CIV/T/691/2003

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

RACHOBOKOANE
ANTHONY THIBELI Plaintiff

and

MAZENOD
PRINTING WORKS (PTY) LTD 1st Defendant

MOELETSI
OA BASOTHO NEWSPAPER 2nd Defendant

THE
EDITOR - MOELETSI OA BASOTHO 3rd Defendant

JUDGMENT

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 18th October, 2007.

This is a
claim for damages against the three Defendants in the sum of M250,
000.00. The claim derives from a head article in the
second Defendant
newspapers of the 21st September, 2003 and 5th October, 2003
respectively. The articles carried a photograph of
Plaintiff in his
army uniform at the time he was still a Major-General in the Lesotho
Defence Force and his name written below
it.

2

After
reading the article in the Moeletsi oa Basotho of the 21st September,
2003 the Plaintiff demanded the Defendants to detract
the defamatory
matter in their article but Defendants refused to withdraw. It has
been the Plaintiffs case that, instead of detracting
the 2nd
Defendant ridiculed him in the issue of the 5th October, 2003,

"Ntlhoki imposes himself upon Moeletsi', he says the Newspaper
should apologise to Thibeli."

Plaintiff
called in evidence of four witnesses including himself. Plaintiff in
his declaration has made extract of those passages
which he
considered to be defamatory. The passages have been translated into
English.

The
heading of that paper is "A cloud hangs over Thibeli." All
these were a result of some Political disturbances in the
country
during the month of September 1998. Exhibit "F" is a
detailed report by a Judge Advocate concerning a second
Court Martial
sitting. The report showed that the 1998 Political disturbances even
spilled over into the Lesotho Defence Force.
Exhibit "D" is
the commission of enquiry's report of events of that time and is
commonly referred to as Leon's report
after its chairman.

3

It would
be necessary to quote the relevant passages complained of, and such
passages will be numbered.

1. "Ex-Major
   General Thibeli of the Lesotho Defence force, who has recently
   retired from service, may just find himself facing
   charges in
   connection with the events of 11th September, 1998 when soldiers of
   lower rank embarked on mutiny against senior officers
   and he,
   Thibeli took over as Commander of the Force - Mosakeng No.2."

   
   

2. one
   Mrs 'Mamotena who claimed to be Thibeli's wife declined to call him
   despite he being present in the house

   
   

3. "Having
   briefly narrated to Mrs 'Mamotena the issues involved (much as they
   did not concern her) and her stubbornly clinging
   to the phone,
   Moeletsi's people gave up."

   
   

4. "Whether
   it is Major-General Thibeli who does not want to talk to Moeletsi or
   it is Mrs 'Mamotena who unilaterally and without
   reference to him
   who made the decision, is not altogether clear. It is alleged that
   the Major-General was advised by those in
   authority to resign from
   service lest he forfeits his dues in the event of being charged and

   
   

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found guilty of the events of 1998. Mrs 'Mamotena shields Thibeli."

5. "The
   Major-General reportedly resigned grudgingly as he still wished to
   remain in service until he became Commander upon
   Lt/General A.M.
   Mosakeng retiring. Apparently Major-General Thibeli complained of
   not being paid all his dues to the extent that
   he is contemplating
   instituting proceedings against Government in anticipation of
   possible charges against him in connection
   with the events of 1998.
   Mrs 'Mamotena shields him."

   
   

6. "According
   to the report of the Commission of inquiry headed by Justice R.N.
   Leon, in connection with political disturbances
   in 1998, Exh. "D",
   Major-General Thibeli replaced Lt/General Mosakeng after soldiers of
   lower rank had unlawfully dismissed
   senior officers. He was unable
   to permanently assume command upon His Maj esty declining to confirm
   the appointment without a
   letter from the Prime Minister."

   
   

7. "Equally
   problems were encountered in the Prime Minister's office.....since
   the Prime Minister stated that .....that was
   unlawful."

   
   

5

8. "According
   to the report of Justice Leon, Thibeli too fled across into South
   Africa on the night of 14th September

   
   

9. "It
   is abundantly clear that Government has decided to grab those,
   according to the recommendations of Justice Leon's commission,
   there
   is evidence implicating them in the events of 1998."

   
   

10. "Government
    lets Thibeli to remain in service for a considerable length of time,
    yet the same Government being well alive
    to the fact that at its own
    time and choice, it will charge him criminally with past events of
    1998. At the convenience of those
    in authority, Thibeli is advised
    to resign from service to avoid forfeiture of his dues upon being
    found guilty by a Court of
    Law."

    
    

Plaintiff
in his evidence showed that he was promoted to the rank of
Major-General after the 1998 mutiny. He therefore became the
second
in command in the Lesotho Defence Force. He was subsequently retired
at the age of 53 per exhibit "B". That exhibit
"B"
was couched as follows:-

"The
Command of the Lesotho Defence Force hereby proposes to you the
following:

1. That
   you shall retire from the Lesotho Defence Force with effect from
   the 18th November, 2002.

   
   

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2. That
   you will be paid all the salary due to you until the date of your
   normal retirement, which should be 25th June, 2005.

