CIV/T/691/2003

IN THE HIGH COURT OF LESOTHO

In the matter between:

RACHOBOKOANE ANTHONY
THIBELI Plaintiff

and

MAZENOD PRINTING WORKS (PTY)
LTD 1^st

Defendant

MOELETSI OA BASOTHO
NEWSPAPER 2^nd

Defendant

THE EDITOR – MOELETSI OA
BASOTHO 3^rd

Defendant

Ruling on Application for
Absolution from the Instance
delivered by Hon. Mrs Justice
Hlajoane on 26^th February,

2007.

The Plaintiff in this case has
alleged as defamatory the contents of
the article in defendants’
edition of the 21^st 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.

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 Plaintiff’s
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 B1-292–
293”, on application for
absolution from instance had this to say:
“when application for
absolution from instance is sought at the
close of the Plaintiff’s
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.A 307
at 310D.

In
this case Plaintiff’s 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 3^rd
Defendant to do the editing.

The Court is not at this stage
going to evaluate and reject
Plaintiff’s 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
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 Plaintiff’s 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.

A. M. HLAJOANE
JUDGE

For Plaintiff: Mr
Ntlhoki

For Defendant: Mr Matooane