plaintiff
had given the
impression that this does not happen.
in answer to questions said he has never been to Mokhou to identify
animals with Leronti, Gerard and others. Such information
Plaintiff did not do this before the animals were driven to Roma. If
Khanyapa says this, that will be false. If the chieftainess
said this also, that will be a lie. Plaintiff denied saying to
Leronti in the presence of Khanyapa, "Why did you
these people who raided the cattle post?" - That will be false.
the 35 to 50 people at the pound kraal at Roma police post were from
Mokhou. Plaintiff said he is not sure that they had
all come to
identify their animals. Most of them seemed to be members of the
anti-stock-theft organization. It is incorrect that
there were only 8
people from the anti-stock-theft organization. The people who came
forward to identify animals were 4 or 5.
these was Gerard. The rest were curious bystanders. Plaintiff says he
was with Samson Phafa and Tsepo Makhetha. Plaintiff
Leronti is alleged to be a stock thief but could not understand why
he was associated with this. Plaintiff denies that
he kraals his
animals with Leronti. Plaintiff denied his animals were released to
him and Leronti -he said they were released to
him and Gerard. The
cattle post in which his animals are kept belongs to Gerard not
Leronti. If these people who raided the cattle
plaintiff with Leronti not Gerard, he is surprised.
in answer to questions said he had heard rumour that police these
days are thieves. If third defendant said he never called
him a thief
- plaintiff insists that he did. Third defendant did not limit
himself to saying whenever they investigate crime they
policeman. Plaintiff was not merely reprimanding him - he was
humiliating plaintiff and defaming plaintiff when he called
thief as happened in this case.
second witness after plaintiff had given evidence was Mokhehle Phafa.
sworn Mokhehle Phafa said he is related to plaintiff and lives at
Mapoteng. On the 21st April 2004 he accompanied
to Roma in order to fetch plaintiffs animals. These animals were in
police hands for reasons he does not know.
they were at Roma a government landrover came bringing policemen. One
policeman invited those who had come to identify their
come closer to the kraal. The policemen who had come in the landrover
were 10 in number and they were all in uniform.
They were armed with
guns or rifles.
identified their animals in the kraal. They marked the animals with
paint. They were selecting plaintiffs animals. The police
and plaintiff was assisting them. When they finished plaintiff went
to third defendant and they had a conversation the
which he did not hear.
Phafa says he heard third defendant saying in a shouting voice :-
"Phafa I am sick and tired of policemen like you. I am sick of
policemen who are involved when we solve crimes. I am sick
of policemen who are found in stock theft cases".
asked third defendant:-
you are saying I steal - what did I steal?"
defendant replied: -
"I say I am sick and tired of theft of policemen similar to you.
I knew you would ask such a question because I did not find
stolen things. I am sick and tired of policemen who work with
thieves. They even steal guns and give them to thieves.
You have long
been transferred, I do not know why your animals are among these, if
it is not because you are stealing with thieves".
"Is there no other way you can tell me if I made a mistake".
"My office is closed by thieves like you. I want to tell you in
public because we have long been telling the public about
I am telling you in public so that the public can see that the police
do not want that situation. You have been transferred
to your home in
TY, I do not know why you do not go there and annoy your people with
this theft of yours. You can go and complain
anywhere including in
front of the Commissioner. I do
not know what I will tell my superior - now if I have to say a
policeman whose animals I was going to release says some of the
animals are not there".
Phafa told the court he understood the words uttered by third
defendant to mean plaintiff is involved in stock-theft, theft
and that he works with criminals in their work. Third defendant
should not have defamed plaintiff in that way. These words
plaintiff as person the public should trust. Third defendant was
angry and shouting when he uttered these words. People
gathered there were close to 50 in number excluding the 10 policemen
who had come with third defendant and those stationed
examined Mokhehle Phafa said he had no knowledge about whether or not
plaintiff kept his animals at a cattle post. He has
now heard that he
does so. He does not know who owns that cattle post. He does not know
if the cattle post he has heard about belongs
to Leronti. He does not
know Gerard so he does not know if he was there at Roma. Plaintiff
does not know who else had animals released
Phafa answering further questions said he does not know where the
people who came to the kraal came from. He was with Tsepo
who came from Mapoteng like him. These people that he does not know
went near the kraal when
that those who had come to identify animals should approach the
kraal. He went to the kraal like the others although he
animals to identify.
witness noted that third defendant admits that he said whenever the
police dealt with thieves they find the police there. But
Mokhehle Phafa insisted that third defendant did call plaintiff a
thief. What third defendant said was not a reprimand.
intended to defame plaintiff. Third defendant knows plaintiff - he
uttered insults to undermine plaintiffs position.
knew his mood. In his view he understood that third defendant knows
plaintiff therefore he must know.
closed his case.
defence opened its evidence by calling third defendant.
first defence witness was NO.37 Senior Inspector Letooane. Duly sworn
said he is stationed at Mabote Police Station. He
has been a
policeman for 27 years and has been based at Mabote Police Station
for 10 years. He went to Roma police post in his
capacity as the
officer commanding the stock theft unit in the Maseru district.
the 18th April 2004 he got a report that stock (animals) belonging to
the people of Mokhou were stolen. The people who did
so were armed
with AK47 rifles and had taken by force those animals and people
injured. The report included an allegation that
the trail of the
animals led to the cattle post of Leronti. There was a report that
the police of Simione police post refused to
serve those people. The
court had to stop third defendant from giving hearsay evidence and
told him to give a summary of the report
21st April 2004 following a report that the Mokhou anti-stock-theft
association had driven sheep from a cattle post - third
went to Roma. Third defendant told the court that the police had
taught people belonging to the anti-stock-theft association
themselves. The Mokhou anti-stock-theft association had taken these
animals from Leqhiliqhili at the cattle post of Leronti
- from the
report received. At Roma third defendant told the court he met the
complainants who gave him a report. After this third
all those concerned with the animals to approach the kraal. They had
been standing below next to the main road
and they were many. They
seemed to be interested in the many animals that were in the kraal.
The Roma Charge office is next to
the road. The pound kraal where the
animals were is some distance from the road.
defendant told the court that he called the owners of the animals to
come closer to the kraal bringing documents with which
their stock. Only the owners of the animals approached the kraal. The
pound kraal is 50 metres from the road. They
were not more than 9 in
number. Third defendant called the people from Mokhou, Leronti and
plaintiff. He asked plaintiff about
the sheep - plaintiff said some
of the sheep belong to him while others belong to Leronti. The court
drew the attention of third
defendant to the fact that this was not
put to plaintiff. Third defendant noted this fact.
defendant continued his evidence in chief and told the court that
from the report he received the Mokhou anti-stock-theft
had gone to Leronti's cattle post and taken all the animals because
there was a trail that led them there. It was
these animals that
eventually got to the Roma Police Station.
defendant said he then called the people who claimed some of those
animals to come forward and approach the kraal in order
their animals. There were many people next to the street - these
people seemed interested in the many animals at the
kraal. The pound
kraal where the sheep were was some distance from the street. The
court informed the parties that it was familiar
with the area in
question - it knew where the main road is, and the Police
Office and the pound kraal are. Third defendant said the pound kraal
is 50 metres from the main road while the Police Charge
Office is on
the side of the main road Only the owners of the animals approached
the kraal bringing documents proving their right
to the animals.
