CIV/APN/180/89

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THE
HONOURABLE MINISTER E.R. SEKHONYANA APPLICANT

AND

LESOTHO
EVANGELICAL CHURCH 1ST RESPONDENT

THABO
LESEHE 2ND RESPONDENT

A.B.
THOAHLANE 3RD RESPONDENT

MORIJA
PRINTING WORKS 4TH RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu on the 14th day of
October, 1994.

On the
3rd August, 1989, Mr. Justice B.K. Molai made the following Interim
Order:

That the
Rule Nisi be issued returnable on the 21st August, 1989 calling upon
the Respondents to show cause why:

"(a) The Respondents should not be restrained, and/or
interdicted, forthwith from printing, publishing and distributing
articles
in the "LESELINYANA LA LESOTHO", which are
intended to impair the appli-

2

cant's reputation, dignity, fair name, and fame until finalization of
an action to be instituted against the Respondents for damages;

2. The
   Respondents should not be ordered to pay the costs of this
   application;

   
   

2. The
   Applicant is hereby ordered to institute the contemplated action for
   damages within Thirty (30) days from the 3rd August,
   1989 failing
   which this Order will not be effective;

   
   

2. Order
   l(a) operates with an immediate effect."

   
   

By the
7th August, 1989, the Interim Order had been served and all
affidavits required for the ventilation of the matter had been
filed
of record by 10th October, 1989. Consequently the matter was ready
for hearing. As an urgent matter, it ought therefore to
have been set
down for hearing. It was only set down on 27th February, 1990.

Molai J.
had ordered that summons be issued within 30 days of the issuing of
the Interim Order. Molai J's interim order of 3rd August,
1989 as
recorded by the Registrar is as follows:-

3

"Application in the Notice of Motion subject to the condition
that the applicant institute the contem­plated action within
30
days from today. Return date fixed as 21/08/89."

By some
misfortune summons were issued after the 30 days that Mr. Justice
Molai had ordered. As the Respondents have not raised
any objection
to these late summons I will not take the view I might have taken. I
must however state that Court order cannot just
be overlooked. The
fact that the Notice of Set down of the so-called urgent application
was issued more than four years after it
should have been is cause
for concern.

The Court
had a great shortage of judges but even so for an urgent application
to be heard after full five years makes the term
"urgent"
to lose meaning.

On the
21st September, 1994, when this matter came before Court, the matter
was postponed to the 29th September, 1994.

This
Applicant in 1989 was the Minister of Finance in the Government of
Lesotho.

Morija
Printing Press, cited as the Fourth Respondent, is

4

owned by
the First Respondent the Lesotho Evangelical Church. This fact is
admitted by First Respondent which has a legal persona
as a
universitatis. What seem to be denied is that Fourth Respondent is a
firm. That means Fourth Respondent has no legal persona.
This fact
Applicant is not in a position to deny. There seems also to be no
real dispute that Third Respondent was not acting editor
of
"Leselinyana" although applicant made that allegation.
Second Respondent admits he is the Editor of the "Leselinyana
La
Lesotho".

It seems
therefore that First and Second Respondent have been correctly sued
in these proceedings.

Second
Respondent, the Editor of "Leselinyana La Lesotho" admits
that he caused to be published in that newspaper the
Article marked
Annexure "NM1". Applicant says this article is defamatory.
The publication is in Sesotho and has been
trans­lated into
English by applicant who is not a sworn translator. Consequently
Second Respondent challenges the accuracy
of the translation.

My mother
tongue is Sesotho a common occurrence in Lesotho these days when
Basotho are now judges. I can therefore evaluate the
translation.
Having gone through it, I can say without

5

hesitation
that it is better than the translations of many of our High Court
sworn interpreters. It is certainly not a perfect translation,
but it
is substantially fair and accurate.

Applicant
has also annexed to his application annexure "NM2" which is
summons commencing an action before this Court in
CIV/T/111/88. In
that action Applicant claims M350,000-00 as damages because Second
Respondent has published defamatory words about
Applicant. In that
action Second Defendant is sued along with Mr. Hae Phoofolo and the
Newspaper "Leselinyana La Lesotho".

