CIV/T/647/86 IN THE HIGH COURT OF LESOTHO

In the matter between:

VICTOR MOLOI PLAINTIFF

V

DIRECTOR OF PUBLIC PROSECUTIONS 1ST DEFENDANT

THE
ATTORNEY-GENERAL 2ND DEFENDANT

Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 27th day of June, 1990.

For the Plaintiff : Mr. N. Mphalane For the
Defendants : Mr. T. Mohapi, Crown Counsel

JUDGMENT Cases referred to:

1. 
   Beckenstrater v Rottcher & Theunissen
   (1955)1 SA 129
   (A.D.);

   
   

2. 
   Leibo v. Buckman Ltd. and Another,
   (1952)2 All E.R.

   
   

1057;

3. 
   Corea v. Peiris (1909) A.C. 549;

   
   

4. 
   Estate Logie v. Priest, (1926) AD 312;

   
   

5. 
   Tempest v Snowden (1952)1 K.B. 130;

   
   

6. 
   Moaki v Reckitt & Colman (Africa)
   Ltd & Anor (1968)3

   
   

SA 98 (AD) iha;

(7) Hart & Cohen 16 S.C. 363;

(8) Lemue v. Zwartbooi 13 S.C. 403;

(9) Lederman v Moharal Investments (Pty.) Ltd
(1969)1

SA 190 (AD);

10. 
    Van der Merwe v. Strydom (1967)3 SA 460
    (AD);

    
    

11. 
    Foulds v Smith (1950)l SA 1 (A.D.);

    
    

12. 
    Botha v. Dreyer 1 E.D.C. 74;

    
    

13. 
    Burgers v. Fraser (1907) TS 318;

    
    

14. 
    Li Kui Yu v. Superintendent of Labourers (1906)

    
    

TS 181;

2

15. 
    Re Floyd (1909)53 Sol. Jo. 790;

    
    

16. 
    Seaward v Paterson (1897)1 Ch. 545; 66
    L.J. Ch.

    
    

267; 16 Digest 10,22;

(17) Lower v Crudge (1580) Gary, 101; 16
Digest 35, 357; 21 E.R.54;

(18) Avery v Andrews (1882)51 L.J. Ch.
414; 16 Digest

35,362;

19. 
    Phillips v Naylor (1859)4 H.& N.565;

    
    

20. 
    Herniman v Smith (1938) A.C.305.

    
    

The plaintiff was charged before the Magistrates' Court
at Butha-Buthe with contempt of court, contrary to section 74 of the
Subordinate
Courts Proclamation No.58 of 1938. He was acquitted. He
brings a claim of malicious prosecution against the defendants.

The charge before the Magistrate's Court arose out of
the plaintiff's possession of a plot of land at Malere near
Marakabei, Butha
Buthe. The plot of land, measuring 81 metres x 60
metres, had at one stage been allocated to one Malefetsane Moahloli,
now deceased.
The land was apparently allocated to him for
agricultural purposes. Thereafter he commenced the construction of a
building thereon,
for commercial purposes. The Chief of Malere, Chief
Mojela Joel, after consultation with the local Land Committee
instructed Malefetsane
to stop building. The latter sought the
Chief's permission in the matter and indeed the issue to him of a
"Form C" (Third
Schedule to the Land Act, 1979), but the
Chief refused. Malefetsame was then charged before Hololo Local Court
with disobedience
of an order duly made by a Chief, contrary to
section 30 of the Chieftainship Act 1968. He was

3

convicted. Although convicted, the President of the
Local Court observed that "nobody could prevent or obstruct or
restrain the
accused from carrying business or trading operations in
his agricultural field."

Upon review by the Magistrates' Court at Butha Buthe,
the conviction was confirmed. The learned reviewing Magistrate
observed that
Malefetsane had never formally applied on Form A
(section 5 of and Third Schedule to the Land Act, 1979) for the
allocation of the
land to him: he further observed that under
regulation 3(9) of the Land Regulations, 1980 the Chairman of a Land
Committee,

".... shall ... cause his Land Committee to ensure
that agricultural land is used solely for agricultural purposes."