Plaintiff Phafa was among those people. The sheep in the kraal were
more than 90 in number.
defendant told the court that he called Phafa, Leronti and the
complainants from Mokhou to come and identify their sheep.
said some of the sheep were his while some belonged to Leronti.
Plaintiff says he asked Leronti to bring his documents.
told the court that he had arrested Leronti on several times,
consequently he knew Leronti very well. Third defendant
Leronti's cattle post at Leqhiliqhili. Leronti in the presence of
plaintiff said the sheep were his. Third defendant told
the court he
also knew Leronti's animals.
produced documents for his animals. There were sheep left behind
because Leronti did not have documents for those animals.
said some of the sheep left behind belong to plaintiff. For the rest,
he Leronti had misplaced their documents. People
from Mokhou said
those animals belong to them. These people from Mokhou were led by
dealing with Leronti, third defendant attended to plaintiff. Third
defendant says he asked plaintiff why he kraals his sheep
thief like Leronti. Plaintiff replied that Leronti was not a thief.
Third defendant said here are people who identified
their sheep among
his sheep and those of Leronti. Third defendant said policemen who do
this make their work difficult. When third
defendant said this he and
plaintiff were in the kraal. Third defendant says he said to
plaintiff even when firearms get missing
policemen are involved.
Third defendant told the court that in saying this he was trying to
remind plaintiff of his oath as a policeman.
Third defendant told the
court that he never called plaintiff a thief. He said these words to
plaintiff while they were selecting
later said there were some sheep missing. Third defendant asked
plaintiff why he had left his animals behind at Makhaleng
when he has
been transferred to TY. Here are people saying he is making it
difficult for them to get their sheep. He is waiting
so that he can
work with this person who is a thief. Third defendant emphatically
denied that he ever said plaintiff is a thief.
Plaintiff retorted by
saying what has this person stolen from third defendant. Third
defendant asked plaintiff why he does not
hear this public grievance
about Leronti. The court asked plaintiff whether he told all these
things to his Counsel and that were
not put to plaintiff.
defendant thought a little and said he told his counsel all what he
said before court.
defendant told the court that it is a fact that policemen's names
often come out during his investigations. Leronti is claimed
ownership of the sheep and added that they had been taken from his
cattle-post. Third defendant said he does not know a brother
Leronti called Gerard.
examined third defendant said he went to Roma on the 21st April 2004
to oversee the identification of livestock by the owners.
followed a serious case reported to the police. Third defendant was
the most senior police officer on the spot. There had
people who had been standing next to the main road. The interest of
these people was to look at the animals in the kraal.
People are not
forbidden from witnessing when people identify their animals at the
kraal. However because of his past experience
people who have no
business there are stopped because in the past they have caused
denied that his evidence was an after thought because it was not put
to plaintiffs witnesses. Third defendant said he
cattle post because of his animals. He knows the cattle by their
marks although he does not remember their earmarks
and never spoke of
their earmarks. The
with Leronti took place in the presence of plaintiff. Third defendant
said he asked plaintiff why he kraals or keep
his animals with a
thief. Leronti has been arrested by the police for theft. Third
defendant told the court that he knows the difference
allegation and a conviction for theft. On Friday he went to the
Magistrate Court and found that Leronti had been charged
theft in CR 365/02. But there was no conviction. In the eyes of the
law. Leronti is innocent. Third defendant said he
that Leronti settled a case of stock theft at Roma Police Station and
gave 70 sheep. The court requested third
defendant to bring evidence
of this because possessing information about this is not enough.
defendant insisted that even though it was not put to plaintiff that
at Roma plaintiff said Leronti is not a thief
did say this to third the court that he never said to plaintiff - "I
know you will ask such a question because I
did not find you with
stolen animals - I am fed up with policemen who work with thieves".
Third defendant said plaintiff is
not telling the truth when he says
his sheep were not at Leronti's. Third defendant told the court that
he does not even know Gerard.
During the time he was at Roma on the
21st April 2004, third defendant was dealing with Leronti and not
second defence witness was Khanyapa Nosipa. He told the court he is
an agricultural and livestock farmer and lives at Mokhou.
He was also
chairman of the anti-stock-theft organization.
function of this organization is to find lost animals. He said he
finds lost animals. He said he knows plaintiff who is a policeman.
said he was illiterate and had never been to school. Plaintiff in the
year 2002 had come with Sekopo of the CID to Mokhou.
been there in search of his animals. Khanyapa and his organization
had driven these animals along with Leronti's
animals. These animals
had been driven from Leqhiliqhili Ha Malefane to Mokhou to be counted
by the Chief of Mokhou before they
were sent to Roma Police Station.
While they were at Mokhou plaintiff came with a policeman called
Sekopo accompanied by Leronti
Malefane, Gerard Malefane and Mantsa
had first met Leronti Malefane in 2001 when Leronti had stolen 29
cattle and 3 horses. It was not their first meeting.
knew Leronti and his two brothers.
plaintiff was with Sekopo and the animals were before the Chief of
Mokhou 'Mabereng Letsie, plaintiff claimed all the
that they have driven as his. It was cattle, sheep and goats. He told
Leronti, Gerard and Mantsa not to say anything. This
included some of the animals they were looking for. Plaintiff said
the cattle post from which they were seized belonged
to him. Later
Khanyapa modified what he was saying by saying he concluded that
plaintiff was claiming the cattle-post belonged
to plaintiff because
plaintiff was claiming all the livestock seized.
said they thought the livestock belonged to Leronti because it was
not the first time they went there. They had been where
were looking for 70 sheep. When they got to that very cattle-post
they had found 15 of those sheep. Khanyapa says he
and his colleagues
drove Mantsa and Gerard to Roma police post with the 15 sheep. There
Mantsa and Gerard said the 55 sheep were
slaughtered when their
father was being buried. Mantsa and Gerard later repaid the 55 sheep
that were missing. These animals were
given to Lethola Shakane and
Lenyoko whose 55 sheep were missing. This was done before Sergeant
Mokolatsie who was then in charge
of Roma Police Post. This
transaction involved Gerard and Mantsa the brothers of Leronti.
occasion that plaintiff and Sekopo - both of whom were at Mokhou.
These two policemen directed them to send the animals
to Roma Police
Station. On the day plaintiff was
there were 8 of them, there were 5 complainants whose stock had been
found among the livestock which included plaintiffs
and two committee members. All these went to the kraal when third
defendant -through Sergeant Masaile told them
to go to the kraal to
identify their animals.
was requested select his livestock. Plaintiff invited Leronti to go
into the kraal to select the animals. After plaintiffs
been selected and driven out of the kraal, third defendant said to
"Stop staying with this thief because people's lost livestock
has been recovered from Leronti's livestock."
asked third defendant this question:-
"You say Leronti is a thief, what of yours has Leronti stolen?'
defendant indicated that people's livestock is being recovered among
Leronti's livestock. After this plaintiff drove his livestock
about the issue of guns Khanyapa said third defendant said there was
crime among the police since guns were disappearing
and people are
said he himself knows the cattle-post as belonging to Leronti,
plaintiff is wrong when he said the cattle post belongs
Before the Roma Police, Leronti, Gerard and Mantsa were all there.
examined Khanyapa said they have searched this cattle post twice.