In both
annexures "NM1" and "NM2" Mr. Hae Phoofolo is the
source of the matter that Applicant complains about.
In both cases
Second Respondent has published matter that he extracted from other
newspapers. In "NM1" Second Respondent
has quoted from
"Weekly Mail" and has inserted a photograph of Mr. Hae
Phoofolo. In "NM2", Second Respondent
has published the
printed version of what "Moeletsi Oa Basotho" published.

The
interim order granted by Molai J restrained Respondents from

"printing,
publishing and distributing articles in the Leseliayana la Basotho
which are intended to impair

6

applicant's
reputation, dignity, fair name, fame until the finalisation of the
action to be instituted against them."

Second
Respondent admits publishing the following about

Applicant:

1. 15th
January, 1988 and 29th January, 1988 issue of "Leselinyana La
Lesotho" "1st Defendant (Mr. Hae Phoofolo)
in his
discussion with "Moeletsi Oa Basotho" states that he is
lodging an appeal to the High Court because he was convicted
on
suspicion but not the truth following the Evidence of Minister of
Finance Mr. E.R. Sekhonyana which evidence is false "This
big
fish say that he will use money belonging to the people to fix me
while I will remain with nothing but with only my hands in
front,
which thing did really happen. "We the people who used to hold
positions for these big fishes we know their behaviour
and their bad
habit for many years. After soldiers had overthrown the Government we
were happy after having heard that there will
be a Commission of
Inquiry in connection with the money and property that just
disappeared. I HAE

7

PHOOFOLO
there was an enquiry against me although there was no money I helped
myself to. I have no hotel, special motor vehicle
or even a beautiful
house.

"Blessed are those whose skeletons are hidden and locked in the
cupboard, as any query concerning them is not in the public

interest...." It would appear in Lesotho today there are people
who used to misuse their powers and to defend their positions
and
those of their friends on the other hand they blame other people."

Plaintiff's
Declaration in CIV/T/111/88.

2. One
   and a half years later Second Respondent published "NM1"
   in "Leselinyana La Lesotho" of 28th July, 1989
   which reads
   as follows:-

   
   

APPEAL BY
HAE PHOOFOLO

"The long awaited Court of appeal case whereby MR HAE PHOOFOLO
was accused of embezzling national funds was heard on the 24th
July,
1989 (Weekly Mail of 14.07.89). One MR. MZIMKULU MALDNGA reported to
the Weekly Mail that, that Newspaper

8

was in possession of documents showing that BENCO, a Company which
had a big Building Con­struction contract such as LESOTHO
SUN,
invested huge sums of money in SWISS BANK with the assist­ance of
Minister of Finance, RETS'ELISITSOE SEKHONYANA.

"The said documents indicate that in February, 1981, an amount
of M2 MILLION was again invested having been released by the

Minister. In August, 1981 BENCO stopped operations due to lack of
funds. Money was borrowed from the Republic of South Africa in
order
to pay Civil Servants.

"The Minister E.R. SEKHONYANA according to the documents was
removed from portfolio of Ministry of Finance to Ministry of
Interior
(inside the Country)

"This corruption scandal has now been revealed after Seven (7)
years! The Military Government once promised to launch investigations

into scandals committed by Civil Servants - up to now, no outcome.

9

"The Military Government re-instated the Minister E.R.
SEKHONYANA to the Ministry of Finance, while action was taken against

HAE PHOOFOLO. He was dismissed from employment in 1987 following the
findings of the commission recommended by the Minister.

"PHOOFOLO approved an application by MALIBAMATS'O MINING COMPANY
to invest the amount of M10 MIL­LION in Lesotho in mineral

exploration and crush stones. It is this amount of money which the
Minister is demanding from PHOOFOLO in that this Company has
no
lawful Licence.

"PHOOFOLO defended himself by saying that he was not the one
responsible for granting licences. However, he was found guilty
and
dismissed. Another amount of money being demanded from PHOOFOLO is
the one he received from his Family friend in England for
the purpose
of erecting his Father's tomb stone. His request was that he (the
Minister) should help him in transferring the said
money to Lesotho.

10

"These are the very facts for which PSOOFOLO noted an appeal
when he was found guilty by the High Court."