The learned Magistrate further observed that under
section 11 of the Act, an allottee of land used for agricultural
purposes would
have to apply to the Commissioner of Lands, if he
wished to secure a lease or licence in respect of the land: also,
that under section
12(3) of the Act, a Land Committee could not
exercise its power of granting title to land for commercial or
industrial purposes without
first referring the application to the
Minister. The learned reviewing Magistrate observed therefore that
the local Chief and the
Land Committee would be acting contrary to
the law

4

if, without reference to higher authority, they allowed
Malefetsane to utilise the land for commercial purposes. The learned
Magistrate
concluded that

"whether the agricultural land belonged to
accused or
not, he was not at all entitled to erect any
buildings
on it before any lawful grant could be made to
him
converting the agricultural field to a commercial
site

I therefore set aside the President's comments in this
regard, since the accused can be prevented, obstructed or restrained
from carrying
on business or trading operations in his agricultural
field without due authority; and he is thus restrained by
this Court." (emphasis supplied)

That order was made on 2nd November, 1984, Malefetsane
having refused on 24th May, 1984 to obey the Chief's Order. In the
intervening
period the plaintiff had apparently been allocated the
same plot of land, and had been issued with a Form C2 in respect
thereof (Third
Schedule to the Act) date stamped 28th August, 1984.

Chief Mojela Joel testified that despite the
Magistrates' Courts order of 2nd November, 1984, he subsequently
found Malefetsane continuing
with the building on the plot of land.
He

5

also saw the plaintiff building there too. He reported
the matter to the Clerk of the Magistrates' Court, who accompanied
the Chief
to the police. The Chief went to the site again with the
head of the local CID Lt. Matela. When they got there they found
building
in progress. Malefetsane was not there, as he was sick. They
found the plaintiff there however: the latter said that "Malefetsane
had told him to be there". Lt. Matela ordered that the building
be stopped. The Chief discovered that nonetheless the building
continued, so he approached the police once more. This time he went
to the site with Warrant Officer Mkosi. They did not find the
plaintiff there. On a subsequent occasion he did find the plaintiff
there, when Mkosi "took the plaintiff and others" to
Butha
Buthe.

The Chief testified that the plaintiff had never made
any application to him in the matter of allocation of the plot of
land. He described
the procedure of application (upon Form A) and
attendance before the "Allocation Board". He was surprised
to see the plaintiff
on the field. As far as he was concerned "the
plaintiff had taken that field on his own", and again "he
(the plaintiff)
interfered with Malefetsane's field allocating that
field to himself". Indeed, he said, there was a case pending
since 1985
in the Magistrates' Court where the Committee had "sued
him (the plaintiff) for allocating himself this field". When
Malefetsane
had transgressed, the Land Committee had declined to
revoke his allocation as

6

"we thought we should take him to law. We thought
we shouldn't use our powers."

When asked why he did not institute the same proceedings
against the plaintiff as he had instituted against Malefetsane, he
replied,

"Because I knew the field belonged to Malefetsane.
This one (plaintiff) proceeded with the building after the death of
Malefetsane.
Malefetsane was in hospital and he was the person I had
sued."

Without necessarily accepting all of the Chief's
evidence at this stage, it sufficiently indicates the background
against which, Malefetsane,
as the first accused, the plaintiff, as
the second accused, and seven others, all builder's employees, were
jointly charged with
contravening section 74 of the Subordinate
Courts Proclamation. The particulars of offence read as follows

"In that upon or about the day between the 2nd and
16th November, 1984 and at or nea Marakabei In Butha-Buthe district
the said
accused each or other or all of them and while the said
accused had been ordered by the Subordinate Court of Butha-Buthe to
refrain
from erecting a building, carrying on business or Trading
operations

7

on the said Agricultural field without due authority the
said accused wrongfully, unlawfully wilfully disobeyed or neglected
to comply
with the said order."

The first accused Malefetsane did not attend the trial,
as he was at the time in hospital. The trial was conducted before the
same
Magistrate as had reviewed the Local Court proceedings. After
the close of the defence case he simply recorded

"Verdict: Not Guilty."

He did not deliver a reasoned judgment. In any event,
what emerged from the review proceedings and the trial, and what is
not disputed,
is that the reviewing Magistrate's order was directed
against Malefetsane, that the plaintiff was not a party to the review
proceedings
and further, that no order was ever served upon the
plaintiff in the matter.

The plaintiff's evidence before this Court, to which I
shall return, was very brief. It dealt mainly with the quantum of
damages.
He testified that he was building a restaurant and cafe, six
of the accused persons at the trial being his employees at the site.