Plaintiff and a policeman called Sekopo came on the second
in 2002. Then Khanyapa said he thinks it was in 2004. The court noted
that this was said after the tea break. Before the
tea break Khanyapa
had said 2002 but after the break he said 2004. The court was aware
all the time that since Khanyapa was illiterate
his estimate about
dates and years might not be accurate.
continuing answering questions Khanyapa told of plaintiffs denial
that he went to Mokhou with Sekopo, Gerard, Leronti, Mantsa,
Khanyapa said plaintiff did so. Sekopo will confirm that plaintiff
did say in front of the Chieftainess of Mokhou why did Leronti
others not shoot Khanyapa and his group when they drove away the
livestock from the cattle post plaintiff had said.
insisted that third defendant never said plaintiff is a thief. He
denied that plaintiff ever said to third defendant what
stolen. Third defendant never replied that he knew plaintiff will say
so merely because third defendant did not find him
with any stolen
property. Khanyapa did not hear plaintiff say some of his sheep were
missing unless this was whispered or said
said he knows police livestock is found among thieves. A policeman
called Hlaoli even shot him and injured him when this
Khanyapa said he reported this to third defendant, but the case has
never proceeded before the courts.
defence witness was Chieftainess 'Mabereng Letsie, the Chief of
Mokhou. She said she knows three boys called Leronti,
Mantsa. It was strange to call Leronti a boy when Leronti is
according to her older than she was. Plaintiff had come
looking for his livestock. Just after his arrival, Khanyapa and the
anti-stock-theft group brought livestock to her.
She, plaintiff and
the others went to where the livestock was. It was cattle, sheep and
Mabereng asked plaintiff which animals were his, plaintiff replied
his were sheep and goats, but plaintiff did not
know their number.
Consequently plaintiff asked for leave to
them. Chieftainess Mabereng asked Leronti their number. Plaintiff
told Leronti not to answer - because plaintiff said he was
who would answer because the animals are his.
'Mabereng then told the court that plaintiff then asked Leronti why
they had not shot the people of the anti-stock-theft
the cattle post when they seized the animals. This annoyed the people
so much that they wanted to attack plaintiff.
Sekopo, a Roma
policeman with whom plaintiff had come reprimanded plaintiff for
saying such bad words. The animals were counted
and the policemen
Sekopo Motsoane and plaintiff directed that the livestock be taken to
Roma Police Station.
told the court Leronti had been to Mokhou before on the occasion he
offered to pay people's missing animals that Leronti
had taken to
Thotatsehla. Leronti to her knowledge was charged of this crime and
2004 they went to Roma where third defendant was present and
plaintiff was ordered to identify his animals. Plaintiff handed
bewys to Mochini a policeman. Leronti got into the kraal to select
the sheep and goats belonging to plaintiff. Mochini a Roma
was checking if this livestock of plaintiff corresponded with
animals were being identified - third defendant said to plaintiff:-
"Phafa, man, remove your animals out of those of thieves".
asked third defendant angrily:-
"If you say animals belong to thieves what has Leronti taken
intervened. Plaintiff is not telling the truth that he was only with
Gerard. Leronti and Mantsa were there. Third defendant
plaintiff a thief.
happens that thieves admit theft before the police and pay back the
animals that they had stolen with their own animals.
When that has
happened the case never goes to court.
Chieftainess Mabereng said plaintiff was not telling the truth when
he said he was never at Mokhou with policeman
Sekopo and Motsoane and
that he never said Leronti and others should have shot the
anti-stock-theft organization when they raided
the cattle post. She
insisted her version of what happened at Roma was true.
called Detective Trooper Sekopo as the fourth witness. He told the
court that between March and April 2004, he went to
Trooper Motsoane and plaintiff in a police van. On the bakkie of the
van were three boys of between 30 and 25 years
of age. Detective
Trooper Sekopo says he heard that one of the boys was called Leronti.
Detective Trooper Sekopo was senior to
details of their mission as policemen (with plaintiff and Trooper
Motsoane) were given to Motsoane a junior policeman
by the Commanding
Officer Roma. He was only to be a driver.
Motsoane carried out his instructions. There were flocks of cattle
and donkeys - Detective Trooper Sekopo said there were
After thinking for some time he said there was small stock of sheep
and goats. At that place was Chieftainess 'Mabereng,
plaintiff and the 3 boys they came with - as well as many people.
During that time he heard a disturbing noise. Among
things said were
the words "Whom did you say should be shot?" Detective
Trooper Sekopo as a senior told plaintiff to
avoid the situation so
that they could work together. He said this because he thought
plaintiff had said something. Plaintiff complied
was asked of the young men who came with them, but plaintiff said the
young men should not answer. Detective Trooper Sekopo
to give them the opportunity to deal with his affairs. Calm returned
and the business of the day as accomplished.
Trooper Sekopo was able to return to the police vehicle to attend to
the radio. Trooper Motsoane later gave him a report
he had left the
people with the instruction to drive the cattle to Roma Police Post.
If plaintiff denied being at Roma Police Post
that would be false.
Detective Trooper Sekopo admitted talking to witnesses such as Dw3
Chieftainess 'Mabereng. He denied being told by
to call people, who went with them to Mokhou, boys although they were
between 30 and 25 years of age. He
was surprised that Khanyapa in his
evidence did not mention Trooper Motsoane - Trooper Motsoane was
there. He insisted he was with
plaintiff at Mokhou although plaintiff
said he only went to Roma on 20th April 2004 and no further.
submission per Mr. Mokoko were the following
(i) The uttered defamatory words are not true;
(ii) The words uttered by the Third Defendant were over limits and
(iii) PW2 said that, he understood the words uttered by the Third
Defendant to mean that, Plaintiff is a thief, a criminal, a dishonest
man; and that those words undermined Plaintiffs position as a Police
(iv) Plaintiff has further testified, that the impression he got from
his colleagues is that he is a thief;
(v) The said defamatory words were uttered by a very high ranking
Official in the Police Force, such that, the said would have
a lot of
bearing on the Plaintiffs promotion in the future;
(vi) Plaintiff testified that, he has since realized that, the
attitude of his colleagues has changed towards him, as a result
the said words;
(vii) The said defamatory words, undermined Plaintiffs position as a
Police Officer, who is expected to uphold the law;
(viii) The said defamatory words, gave the impression that, plaintiff
is misusing his position as a Policeman, to assist the criminals;
(ix) The said defamatory words, gave the meaning that, wherever
Plaintiff is, there is going to be stealing.
from the vantage point of plaintiff
to plaintiff third defendant in a sudden emotional outburst loudly
uttered the words complained of.