Applicant
in a nut-shell says Respondents and the "Leseli-nyana La
Lesotho" are on a campaign to impair his good name,
character
and adds:

"I further submit with respect that this Honourable Court can
interdict the Respondents from continuing to advertise defamatory

statements in the "Leselinyana" papers when such
publications have continued to cause me irreparable injury to my
character
as a person and also in my capacity as the public figure
holding position of trust as Minister of Finance."

I was
taken aback when Second Respondent said at paragraphs 4, 5 and 6 of
his Answering Affidavit that the translation of "NM1"
is
totally inaccurate. I have already said it is fair, complete and
reasonably accurate. Second Respondent says no greed corruption
and
financial irregularities can be inferred from "NM1". Second
Respondent also denies "NM1" accused Applicant
abuse of
power as Minister of Finance. I disagree with Second Respondent, in
my view Applicant has drawn the correct

11

conclusion
namely that Second Respondent is accusing him of greed, corruption,
financial irregularities and misuse of power as Minister
of Finance.

In the
alternative Second Respondent defends himself by saying:

"I further wish to submit that the Order sought by the applicant
cannot be supported in law. The Applicant is a person in
the public
office, and members of the community which he serves will always be
interested to know of his activities concerning
his office. I further
wish to submit that Applicant cannot obtain an interdict against the
newspaper for the simple reason that
articles that may be published
will affect his dignity and standing in the eyes of the public. I
submit that people in the position
of applicant will always face the
risk of their standing being ques­tioned by their alleged
conducts, and charges against their
conducts, and charges against
their character can only be culpable if they are found to be false...
applicant is therefore not
entitled to the interdict because the
interdict will silence the press to publish material which will
always and or sometimes be

12

in the interest of the public."

In the
case of Heilbron v Blignaut 1931 WLD 167 at 169 Greenberg J. was
faced with an application for an interdict directed against
an
apprehension of publication of a defamatory article, he said of
Applicant:-

"The result is that if the injury sought to be restrained is
said to be defamation, then he is not entitled to intervention
of the
Court by way of interdict, unless it is clear that the defendant has
no defence. Thus if the defendant sets up truth and
public benefit,
the Court is not entitled to disre­gard his statement on oath to
that effect, because, if the statement were
true, it would be a
defence, and the basis of a claim for an interdict is that an
actionable wrong, i.e. conduct for which there
is no defence in law,
is about to be committed."

Does
Second Respondent's affidavit as a whole and the above passage claim
what has been published or is about to be published is
the truth?

The
problem I have with Applicant's affidavit is that he does not
specifically emphasise the falsity of what Second Respondent has

published. The only thing he denies specifically is that he was ever
transferred to the Ministry of Interior. This falsity of allegations

might be inferred from what Applicant says at page seven of his
affidavit i.e.

13

"apart from the defamatory meaning of the article as is set out
above, it carries the additional sting that I am not a law
abiding
citizen, without moral fibre and not worthy of position of trust. At
all relevant times and at present I have been a Minister
of Finance
of Lesotho, requiring the highest integrity and I am a well known
public figure in Lesotho and abroad, as a result of
the said
defamation has caused the public not to believe that I deserve the
position of Minister of Finance."

In reply
Second Respondent after challenging the accuracy of the translation
says:

"Applicant is a person in public office, and members of the
community which he serves will always be interested to know his

activities concerning his office."

From this
it can in the same way be inferred from these words that Second
Respondent believes the allegations of Mr. Hae Phoofolo
against
Applicant are true.

In
Buthelezi v Poorter & Ors. 1974 (4) SA 831 at pages 836

14

and 837
the Court was not impressed with the fact that Respondent claimed its
"information comes from sources close to the
banned person."
Cotzee J. felt setting up a defence was not enough. Respondent should
be in possession of the information,

"it is not sufficient for a person who clearly does not have
personal knowledge of all the facts on which he must perforce
rely to
establish at the trial that what is prima facie an actionable injury
did not occur, merely to say he will be able to substantiate
in
detail the facts without giving any evidence whatsoever what the
evidence is."

