IN THE HIGH COURT OF LESOTHO
CIV/T/275/2001
In the matter between:
BETHUEL PAKALITHA MOSISILI PLAINTIFF
And
EDITOR THE MIRROR NEWSPAPER 1st DEFENDANT
THE MIRROR PUBLICATION 2nd DEFENDANT
EPIC PRINTERS 3rd DEFENDANT
JUDGMENT
Delivered by the Honourable Mr. Justice T. Nomngcongo
On the 29th September, 2008
This is a claim for damages which arises out of the publication in the Mirror weekly newspaper issue of the 11th to 17th April 2001. The plaintiff says the publication was defamatory of him and he claims an amount of R250.000.
Summons in the matter was issued on the 16th July 2001 and was only heard by me on the 31st October 2007. The delay in bringing the matter to trial, it would appear, although it is by no means clear from the record, was caused,inter alia by the withdrawal first of the plaintiffs attorneys of record and then the withdrawal, one after the other of the first and second defendants attorneys of record. When the trial started those defendants had no legal representative and there appeared one Tebello Pitso who described himself as the owner of the newspaper. He informed the court that the newspaper had closed last year because, on account of many defamation cases brought against the newspaper they were unable to print. They are unable to get funding, so she said, presumably both for printing and obtaining legal services.
As at the commencement of the trial no plea had been filed on behalf of the 1st and 2nd defendants. In any case they were already in terms of Rule 26(3) of the High Court Rules because notice to file plea had been served on them as far back as 15th January 2002. Counsel for the plaintiff says he leaned over backwards and filed two other notices to file plea (quiet unnecessarily), but both were ignored and this was before 1st and 2nd attorneys of record had withdrawn.
The third defendant has filed a plea to plaintiff declaration.
THE PLEADINGS
It is the plaintiffs case that (1) In the issue of the Mirror Newspaper dated 11th to 17th April 2001 an article titled nete ke thaba, se-Mosisili se rata ho e thula was publiched. A copy of the article together with a fair translation were annexed. (2) The newspaper is widely distributed in
Lesotho and is widely read by the general public. (3) The article stated of and concerning the plaintiff:
He is not part of the history of Ntsu Mokhehles political party and he is just an opportunist.
Plaintiff has never been arrested and detained at Maximum Security Prison or at any other prison because he was not of the said political party.
When he was arrested in 1970 he was not arrested on account of party politics but on the mistaken believe that he was one of the freedom or liberation fighters in whose company he was found at a beer house and that was reason why he did not spend even a day in detention.
Apart from that plaintiff was once arrested on suspicion of the theft of the books belonging to the University of Lesotho and not for party politics.
Plaintiff has had a hand in the plight of the members of LCD (Lesotho Congress for Democracy) but to-day he wants them to make him an important person.
(4) The plaintiff concludes that in the context of the article the what was said of him was wrongful and defamatory of the plaintiff in that they were intended and were understood by readers that plaintiff was an opportunist, not a political hero but a pretender and those who regard him as a hero gave him glory he does not deserve, he was a drunk found in shebeens, a criminal, a hypocrite, a corrupt politician and generally a person who cannot be trusted.
The article (its fair translation is annexed and is as follows:-
ANNEXURE BPMI (TRANSLATION)
TRUTH IS A MOUNTAIN, THE MOSISILI-ISM SEEKS TO TAKE IT HEAD-ON
Your Honor, the editor of the Mirror/Setsomi allow me to refer to your newspaper dated 28-3 April 2001 under the heading reading: Ntate Seholoholo needs to be assisted.
I will start by first pointing out that Lalasa Sephokong should wake up from the deep sleep he is in and arm himself for the fight he is in and be clear in the mouth when he is engaged in arguments and should know that all those who hold a shield against Dr. Ntsu Mokhehle never win.
Your Honor, he should stay awake because he is thinking that the members of LCD do not know how to draw a distinction between the truth and a lie or that they do not have the knowledge of what is going on within the LCD. Lalasa Sephokong is misleading the members of LCD and deceiving them by saying that his ladder (Mosisili) is there in the political history of Ntsus political party. For this reason I wish to lend him a helping hand in the manner following.