47.10.10. Notes that many instances of defamation are based on
written material but spoken defamation is treated slightly
differently, therefore :-
"It is true that as we have shown above that such a view was
taken with spoken abuse, since it appears that one who in sudden
heat, and because the tongue often outstrips the mind, has imputed
things the uncovering of which is to the interest of the commonwealth
ought to be pardoned if he later proves them. Nevertheless that is
not to be extended to defamatory screeds, since they require
stretch of time for the composition of them, and proceeds rather from
a settled and persistent purpose to do harm".
court believes plaintiff then this court has to approach third
defendant's conduct from the vantage of a person who uttered
defamatory words of "one who in sudden heat, and because the
tongue often outstrips the mind, has imputed things".
defamed plaintiff and liable to pay damages, unless "the
uncovering of which is in the interest of the commonwealth
... if he
later proves them*. Although the pleadings are far from perfect, that
is what the words complained of state according
to plaintiff and
Mokhehle Phafa plaintiffs witness.
said third defendant said to Phafa the plaintiff: -
"Phafa I am sick and tired with this theft of yours. How am I
going to explain to my superior that your livestock was found
the stock of a thief ... All the time when we deal with thieves we
find things of a policeman like you among the things we
with. Now even firearms vanish/taken by policemen like you ... "I
asked him what have I stolen now that you call
me a thief. Third
defendant retorted. "I knew you would ask me a question of that
kind. "I tell you in front of these
people so that they can know
we do not support what you police do. If you are not happy, you go
and complain before the Commissioner
Phafa puts what was said in slightly different words, in the
following words: -
"Phafa I am sick and tired with policemen who steal like you. I
am sick and tired of policemen who are found involved when
crimes - I am sick and tired of policemen that are found inside cases
of stock-theft". Plaintiff asked "If you
are saying I
steal, what did I steal?" Third defendant said ...."I know
you will ask such questions because I did not
find you with stolen
things. I am sick and tired of policemen who work with thieves like
you. You even steal government guns and
give them to thieves because
you work with thieves".
follows that according to Voet 47.10.10 third defendant will escape
liability if what he uttered in anger and imputed that plaintiff
works with thieves or is a thief was meant to lead to results that
benefit society. This can be so - in the circumstances of this
only if what third defendant said is also true.
superior officer is not expected or should not humiliate, insult and
defame a subordinate of a lower rank. If the superior reprimands
subordinate in private that is privileged. Doing the same thing in
public can be an abuse in certain circumstances. The privilege
becomes qualified even
courts. In May v Udioin 1981 (1) SA 1 at page 16 Joubert JA said:-
"Needless to say, a judicial officer will be held liable for
defamation where it is proved that he either abused his authority
exceeded the limits of his authority".
47.10.2 states while a judge or magistrate may scold advocates and
litigants and correct them where they go wrong, he may not
limits and begin to defame them "by stirring up ill will and
evil report" about them, if he does, legal proceedings
brought against him.
a subordinate on the basis of a rumour of theft or collaborating with
thieves is actionable and defamatory. Voet 47.10.9
puts the reason as
"It follows from this that to avoid penalty for the wrong it is
not enough, in this type of abusive matter which concerns
benefit, for a person to be able to give proof in the shape of a
public rumour. Well, we know that public rumour, that
of the invented and the true, is not capable of itself of giving
proof ... Something of their chicanery sticks,
and especially does
stick an ill-omened rumour wickedly
spread by informants who are unfair and not properly known".
Constitution allows freedom of expression but protects the aggrieved
from any defamation under the guise of security, public
public health if in terms of Section 14(3) of the Constitution that
is not "necessary in a practical sense in
a democratic society".
The freedom of expression which we enjoy is governed by the common
law and its limits are marked by
the common law and what is necessary
in a democratic society. Consequently in Holomisa v Khumalo 2002 (3)
SA 38 at page 62 Westhiuzen
J was summarizing the position in South
Africa and in Lesotho, when he said:-
"Furthermore, it can be accepted for the purpose of the common
law of defamation that also includes the protection of reputation
fama, which is a facet of one's personality, together with dignitas
and corpus. In a constitutional context, all these would
be facets of
human dignity ... other rights such as privacy, which are at stake
are not merely the narrower concepts of a reputation".
falsity are not really the issue. If the truth of the statement is
for the public benefit, then its publication is deemed
Exposing a public officer's criminal conduct or
is for the present public benefit. Past misdeed might not.
truth justifies the publication of scandalous and defamatory matter
in England, in Lesotho and in South Africa a person's
privacy is respected. Nobody is allowed to publish or broadcast
scandalous or defamatory statements for fun - even if
they are true.
Past and present misdeeds can only be published if their publication
is in the public interest. See Sekhonyana v
Morrison & Another
1993-96 LLR 1436 at pages 1439 to 1440.
problem of the plea of the defendants is that it is badly drawn. It
is the evidence that shows what third defendant meant. Even
third defendant is evasive and squeamish . He does not take the bull
by the horns.
third defendant has pleaded is that he was reprimanding plaintiff. It
seems this reprimand included public interest, justification,
comment and even qualified privilege. As if the unsatisfactoriness of
the plea is not enough, even the quantum of damages
Kumleben JA in Ramainoane & Another v Moeketsi Sello 1998-2001
LLR 131 noted that the trial court had awarded
which were not claimed. Merely because the appellant has not appealed
against them, they were allowed to stand. In other
words what is not
challenged stands. Kumleben JA did this although he had serious
doubts whether the order of the trial judge was
competent. It seems
to me pleadings have four purposes: -
(i) To define issues clearly so that the parties know what is
admitted and disputed - and to what extent;
(ii) To enable parties to know what evidence to call and what
evidence not to call when preparing for trial;
(iii) To prevent one or both parties from taking each other by
surprise or doing anything to the prejudice of the other side;
(iv) To enable the grievance or claim of the parties to be fairly,
fully and properly ventilated.
these limits a judge has a broad discretion to see that these
objectives are achieved.
matter has been fully ventilated as much and as far as the parties
were able to. The parties assumed the pleadings were proper.
evasive and faulty as it was, was assumed to
claim of justification, public benefit, fair comment and probably
privilege. The parties wanted evidence to be heard and the
be disposed of.
I was not happy I could not help the parties except merely keeping
the scales of justice in balance. As Innes CJ crisply
Robinson v Randfontein Estates GM Co. Ltd 1925 AD 173 at page 198:-
The object of pleading is to define the issues; and parties will be
kept strictly to their pleas where any departure would cause
prejudice or prevent full enquiry. But within these limits the court
has a wide discretion. For pleadings are made for the court".
be observed that in Skill v Milner 1937 AD 101 De Villiers JA noted
the criticism to the pleadings at page 105 and 106 and
"To return to real issue in the court below ... My conviction as
to the nature of the issues is based on the perusal of the
the exhibits and the judgment »
Villiers JA then extracted what the issues were and gave judgment.
This to me is the best way forward, after stating my
about the pleadings and the way both counsels dealt with them.
is a policeman - a policeman of what ever rank is a public servant of
great importance in the fight against crime. To
say he works with
criminals and when stock-theft is investigated his livestock is found
among the property of thieves is highly
defamatory. As Innes CJ said
in Botha v Pretoria Printing Works 1906 TS 710 at page 715:-
"But the character of a public man is not only a precious
possession to himself, but is, in a real sense a public asset. If
one knows anything against the character of a public man which makes
him unfit for the position he occupies, such a person
is not only
justified, but is bound, if he occupies a position which casts a duty
upon him, to inform the public of the facts,
and substantiate them,
for the public benefit if necessary".
above it is clear that plaintiffs good name as a policeman is a
public asset which he must himself protect. Third defendant
senior police officer protect not only protect the name of plaintiff
as a police officer but the good name of the police
force as a whole.
