CIV/A/3/81

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

RAMPHEI
MPHEI Appellant

v

TSAANE
RAMOCHELE Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 15th day of
January 1982

This is
an appeal against the Judgment (dated 14th February 1980) of S.L.
Mapetla a Resident Magistrate sitting at Mafeteng in which
he awarded
Tsaane Ramochele(respondent and original plaintiff) the sum of M300
as damages for defamation. Ramphel Mphei(the appellant
and original
defendant) is alleged to have uttered the following words at a market
place in Mafeteng on or about the 6th June 1974.

"Tsaane Ramochele is a thief. I shall eventually call in the
police so as to have him arrested and beaten to death. He is
a proud
one who takes other people's animals without mercy".

I shall
for convenience refer to the parties as plaintif: and defendant.

The
plaintiff did not issue summons until the 9th December 1975, i.e. 18
months after the event. He demanded M500 as damages.

In his
plea, filed on the 26th January 1976, the defendant.

1. denied
   that he ever uttered the words complained of at the market place and
   put the plaintiff to the proof thereof, and

   
   

2. that
   if he did he was justified in doing so because the plaintiff took
   his cow and used it without permission and refused to replace
   it
   after promising to do so.

   
   

The
plaintiff replied on the 6th June 1976 that he never took the
defendant's cow as alleged and put the defendant to the proof

thereof.

2

The trial
started on 15th July 1977, but was not completed until 19th October
1979, It is not necessary for me to go through the
evidence in detail
suffice to say that two witnesses, called by the plaintiff,testified
that they heard the defendant say this
to a crowd of seven or eight
people. There was no evidence to show that those others had a clue
who the plaintiff was.

The
defendant denied that he was at the market place on that day at all
saying he had been visiting a herbalist at Gidion's and
called his
wife to support him. When the defendant went into the box (apart from
denying that he was at the market place on 6th
June 1974) his defence
was that the plaintiff was indeed a thief, and not only in respect of
the defendant's own cow referred to
in the pleadings but also in
respect of sheep and cattle stolen from other persons as well. Indeed
the defendant did enlarge further
upon other aspects of the
plaintiff's character.

The
magistrate

1. was
   satisfied that the words were actually uttered and believed
   plaintiff's two witnesses and rejected the defendant's testimony
   and
   also his wife's, and

   
   

2. was
   satisfied that the defendant's allegation that plaintiff stole his
   own cow was not true. The record of evidence shows the
   reasons
   clearly.

   
   

I am not
prepared to disturb findings of fact Anappellate court is not in the
same position as the trial court on matters of credibility.
I have
not heard the evidence or seen the witnesses the magistrate had.
Unless there are cogent reasons to do so an appeal court
is loathe to
interfere.

Now Mr.
Kollsang's main submission is that the magistrate was adversely
influenced by the defendant's rather wild allegations against
the
plaintiff when giving evidence in the box. He submitted that what was
said by the defendant against the plaintiff in court
was privileged.
He referred to McKerron on Delict 7th Ed. p. 194 wherein the learned
author writes:

"Statements made in the course of judicial proceedings by the
parties to a suit, or by witnesses, attorneys, advocates, magistrates

or judges are provisionally protected, provided they are relevant to
the matter in issue. A similar privilege attaches to statements
made
in the course of quasi-judicial proceedings.

The privilege is not easily defeated; especially

3

in the
case of statements made by persons appearing in a representative
capacity before judicial or quasi-judicial tribunals. As
has been
pointed out, such persons must be allowed considerable latitude as to
what they say in presenting their principal's case
and trying to
persuade the tribunal to adopt a view favourable to him".

Mr.
Kolisang's argument is that the impressions that the magistrate had
formed about the defendant should not have been taken into
account
when he had to assess his credibility on the main issue of whether
the words were actually uttered at the market place,
which was a
separate issue from the views expressed by the defendant when in the
witness box.

With
respect the qualified privilege the learned author refers/has no
relevance to a case of this nature. It applies only if the
plaintiff
had lodged a separate action for defamation based on the words
allegedly uttered in Court. The point here is that the
plaintiff's
witnesses were found more reliable than the defendant's and what the
defendant had said on cross-examination was merely
taken into account
in assessing his credibility.

I myself
would not have awarded R300, since only two people appear to have
been interested in the utterances. It was not in permanent
form, i.e.
in a news paper or in writing. However the plaintiff had not asked
for interest and it had taken the plaintiff quite
a long time to have
his character vindicated.

I would
affirm the award of M300 without interest and dismiss the appeal with
costs.

CHIEF
JUSTICE

15th
January 1982

For
Appellant : Mr. Kolisang

For
Respondent: In Person