Dr. Ntsu Mokhehle formed BAC in 1952 even though you Lalasa Sephokong wish that it were possible for the fact that it was Ntsu who established that organization, though you say it was BCP, to be erased.
No, that is not so, it was BAC which later came to be known by the name BCP. That name was changed for a few reasons and one of them could be because there were then sell-outs like yourself, opportunists such as your ladder (Mosisili). Even though the name changed the objective for which the organization had been established remained the same. Where was Mosisili? He was a school student.
We traveled on BCP for more than forty years until those of your mind succeeded in shattering it whereupon LCD was formed. By who? By Dr. Ntsu Mokhehle and not Mosisili, please get it clear even though I notice that to build you and your company up is exactly similar to a gold ear-ring in the nose of a pig.
Your are telling the truth when you say that during the time that BCP was in the liberation struggle its members were locked up in jail particularly during the years 1970 1974 when these others skipped the country. But you are lying where you say that Mosisili, Lehohla and Malie were detained at the Maximum Security Prison, they have never been detained at any prison. How could they be arrested when they were not members of the party? Please tell the truth once. When Mr Mosisili was arrested in 1970 he was not arrested for political reasons, he was arrested at a shebeen upon being found there in the company of liberation fighters and it was believed that he too was a liberation fighter and that is the reason why he did not spend even a day in detention. Apart from that, he was once arrested on suspicion of the theft of the books belonging to the University of Lesotho, not on account of politics, he never showed any interest at all. That is why he cannot produce even one receipt which he can claim to have given for the benefit of the livelihood of the LLA men. You too, you do not even know when and how they were given.
What happens is that we leave the name behind and pass onwith the objective even though it appears, unfortunately, that you and Mosisili do not know this fact that we of the LCD had a plan by which to win the elections because you employ people only if they produce party membership cards which is your particular style.
When the men were suffering, to Malie, Moleleki, Lehohla and Mosisili it was heaven on earth. Today, by force you want the members of LCD to make you people of some importance yet you have had a hand in their suffering.
The third defendant pleads as follows to the plaintiffs declaration
above is admitted
above: the contents are denied and the plaintiff is put to the proof thereof.
Above: the contents are unknown to the Third Defendant, he does not admit them and he puts the plaintiff to the proof thereof.
Above: the contents are denied and the plaintiff is put to the proof thereof.
In the alternative to (4) above the Third defendant pleads that it is not strictly liable for the publication of such matter, it did not act animo injeriandi because neither it nor its employees was aware of the particular article or its falsity. It was not negligent in not knowing that the said article was false or defamatory of the plaintiff. It did not know that the First defendant was a of such a character that its articles were likely to be defamatory of the plaintiff. Finally the Third defendant says that it prints several weekly newspapers and this is a high speed operation in which he could not reasonably be expected to read through all materials that go through his presses and it concludes almost as a by-the-way that the publication is protected by section 14 of the Constitution of Lesotho and is a matter of public interest.
It must be pointed out that at once that the denials by the third defendant are bare. They do not contain a clear statement of the facts upon which the pleader relies for his defence. This is in violation of Rule 20 (4) of the Rules of the High Court which makes it mandatory for such facts to be stated. By pleading also that the allegations made by the plaintiff are unknown to the third defendant and they are not admitted, the third defendant is not only making a bare denial but he is being evasive, if not untruthful, regard being had to the fact that the article complained of is annexed to the pleadings and the allegations in (4) above are clearly an extrapolation thereof.
To this extent the third defendants pleadings are excipiable, although this was not taken up by the plaintiff, the court is left
then to deal with the defence raised in the alternative.
THE EVIDENCE
The plaintiff testified that he is the Prime Minister of Lesotho and the leader of the ruling Lesotho Congress for Democracy (LCD). He joined politics in 1967 while he was a student at the then University of Botswana Lesotho and Swaziland (UBLS) as a member of the Basotholand Congress Party (BCP). As a student he campaigned for the BCP which in the Roma constituency which was an opposition strong hold. The BCP won the constituency against the odds and he considers that it was in part for his contribution.
