CIV/T/298/81

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

ANNA
MAPHIKA Plaintiff

and

KHETHISA
RAKOTSOANE Defendant

REASONS
FOR JUDGMENT

Filed by
the Hon. Acting Judge, Mr. J. L. Kheola on the 7th day of October
1985

By
summons dated the 9th October, 1981 the plaintiff herein is claiming
:-

1. Judgment
   in the sum of R5,000.00 being damages for defamation.

   
   

2. Medical
   expenses - R10.00

   
   

3. Pain,
   shock and suffering in the sum of R1,500.00 being damages for
   assault.

   
   

4. Costs
   of suit

   
   

5. Further
   and/or alternative relief.

   
   

In her
particulars of claim the plaintiff states that on the 12th July, 1981
at ha Senekane, the defendant, speaking in Sesotho
in the presence of
Ts'epo Rakotsoane and Jonas Maphika who are conversant with Sesotho,
maliciously uttered the following words
of and concerning the
plaintiff:- "Sebono sa 'M'ao, u sebono se sets'o se ntseng se
ahlama se kopela, Satane." The correct
trans­lation of the
said words is:- "You mother's anus, you are a black anus which
opens and closes (shuts); you devil."
The plaintiff claims that
by reason of the said utterance she has been injured in her good name
and reputation and has sustained
damage's in the sum of R5,000.00.

2

She
states that on the same day the defendant assaulted her by hitting
her with fists on the right ear and her chest, despite the
fact that
she was ill at the time.

In his
plea dated the 8th October, 1981 the defendant denies that he used
the alleged words in the presence of the said Ts'epo Rakotsoane
and
Jonas Maphika or at all. Alternatively, he pleads that if the Court
finds that the words were used, such words are not defamatory
but are
a meaningless abuse which does not affect or derogate from the
character of a person and are therefore not a ground to
found a claim
for defamation; alternatively, the defendant pleads that he used the
words in RIXA and without ANIMUS INJURIANDI.
He denies that he
assaulted the plaintiff.

The
evidence of the plaintiff is that on the 12th July, 1981 she left her

home and
visited her sick aunt who was staying at her (plaintiff's) maiden
home. Defendant is the brother of the plaintiff and inherited
the
estate of their parents when their mother died. While she was eating
some pumpkins with her aunt the defendant arrived and
asked her what
she wanted there. He told her that her maiden home was her home
during the lifetime of her mother and that after
her death it became
his place. The defendant said he did not want to see her at their
parental home and ordered her to leave. He
slapped her on the left
ear and also hit her on the chest with a fist before she freed
herself and ran away. She says that as a
result of the assault her
left ear became deaf and it still could not hear properly at the date
of the trial. The assault also
aggravated the pain she already had in
her chest. By

3

consent
of both parties she handed in a medical report of her examination by
a doctor dated the 13th July, 1981 which reads : "No
external
injuries were seen". She further says that during the assault
the defendant insulted her in the Sesotho language
saying :

"Sebono sa 'M'ao, u sebono se sets'o se ntseng se ahlama se
kopela, Satane".

Under
cross-examination the plaintiff denied that the defendant ever
complained to the administrative Courts that she had taken
their late
mother's clothes before they were distributed in accordance with
custom. He never warned her never to visit their parental
home
because he suspected her of having stolen a fowl.

P.W. 2
Tsepo Khethisa Rakotsoane's evidence is that he is the paternal uncle
of the litigants and that on the day in question she
saw the
plaintiff and the defendant when they were at their parental home.
The defendant asked the plaintiff what she wanted there.
Before she
could answer him, he rushed at her and slapped her and hit her with a
fist. The defendant told the plaintiff that their
parental home was
her home during the lifetime of her mother and it ceased to be her
home when her mother died.

P.W. 3
Phokojoe Jonase Maphika is the husband of the plaintiff and testified
that on the 12th July, 1981 he was at the home of one
Palo which is
about 40 to 50 paces from the parental home of the litigants. He
heard when the defendant insulted the plaintiff
saying "Sebono
sa 'm'ao tooe." He saw when the defendant slapped plaintiff and
hit her on the chest with a fist. He says
that the plaintiff had a
swelling on the breasts.

4

His
evidence must be rejected on this point because plaintiff said she
had no swelling on her chest and the doctor confirms this
by saying
there were no external injuries. He went on to say that he did not
intervene in the fight because it lasted a very short
time and he was
some distance away from them. He claims that before this incident he
used to get along very well with the defendant.
I do not agree
because if it were so he would have immediately gone to his
brother-in-law (the defendant) to find out why he assaulted
his wife.
But he never approached the defendant.

The
defendant gave evidence to the effect that on the 12th July, 1981 he
arrived at her parental home and found the plaintiff there.
He asked
her what she wanted there because during the previous week he had
warned her not to come to their parental home on the
ground that
whenever she visited the home disturbances occurred due to her
presence. He ordered her to leave at once and she complied.
When they
came to the gate the plaintiff was ridiculing him and he became very
angry and pushed her away. He took a stick and tried
to lash her with
it but D.W.2 Moeketsi Matjeloane stopped him. He says that he never
insulted her but merely said "she had
turned or made herself a
devil towards him."