In his
case Mr. Hae Phoofolo is the disclosed informant in "NM2"
and "NM1". We cannot at this stage determine
whether or not
Mr. Hae Phoofolo is telling the truth. If what he says about the
Minister of Finance concerning the illegal ways
he deals with public
moneys could be true, that prima facie must be in the public
interest. The words of Hoexter J. in Fayd'herbe
v Samnit 1977 (3) SA
711 at 716F fit this case where he says,

"It seems to me, however, that applicant has estab­lished
that the respondent has defamed her, any further inquiry by
this
Court into the possible existence (and prospects of success) of one
or more defences to the action of defamation arises only
if
respondent on oath says such a defence is available to him and that
he proposes to set it up."

The
Second Respondent has on oath said in the articles he

15

published
in "Leselinyana", he was informing the public about the
activities of applicant as a person holding public office.

The next
problem Applicant has is that raised by Setlogelo v Setlogelo 1914
AD 221 at 227 where an application for an interdict
is said to be
appropriate only where there is no other satisfactory remedy. What
Mr. Hae Phoofolo is clamouring for is "NM2"
and "NM1"
is that a Commission of Inquiry be held to investigate his
allegations against applicant as Minister of finance
and generally to
look into the activities of Applicant whom he accused of corruption.
This is gleaned from the follow­ing:

1. "NM2"
   issues of "Leselinyana La Lesotho" dated 15th and 29th
   January, 1988 at paragraph 6 and 7 of Plain­tiff's
   Declaration
   of CIV/T/111/88 where Mr. Hae Phoofolo says:

   
   

"After soldiers had overthrown the Government we were happy
after hearing that there will be a Commission of Inquiry in
connection
with money and property that has disappeared. I Hae
Phoofolo had an inquiry against me although there was no money I help
myself
to. "Blessed are those whose skeletons are hidden and

16

locked in their cupboards as any query concerning their wrongs would
not be in the public interest."

Applicant
interprets this to mean that money and property that disappeared did
so because of Applicant. Applicant misused public
funds to acquire
luxury items and that Applicant uses the instruments of the law to
protect his corruption.

2. "NM1"
   "Leselinyana La Lesotho" issue dated 28th July, 1989
   published the following:-

   
   

"The Minister E.R. Sekhonyana according to documents was removed
from the port­folio of Ministry of Finance to the Ministry
of
Interior (inside the coun­try). This corruption scandal has been
revealed after seven years. The Mili­tary Government
once
promised to launch investigations into scandals committed by public
servants - up to now, no outcome. The Military Government
re­instated
the Minister E.R. Sekhonyana to Finance..."

17

It would
seem clearly that a Commission of Inquiry that Mr. Hae Phoofolo
clamoured for would establish the truth far better than
this interim
interdict that Applicant has moved the Court to grant. It does not
seem the balance of convenience favours the granting
of this interim
interdict when a far superior and effective alternative remedy
exists.

The other
difficulty I have with this application for an interim interdict by
Applicant is that it is a political attack of Applicant
and the
Military Government for not holding a Commission of Inquiry into the
activities of Applicant who is the Military Government's
Minister of
Finance. The defamatory matter is what should be the terms of
reference of what Mr. Hae Phoofolo wants the Commission
of Inquiry to
look into.

In the
case of Minister of Justice of SA v SA Associated Newspapers Ltd.
1979 (3) 466 at 476 AC where Van Zijl JP with Van Winsen
concurring
said:

"The Minister says the second report is defamatory because the
two reports read together imply that not only he and the other

members of the Cabinet fought an election dishonestly by suppressing
information on the Citizen but that also after that he was
careful to
prevent facts about the Citizen from leaking out. Accepting the
Minister's assessment of these two reports at its high
water mark it
still means that the words complained of concern the Minister and the

18

Cabinet's
behaviour in respect of party policy. A decision to finance the
publication of the Citizen and to suppress the fact are
matters of
policy. Matters of Government policy as has been stated above, may be
freely criticised and condemned even if such criticism
and
condemnation is unfounded and unfair. It is not defamatory unless
improper motives or dishonest conduct is imputed to the person

com­plaining..."

