HIGH COURT OF LESOTHO
STRACHAM ` 1ST DEFENDANT
TRADING STORES 2ND DEFENDANT
by the Honourable Mr. Justice W.C.M. Maqutu, on the 15th day of
claim is against the Second Defendant and its manager the First
says she is a female adult spinster who resides at Mount Moorosi in
the Quthing district. The Second Defendant is a company
with the laws of Lesotho and carries on business as a supermarket at
Mount Moorosi, Quthing.
"1. Payment of the sum of M5,000.00 (five thousand Maloti)
damages for unlawful dismissal;
of M10,000.00 (ten thousand Maloti) damages for defamation of
at the rate of 18% a tempora morae.
and or alternative relief."
was served on the 26th June, 1988. Appearance to defend was entered
on the 12th July, 1988. By the end of 1988 pleadings
closed and the
was ready for hearing. The matter on the 5th August, 1991 was set
down for the 12th November, 1992. It did not proceed. On
November, 1992 the matter could not proceed because of the state of
the roll and because the Court advised Plaintiff to
10 of the Declaration.
amended Declaration was filed by Plaintiff on the 5th December, 1992.
The amended Declaration led to the filing of Defendant's
on the 9th December, 1992. This matter was then set-down for the 17th
gave evidence on her own behalf as PW.1. She says she began to work
for Second Defendant on the 5th November, 1987 and
was paid weekly
until 24th December, 1987 when she was told she would be paid monthly
when business resumed after the Christmas
break. Her monthly salary
would be M150.00 per month.
Christmas break she worked for only two months. On the 25th February,
1988, according to Plaintiff, First Defendant summarily
she was responsible for the shortage of stock and that she must have
been taking M50.00 per day. It is not clear whether
this was in goods
or in cash. Plaintiff did not handle money. She also says she was not
given any money in lieu of notice.
accusation of theft was made there were six other people present,
Plaintiff says there was no cause for these false allegations.
says people loved and respected her and they did not regard her as a
thief. She claims M10000.00 for defamation of character
for unlawful dismissal.
cross-examination Plaintiff says she looked for a job for two years
and could not get any since jobs are hard to come by.
admitted she has children by five different men, some of which she
does not remember. She denied cohabiting with Thabiso
She was indifferent to Thabiso Dick Monyane's wife. She says First
Defendant actually pointed at her and called her
a thief. She denies
she was on probation when she was fired. She says she was employed on
permanent terms. She says what was written
on the wages register is
in so far
as it conflicts with what she says. In particular she queries page 44
of the wages register.
clarified what was in the amended claim which erroneously stated she
claimed M15000.00 for unlawful dismissal.
next and only witness was PW.2 Dick Thabiso Monyane. He said he lived
in Second Defendant's premises near the shop. On
the day Plaintiff
was dismissed, First Defendant said there was a shortage of stock by
about M15,000.00. First Defendant told PW.2
that he had brought him a
thief, meaning Plaintiff. Plaintiff was present when the words were.
said. The other people who were
present when the words were said were
Majara Letsie, Benedict Leteka, Ramakoaile Ramolise, Manthateng,
Maphoka and others whose
names PW.2 could not remember.
also "fired" the same day but he got all his terminal
benefits including notice. PW.2 denies that he cohabits
Plaintiff. PW.2 says what First Defendant said to Plaintiff was
cross-examination PW.2 denied he was the person in charge of the
supermarket. PW.2 conceded he was the most senior person
department in which he worked but denied he was in charge. The salary
of PW.2 was M250.00 per month. PW.2 denies that he
any'money belonging to Plaintiff. PW.2 admitted he had known
Plaintiff for many years. He denied they cohabited. He disputed
contents of the wages register insofar as they conflicted with his
applied for an amendment of her Declaration to be in line with her
evidence and the summons. This was unopposed.
closed their case and urged the Court to dismiss Plaintiff's claim
with costs. The wages register was handed in to enable
the Court to
refer to it in determining the merits.
what Defendants are saying is that Plaintiff on the evidence given
has not made out a case that calls for an answer from
common cause that from the pleadings the onus of proof in this case
is on the Plaintiff. The reason being that Plaintiff's
regarding the conditions of employment of Plaintiff by the Defendants
and termination of that employment was denied
by the Defendants.