A case of
defamation is judged within its context and surrounding facts and
circumstances. A policeman like a politician is a servant
people with a specific group of functions. The Police Services Act
1998 at Section 24 summarises the duties of a police
"24. (1) It shall be the duty of every person attested as a
police officer to serve the people of Lesotho in that office,
diligently, impartially and, with due regard to the Constitution to:-
the peace and maintain law and order;
all offences against persons or property;
offences, apprehend offenders and bring them to justice; and, while
he holds that office, to the best of his skill and
knowledge all the
duties of that office faithfully
to the law.
Police Authority may authorize the Commissioner to issue to police
officers such arms as he may prescribe and a police officer
performance of his duties be entitled to carry any arms so issued".
in a full bench decision of Minister van Polisie v Ewels 1975 (3) SA
590 at 597 said the following words in a case of
a policemen - who
just watched a fellow policeman (who was off-duty) assaulting a
person in the charge office:-
"Just as a duty to rescue can sometimes be a legal duty, and it
would depend on all facts whether such duty is a legal one
Clearly it is impossible to determine in general when such a legal
duty would arise ... As regards crime, the policeman
is not only a
deterrent and a detective but also a protector ... When all the
circumstances are considered, I think".
case Rumpff CJ was dealing with a Police Act of 1958 which is similar
to the Lesotho one. From the aforegoing it will be
seen that too much
is expected of a policeman. Police functions are also paramilitary
and are (as such) bound by a military type
code of honour.
employers of policemen such as municipalities and governments have
been sued for defamation made by the police in the cause
duties. In Moosa v Duma & Vereeniging Municipality 1944 TPD 30 a
policeman had called
a bastard. Shreiner J said it seems this was not done out of any
caprice of this policeman but in the cause of his employment.
"Where a quarrel arises at once out of a servant's performance
of his work and is followed there and then by a tortuous act,
seems to me that the proper interpretation of the servants behaviour
is that he was improperly carrying out what he was employed
and not that he was acting out of personal malice or caprice".
root of an action of defamation is whether there was an intention to
injure. In Kiriacou v Minister of Safety and Security
1999 (3) SA 279 a policeman was alleged to have defamed a prominent
business by saying he was about to be deported
because of involvement
in criminal activities. At page 289 B Moosa AJ said:-
"The animus injuriandi can be rebutted by the defendants if it
can be shown that the words were used with an object other
defame, despite the fact that the words are per se defamatory and
that the object is permissible in law".
v Mavis & Another 1969 (a) SA 542 at page 549 Hiemstra J said:
"The plea of fair comment involves an
of defamation, but if defamation lies in comment and the comment in
the circumstances fair, the presumption of animus
negatived". In Crawfurd v Albu 1917 AD 102 at pages 131 and 134
it was said all that is required is that the
substantially true - it need not be absolutely true. Nevertheless
that statement must be warranted by the facts commented
courts do is to take into account the context in which the words were
uttered. If they lower the plaintiff in the estimation
thinking men without justification then such defamation is not
protected by the law. Corbett CJ in Argus Printing and
Ltd v Esselen Estate 1994 (2) SA 1 at page 20 agreed with the court
below about how words should be interpreted and
"The reasonable person of ordinary intelligence is taken to
understand the words alleged to be defamatory in their natural
ordinary meaning. In determining this natural and ordinary meaning
the Court must take into account not only what the words
say, but also what they imply".
already said the police service is semi-military and has a job that
should be performed by men who are deemed honourable. A cheat
man who is generally regarded as
with criminals is not expected to be in the police force.
neglect of duty and cowardice are taken as besmirching the honour and
character of a soldier and are therefore defamatory.
In Gordon v John
Leng & Co Ltd 1919 SC 415 it was said to falsely accuse an
officer of surrendering unnecessarily to the enemy,
aspersion in the character, capacity, and conduct of a soldier and is
defamatory. Saying what amounts to unfitness for
duty of a police
officer has the same effect.
part of the military tradition to ostracize dishonourable people.
Consequently, when a person was accused of anything which
dishonourable - he used to challenge the other person to a duel. An
accusation of infamy was regarded as worse that physical
Therefore Huber in The Jurisdiction of My Time Volume II (Gane's
translation) page 468 put what happened to a person
dishonourable in the following words:-
" After corporeal punishments comes deprivation of honour,
commonly called infamy, which is simply a wounding of honour, by
which a person is put outside the number of honourable persons on
account of the wickedness of his life".
times reputations are protected and redeemed through court
proceedings and actions for defamation and appropriate awards
damages. Honour is no more redeemed through duels and violence.
follows therefore in the tradition of all disciplined forces a junior
policeman and a junior soldier are regarded as honourable
have a duty to keep their reputations unblemished and honourable.
Their senior officers are duty bound to see to it that
the army and
the police service are manned by honourable and reliable people of
all ranks. They have to reprimand or punish all
those who bring the
army and the police into disrepute.
is a verbal injury. Huber in Jurisdiction of My Time at page 468
observed that the effect of accusing people of crimes
dishonourable conduct does irreparable harm even if in law they may
be acquitted because the fact that they have been charged
notorious. He said:-
"A person also through a notorious case that is involving
infamy, is in subtily of law not infamous, but shame is nevertheless
imputed on him".
defamatory statements and accusations should not, - even on ordinary
privileged occasion be maliciously made.
Commercial Bank of Scotland and 1938 SC 522. Where fair comment is
claimed. Gloag and Henderson Introduction to the Law
of Scotland 9th
Edition page 602 say:-
"A comment is a statement opinion or inference drawn from facts.
It may be expressed in the form of a statement of fact -
and it may
often be difficult to distinguish between fact and comment".
difficult, in this case to distinguish between third defendant's
reprimand, justification and fair comment. All these in respect
policeman whose livestock has been found among livestock belonging to
reputed thieves can be legitimately set up as a defence
to a claim of
unlawful defamation of plaintiff. Since all these are circumscribed
by public benefit and freedom of speech that
promotes public good -
it is very easy for some of these defences to be redundant because
they overlap in many cases. Yet they
have all to be distinctly
pleaded - something the defendants have not done.
The Law of Delict Volume I pages 207 to 208 discusses all the above
defences together and sees "society's in freedom
of speech more
worthy than the individual's interest in an unsullied reputation".
However a misuse of these rights
tips the balance in favour of the aggrieved person whose reputation
has been besmirched. Consequently: -
"A defendant who uses the occasion or right for another purpose,
who is actuated by what is commonly called malice - though
other than the authorized one suffices - abuses his right and
therefore forfeits it".
involves the police and their work as public servants. They are the
arm of the state that combats and prevents crime.
Their duty is to
protect lives, property and law and order. The police as individuals
and as an organ of the state have the same
freedom of expression
whose boundaries are like those of any individual where they claim
public benefit. Any expression that hurts
other people's reputation
without a corresponding good to society is forbidden or punished
either in civil or criminal proceedings.
Lesotho operations of the press and the media are seen by the
constitution as a mode of expression which is the same as an
has. In the South African Constitution there is Section 16
(1) (a) that guarantees press freedom and that of other media.
this difference, the overarching principles are the same as
those of freedom of expression generally - namely that if it does
for the public good, the courts should look at it
benevolently, even where it
the reputations of others. The court has to strike a reasonable
balance between public benefit of freedom of expression
protection of the dignity of individuals who may be wronged by it.
policeman regardless of rank is an ambassador of the police service.