It seems
to me Mr. Hae Phoofolo and Second Respondent of the "Leselinyana
La Lesotho" who are Mr. Phoofolo s medium cannot
be just
stopped. It is a matter of policy for the Military Government to have
neglected to have a Commission of Inquiry against
Applicant when it
did not hesitate to hold one against Mr. Hae Phoofolo. It is just as
much a matter of policy for the Government
to have returned Applicant
to the Ministry of Finance without any investigation and then
stubbornly refuse to investi­gate
all allegations against
Applicant.

Mr. Hae
Phoofolo is aggrieved by the discriminatory policy of Government
which investigates allegations against small men like him
through
Commissions of Inquiry but not against Ministers of the Crown. The
press in giving Mr. Hae Phoofolo a platform is joining
Mr. Phoofolo's
lone effort and turning it into a national crusade against injustice.
No one can dispute that this is the duty of
the press, nay, the duty
of any public-spirited citizen. The thrust of these articles
emanating from Mr. Hae

19

Phoofolo
is not against applicant alone but also against the Government of the
day of which Applicant is part.

The
balance of convenience is in favour of allowing the process whereby
agitation for a Commission of Inquiry is allowed to continue.
The
reason being that a Commission of Inquiry would have access to all
facts both within the Ministry of Finance and out of it.
In this way
both the Government's and Applicant's name would be cleared if Mr.
Phoofolo's allegations turn out to be false. In
my view Applicant
should have joined Mr. Hae Phoofolo in demanding a Commission of
Inquiry. To stop the campaign for the holding
of a Commission of
Inquiry through an application of this kind does not serve both the
public interest and Applicant's own interest.

In
dealing with defamation we are dealing with communica­tion. For
communication to take place, there must be the communicator,
the
message, the medium and the audience. Mr. Hae Phoofolo who is the
originator of the message is the communica­tor, his message
is
the defamatory matter that is the subject of this application. The
medium is the newspaper "Leselinyana La lesotho"
owned by
First Respondent and run by Second Respondent. The audience are the
readers. Publication is central to the delict of defamation.
That is
the reason the newspaper which is

20

medium of
publication together with the originator of the defamatory matter are
jointly liable. The reason being that had the originator
of the
message kept it to himself there would have been no publication.

Our law
does not have separate delicts of sLander and libel. The reason being
that whether the complainant's good name and character
are impaired
through the spoken or written word, man is the source or originator.
The press, radio, television and viva voce communication
are only the
media through which what issues from a communicator is published.
Consequently, the editor, proprietor, printer, publisher
of a
newspaper, journal or other document circulated (as media of
publication) are liable for actionable defamatory statements

contained therein. See Joubert, The Law of South Africa, Volume 7
Paragraph 27. The same principle applies to a news editor and

proprietor of a radio or television station.

The
press, radio and television do not only provide a media or platform
for individual who have information to publish but have
a duty in
their own right to inform the public about what is going on. It is
the duty of the press to give a platform for ventilation
of
grievances of individuals like Mr. Phoofolo to enable them to tackle
powerful people such as the Ministers,

21

Government,
multi-national corporations and other giants. Provided the press does
this responsibly and fairly, it cannot be restrained.
In Voster v
Strydpera Bpk 1973 (3) SA 482 Myburgh J. held defamatory matter may
be published provided:

"1. Defamatory matter is based on fact and com­ments are
distinguishable from facts.

2. Comments
   are fair and just.

   
   

3. The
   facts must be complete.

   
   

4. The
   facts and the comments are in the public interest."

   
   

It is the
duty of the press, radio and television to check whatever they
publish in order to act responsibly and be fair to all
sides.

It is
clear therefore that a person who publishes a defamatory rumour
cannot escape liability on the ground that he passed it on
but does
not endorse it. To repeat or re-publish a defamatory statement is the
basis of liability. Colman J. in Haasen v Post Newspaper
Pty Ltd &
Ors., 1965 (3) SA 562 at 565 A said:

"It is well established that a publication can be actionable and
defamatory even if the defendant has made it clear that he
is merely
repeating the aver­ments of another and that he himself cannot
vouch for its accuracy (see e.g. Farrar v Madeley
1913 CPD 888). Thus
a newspaper cannot escape liability for

22

damages merely because the defamatory matter pub­lished by it was
put forward as no more than a repetition of a speech made
at a
political meeting, or a statement made to its reporter by some one."