Therefore Plaintiff was obliged to adduce evidence to prove each and
every allegation on these issues.
task I have is first bo determine whether there is any evidence to
prove Plaintiff's claim. If there is no evidence then
I am obliged to
dismiss Plaintiff's claim. If there is evidence on record to prove
Plaintiff's claim, then the Court has the next
task, which is to
decide whether or not such evidence is credible. If the evidence is
not credible, Plaintiff's claim has to be
dismissed. If Plaintiff
is,believed his claim succeeds.
in this case (by closing their case) have invited the Court to
determine the issue of credibility without hearing any
claims damages of M5000.00 for unlawful dismissal.
a dispute on whether or not Plaintiff was still on probation. This
emerges from the cross-examination of Plaintiff by the
Plaintiff says she served what amounted to probation between November
and December 1987. During this period Plaintiff
was paid weekly.
24th December, 1987 Plaintiff was paid monthly like other employees.
Therefore in Plaintiff's view she was now permanently
use of the term "permanent" though commonly used in labour
relations in this country is misleading. The
reason being that in
terms! of Section 15 of The Employment Act of 1967 each party could
lawfully terminate the employment contract
by giving the other one
was verbal. We have only the sworn testimony of Plaintiff on the
matter but no evidence from the Defendants.The Defendants
confine themselves to challenging and testing Plaintiff's evidence
cross-examination. They also elicited what evidence (in their favour)
from Plaintiff through cross-examination. Defendants
invited me to rely on the wages register that was written by First
Defendant to determine whether or not Plaintiff's
evidence is true.
the wages register and noted that it was very neatly written. From
page 1 up to page 43 the term temporary employment
has not been
inserted. It is inserted for the first time on page 44 in the second
line below the name of Plaintiff. This term temporary
appears below the names of Mary Malebanye on page 44. Plaintiff and
Mary Malebanye are the only people who share
a page in the whole
wages register. If First Defendant had given evidence he might have
satisfactorily explained why the term temporary
began with Plaintiff.
Employment" again appears before John at page 46, Rose Masasa on
page 47, Angelina on page 48. In the case
of Angelina on page 48, the
term "permanent" appears opposite wages. The term
"permanent" on Angelina's page
is only one in the whole
Defendant would have been of great assistance in explaining why only
Angelina is the only permanent employee whose permanence
acknowledged in writing in the whole wages register.
any evidence from First Defendant I find the register not helpful.
The temporariness of Plaintiff and others after Plaintiff
seem to have been written at the time of employment. It could have
been written at any Lime. More details about employees
written on page 44 than on any other page on the register. The
register often omitted particulars of employees including
If only First Defendant had given evidence I might have been
persuaded that no information had been added later in the
cannot reject evidence that is on record in favour of speculation. I
have therefore come to the conclusion that Plaintiff
must have been
given the impression that she was "permanent".
question to determine in relation to the question of unlawful
dismissal is whether Plaintiff was paid off by being given
lieu of notice. Plaintiff says she was not and on this she is
page 44 which shows in front of the word "Notice" a dash
which has been on top of it a white liquid paper erasure.
In front of
the erasure the word "NONE" is written. Where the amount of
payment in lieu of notice is reflected, there
is a dash that has been
covered over with white liquid paper.
a clear later addition that shows M150.00 added above the white
liquid paper erasure of the dash. In front of this where
signature of the recipient are the words in block letters "PAID
OUT TO DICK". There is below all the following paid
to Dick Monyane (common LAW HUSBAND), opposite this is the amount of
M150.00 for which Plaintiff has signed. There is
a flying leaf of an
examination pad in which is written (Notice of 1 month's pay paid to
Dick as she did not come to receive her
own). It is clear that these
referring to payment to Dick Monyane the common law husband were
added later to the wrong column because
the M150.00 given was in fact
given to Plaintiff herself who even signed for it on 24/2/88. This
date seems to have been added
Monyane has his own wife Lisbeth Monyane who also worked for Second
Defendant. She always signed for her wages which were
given to her
but never to her husband, Dick Monyane PW.2. This information is on
page 4 of the wages register. On page 12 of the
Wages register PW.2
signed for the sum of M1308.45 when he was paid off. Liquid paper has
been added to blot out what was originally
written. A lot of
information was clearly added later including the words "wife's
wages" and "Theresia", The
later additions give a
breakdown of the M1308.45 and end up with the words overpaid by
M225.00. Plaintiff's first name is Theresia.