   
   

3. Inevitably
   your pension benefits will be computed as if you had retired on
   attaining 55 years.

   
   

4. Furthermore
   you will be paid cash in lieu of any leave outstanding to your
   credit.

   
   

5. Immediately
   upon the acceptance and the signification thereof in writing by
   you, and all the payments referred to in paragraphs
   (b) (c) and (d)
   will be processed and paid to you as a lump sum forthwith."

   
   

Before
going into the whole evidence of the Plaintiff, it will be important
first to consider what would otherwise be considered
a defamatory
statement.

According
to Burchell, The Law of Defamation in South Africa 1985 at 35,
defamation is seen as "an unlawful, intentional publication
of
words or conduct concerning a specific person whereby his good name,
reputation or esteem in the community is impaired. The
requirement of
intention would be omitted in the case of the media.

7

The
question therefore to be asked in this case would be whether the
statement as published in the newspaper, 'Moeletsi oa Basotho",

against the Plaintiff was defamatory?

Starting
from the heading of the newspaper, "Thibeli o okameloa ke leru"
fairly translated as "A cloud hangs over
Thibeli", could
that be considered as defamatory? To get an answer to this, one has
to read the whole article.

The first
statement showed that Plaintiff might find himself charged in
connection with the events of September 11, 1998. That he
took over
as Commander of Force - Mosakeng No.2. His own evidence revealed that
the soldiers of lower ranks had dismissed the senior
officers and
caused the Commander to announce his resignation over the radio and
showing that Plaintiff was going to take over.
It is his evidence
that he did not like what the soldiers did to him and that was why he
later chose to leave for his home in T.Y.

What also
came out from his evidence was that the mutineers seemed to prefer
him as Commander. They even took him before the King,
but could not
be installed, as King declined to act without any letter from the
Prime Minister. Even when he was taken by the same
soldiers to the
Prime Minister they still failed as

8

they were
told that what they were contemplating was irregular and unlawful. He
remained there as the officer in command because
there was no one
above him, that was why he was labelled as Mosakeng No.2. He may have
not voluntarily remained there but the fact
of the matter is that he
became the senior most and even addressed the soldiers at the parade.
After all other senior officers
had been forced to leave for their
homes.

On the
question of 'Mamotena declining to call him despite his presence in
the house, the Defendants are the ones who alleged his
presence in
the house but because they chose not to give any evidence we are left
with the denial by Plaintiff's witness that Plaintiff
was not at
home. But saying someone was there when he was not there if it turns
out to be a lie could it be classified as defamatory.
Is a lie a
defamatory statement? It must be borne in mind that we are talking
here of a man and wife who have a legal duty to each
other, to
protect each other. 'Mamotena was quite entitled to decide for her
husband and that would not be labelled as being under
his wife's
apron. That's a normal set up in a normal marriage relationship. It
was therefore not proper for the 2nd Defendant to
have suggested that
Plaintiff's affairs did not involve his wife. Husband and wife are
taken as one in matters concerning

9

their
family. They were looking for Plaintiff at his home not at his
office.

But the
paper went on to show that they were not sure if it was Plaintiff who
did not want to talk to them or if it was his wife.

That
Major General Thibeli was advised to resign. This came in Plaintiffs
evidence that he was per Exh "B" advised to
retire but not
to resign. Whether it was to retire or resign the difference would be
meaningful to one within the employment service.
The fact of the
matter is that in both you are asked to leave your service. The
difference being on the benefits flowing from each.

Though
Plaintiff has said that he was caused to retire with honour, but my
reading of Exh "B" showed that he was given
no option but
to comply and retire. The letter is written in mandatory terms

"That you shall retire from Lesotho Defence Force with effect
from 18th November, 2002."

On the
passage that Plaintiff had been advised to retire lest he forfeits
his dues in the event of being charged and found guilty
of the events
of 1998, the case of National Media Ltd and Others v Bogoshi 1998 (4)
S.A 1196 becomes relevant. It was held in that
case that, "defences
like truth and public benefit, fair comment and

10

qualified
privilege were not adequate protection for freedom of the press."
It was further held that, "it is a vital function
of the press
to make available to the community information and criticism about
every aspect of public, political, social and economic
activity and
thus to contribute to the formation of public opinion. The press and
the rest of the media provided the means by which
useful and
sometimes vital information about the daily affairs of the nation was
conveyed to its citizens."

Plaintiff
had called in evidence of a witness to come and explain to the Court
how he understood the words as he read the newspaper.
In England such
evidence would not be admissible. Such a witness would only be
allowed to show that such words were published,
as the function of
giving meaning to the words remains with the Court and not the
witness, but in our case there can be no publication
unless some
person to whom the words were communicated understood their meaning.

Plaintiff
had called in evidence, a witness who knows him well and had read the
newspaper exhibit "A". It came out from
the evidence of
that witness that he was not aware of most of the things that had
taken place in the army resulting in Plaintiff
leaving his job. He
(witness) was not even aware of the Leon

11

Commission's
report which had confirmed most of the things that appeared in
exhibit "A".