The police service operates on the principle that without
co-operation of the public it cannot police the country. The police
as an institution must be seen and known to abhor crime,
in order to
combat it. In other words, the police have to publish the fact that
they are the friends of law abiding citizens and
are always on their
side. In order to do this effectively they have to publicly condemn
everyone who involves himself with crime
or aids and work with
criminals even if it is a policeman.
court has to decide is whether third defendant defamed plaintiff for
the benefit of the public in a lawfully excusable
way - in the
circumstances of the case. Alternatively whether he defamed applicant
at all. In other words whether plaintiff has
proved that the
defendants have wrongfully and unlawfully defamed plaintiff.
end of the trial the court has to say what it believes and what it
court practice there is a tradition of using cross-examination not
only as a method of discrediting the evidence of the opposite
but also of giving notice of the evidence that the cross-examining
side will bring. This enables the witness that is being
cross-examined to comment on it. Cross and Tapper On Evidence 9th
Edition at page 292 say:-
"Any matter upon which it is proposed to contradict the
evidence-in-chief given by the witness must normally be put to him
that he may have an opportunity to explain the contradiction ...
Failure to put the evidence to a witness does not make it
inadmissible, but does make it desirable for the witness to be
re-called, so as to have the opportunety to comment on it".
is relaxed where a cross-examiner is an unrepresented litigant - S v
Mogomezulu 1983 (1) SA 1152 at 1153. Where both sides
by Counsel this rule is expected to be followed. Where the witness is
a witness for the plaintiff this is intended
to enable plaintiff to
discharge the onus that such evidence might raise and to rebut it in
This prevents a situation where after the defence case plaintiff will
be obliged to call evidence in rebuttal.
case before me through cross-examination plaintiff was enabled to
foreshadow the defence case by being told in advance that
witnesses will show that the cattle-post belonged to Leronti - not
Gerard. Plaintiff was therefore obliged to call
Gerard to back up his
claim. Furthermore, plaintiff was told in advance that the Crown was
going to show that Leronti was a notorious
thief - a fact plaintiff
stated he did not know. In short the defence will be bringing this
evidence to show that plaintiff was
associating with a notorious
thief although he is a policeman.
this knowledge of what defendant is going to say, plaintiff does not
rebut that evidence in advance, plaintiff has himself
to blame. In
other words it is normally assumed that plaintiff has no evidence to
rebut the defence case or found that what defence
what plaintiff said was true. For that reason Selke J in Paola v
Hughes (Pty) Ltd 1956 (2) SA 587, 596 at 596 F
"In general, it seems to me that, where the purpose of evidence
led by one party is obvious, there is a duty upon the other
he wishes to canvas the propriety of the evidence for the purpose for
which it is intended, to
indicate as much to the party leading the evidence by canvassing the
propriety in cross-examination".
In Hotz v
Hotz 2002 (1) SA 333 the only indication of he value of the property
was that given by a prior admission of defendant.
Plaintiff led no
evidence on valuation. When he later sought to challenge the
valuation - at page 340 I Goldstein J said:-
"If plaintiff wished to put this valuation of property and the
rental obtained from it in issue, it was for him to have led
or mounted some challenge in this regard. This he did not do".
case it was through cross-examination brought to the attention of
plaintiff that defence evidence would be brought that
belonged to Leronti - a notorious thief -not to Gerard - as plaintiff
claimed. Plaintiff closed his case without
bringing Gerard the
alleged owner or any other evidence about ownership of the
cattle-post. The defence duly brought evidence.
Now I am asked to
I had to
be cautious of the evidence that the defence subsequently brought
because it does not appear Leronti was charged in 2004.
because of the suspicion I had formed that defence witnesses were not
always reliable I had
corroboration of some kind, whether direct or circumstantial. It was
clear that according to plaintiff the animals were
driven from the
cattle-post because Gerard had told him that one of his brothers had
been suspected of stock theft in 1998. Third
defendant had found in
the magistrate court that Leronti, a brother of Gerard had been
charged with stock theft in CR 365/2002
although there was no
conviction. With the suspicious of stock theft of 1998 and 2002, it
was clear to me that Leronti was believed
in the area to be a stock
thief. Consequently, it was most imprudent for plaintiff to keep his
livestock with Leronti or even his
brother Gerard. The defence had
proved on the balance of probabilities that plaintiff associated with
stock-theft suspects to the
embarrassment of the police such as third
witness number four Detective Trooper Sekopo who was brought to prove
that plaintiff was at Mokhou shortly before the animals
were sent to
Roma proved an untruthful witness. His evidence could not be
reconciled with that of Khanyapa and Chieftainess 'Mabereng.
never there when these two witnesses said he was. Detective Trooper
Sekopo had difficulty saying whether sheep and goats
were there. He
said so after a substantial hesitation. He did not even know what he
was supposed to have reprimanded plaintiff
for. He called men of
between twenty-five and thirty boys as Chieftainess 'Mabereng had
said so without any
He concluded by saying the animals that were supposed to be driven to
Roma were cattle.
serious doubt whether plaintiff was ever at Mokhou at all. Even the
quality of the evidence of Khanyapa and Chieftainess
contradictory and suspect on this point. There was unfortunately for
plaintiff no evidence to contradict them as people
cattle-posts in the Leqhiliqhili area that the cattle-post where
plaintiff had put his stock belonged to Leronti and not
chose deliberately not to bring evidence to back up his allegation.
He did this well-knowing this was a crucial part of
Plaintiff had been told (according to plaintiff himself) that the
cattle-post had been raided because in 1998 Gerard's
brother had once
been suspected of stock theft. Plaintiff told us he did not know
which of brothers of Gerard had been suspected
of stock theft
although he knows Leronti. Cross-examination not only shows what is
admitted or denied. See Zungu NO v Minister
of Safety & Security
2003 (4) SA 87. In my view it is a method of defining issues and
giving notice of the evidence the cross-examiner
Consequently, the side of plaintiff leading evidence first is obliged
in advance to rebut evidence which the other side
(the defence) will
lead later when its turn comes.
third defendant did say the defamatory words but not in the precise
manner that plaintiff and his witness Mokhehle Phafa
stated. I say
this because when I tried to slow these witnesses down (in order to
write) - they slightly changed it and tended
at places to exaggerate.
To find as near as possible what third defendant said - I have to
look at the declaration of plaintiff
and the evidence of these two
witnesses as a whole. It is not the ipissima verba that I am
concerned with. It is words to the effect
of what the witnesses were
trying to convey as having been said by third defendant.
plaintiff was not frank with the court about the true nature of
Gerard and Leronti. It would have helped me if these witnesses
been called. If Gerard was a man of good character - why was he not
called? I was left with a feeling plaintiff was hiding
became impossible for me not to form the opinion that the cattle-post
belonged to Leronti not Gerard. If it was not
so, both Gerard and
Leronti used that cattle-post.
I had an
inescapable impression that third defendant was the type of person
who does not distinguish between fact and gossip. He
was not telling
me the truth of what he said to the plaintiff at the pound. I believe
there were about 50 people at the pound.
wishes me not to believe defence witnesses about the ownership of the
cattle-post. If he wanted me not to, he should have
that might satisfy the court about this issue. I have to accept that
plaintiff had placed his livestock with people
characters. If plaintiff did not know this at the time, by the time
this case was heard he knew this. Consequently
plaintiff did not want
the court to know what he either knew from the very beginning or had
come to know by the time of the trial.