In this
case Second Respondent in "NM2" republished what
origina­ted from "Moeletsi Oa Basotho" while in
"NM1"
Second Respondent republished what originated from the "Weekly
Mail". Second Respondent and of course
First Respondent are
liable on the basis that they are Mr. Hae Phoofolo's media and also
because as commercial and professional
publishers they also have
liability in their own right. It was because of this independent
liability of "Leselinyana La Lesotho*
that I asked Mr. Matooane
Counsel for Applicant whether Second Respondent is entitled to
publish what comes from other newspapers
without being in possession
of the facts. Since Second respondent has a definite source (namely
Mr. Hae Phoofolo) for the facts
published I have already held that
this publication cannot be dismissed as one for which there would not
be a defence at the main
defamation trial.

The
position of Applicant under the law is a very difficult one because
as de Villiers C.J. in Hertzog v Ward, 1912 AD 65 at 70
said:

"It is the policy of the law on the one hand to protect the
right of full and free discussion in

23

matters of the public interest and on the other to protect the right
which every person has to the maintenance of his reputation."

Indeed I
would go so far as to say the courts have to recognise that the good
name of men in public life is something that society
should protect.
Innes C.J. in Botha v Pretoria Printing Works, 1906 TS 710 at 715 put
this as follows:

"The public acts of public men are, of course matters of public
interest, and criticism upon them does a great deal of good
provided
corrupt motives are not imputed. But the character of a public man is
not only a precious possession to himself, but is
a public asset....
I think the court should, by its attitude impress-upon all concerned
that attacks upon the private character
of public men should not be
lightly made... they must be justified."

This is
not the only end of society, there is also the matter of press
freedom and the good that comes from it. In Voster v Strydpers
Bpk En
Andere, 1973 (3) SA 482 at 485 H Myburgh J. emphasised that:

"It is the right of every citizen to expose malprac­tice in
the State or improper conduct on the part of public persons
and
comment thereon. Some decided cases even say it is the duty of the
good citizen to do that. The comments will naturally be
defamatory
and can in certain circumstances constitute defama­tion."
(See translation and the rubric of the case)

24

Whatever
Courts do they must under the common law keep the public interest
uppermost. Section 18 of the Human Right Act of 1983
which was the
matrix that regulated this aspect of public and private life at the
time provided:-

"Everyone
shall have the right to hold opinions without interference and the
right to freedom of expression including the freedom
to seek, receive
and import information and ideas of all kinds subject to restrictions
provided by law as are necessary for-

1. the
   respect of the rights or reputations of others; and

   
   

2. the
   protection of national security, ...."

   
   

The Court
has a discretion to grant an interdict. In Rivas v Premier (Tvl)
Diamond Mining, 1929 WLD 1 in dealing with balance of
convenience
among other things the Court has to consider whether:

1. An
   interdict appears to be a sensible remedy.

   
   

2. Whether
   the granting of the interdict will not be unnecessarily oppressive
   or will not interfere with someone's personal rights
   when there
   exists alterna­tive remedies.

   
   

The
difficulty of exercising the Court's discretion and the

25

uncertainty
of a proper remedy is therefore apparent.

In The
Honourable Minister E.A. Sekhonyana v Mazenod Printing and Others,
CIV/APN/109/90 (Unreported) to which I was referred by
Mr. Matooane,
Counsel for Applicant, accusations of misappropriation of funds were
levelled against Applicant. A simitar application
for an interdict
was brought against Mazenod Printing Works and "Moeletsi Oa
Basotho" who were the First and Second Respondents.
The court
was of the view that Respondents were withholding evidence from the
Court. They did not in the Court's view set up a
defence. Each case
is judged on its own merits. It seems to me the truthfulness of
defamatory statements cannot be determined in
application
proceedings, that is a matter for the trial court. Kheola J. (as he
then was) correctly stated that:

"The duty of the press is to scrutinise the actions of the
Government and its Ministers and in the public interest to bona
fide
publish whatever is in the public interest, so that high moral
standards can be maintained in high places."