Upon finishing his university studies in 1970 he sought and was given a job as a teacher at Lesotho High School. He was arrested on his first day at the job by members of the security branch. He was taken to his residence where he was thoroughly searched before being taken to the womans prison where he was put in a cell. From there his head was covered with a blanket and he taken to an office where he was vigorously interrogated, his head still covered, about his activities as a member of the BCP youth league. This took not less than two hours. He was taken on a drive-about with his head still covered. After some time he was taken to a place which he later learned was the Maximum Security Prison. He remembers vividly that it was the 30th July 1970. He was to remain there until the 14th November of the following year, 1971 i.e. after some fifteen months contrary to the allegation in the Mirror Newspaper that he did not spend a single day in prison.
The plaintiff says he was then released without charge and immediately slapped with a restriction order confining him to his home village of Waterfall in the Qachas nek district. This was later altered to allow him to live in Mafeteng under very stringent conditions. The restriction order lasted for a year. While at Mafeteng he got married to his present wife. The happy event took place on the 17th June 1972. During all this time he was never charged.
It was after this that he started his academic carrier as UBLS, first as an assistant lecture in African Languages. He then went on to obtain two Masters degrees from the University of Wisconsin in the USA and the San Fraser University in Canada. He returned to his old employment when the University had been re-organized and was now called the National University of Lesotho (NUL). He became a member of council of that university. It did not take him long to fall with members of the Basotho National Party youth league who he says were terrorizing everybody in the university community by, for instance, placing guns on lectures desks. They the youth league went on to compile a hit list of which the plaintiff was number seven. The man who was number one on the list, one Edgar Motuba had already been killed. That was the turning point and the plaintiff says he decided to resign.
The plaintiff then proceeded to South Africa where he taught in various capacities in the satellite states of that country, called
Bantustans. While there he had attracted the hostile eyes of the authorities for being a member of the world university services.
This membership was supposed to constitute a security risk. It was while he was there that he says the people of Lesotho recruited him and persuaded him to stand for elections at Constituency no.69.
He won the elections and became an M.P. and immediately after a Minister of Education under the Prime Minister Ntsu Mokhehle. This was to be so for the period 1993 1995 when he was appointed Deputy Prime Minister and Minister of Home Affairs.
It was after this that the party split and the LCD was formed under the leadership of Ntsu Mokhehle and the plaintiff went along with him. The LCD became the government and the plaintiff remained Deputy Prime Minister. Not long afterwards Ntsu Mokhehle voluntarily stepped down as Prime Minister and at a special conference of the LCD, the plaintiff was elected leader of the party with an overwhelming
majority and then became Prime Minister of Lesotho. He has since been elected unopposed to the position of leader of the LCD.
During 1998 the Kingdom of Lesotho was sent into turmoil by political disturbances. A solution was worked that led up to the elections of 2002. Campaigning started in 2001 and there was hyper actively on the political front. It was during this period that the Mirror newspaper published the article complained of.
The plaintiff does not know the circulation of the newspaper but believes that it was widely read and because it was written in English it was read even in South Africa. After this publication members of his own cabinet began calling into question his integrity. In this regard he recalls Minister Monyane Moleleki. He believes that it could have contributed to the split in his party which saw his deputy leave and form a new political party. The article cast aspersions on his integrity as a person and as a leader.
Finally, the plaintiff is a family man with four children of his own and five of his late brother whom he has brought up as his own. His children hold various university degrees. They and their mother began asking questions after the publication of this article. He has had a lot of explaining to do to skeptical family.
Cross examination of the plaintiff was to the effect that as a public figure he was being over sensitive to criticism. This was denied. It was not put to the plaintiff either that the statements were true or that they were not defamatory. The plaintiff was asked if he had ever established the identity of the person who submitted the article for publication and he said he had not and that in any case it would be futile as people in the business of the first and second defendants would rather go to jail than reveal their sources. It was further established that the plaintiff had had very good relations with the third defendant to the extent that the plaintiffs party submitted material for printing by the third defendant. He accepts that the chairman of the third defendant tendered an apology but said that, that apology coming a year later and in the form that it came, was too little too late.