That is the inescapable
inference to draw from his failure to establish the ownership of the
cattle-post in a reasonable manner.
evidence that contradicts what third defendant, Khanyapa and
Chieftainess 'Mabereng, I have to accept Leronti was associated
the cattle-post where plaintiffs sheep grazed and were kraaled. I
believe that Leronti had been suspected or arrested for
several times. He may have not been convicted but to the ordinary
man, the fact that a person gets arrested several
times makes them
believe he is a thief. This was Leronti's reputation.
that third defendant's evidence, Khanyapa's and Chietainess
Mabereng's evidence was not to be trusted at places especially
they did not tell the truth about what happened at the pound. In fact
I had no doubt that Chieftainess Mabereng was not even
at Roma on the
Whether it was Gerard and Mantsa who paid 55 sheep that were stolen
or Leronti, it is not important. What is important is
was there, as third defendant and Khanyapa state. It is bad that
police should allow criminals to escape that way.
What is important
for this trial is that Leronti was shown by substantially
uncontroverted evidence that he kraals his animals
except for plaintiff bare assertion. I did not believe plaintiff on
this point as he struck me is not being sure
of who the owner of the
cattle-post was. Plaintiff also had difficulty in remembering even
failed to guard his good name. As Innes CJ said, "the character
of a public man is not only a precious possession,
but is in a real
sense a public asset". Botha v Pretoria Printing Work 1905 TS
710 at 715. Plaintiff should not have put himself
and the police
force in the compromising position he found himself. People were
bound to comment about plaintiffs behaviour - especially
police are public servants just like politicians. They wear uniforms
in order to advertise the fact that they are soldiers against
their function is to protect the public against criminals. They have
therefore to be careful by words and deeds not to
be associated with
evaluating the evidence we have to bear in mind that the wrong of
defamation consists in the publication of defamatory matter
concerning plaintiff without lawful justification or excuse. As Mc
Kerron in the Law of Delict 7th Edition at page 171 said, defamation
"is not longer regarded primarily as an insulting incident".
(ii) Defamatory words
(iii) About plaintiff
(iv) Without lawful justification
words are deemed to be defamatory animus injuriandi is presumed. The
animus injuriandi is rebutted by evidence that it
was published with
a lawful justification
heard the evidence, I disbelieved the evidence that only less than 15
people went to the pound where the animals were kraal.
I hold that
about 50 people were at the kraal when the third defendant uttered
the words complained of. Nothing could stop the
from getting to the pound.
less than 15 or about 50 people were at the kraal when the words were
uttered - sufficient publication of the words uttered,
people were plaintiffs fellow policemen, members of the
anti-stock-theft organization, people who had come to identify
livestock, curious bystanders and people who had accompanied
uttered definitely implied that even if third defendant had no proof
that plaintiff is a thief because has not found him
animals, plaintiffs animals are kraaled with animals that belong to
thieves. Plaintiff and policemen who work with
thieves like plaintiff
make the work of third defendant and other policemen difficult when
they investigate crime. Policemen who
behave like plaintiff are
responsible for the disappearance of police firearms that end up in
the hands of thieves. Consequently,
he is tired of a situation in
which when he investigates crime he finds policemen like plaintiff
mixed up with crime. Third defendant
can go and complain to the
commissioner if he so wishes - he does not understand what plaintiffs
animals are doing amongst those
what was being said about plaintiff was true or false, the words are
highly defamatory. These words leave the hearer in
no doubt that
plaintiff works with thieves and may be a thief who has not been
caught. If these words were said without lawful
defendant has intentionally defamed the character of plaintiff.
Unless there is proof of a lawful excuse plaintiff
will be deemed to
have proved both that he has been defamed unlawfully by third
defendant, and that third defendant did so with
an animus injuriandi.
Whether there was a lawful excuse - will be gone into later.
had proved that third defendant called him by name and directed the
words to plaintiff. Further more third defendant definitely
associated plaintiff with the criminal elements in the police.
was challenged to prove that he does not kraal his animals with
Leronti. Plaintiff himself says Gerard had told him that
livestock was driven away from the cattle-post because in 1998 his
brother was once suspected of stock-theft. Leronti is one
brothers. Third defendant and his Counsel had in cross-examination
that the cattle-post from which plaintiffs livestock was driven
belonged to Gerard. It had been asserted by Counsel for
that it is going to be shown by the defendants that the cattle-post
in question belongs to Leronti who is a notorious
did not call Gerard to prove the cattle-post belongs to Gerard. He
also did not call Gerard or anybody who could know
that Leronti was
there on the 21st April 2004 although in cross-examination it had
been put to plaintiff Leronti was there also
claiming his animals.
When plaintiff closed his case, the court was taken by surprise,
because it expected plaintiff respond to
this challenge of the
defendant through his Counsel's cross-examination claimed he did not
even know Gerard, the only person he knew and dealt
with on the 21st
April 2004 was Leronti. It was on this that justification by the
defence of the statement that plaintiff collaborated
depended. The defence had thrown this evidenciary burden on the
shoulders of plaintiff -plaintiff was obliged to discharge
it in his
evidence. The plaintiff chose to avoid supplying evidence from the
alleged owner of the cattle-post that Gerard was the
Leronti the alleged notorious thief.
defence brought evidence that could not be challenged that the Mokhou
people know Leronti to be notorious thief. Furthermore,
cattle-post where plaintiffs livestock was grazed and was kraaled
belonged to Leronti. Khanyapa took everybody by surprise
showed even Gerard was a thief. If plaintiff did not respond to this
allegation that does not mean Khanyapa could do so,
because this was
not put to plaintiff. Perhaps defence counsel might have expected to
put this fact to Gerard. If this is so, it
is plaintiffs fault, then
the defence was justified to bring this evidence because Gerard was
not called as a witness.
Basotho have a saying that a friend of a thief is a thief. In our law
we treat a helper of the thief as an accomplice - he is
punished like a thief. In Roman Dutch Law we call such a person a
partner in crime. Policemen who are friends and collaborate
thieves in their crimes are seen as thieves even if they have not
actually be seen stealing or been found with stolen property.
and Henderson's Introduction to the Law of Scotland 9th Edition 35.16
at page 602 says the following:-
"A comment is a statement of opinion or inference drawn from
facts. It may be expressed in the form of a statement of fact
may often be difficult to distinguish between fact and comment".
what the entire statement of third defendant amounts to.
defendant might have not used the word thief in isolation. I believe
the evidence that he did accuse plaintiff of belonging
to the group
of policemen whose livestock is often found among those thieves when
the police investigate crimes of stock-theft.
Consequently, as stated
in Plaintiffs Declaration third defendant angrily asked:-
"All the time when we deal with thieves, we find a policeman
inside. I ask myself, if you are not a thief. What is your livestock
doing among that of thieves?"