The Court
has to balance various interest, those of the appli­cant, those
of the public, freedom of expression and freedom of
the press to
disseminate information responsibly. This is a case where the Court
has to consider if in this case it would be

26

oppressive
against other interests to grant the injunction that Applicant seeks.
This has to be considered in conjunction with whether
there are other
remedies.

In this
case I have already said a Commission of Inquiry that Mr. Hae
Phoofolo and the Respondents are clamouring for would be a
far better
preliminary remedy than rushing to Court either by way of a temporary
interdict or an action of damages. The reason
being that all the
internal evidence within government would be gone into. Such evidence
would not be readily access­ible to
the respondents. From that
internal inquiry the commis­sion will then look into applicant's
personal affairs, from there it
might look into what exists in the
country or is in foreign countries. After such an enquiry then
judicial proceedings would follow
with the full assurance that
nothing was hidden. Applicant is also free to defend himself in the
press, radio and television, before
or after legal proceedings are
instituted.

ft is
true that not even a claim of damages ever clears a person's good
name as it is notionally expected to do. But for politicians
this is
a risk they take when they enter politics. The courts cannot
over-protect politicians. Certainly criminal proceedings ought
not to
be brought against newspaper editors merely because they published
confidential information about

27

Ministers
to draw the attention of Government and the general public to abuses.

In
Lesotho during 1988 the Government of the day used the stale machine
including the Office of the Director of Public Prosecutions
to do
such a thing. It sacrificed the public interest and the right of free
speech and sacrificed them to protection reputations
of Ministers by
abusing the concept of national security. In Johnny wa ka Maseko v
Attorney General and Others, C of A (CIV) No.27
of 1988 the Appellant
was charged with undermining national security by publishing
defamatory matter about the Minister of Finance.
Ackermann J.A. held:

"The bona fide attempt to by a newspaper editor to disclose,
through bis newspaper, the existence of corruption or irregularity
in
public administration and the fact that a Minister of State is
involved in or connected with such corruption cannot possibly,
in my
view, constitute subversive activity, if the editor bona fide,
believes in the truth of this assertion."

It will
be observed from the Johnny wa ka Maseko case the Courts in the
support of press freedom have had to stop criminal proceedings
under
the guise of national security from being misused in an attempt to
protect Ministers from legitimate criticism by the press.
Such
attempts that were made by the

28

State to
classify disclosures of Ministerial departures from good governance
as subversive activity (by the press) have been curbed.
The Courts
have a duty to see that the public interest is promoted by the press
and the State through remissiveness does not harm
it by using
national security as a veil to protect irregularities.

The
position of the Common Law of Lesotho in respect of people in the
position of Applicant is succinctly put in the case of Mackay
v
Phillip, (1830) 1 Mez 455 at 463 in the following words:

"The acts imputed to him... while in the execution of this
public office...were of such nature as, if committed by plaintiff,
to
make it the right, nay the duty, of every honest man to publish such
misconduct of plaintiff, and through the powerful medium
of the press
rouse the public voice..."

Cullinan
C.J. (as he then was) dealt with interim interdicts pendente lite and
avoidance of irreparable harm to an applicant. In
Morena E.R.
Sekhonyana v Mike Pitso and Another, CIV/APN/381/-88 (unreported)
said:

"As I have indicated earlier, the case must be rare whereupon
interlocutory application, the right is beyond dispute... What
the
court is concerned with on affidavit and, on the basis of such
evidence, is

29

whether plaintiff has made out a prima facie case though open to
doubt."

As
already stated, Applicant in his particular case does not have to
prevail over other interests in society. His affidavit did
not even
make clear and firm denials of the allegations which were the basis
of Mr. Hae Phoofolo's and the press demand for a Commission
of
Inquiry.

The only
question left is whether the Respondents are men of straw from whom
no damages can be got at the end of the day. In Cleghorn
& Harris
v National Union of Distributive Workers, 1940 CPD 409 at 419 Howes
J. dealing with the question of irreparable harm
(in a temporary
interdict) that has to be weighed against the possibility of a claim
of damages with reference to a man of straw
said:

"such defamation could never be checked or damage repaired if
the perpetrator, possibly a man of straw, had merely to raise
the
defence of justification and the public interest in order to continue
publication until a trial is heard."