The
defendant's story is confirmed by his witness Moeketsi Matjeloane who
goes on to say that during the fight there were other
people but due
to the noise and confusion he could not say who those people were. At
the next breath he says p.w.2 and p.w.3 were
not there during the
fight because he did not see them. This part of his evidence must be
rejected outright because p.w.2 and p.w.3
could have been amongst
those people he was

5

not able
to say who they were due to the confusion caused by the fight.

At the
close of the plaintiff's case Mr. Matsau, who appeared for the
defendant, applied for an absolution from the instance in
respect of
claim A being R5,000 damages for defamation. He submitted that the
words which were communicated to p.w.3 Phokojoe Jonase
Maphika were
"Sebono sa 'm'ao tooe (Your mother's anus) and that such words
are nothing but a meaningless abuse and are not
defamatory. The words
did not in any way impair or injure the reputation of the plaintiff.
I was referred to the case of Wood,
N.O. and another v Branson
1952(3) S.A. 369 at page 371 where Price, J, said:

"In an action for damages for alleged defamation the words must
be given their ordinary meaning -unless they are alleged and
are
proved to have some other meaning, Prima facie it seems to me that
neither the word "cow nor the word "bitch"
when
applied to a person is defamatory. Such words are, in my opinion,
words of meaningless abuse. If it is sought to prove that
the words
have a defamatory meaning, that meaning must be alleged and proved."

In the
present case the words : "Sebono sa 'm'ao" are an insult
and abusive words but no innuendo has been alleged and
proved by the
plaintiff. In The Law of Delict, by R. G. Mc Kerron, 7th edition at
page 174 the learned author says:-

"It should be observed that expressions of abuse, although not
actionable as constituting an impairment of the plaintiff's
fama, may
never­theless be actionable as constituting an impairment of his
dignitas".

6

I have
come to the conclusion that the plaintiff has no cause of action for
defamation and an absolution from the instance was granted.

The
second claim is for R1,500 being damages for assault and R10 for
medical expenses. I have already-said that the defendant has
admitted
that he pushed the plaintiff and that in itself amounts to assault
unless the defendant can justify it on one of the various
grounds;
namely, that the plaintiff consented to the act complained of; that
the act was committed in legitimate defence of person
or property; or
that it was committed in the reasonable exercise of parental or
quasi-parental authority. In the present case the
defendant has not
justified the act on any of the grounds I have mentioned above; he is
justifying his act on the ground of provocation;
but an assault can
never be justified on the ground of provocation (See Blou v
Rose-Innes. 1914 T.P.D. 102, Bantjes v. Rosenberg,
1957(2) S.A. 118).

The
plaintiff and his witnesses stated that the defendant slapped her and
also hit her with a fist on the chest. Although the doctor
found no
visible injuries 48 hours later when he examined the plaintiff I
believed the two witnesses that the defendant did slap
her on the ear
and hit her chest with a fist. I am aware that the husband of the
plaintiff was exaggerating when he said he saw
a swelling. That there
was no swelling on the ear and the chest does not necessarily mean
that the defendant did not slap and hit
her because that would depend
on the degree of force he applied. The detendant's own witness stated
that because of the noise caused
by the fight he could not even
identify the people who were standing around and watching. This
proves clearly that there was some
commotion caused by the defendant
when he unlawfully attacked the plaintiff.

7

The
defendant Is now the head of the family of Rakotsoane and under
3esotho custom the married daughters of his late parents have
every
right to visit their maiden home at any time they please. The heir
cannot deprive them of that right unless he obtains an
order of Court
after the senior members of the family have found it necessary to
stop a troublesome daughter from causing disturbances
in the family.
The plaintiff had come to her maiden home to visit her sick aunt who
lives there and that appears to me to be a
legitimate reason to visit
her home. The defendant has never even convened a family meeting to
inform them of his complaint against
the plaintiff nor has he lodged
his complaint with his local headman or chief. In my view his
provocation was uncalled for and
entirely unreasonable more
especially because when he arrived there the plaintiff and her aunt
were eating pumpkin and not causing
any damage to his property.

Lastly, I
strongly warned the Legal Aid Counsel who brought this case to the
High Court that this Court is the superior Court of
the land and that
only cases involving serious injuries should be brought here. The
sums of money claimed in this case were highly
inflated merely to
justify the bringing of this case to the High Court. This case would
have been conveniently dealt with by the
Local Court in the parties'
own village where the defendant was convicted of assault. Or it would
have been taken to the Magistrate
Court in Teyateyaneng.

Judgment
is entered for the plaintiff in the sum of R75 for assault with costs
of suit.

ACTING
JUDGE

7th
October, 1983

For the
Plaintiff : Mr. Moorosi

For the
Defendant : Mr. Matsau