I have no
doubt plaintiff said these words. I also have no doubt that third
defendant said "I am fed up with these policemen
thieves". To any listener in my judgment these words were fair
comment. They were based, on the facts that were before
defendant and were justified. Third defendant has denied he said
these words. Because of their lack of restraint and third
anger - he feels guilty about them.
defendant had a duty to let the public know that the police do not
like what is happening. It is a legitimate criticism to
say that the
words were coarse, undignified and
But they were a strong condemnation when that emotional outburst
occurred. His intention was to condemn the evil that confronted
police and the public.
public understood third defendant to mean he suspected plaintiff to
be among those policemen that third defendant suspected
thieves and who even steal firearms and give them to thieves. I am
saying this because when plaintiff asked third defendant
what he had
stolen. Third defendant replied :-
"I knew you would ask such a question because I did not find you
with stolen things. I am sick and tired of policemen who
thieves ... You can go and complain anywhere including before the
third defendant said these words and that they mean he suspected
plaintiff of being among the policemen who are thieves
and who work
with thieves. Third defendant was reprimanding plaintiff in public
that is what the public understood. The public
plaintiff was being suspected of being a thief like many policemen of
that type. He was suspected of being a thief
because he had not been
I am not
happy that the defendants did not bring evidence that plaintiff had
been warned of this conduct and that some members of
the public had
complained about this conduct. I will assume that there is no
evidence of this.
dealing with the manner the parties have approached the evidence I
have said the parties accepted by the way they conducted the
that defendant's defence was justification, fair comment and that
all, these together with qualified privilege were to the
benefit. That is what third defendant's reprimand in the plea in fact
meant. Unhappy as I am with the evasiveness of third
defendant I will
proceed on this basis.
defendant was from the facts expected to say something in the
circumstances of the case. Plaintiffs livestock was found among
animals that the anti-stock-theft association had taken from a
cattle-post that they raided on suspicion of stock-theft. If this
cattle-post was owned by a person who is persistently suspected of
stock-theft third defendant was entitled to form a certain opinion
and express it. That is what freedom of expression entails.
what third defendant said there was no doubt that he did not speak to
plaintiff alone in a calm manner. Third defendant
suppressing his smouldering anger when
released plaintiffs animals which had been identified among other
animals without expressing his feelings. It was when plaintiff
that not all his livestock was there that he burst out angrily and
said words to the effect that he is fed up with policemen
livestock is found amongst that of thieves - when stock-theft is
investigated. Further, these policemen work with thieves
firearms are vanishing and end up in the hands of thieves because of
these policemen. Despite the fact that third defendant
might have not
called plaintiff a thief - the implication that plaintiff and those
other policemen are thieves is not far fetched.
Third defendant was
aware of this and even said he expected plaintiff to say they are not
thieves because they have not been caught.
plaintiff kept his livestock with Leronti who is known in the
community to have been suspected of stock theft in 1998 and 2002,
then he did not look after his good name. If third defendant in April
2004 found plaintiffs sheep among the sheep of Leronti, he
entitled not only to tell the assembled public in the presence of
Plaintiff that this is wrong. The police force does not like
members to be associated with suspected thieves. He might even infer
that such policemen are thieves. Third defendant could
and prejudiced in saying so. If third defendant can demonstrate that
Leronti is often suspected of theft and plaintiff
at Leronti's cattle-post, then plaintiff has no right to complain.
This is fair comment and the public have to be told.
person would understand that third defendant was implying that
plaintiff and policemen like him are thieves - but could
specifically call them thieves because no stolen livestock has been
found in their possession. That would also be fair comment.
It has to
be taken into account that third defendant has freedom of expression.
In Roos v Slent 1909 TS 988 the following was said:-
"It amounts to this, the expressions of opinion, otherwise
defamatory, are protected if they take the comments on facts which
are true, and relate to matters of public interest, and if they are
such as any fair man might make on those facts:- And for two
Because it is impossible to know whether the comments are fair unless
we know what the facts are and because the public
must have an
opportunity of judging of the value of those comments".
Crawfurd v Albu 1917 AD 102 at page 131 it was said of those facts
"though not absolutely true yet are substantially true",
only then can fair comment be a defence. In other
Hiemstra J said in Waring v Mentis & Ors 1969 (4) SA 542, the
"The plea of fair comment will be justified if the court
considers the comment is such as that an honest man could have made
although it may be exaggerated or prejudiced".
light of the aforegoing facts, the defendants have proved that the
defamatory words were uttered without any animus injuriandi
defendant was justified in the circumstances of the case to say the
words in question.
were fair comment in respect of the conduct of a policeman whose
animals were looked after by a person or people who are
notorious stock thieves in the area.
right and proper for third defendant to tell the people who were
gathered at the pound that the police were tired of finding
policemen's livestock among suspects when they investigate crimes.
Such policemen know nothing can be done to them because they
been found with stolen property. Firearms disappear from police
possession and end
up in the
hands of criminals because of such policemen. It was right and proper
to ask why the livestock of plaintiff was found
amongst that of
language of third defendant was harsh and robust, it did not go
beyond the limits of the freedom of expression called
for on that
claim is dismissed. The issue of costs
practice the successful litigant is awarded costs unless the trial
court for a good reason decides to deny that party costs.
critical of defence counsel's approach that implied that defamatory
matter cannot be published. Even in his address he seemed
that the words published were per se defamatory. This approach can be
seen in the plea of the defendants, which was over-cautious
evasive making it excipiable.
court in E.R. Sekhonyana v Morrison & Another 1993-96 LLR 1436 at
page 1448 - dealing with words justified as true after
decided cases concluded :-
"Defamatory matter can be published, provided there is
justification as a result of which it becomes lawful. As already
this would be because the publisher claims and shows he is
doing it for public benefit".
I was not
happy that defendants pleaded evasively and did not dispute the
quantum of damages.
very important to deal with this issue because in defamation cases
there are often factors that mitigate or aggravate damages
court may award. Counsel for defendants says he overlooked this
assessing damages the court does the best it can to make a realistic
assessment of damages having regard to all circumstances.
is an enlightened guess. As Smalberger JA noted in Van der Berg v
Coopers & Ladybrand Trust (Pty) Ltd & Others
2001 (2) SA 242
at page 260 GH.
"Care must be taken not to award large sums of damages too
readily lest doing so inhibit freedom of speech or encourage
to it and thereby foster litigation. Having said that,
does not detract from the fact that a person whose dignity has
been impugned deserves appropriate financial recompense to
assuage his or her wounded feelings".
Motsieloa drew the courts attention to what Grosskopf JA said in
Argus Printing and Publishing Co. Ltd v Inkatha Freedom Party
(3) SA 579 at page 590 EF.
"Our courts have not been generous in their awards of solatia.
An action for defamation has been seen as the method whereby
plaintiff vindicates his reputation, and not as a road to riches.
This is a further factor which reduces the inhibiting effect
law of defamation on freedom of expression".
defendants conducted their defence and their denial of the words that
third defendant said is responsible for their failure
to promote the
ends of society that are inbuilt in our law of defamation. That made
them concentrate on the denial of liability
to the exclusion of all
of defendants was evasive and failed to raise the defences that were
available to them and were revealed by the word uttered
and the evidence given in court. Since plaintiff also was not aware
that the plea was excipiable, evidence was heard
and it is on its
basis that the court has reached its finding.
therefore denies the defendants the costs they were entitled to for
being successful in this case.
light of aforegoing plaintiffs claim is dismissed and each party
should pay its own costs.
Plaintiff : Mr. Mokoko
Defendants : Mr. Motsieloa
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