In this
case the First and Second Respondents, the publishers of Leselinyana
La Lesotho" are not said to be men of straw in
the applicant's
affidavit. The pertinent question is therefore why

30

should
press freedom and the right to inform the public be limited when an
action for damages might provide redress?

Applicant's
application is in many respects similar to that of Winnie Mandela v
Xoliswa Falata Case Number 13181/94 (unre-ported)
of the Transvaal
Provincial Division. In that case a Deputy Minister was seeking a
restraining order to stop the publication of
defamatory matter by
Respondent at a press confer­ence. Van Schalkwyk J. held:

"There may be a few exceptions but in general no politician
should be permitted to silence his or her critics. It is a matter
of
the most fundamental importance that such criticism should be free,
open, robust and even unrestrained. This is so because of
the
inordinate power and influence wielded by politi­cians, and the
seductive influence which these attributes have upon corrupt
men and
women. The most appalling crimes have been committed by politicians
because their baseness and perversity was hidden from
public
scrutiny. ... In this case I believe the private interest must yield
to the larger public one.

In the
Winnie Mandela case the fact that Respondent was a man of straw was
not allowed to override the greater public interest.
Indeed before
the law we are always told men are equal. The Court did not unduly
entertain the suggestion that Respondent was a
man of straw. In this
case Applicant is battling with the press which belong to a Church
which ought

31

normally
to have the means to pay damages.

Mr. Mathe
for Respondents (dealing with justification for publishing defamtory
matter) challenged the fact that the Interim Order
completely barred
press freedom for "Leselinyana La Lesotho" insofar as
matters relating to applicant are concerned.
He said Respondents felt
the Interim Order has been very oppressive on his clients. He felt
the five years that this Rule has operated
has been an inconvenience
that cannot be compensated for even by an appropriate Order as to
costs. I agree with Mr. Mathe that
this interim Order is framed in
terms that are too broad.

The
greatest difficulty I have is the nature of the Order that is being
asked for. This Court ought not to grant an order that is
clearly
wrong. Applicant must be helped, but this help must be given within
the law. Applicant has asked for an order:

"Restraining and/or interdicting forthwith the Respondents from
printing, publishing and distributing articles in "Leselinyana

La Lesotho" which are intended to impair the applicant's
reputation, dig­nity, his fair name, fame until the finalisation

of the action to be instituted against them"

32

What
applicant asks the Court to restrain Respondents from doing, is
precisely what every honest man has a right and duty to publish
about
any politician or person holding high public offices,

"to
expose malpractices or improper conduct and disapproval thereof by a
right minded community serves as a method to keep
society free from
corruption and dishonesty. This right and duty is particularly the
task of the public press. Voster v Strydpers
Bpk En Ander, 1973 (3)
SA 482 at 4854 (See Translation and the rubric of the case).

Matter of
this kind that has to be published in the public interest must of
necessity impair the reputation, dignity, fair name
and fame of the
person on the receiving end of that publica­tion.

The other
objection to this prayer is that it muzzles the press completely in
so far as any past and future articles on different
misdeeds that
Applicant might have or would commit in the future. That is
unacceptable because it harms the public interest when
the law in
respect of defamation balances the interests of Applicant and those
of society as a whole.

33

In the
case of Morena E.R. Sekhonyana v Mamello Morrison and Another,
CIV/APN/50/93 (unreported) this Court concluded:

"The Order was, as I have said, too broad because defamatory
matter can be published provided there is justification as a
result
of which it becomes lawful. As already stated, this would be because
the pub­lisher claims and shows that he is doing
it for the
public benefit.... This interim order, as framed, restrains first
Respondent from doing what the law permits. ... This
has the effect
of restraining lawful activity."

I
therefore discharge this Rule Nisi.

On the
question of costs I order that Respondents be awarded three quarters
of the taxed costs. The reason for denying Respondents
a quarter of
the costs is that they denied the clear defamatory nature of "NM1"
and only raised the defence of public
interest in the alternative.

W.C.M
MAQUTU

JUDGE

For
Applicant : Mr. T. Matooane

For
Respondents : Mr. M. Mathe