One of the plaintiff's workers, Mokomalithare
Raleihloane, gave evidence on behalf of the plaintiff. He testified
that no

8

order had ben served upon them, that he and other
workers had been arrested on the site, imprisoned over the week-end
and then released.
He and the others were ultimately acquitted before
the Magistrates' Court.

Thabiso Maleta, at the relevant time a Lieutenant in the
police stationed at Butha Buthe, gave evidence for the defendants. He
testified
that in November, 1984 the Clerk of the Magistrates' Court
reported to him that a building was being erected at the particular
site
and that "there was a court order against it". Chief
Mojela Joel then reported likewise, specifying that Malefetsane had
been prohibited from building. The Lieutenant did not have a copy of
the relevant Order, but the report of the Clerk and the Chief
in the
matter was sufficient to indicate that "the Order restrained
Malefetsane". He then instructed Warrant Officer Mkosi
to
investigate.

The latter accompanied by Chief Mojela Joel and a
driver, went to the site. He found the plaintiff's workers building
on the site:
they said they were acting under the instructions of the
plaintiff. The Warrant Officer had been instructed that "there
was
a court order against building" and to "take measures
against persons building". He did so: he arrested the workers
and took them to the police station. The Warrant Officer recalled
that Malefetsane had been fined and "interdicted from building",
and that the court order referred to Malefetsane and no one else. He

9

had been instructed to stop those on the site presently
building: he had his doubts about the instructions, but nonetheless
felt obliged
to carry them out. He denied that he had been instructed
to arrest the plaintiff in particular, "only those found
building",
he said. When he brought the workers to Lt. Matela at
the police station, the latter asked them if they were aware of the
court order.
"They said they were told by Victor to continue the
building",the Lieutenant testified.

Lt. Matela said that the plaintiff approached him the
same day, enquiring why he had stopped his workers. The Lieutenant
asked him
"if the site belonged to him or Malefetsane". The
plaintiff stated he was "in possession of documents proving the
site was his". It was agreed that the plaintiff would produce
such documents. The Lieutenant then received a telephone call
from
the plaintiff's Attorney asking why he was "interfering with his
client". The Lieutenant expressed surprise that the
plaintiff
had not returned with any documents. He considered that the plaintiff
had violated the court order, so he had him charged.

The Public Prosecutor at Butha Buthe at the time,
Moeketsi Sheline, testified that upon receipt of the docket from the
Police he observed
that Malefetsane the plaintiff, and others had
been charged by the police with contempt of court. The docket
indicated that the Police
had advised the plaintiff of the court
order. Some three or four days later he issued a warrant for their
arrest.

10

When the workers were arrested, he decided to prefer the
specific charge of contempt of court contrary to section 74 of the
Subordinate
Courts Proclamation, which provides that "any person
wilfully disobeying or neglecting to comply wth any order of a
Subordinate
Court" shall be guilty of such contempt.

The Prosecutor testified in particular that after the
court review order in the matter, a Policewoman Kumari, to whom the
plaintiff
was "closely related", brought the plaintiff to
his office: he had not asked the plaintiff to come. He explained the
effect
of the court order to the plaintiff, "prohibiting the
building of any building on that court site". He advised him
that
"anyone carrying on business on site would be committing an
offence," whereupon the plaintiff said that "he was going
to stop those people from building": the building however
continued on the site. The Prosecutor testified that subsequently
the
plaintiff agreed to come to his office to be formally charged: he did
so, in the company of his Attorney. At that stage, six
of the
plaintiff's workers had appeared before the court on 16th November,
had been remanded in custody to the 19th November, when
they were
released on bail. The plaintiff agreed with the Prosecutor to appear
before the court on 25th November.

For the moment, those are the relevant facts. As to the
law applicable, there are the illuminating dicta of Schreiner J.A.
(van den
Heever and Fagan JJ.A concurring) in the case of
Beckenstrater

11

v Rottcher & Theunissen (1). I propose
to set out those dicta in extenso. The learned Judge of Appeal in
dealing with the judgment in the court below, dismissing
a claim for
malicious prosecution, observed at pp. 133/134:

"In his judgment Malan, J. stated the law to be
that in order to succeed the appellant had to show, apart from the
undisputed
fact that the prosecution had ended in his favour, that
the respondents had set the proceedings in motion and had actively
assisted
in the prosecution, that in so doing they were actuated by
an indirect or improper motive and that they had no reasonable or
probable
cause for instituting the prosecution."