The plaintiff called one witness Archibold Lesao Lehohla. He is the Deputy Prime Minister and deputy leader of the LCD. He is thus the deputy of the plaintiff in government as well as in the party. He testifies that he became aware of the article complained of during 2001 when the country was preparing for the 2002 general elections. This was a critical time for the LCD and other political parties in the country and thus the publication could not have come at a worse time. He had read the article which like the plaintiff had said he had lied about being arrested whereas in fact he himself had also been arrested during 1970.
The witness says prior to this article he had held the plaintiff in the highest esteem. After that doubts started creeping in as he thought there could be no smoke without fire. The rank and file of the party started talking about the article. In fact it went so far as some openly talked of the possibility of him, the Deputy Prime Minister, supplanting the plaintiff as leader of the party. The effect of articles such as this was so debilitating on the party that it led to a split that saw the formation of the LPC under the leadership of Mr. Maope who was the deputy of the plaintiff.
The cross-examination of the witness was to the effect that he had shown more statesmen like restraint than the plaintiff in not suing the defendants when the same things had been published about him in the article. He did not agree and indicated that it was for other reasons that he did not sue. It was suggested that the author of the article was what counsel called a scatter brain who had to be ignored. The witnesss reaction was that he was not qualified to say whether or not a person is a scatter brain and that if a person said things like that he considered that he must have absolute proof. He said the plaintiff was his friend and knowing him he did not believe the things said about him in the article. He does not know the circulation of the newspaper nor how many people actually read it.
The third defendant then called its first witness, Rabasotho Mbakoba, who is its deputy manager. In 2001, they were printers of about six weekly newspapers including the Mirror. These newspapers were submitted on Wednesdays and Thursday and had to be out by Fridays. This resulted in a hectic schedule which did not give them time to go over the material that they printed but they assumed there was nothing untoward about it. They have since stopped printing the Mirror after realizing that they submitted unsavoury material for printing; this was particularly so after the articles referring to the plaintiff. The witness says he remembers, albeit slightly, this particular issue of newspaper as they had been subjected to some pressure in printing it. He recalls that probably six hundred copies of the newspaper were produced of this particular issue. They are not responsible for the editorial content of the paper. After the article was brought to their notice the chairman of their Board of Director was detailed to go and apologise to the Prime Minister as there had been no intention to defame him.
Finally he says that it would be difficult to raise the M250,000 that plaintiff is claiming as they have wages to pay and in any case the Mirror which landed them in this trouble in the first place has disappeared on them and they still owed them M86,000.
Under cross examination it was elicited that they took the largest slice of printing business because they printed all but two of the weekly newspapers in Lesotho. It was also established that he had actually read the offending article but nonetheless proceeded to print it. The witness agreed that the article was no doubt extremely defamatory of the plaintiff and that is why they sent the Chairman of their Board to apologize to the plaintiff.
The Chairman of the Board Mamphane Nthongoa gave evidence on behalf of the third defendant. He testifies that he went to the plaintiff
personally and tendered his apology. The plaintiff repeated that he had been defamed and he did not on this first occasion indicate the way forward. He went back again and this time he was referred to the then plaintiffs attorney of record. He did not meet the attorney concerned i.e. Mr Mafisa but he later got a letter from him in which he indicated that damages in an amount commensurate with the damage caused to plaintiffs good name and reputation must be paid. The witness considered that they were not at fault so an amount of M250.00 was tendered for such expenses as correspondence. Again an apology was published in the issue of May 19th 2002 when summons had been issued on the 11th July 2001. He attributes the delay to the fact that they had been going to the plaintiff to try and resolve the issue. He denies that the tender of R250.00 was not serious. He stands by his apology. He says damages must not be directed at the third defendant because they are not the authors of the article.
Under cross examination the witness was asked to compare the apology that appears in the May 17th 2002 with the offensive article. He agreed it was miniscule in contrast with the half a page headline of the offensive article. It was smaller than the adverts between which it was sand wished. He accepted that the article was defamatory despite the plea denying that it was and putting the plaintiff to the proof thereof. He explains that what he meant was that he had not defamed the plaintiff. When it was put to him that by tendering M250.00 and apologizing in the manner that they did, was adding insult to injury he replied: I am sorry.