PW.2 Dick Monyane denies
he was ever given Plaintiff's money in lieu of notice.
absence of First Defendant's explanation of suspect entries in the
wages register does not help the Court to draw inferences
to case of the Defendants. The evidence of Plaintiff and PW.1 Dick
Monyane on the question of failure to pay Plaintiff's
money in lieu
of notice stands unchallenged. I therefore hold that Plaintiff was
never paid any money in lieu of notice.
Plaintiff was not dismissed in the manner that she was entitled to
expect having regard to the fact that no misconduct was
against her, she did not seriously attempt to prove the damages she
is claiming. She vaguely said in cross-examination that
jobs are hard
to come by and she looked for a job for two years. She did not say
enough or enlighten the Court sufficiently to
enable the Court to
assess damages on this issue. Mr. Mohau for Plaintiff argued that
Plaintiff offered enough evidence on damages
for unlawful dismissal.
I am unable to agree.
is also claiming damages for defamation. She says she was called a
thief or words to that effect merely because there
was a shortage of
the sum of M15000 in the stock in trade. The fact that she was not
even given one month's pay in lieu of notice
evidence. First Defendant did not give evidence in rebuttal. The only
denial is in the plea and in cross-examination.
There were at least
six people before whom Plaintiff was called a thief. This in my view
amounts to publication.
did not offer any evidence bo rebut the evidence of Plaintiff that
this in fact happened. Since First Defendant was present,
obliged to put the record straight if what Plaintiff and PW.2 say did
not happen or happened in a different way. It is trite
Plaintiff's evidence does not have to be accepted merely because it
is unrebutted. In certain circumstances, however,
the alleged occurrence took place in the presence of Defendant)
Defendant's failure to give his version might
inferences in favour of Plaintiff—Hoffmann . & Zeffertt The
South African Law of Evidence 4th Ed
at page 596.
thrust of what was submitted by Mr. Buys on behalf of Defendants is
that Plaintiff must allege and prove ipsissima verba
or at least
allege words more or less used by the First Defendant.
according to evidence did First Defendant say when he sacked
Plaintiff? In her evidence-in-chief Plaintiff said:
"I was not given any notice pay. First Defendant said I was a
thief. I was in front of his office. There were more than 6
He said my stock is short by M15000.00."
cross-examination Plaintiff puts what First Defendant said as
"First Defendant called me a thief. He said this thief of a
woman (pointing at me). He was saying it in Sesotho..,he said
taking M50.00 per day after the stock was short and there was stock
Monyane told the Court that First Defendant said the stock was short
by M15000.00 because he had brought him Plaintiff
who was a thief.
PW.2 said he was with about 5 other people when this was said.
10 of Plaintiff's Declaration states that;
"The First Defendant charged Plaintiff of having stolen Second
Defendant's money in the sum of
M15000.00 and called her a thief amongst at least six other people
who at all material times held Plaintiff in great esteem. As
not true, Plaintiff suffered damages in the sum of M10000.00..."
employment of PW.2 was terminated together with that of Plaintiff,
but PW.2 was given all his terminal benefits among which
was money in
lieu of notice and . severance pay. A misconduct of theft was imputed
to Plaintiff and consequently she was summarily
dismissed as if she
was a thief although there was no proof that she was a thief. The
employment of PW.2 was terminated because
according to PW.2, PW.2 had
brought Plaintiff who was a thief and caused First Defendant to
employ her. What PW.2 says substantially
corroborates what Plaintiff
says save that they do not say exactly the same thing.
To call a
person a thief or a murderer is per se defamatory. The fact that she
was instantly dismissed without notice as a thief
underscores the fact that she was not only called a thief but she was
also treated as one. As Mr. Mohau (for Plaintiff)
have lowered Plaintiff in the estimation of right thinking members of
society and diminished the esteem in which Plaintiff
is held by the
six people present.
referred me to the case of Beesham v Solidarity Party and Another
1991 (1) SA 889 at page 892C where Alexander J said:
"As far as the plaintiff is concerned his case was simple. The
words complained of were defamatory per se. Neither innuendo
secondary meaning was alleged."
clear that Plaintiff was called a thief and accused of causing loss
of stock of M15000.00 and instantly dismissed.
never any suggestion that the word thief which is per se defamatory
was used with an innocent intention e.g. what appears
in Burchell The
Law of Defamation page 92 where a lady is said to have said to Lord
X: "Lord X, you are a thief, you have
instant case the defamation is clarified and accompanied by action
that leaves no one in doubt that First Defendant not only
Plaintiff was a thief but actually treated her as one. In Mohamed v
Kassim 1973 2 SA 1 it was held that the statement that
stolen M10000.00 was defamatory. In this case Plaintiff is called a
thief and is accused of stealing Ml 5000.00.
person is entitled to his or her good name and reputation. Our basis
of the law of delict is fault or what is called culpa.