and
further on at p.134/135

"Before this Court it was argued on behalf of the
appellant that the South African law on the subject of malicious
prosecution
had been stated by Malan, J., in a sense too favourable
to the respondents, inasmuch as the element of reasonable and
probable cause
is either not a relevant element at all or, if it is,
is one

12

which must be proved as a defence and not negatived as
part of the plaintiff's case. We were referred in this connection to
several
articles in the 1911 and 1912 volumes of the South African
Law Journal; and in particular to one by Professor Lee on "Malicious
Prosecution in Roman-Dutch Law" (29 S.A.L.J. 22). The learned
author, after reviewing the Roman and Roman-Dutch law, concludes
that
the modern law might, in harmony with its past, have reached either
of two sets of rules for actions for malicious prosecution,
neither
of which would require the plaintiff to prove the absence of
reasonable and probable cause. Instead, says Professor Lee,

'the courts of the Roman-Dutch colonies preferred to
take over holus bolus the English action of malicious prosecution, a
thing of
doubtful antecedents, of no great antiquity, and out of
harmony with the body of the law'."

I take the first two of the concluding criticisms to be
intended to apply to the action as it exists in English law,
although,

13

according to Denning L.J., in Leibo v. Buckman Ltd.
and Another, (2), that action has been used in England for some
hundreds of years. The comment that the action is out of harmony with
the body
of the law presumably has reference to the modern
Roman-Dutch law represented by the law of South Africa. However that
may be, there
is no doubt that the pre-Union Courts and the Divisions
of the Supreme Court of South Africa which succeeded them in the
Provinces
have, over a fairly long period, always required of the
plaintiff, if he was to succeed, proof both of an indirect or
improper motive
on the part of the defendant and of the absence of
reasonable, or, as it is more usually put, reasonable and probable,
cause. In
Corea v. Peiris,.(3), moreover, the Privy Council
approved the conclusion, which had been reached by the Supreme Court
of Ceylon, that the principles
of the Roman-Dutch law and the English
law on the subject of malicious prosecution are practically
identical. But the matter is concluded
by Estate Logie v. Priest,
(4). In that case the action was for the wrongful obtaining of a
sequestration order, but it is not on that

14

account of less authority in relation to malicious
prosecution. For public policy clearly requires that a plaintiff
should have to
prove no less against the defendant in a malicious
prosecution action than in an action based on the wrongful
sequestration of his
estate. What was said by Sir William Solomon,
therefore, at p.315 in giving the judgment of the Court is of full
application to the
present proceedings. After referring to a
provision in the 1916 Insolvency Act, he proceeded,

"this action, however, is admittedly brought not
under the statute, but under the common law. It was incumbent,
therefore, upon
the plaintiff to prove not only that there was no
ground for sequestrating his estate, but also that the proceedings
were instituted
maliciously, and without reasonable and probable
cause."

The inclusion of absence of reasonable and probable
cause among the matters to be proved by the plaintiff was
unquestionably part
of the ratio decidendi of the case (see pp.323 to
325) and is binding upon us, unless, indeed, we were

15

satisfied of its incorrectness. I am certainly not so
satisfied. Assuming that upon a re-examination of the authorities it
might be
possible to question the reasoning whereby the law has come
to be stated as it has been, that would be far from establishing the
conclusion that such statement was wrong. And in fact, if I may
respectfully say so, the requirement of proof of absence of
reasonable
and probable cause seems to be a most sensible one. For
it is of importance to the community that persons who
have reasonable and probable cause for prosecution should not
be deterred from setting the criminal law in motion against
those whom they believe to have committed offences, even if
in so doing they are actuated by indirect or improper
motives. In my view, accordingly, the general principles
governing the action were correctly stated by Malan, J."
(emphasis supplied)

As to "reasonable and probable cause" the
learned Schreiner J.A. observed further at p.136:

"When it is alleged that a defendant had no
reasonable cause for prosecuting, I understand

16

this to mean that he did not have such information as
would lead a reasonable man to conclude that the plaintiff had
probably been
guilty of the offence charged; if, despite his having
such information, the defendant is shown not to have believed in the
plaintiff's
guilt, a subjective element comes into play and disproves
the existence, for the defendant, of reasonable and probable cause.
This
statement of the legal position seems to me to accord with the
judgments of the English Court of Appeal in Tempest v Snowden,
(5), and Leibo v. Buckman Ltd. 6, Another,
(2); if it should appear by comparison to be an oversimplication,
this may be due in part at least to the fact that our system does
not
use a jury in civil cases."