It will be seen that it is not denied on behalf of the third defendant that the words complained of are defamatory and that they have the effect attributed to them by the plaintiff. The denial that they were not in the plea, which was in any case excipiable, falls away. I am also satisfied from the detailed evidence of the plaintiff that what was said about him is also false. The third defendant has neither in his plea nor in evidence said that what was said was true. Ordinarily when statements have shown to be defamatory a presumption arises that: the words were published intentionally ..and that the object or purpose of the use of the words was to defame the insulted person. That is to say that animus injuriandi is presumed. The onus then rests on the defendant to rebut the presence of animus injuriandi. (See the South African cases of MABASO V FELIX 1981 (3) SA 865 (A) at 872H.; NEETHLING V THE WEEKLY MAIL AND OTHERS 1994 (1) SA 708).
It is contended as we have seen on behalf of the third defendant that they are not strictly liable for the publication of the article.
In South Africa the question of strict liability of the press has come up for decision in many cases. In the case PAKENDORF V DE FLAMINGH 1982 (3) SA 146 (A) it was held that newspaper owners, publishers, editors as well as printers were strictly liable for defamation. This case including that of SUID AFRIKANSE UITSAAIKORPORASIE V OMALLEY 1977 (3) SA 394 on which the decision in PARKEDORFS case (supra) was based were considered in the later case of NATIONAL MEDIA LTD V BOGOSHI 1998 (4) SA 1196 (SCA). In that case HEFER JA observed as follows:
The novelty of the third defence is that hither to, whenever they sought to escape liability for lack of knowledge of the falsity of the defamatory contents of their publications, or on account of an honest mistake the focus has always been on animus infuriandi and not on lawfulness. In the result, the possibility of the legality of the publication of untruthful defamatory statements has not received adequate attention.
He then proceeded to consider the justification that had been put forward for making the press strictly liable such as that mentioned inOMalleys case that it would be difficult to bring home animus injuriandi to any particular person. Having done so Hefer JA went on to say:
All this is very true. But we must not forget that it is the right, and indeed 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 tocontribute to the formulation of public opinion The press and the rest of the media provide the means by which useful, and sometimes vital, information about the daily affairs of the nation is conveyed to its citizens from the highest to the lowest ranks.
He then concluded:
If we recognize, as we must, the democratic imperative that the common good is best served by the free flow of information and the task of the media in the process, it must be clear that strict liability cannot be defended and should have been rejected in Pakendorf. Much has been written about the chilling effect of defamation actions but nothing can be more chilling than prospect of being mulcted with damages for even the slightest error.
The decision in Pakendorf was thus overruled although the conclusion in the case was said to have been unassailable on the facts, because the defamatory statements in the case had been the result of unreasonable conduct in obtaining them by incompetent journalists.
Hefer J.A. then came to the conclusion that the test is whether publication of the untruthful defamatory matter was reasonable under the circumstances. He put it thus:
In my judgment we must adopt this approach by stating that the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if upon a consideration of all circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time.
In considering the reasonableness of the publication account must obviously be taken of the mature, extent and tone of the allegations. We know for instance, that greater latitude is usually allowed in respect of political discussion (PANTHER AND ANOTHER V ARGUS PRINTING AND PUBLISHING CO.LTD 1956 (4) SA 310 at 318 C), and that the tone in which a newspaper article is written, or the way in which it is presented, sometimes provides additional, perhaps
unnecessary sting. What will also figure prominently is the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information. Ultimately there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a licenceto lower the standards of care which must be observed before defamatory matter is published. Professor Vessor is correct in saying . that a high degree of circumspection must be expected of editors and editorial staff on account of the nature of their occupation; particularly I would add, in the light of the powerful position of the press and the credibility which it enjoys amongst large sections of the community ..
The examination of the facts in order to determine the liability of a printer will obviously follow different lines which will concentrate mainly on his ability to become aware of and prevent mistakes and the unwitting publication of defamatory material.
I would respectfully agree with the approach adopted by Hefer J.A I would add that strict liability, especially regarding printers, would require that they scrutinize every article that goes through their presses before putting it to print. In the modern day where papers are mass produced it would be in practicable and no newspaper would see the light of day. Nevertheless the media, including printers must still show that they were not negligent in printing any material in order to escape liability of publishing defamatory matter and as Hefer J.A pointed out.