There can be
no doubt that First Defendant is blameworthy for calling Plaintiff a
thief and treating her as a thief without having
matter properly. First Defendant's words and conduct are presumed to
have been accompanied by an animus injuriandi
unless First Defendant
can convince the Court that he had no such an intention. To put it in
Vessels J.A's words in Nationale Pers
Bpk v Long 1930 AD 87 at
"...it is a principle of our law which applies to libel and
slander as to other wrongs that if a man acts recklessly,not heeding
whether he will or will not injure
another, he cannot be heard to say he did not intend to hurt."
particular case the intention of First Defendant is not in issue
because he chose to remain silent. The First Respondent's
injuriandi is therefore deemed to be present because Plaintiff's
claim in that respect stands unrebutted.
cross-examination of Defendants was directed at Plaintiff's love
affairs and that she had four children by different men. This
Plaintiff admitted. The relevance of this to the case before Court is
in my view a bit far-fetched. It does not follow that because
Plaintiff was not lucky in conjugal matters, she has a bad name. Even
if she does not for any reason want to conform to the conventional
rule of procreation through marriage, that does not automatically
mean she is necessarily immoral. It was in cross-examination
that Plaintiff was PW,2's lover, she denied this. First Defendant did
not bring any evidence to back up this allegation.
If she had taken
some one's husband then it could be said she had done something
clearly wrong. People's sexual lives are private.
There is a
difference between sin, conventional
and ethics. Opinions differ a great deal in such matters.
of defamation acknowledges the individual's right to privacy and
personal dignity. Nobody in our law is entitled to publish
is unpleasant about other people unless this is in the public
interest. McKerron The Law of Delict 7th Edition at page
summarised our legal position crisply as follows:
"In English law truth in itself is a good defence, but it is
settled law in South Africa that truth without the element of
benefit, although it may be pleaded in mitigation of damages, is not
a complete defence."
to me unhelpful for First Defendant to have gone out of his way to
disparage Plaintiff's sexual morality. A lot of people
stray from the
path of virtue in sexual matters without necessarily being thieves.
Plaintiff to put it in McKerron's words in The Law of Oelict 7th
Edition at page 207: "is entitled to general damages for
done to him by the violation of his right to retain his good name and
fame untarnished and the consequent injury to his feelings."
amount of damages that Plaintiff is entitled to is a matter at the
Court's discretion. Nevertheless I have to take the following
is an ordinary spinster who lives in a village.
Defendant called Plaintiff a thief and dismissed her from employment
treating her as a thief ought to be treated.
Defendant has shown no grounds to call Plaintiff a thief, instead he
denied calling her a thief and instead through cross-examination
attacked Plaintiff's sexual morality which was not "relevant to
the aspect of the Plaintiff's character that was traduced".
McKerron Law of Oelict page 208.
The words were uttered in the presence of six
Defendant as already staled has put himself in a position in which
the following words of De Villiers A.J in Maisel v Van
(4) SA 836 at 850G fit:
"If the person concerned does not in fact provide proof, an
inference would mostly arise that he must, at the time of
have contemplated at least the possibility of being
unable to justify his action."
to also to note what De Villiers A.J had said earlier at page 840 C G
of Maisel v Van Naeren i.e:
"In Roman Dutch Law Defamation is a species of injuria, and a
claim for general damages is merely an instance of amende profitable
being claimed under actio injuriarum...Dolus or animus injuriandi is
therefore conscious wrongful' intention, in the sense that
invasion of another's rights is either desired as an end in itself or
is forseen as a consequence of the deliberate
attainment of some
noted that at the time summons was issued, all claims above the sum
of M2000.00 had to be brought in the High Court. During
this matter was before court
jurisdiction of the Magistrate's Court has been increased to
judgment of the Court is therefore as follows:
are absolved from the instance in respect of damages for unlawful
are directed to pay M5000.000 (Five thousand Maloti) as damages for
defamation of Plaintiff's character.
are directed to pay costs of suit,
Plaintiff : Mr. M. Mohau
Defendants: Mr. S.C. Buys
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