For
instance, the witness was not aware that the Commission's report,
which of course was a public document had shown that Plaintiff
was
forced to retire from service. The word used being to "resign".
The witness was also not aware that the report had
shown that the
Commander in his speech over the radio had fired almost all the
senior officer in the army and nominating the Plaintiff
as his
successor. Also that the junior officers had been responsible for
appointing him as their new Commander.

It was
only after the relevant portion in the commission's report was read
to this witness that he conceded that what was contained
in Exhibit
"A" left him in doubts as to whether or not the quotation
was defamatory. He then realized that Exh "A"
had what was
contained in the commission's report.

Plaintiff
himself has shown in his summons that the statements of facts against
him were all lies. The question then to be asked
would be whether a
statement which might not be true could be labelled as defamatory?

12

Exhibit
"A" showed that Plaintiff might be charged in relation to
events of 1998. It did not say for certain that he was
going to be
charged or had been charged. It was true that Plaintiff took over as
commander of force in place of Lt/General Mosakeng.
It was by
unlawful means as the junior officers were told by the King and the
Prime Minister.

By his
own admission Plaintiff showed that he was made to retire. Exhibit
"B" being a letter from the Commander written
in mandatory
terms and giving him no option to make a choice. "You shall
retire from the Defence Force...".

To have
said Plaintiff wanted to remain in service till he became Commander,
was a normal expectation of any serving officer to
reach the highest
position at work. This would not have been expecting something out of
the ordinary, and to say that of someone
could not be considered
defamatory. One could not start from a private or a trooper in the
Force and expected to remain there till
he retired. Normally there
have to be some ambitions or expectations in one's career.

Plaintiff
in his evidence did reveal that he in fact sued Government when he
realized that his terminal benefits were not forthcoming.

13

He
however denied that it was in anticipation of possible charges
against him in connection with events of 1998 that he was advised
to
retire. But could it be said that, considering the events of 1998,
what was said, was said out of context? No. Junior officers
had
chosen to expel the Commander and forced Plaintiff to take over but
ended up not being receptive to his orders, this was a
clear
indication of breakage of the command structure in the force. It was
not made clear as to whether or not he was participating
fully in the
whole thing. That was why his side of the story was sought.

Plaintiff
had also denied in his evidence that he ever crossed over to South
Africa. He was referred to p.105 of the commission's
report where it
was said;

"The Senior officers were all released, from the Maximum
Security Prison by 14 September, 1998 and most of them fled to
Ladybrand,
including Major-General Thibeli himself who left on the
night of the 14 September, 1998, returning to duty on the 24
September,
1998 after SADC intervention."

I have
already indicated above that some of the publications might be true,
but would it be the position of the law that if not
true therefore
should be defamatory. The position of the law according to Whittaker
v Roos & Bateman 1912 AD 92 cited in Sello
v Ramainoane &
Another 1999-01 LLR 311 has been that once

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publication
is false and defamatory it is not necessary to prove animus
injuriandia as the latter is presumed or inferred. Meaning
the
publication need not only be false but has also to be defamatory.

But again
the publication of the truth should not alone be a defence, but the
publication should also be for the public benefit,
Crawford v Albu
1917 AD 102 at 117. For example, Plaintiffs witness was not aware of
the events that had taken place in 1998 within
the Army, that was why
he took the publication to have been defamatory but when he learnt of
the truth he then changed his stance.
He began to understand that
most of what in fact was in that newspaper was what had taken place.
J.M. Burchell in his book, The
Law of Defamation in South Africa 209
had this to say, that, "the basis of the rule that the
publication of the truth for
the public benefit will be a defame to
an action for defamation is one of legal (or public) policy."
These words received
approval in the leading South African case of
Johnson v Rand Daily Mails 1928 AD 190 at 204.

Plaintiff
has thus distorted the meaning of the words as published in the
context of the article in the 'Moeletsi oa Basotho'. Nowhere
was it
ever suggested that Plaintiff was a criminal. It had only

15

been said
he might find himself charged. Indeed Plaintiff was left in command
by the unlawful acts of the junior officers. Moeletsi
could not get
clarity from the Plaintiff as his wife answered for him. Whether or
not he wanted to explain his position was not
clear and that was
shown in the published words, Exhibit "A".

Again
Plaintiff was asked to retire as opposed to resign. He did not
voluntarily retire as he had not yet even attained the age
of 55
years as the compulsory retiring age. So that the public had to know
as to why he was so retired after the dreadful events
of September,
1998 within the army structures.

It would
not be judging out of context for a senior officer in the position of
the Plaintiff to have expected to be promoted to
a higher rank. And
Plaintiff had approached the Courts of Law for his terminal benefits.
Plaintiff did in fact flee to South Africa
for fear of his life as
shown in the Leon Commission.

The
article was substantially fine and was a fair comment on matters of
public interest and therefore not defamatory. Plaintiff's
claim is
thus dismissed with costs.

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1. M.
   HLAJOANE

   
   

JUDGE

For
Plaintiff: Mr Ntlhoki

For
Defendants: Mr Matooane