Defendants counsel, rightly in my view accepted that there are compelling reasons for holding that the media should not be treated on the same footing as ordinary members of the public by permitting them to rely on the absence of animus injuriandi, and that it would be appropriate to hold media defendants liable unless they were not negligent in the circumstances of the case.
The denial by the third defendant that they did not act animus injuriandi must be treated in the light of the above. On the facts of this case the first witness for the third defendant Rabasotho Mbakoba testified that as the person responsible for the actual printing of the paper, actually read the piece complained of, did not find it offensive and then went on to print it. The article he printed said of the plaintiff that he was an opportunist, a liar, a pretender, a sellout, one who had been arrested on suspicion of theft and one who delighted in the suffering of others. This was said of the Prime Minister of the country. If this did not set his journalistic senses on alarm and set him on inquiry then he was negligent in the extreme. I would say even, reckless. The defendant cannot say therefore say that he had no animus injuriandi. Equally he can neither say he was unaware of the article or that it was false in its allegations. In the light of his having read the article it does not assist the third defendant to say that it is not responsible for the editorial content of the paper, or that it is a high speed operation. I hold therefore that the printing of the article without further ado when it was glaringly defamatory was in the circumstances of this case unreasonable and therefore unlawful.
It was contended, albeit half-heartedly, that the publication of the article is in addition protected by section 14 of the constitution, and is in the public interest. Section 14 protects freedom of expression but also says in sub-section (2) that:
Nothing contained or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision:
For the purpose of protecting the reputations, rights and freedoms of other persons ..
It will be seen therefore that freedom of expression is not unlimited and as has been said, it is no licence to destroy the reputations of others which the law equally holds in the highest esteem. In ARGUS PRINTING AND PUBLISHING CO. LTD V ESSELENS ESTATE 1994 (2) SA 1 (A) at 25 B-E the court remarked as follows:
I agree, and firmly believe, that freedom of expression and of the press are potent and indispensable instruments for the creation and maintenance of a democratic society, but it is trite that such freedom is not, cannot be permitted to be totally unrestrained. The law does not allow the unjustified savaging of an individuals reputation. The right of free expression enjoyed by all persons, including the press must yield to the individuals right, not to be unlawfully defamed.
This is the short answer to a defence that was not even vigorously pursued anyway. It was said that the publication was in the public interest. Nothing was said either in the plea or in evidence to indicate what public interest would be served by publishing what the third defendant through his own witnesses said was clearly defamatory matter. A distinction is made here of publications that may be interesting to the public and those that are in the public interest. The former may be of interest and therefore interesting to a section of the public that is gwaping for scandal and they are not protected. The latter are protected but under proper condition for:
it is only fair and reasonable and in the public interest that, where a man takes upon himself to enter public life and the performance of public acts and duties, he must be prepared to expect public criticism of his acts and doings from all persons who are interested in public matters and particularly from newspapers, whose special business it is to publish everything that has a bearing on public business and to comment upon the same They are also entitled to comment upon the acts and conduct of public men, provided these acts and conduct are capable of being proved, and even to suggest motives which may honestly be thought to have influenced them; but they are bound to keep within bounds of fairness and moderation, and their criticism must be honest and with a due regard for what truth and justice demand But if a newspaper or any private individual imputes to a public man improper acts which are not based fact, and bases upon them defamatory expressions which are not justified by the facts actually proved it, be will be liable in damages. MAASDORPS INSTITUTES OF SOUTH AFRICAN LAW THE LAW OF DELICT AND THE DISSOLUTION OF OBLIGATIONS VOL.IV 5th ED.
This answers in part the suggestion under cross examination that the plaintiff was over sensitive and that like deputy prime minister he should not have resorted to legal action over the publication. A public figure still has a private life that has to be respected and protected and one cannot rely on their reluctance to avoid further adverse publicity and time consuming litigation, in order to avoid liability. Further more we cannot lose sight of the fact that false defamatory allegations against public figures are apt in some case to inflict untold damage upon them and in the political field the ground is strewn with casualties of ruined reputations.
