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

Ruling on
Application for Absolution from the Instance delivered by Hon. Mrs
Justice HIaioane on 26 February, 2007.

The
Plaintiff in this case.has alleged as defamatory the contents of the
article in defendants' edition of the 21st of September,
2003. That
article was about the Plaintiff. The contents of the article are not
in dispute and the article was thus handed in by
consent of the
parties.

2

Plaintiff
led evidence of four witnesses to establish his case. It was at the
end of this evidence that the Defendants applied for
absolution from
the instance. As rightly stated by the Plaintiffs counsel, the
application of this nature stands on much the same
footing as an
application for the discharge of an accused person at the close of
prosecution's case.

Erasmus
in his work, "Superior Court Practice" at Bl-292- 293",
on application for absolution from instance had this
to say: "when
application for absolution from instance is sought at the close of
the Plaintiffs case, the test to be applied
is not whether the
evidence established what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence, could or might (not
should, or ought to) find for the Plaintiff."

Questions
of credibility at this stage of the proceedings should not be
investigated, except where the witnesses have palpably broken
down,
and where it is clear that what they had stated is not true. Here the
Court is not yet required to weigh up possible inferences
but merely
to determine whether one of the reasonable inferences is in favour of
the Plaintiff. Ruto Flour Mills vs Adelson (2)
1958(4)S.A307at310D.

3

In this
case Plaintiffs evidence is based wholly on the production of a
document on which he has sued the Defendants and the sole
question is
the proper interpretation of that document, "Moeletsi Oa
Basotho". We learn from the evidence given and the
cross
examination on the witnesses that what is in dispute is the
interpretation of the words used in the document.

For an
application of this nature to succeed, the interpretation on which
the Defendants rely has to be beyond question, Rosherville
Vehicle
Services v Bloemfonteinse Plaaslike 1998 (2) S.A. 289.

Can we
say that the interpretation given by Defendant is beyond question? To
that the Court's answer is in the negative. The approach
in a case
where there are more than one Defendant should necessarily be
different from where there is only one Defendant. The position
is not
any different even in this case where the three Defendants, one
cannot operate in the absence of the other. For Moeletsi
to be there
and published first Defendant has to be there, and 3rd Defendant to
do the editing.

The Court
is not at this stage going to evaluate and reject Plaintiffs case
without going into the merits of the case. It is yet
not the stage of
deciding on balance of probabilities. In Marine & Trade Insurance
Co. Ltd v Van Der Schiff 1972 (1) S.A 26A

4

quoted in
Dale Street Congregation Church v Hendricks 1992 (1) S.A 133 at 145,
it was stated that as a rule a trial Court refuses
absolution at the
close of Plaintiffs case to avoid unnecessary discussion of the
evidence, lest it seems to take a view of its
quality and effect that
should only be reached at the end of the whole case.

I
therefore refuse the application for absolution from the instance as
it does not pass the test of whether a reasonable Court might
not
give judgment for Plaintiff if Defendant did not adduce evidence in
rebuttal at this stage.

Application
for absolution from the instance is refused.

1. M.
   HLAJOANE
   

   
   

JUDGE

For
Plaintiff: Mr Ntlhoki

For
Defendant: Mr Matooane