Van den Heever J.A., while concurring with Schreiner
J.A., additionally observed inter alia as follows at p.140:

"I am not in agreement with Malan, J., however in
holding that, if the respondents had been actuated by a desire to
secure conviction
of the appellant with the object of ridding the
neighbourhood of him, their motive was

17

improper. Such a motive would naturally tend to cast
doubts on the bona fides of the steps taken by them in order to have
the appellant
prosecuted. The mere fact, however, that they had an
additional and ulterior motive does not seem to me to stamp their
conduct as
malicious in the legal sense."

The ingredients of a malicious prosecution were once
again considered by the Appellate Division in the case of Moaki
v Reckitt & Colman (Africa) Ltd & Anor
(6). Wessels J.A. (Steyn C.J., Ogilvie Theompson Botha, and Potgieter
JJ.A concurring) observed at p.103:

"This court was referred to a number of authorities
which laid down in terms that in an action of the kind instituted by
the
appellant it is essential to allege and prove not only want of
reasonable and probable cause but also that the defendant acted
"maliciously"."

The learned Judge of Appeal referred to a number of
authorities including Beckenstrater (1) and continued at
p.104:

"A consideration of the various judgments

18

in the cases cited in the preceding paragraph
leads
me to conclude that, despite the use of
the terms "malice"
and "maliciously", it was
not intended to formulate any
principle that
in the actions in question the motive of
the
defendant, in acting as he was alleged to have
acted, was
in any way a determining element of
legal liability. It is,
however, equally clear
from those judgments that the defendant's
state
of mind in doing the act complained of is a
material
determining element of liability. In
both Hart v. Cohen (7)
and Lemue v. Zwartbooi
(8), it is indicated that the
plaintiff's
remedy is provided by the actio injuriarum.
Where
relief is claimed by this actio the
plaintiff must allege
and prove that the
defendant intended to injure (either
dolus
directus or indirectus). Save to the
extent
that it might afford evidence of the
defendant's true
intention or might possibly
be taken into account in fixing the
quantum of
damages, the motive of the defendant is not of
any
legal relevance."

"It follows, in my opinion, that, although
it became customary to allege "malice"

19

in pleadings in actions of the type now under
consideration, our law has always required a plaintiff to prove only
the existence of
the requisite legal intention to injure, without
requiring him to establish in addition the defendant's motive, i.e.,
that he acted
maliciously."

The Appellate Division once more considered, but
briefly, the above aspect in case of Lederman v Moharal
Investments (Pty.) Ltd. (9) Jansen J.A. (Ogilvie Thompson,
Rumpff, Botha JJ.A and Muller AJA concurring) observed at p.196:

"In seeking to hold the respondent company liable
in damages for this unsuccessful prosecution, the onus was
upon the appellant to establish in the Court a quo -

1. 
   that the respondent set the law in
   motion
   (instigated or instituted
   the proceedings);

   
   

2. 
   that it acted without reasonable
   and probable cause;
   and

   
   

3. 
   that it was actuated by an indirect
   or improper
   motive (malice);

   
   

(cf. Beckenstrater v.Rottcher and Theunissen,

20

(1); Van der Merwe v. Strydom (10).

There seems little doubt that this is the actio
injuriarum and, conceivably, the need may well arise, in
appropriate circumstances, to recast the above requisites into a
mould more consistent
with the terminology of that actio. In
the present instance, however, as will appear, the enquiry relates to
the first requisite only."

That, in my research, would seem to be the latest dictum
of the Appellate Division in the matter. In the present case I do not
see
that the "first requisite" should give any difficulty.
Clearly the procedings were instituted by the Public Prosecutor
who
is singled out by the plaintiff in his pleadings, acting under the
powers delegated to him by the Director of Public Prosecutions
under
section 6 of the Criminal Procedure & Evidence Act, 1981. It is
the third requisite which apparently needs to be stated
"in a
mould more consistent with the terminology" of the actio
injuriarum. I think it sufficient to then simply say that
the
plaintiff must prove that the defendant acted animo injuriandi. In
this respect I respectfully adopt the further dicta of Wessels
J.A.
in Moaki(6) at p.105:

"Where a defendant has acted without reasonable

21

and probable cause, it does not necessarily imply that
he acted animo inuriandi as well, not-withstanding the fact
that the want of reasonable and probable cause might at the trial
afford evidence of the fact
that he acted animo inuriandi."

and again at p.106,

" proof of the want of reasonable and

probable cause does not cast upon a defendant the onus
of proving that he did not act animo inuriandi."