I deal finally with the apology that was tendered by the chairman of the Board of Third Defendant. It was couched in terms which amounted to saying: I am not at fault for printing what I printed, but I am sorry if you say I was. In YOUNG V SHAIKH 2004 (3) SA 46 at 47 F an apology in similar fashion was thought poor of in the following words.
An apology in a plea and a half hearted apology in evidence (to the extent that I exceeded the bounds of fair comment and I gave offence to Mr. Young, I apologize) can certainly not be regarded as adequate.
The apology in the present case is similar to the one in Youngs case with the added sting of a mocking tender of a meager M250 in damages. The apology was not genuine and the tender was really cocking a snook at the plaintiff.
It remains to determine the quantum of damages. As Lehohla J. (as he then was) in MOEKETSI SELLO V CANDI RATABANE RAMAINOANE:
The question of ascertain quantum of damages has always presented an irksome hurdle to courts of law.
It has been said that generally, it serves little purpose to refer to other cases where damages have been awarded since seldom in one case similar to another. What the cases offer are general guiding principles which by no means are exhaustive either. In the final analysis a judge makes an award that he thinks meets the justice of the case. What runs through all the authorities however is the reluctance of the courts to be overgenerous in awarding damages for defamatory statements. In Bogushis case (supra) also referred to in Youngs case Hefer J.A. is reported as saying:
Furthermore, the harm done by a defamatory statement is the damage to the reputation of the victim. A public apology which will usually be far less expensive than an award of damages, can set the record straight, restore the reputation of the victim, give the necessary satisfaction, avoid serious financial herein to be culprit and encourage rather than inhibit freedom of expression.
The point, I believe that is being made here is that the award of damages is not intended to enrich the victim, as much as to assuage his feelings and put him in the property light regarding his reputation. In doing so the courts should be careful not to run the culprit under, if it can be avoided. In casu, of course, the plaintiff was proferred a caricature of an apology.
Having said this I will consider the factors I took account into arriving at what I consider an appropriate award.
(a). The plaintiff is the Prime Minister of Lesotho, a family man, a prominent member of his congregation, an academic of note having attended and lectured in a number of institutions of higher learning.
(b). The allegations against him imputed opportunism, dishonesty, criminality and even sadism it is alleged of him and those of his ilk that it was heaven on earth when other men were suffering.
There was no justification whatsoever for these allegations and the defendants negligently published them without bothering to establish their truthfulness. I have no doubt they were aware of the article regard being had that it was no ordinary citizen against whom the allegations were being made and this should have put them on the alert.
(d) The circulation and extent of publication of the Mirror was not established with any certainty. The plaintiff himself contended himself with saying that it was widely circulated but pointedly said he did not know how widely. It was put on behalf of the third defendant in cross examination that one thousand copied were printed, but in evidence on its behalf the figure of six hundred was mentioned. The truth is probably somewhere between the two figures. I would imagine that in the nature of things not all copies of the particular issue were sold. In the circumstances I believe the readership of the paper was quite modest.
(e) It was nevertheless read byinter alia his own political colleagues in his party and his cabinet. I would imagine that his opponents would make a grab for it and try to make capital out of it. This is where his reputation matters most for a man in the position of the plaintiff. To ruin it there can wreak untold damage.
(f) The apology tendered was simply a sham.
Much was made of the fact that following the publication, the political party of which the plaintiff is leader split and a sizeable chunk of its membership including his deputy left to form a new party. I have not been persuaded that they left as a direct or even indirect result of the publication. This court here is not concerned about the effect on the party because the suit is at the instance of the plaintiff in his private capacity. The only relevance of the party concerns how he was viewed by members of his party after the publication; whether his reputation was diminished consequent upon it. I have already found that objectively
it did. Nevertheless the plaintiff seems to have weathered it: he has since been elected unopposed through successive years as leader of his party according to his own evidence. That does not however detract from the sting of the defamatory matter and the assault upon the dignity of the plaintiff and for that he deserves appropriate financial recompense.
Having considered all the circumstances of the case, I consider that a sum of M50,000 is appropriate and I accordingly award it with costs against all defendant jointly and severally.
T.NOMNGCONGO
JUDGE
For Plaintiff : Mr Phafane
For 3rd Defendant: Mr Moiloa