IN
THE HIGH COURT OF LESOTHO

CIV/T/275/2001

In
the matter between:

BETHUEL
PAKALITHA MOSISILI PLAINTIFF

And

EDITOR
– THE MIRROR NEWSPAPER 1^st
DEFENDANT

THE
MIRROR PUBLICATION 2^nd
DEFENDANT

EPIC
PRINTERS 3^rd
DEFENDANT

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Nomngcongo

On
the 29^th
September, 2008

This is a claim for damages
which arises out of the publication in the Mirror weekly newspaper
issue of the 11^th
to 17^th
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 16^th
July 2001 and was only heard by me on the 31^st
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 plaintiff’s 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 1^st
and 2^nd
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 15^th
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 1^st
and 2^nd
attorneys of record had withdrawn.

The third defendant has filed a
plea to plaintiff declaration.

THE PLEADINGS

It is the plaintiff’s case
that (1) In the issue of the Mirror Newspaper dated 11^th
to 17^th
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:

1. 
   He is not part of the history
   of Ntsu Mokhehle’s political party and he is just an opportunist.

   
   

2. 
   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.

   
   

3. 
   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.

   
   

4. 
   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.

   
   

5. 
   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 Ntsu’s 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 on
with
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 plaintiff’s declaration

1. 
   above
   is admitted

   
   

2. 
   above:
   the contents are denied and the plaintiff is put to the proof
   thereof.

   
   

3. 
   Above:
   the contents are “unknown to the Third Defendant”, he does not
   admit them and he puts the plaintiff to the proof thereof.

   
   

4. 
   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 defendant’s 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 woman’s 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 30^th
July 1970. He was to remain there until the 14^th
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 Qacha’s 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 17^th
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 plaintiff’s 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 witness’s 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 plaintiff’s 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 plaintiff’s 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 19^th
2002 when summons had been issued on the 11^th
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 17^th
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
O’MALLEY 1977 (3) SA 394 on which the decision in
PARKEDORF’S
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 in
O’Malley’s
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 to
contribute
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 licence
to 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.

“Defendant’s
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:

1. 
   …………………

   
   

2. 
   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 ESSELEN’S 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 individual’s reputation. The right of
free expression enjoyed by all
persons, including the press must
yield to the individual’s 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.
“MAASDORP’S INSTITUTES OF SOUTH AFRICAN LAW – THE LAW OF DELICT
AND THE DISSOLUTION OF OBLIGATIONS VOL.IV 5^th
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 Young’s 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
Bogushi’s case
(supra) also referred to in Young’s 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.

3. 
   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 by
inter 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
3^rd Defendant:
Mr Moiloa