In the present case it is pleaded that a Public
Prosecutor "duly instructed by the 1st Defendant falsely and
maliciously and
without reasonable and probable cause"
prosecuted the plaintiff and "by reason of the malicious
prosecution aforesaid,
plaintiff has

been injured in his good name and reputation "
There is there

no express averment that the prosecutor acted animo
injuriandi. In Moaki (6) at p.104 however, Jansen J.A.,
relying on the authority of Foulds v Smith (11) per Van
den Heever J.A. at p.11, held that where the implication of dolus
necessarily flows from the other averments in the
pleadings, that
would be sufficient. In the present case there is an averment of
malice, and thereafter an averment of injuria.
As I see it, the
implication that the Public

22 Prosecutor acted animo injuriandi flows therefrom.

I turn then to the aspect of reasonable and probable
cause. Quite clearly the review order of the Magistrates' Court was
never served
upon the plaintiff: it was directed solely at
Malefetsane. The Public Prosecutor testified however that he relied
upon the following
passage at page 1125 of South African Criminal Law
And Procedure Vol.11 by Gardiner & Lansdown (1957):

"In an application to commit for contempt for
failure to obey an order of court, it is necessary to prove that the
respondent
had personal knowledge of the order, but it is not
necessary that it should have been actually served on him - Botha
v. Dreyer, (12); Burgers v, Fraser, (13). In Li Kui Yu
v. Superintendent of Labourers, (14), Mason, J., held that
'where a person knows, or has reason to believe or ought to know,
that an application is being made to
the court for a certain purpose
- where he has that knowledge or that suspicion, then, if he takes
any action before the court can
be approached, the court will regard
that as an interference with the administration of justice, and will
exercise its powers to
prevent itself being defeated by anything of
that kind'."

Those cases deal with the position where service is
evaded or circumvented, or where a person seeks to achieve his
purpose before
court action can be taken at all: they also deal
however with the

23

case where the person so acting was him against whom the
order had been issued or against whom the order was sought, in the
vast majority
of cases, of course, a party in the particular
proceedings. It is trite law however that an order can be obtained
against someone
who is not necessarily a party to the proceedings:
see e.g. Re Floyd (15) at p.801.

What however of the situation where a stranger to the
action might be said to be acting contrary to a court order made out
against
a party to the action? The case of Seaward v Paterson
(16) (per Lindley L.J.) is a case in point, the only report thereof
available to me being that in Vol.16 of the English And Empire
Digest, at p.10, which reads:

"(1) There is a clear distinction between a motion
to commit a man for breach of an injunction on the ground that he was
bound
by the injunction, and a motion to commit a man on the ground
that he has aided and abetted defendant in a breach of an injunction.
In the first case the order is made to enable plaintiff to get his
rights; in the second, because it is not for the public

24

benefit that the course of justice should be
obstructed.

(2) The court has undoubted

jurisdiction to commit for contempt a person not
included in a injunction or a party to the action who, knowing of the
injunction,
aids and abets a defendant in committing a breach of it."

The Digest at pp.35/36 also contains the
following authorities:

"p. made oath that B. and others, having notice
given to them of an injunction awarded out of this court against
defendant, had
disobeyed it:- Held: an attachment would be awarded
against them. Lower v. Crudge (17)."

"Defendants, trustees of a branch of a friendly
society, were restrained by injunction from dividing certain money
among the
members of the branch. Shortly afterwards defendant
trustees retired, and new trustees were appointed, who, being aware
of the effect
of

25

the injunction, under an order of the branch society,
divided the money among the members, including the old trustees. The
court considered,
on the facts, that the proceedings were an attempt
on the part of the branch society and the old and new trustees to
avoid the injunction,
and a device for disobeying it, in which the
new trustees cooperated:- Held: the new trustees, as well as the old,
were guilty of
contempt of court - Avery v. Andrews (18)."

What emerges from the above authorities is the general
principle that no one may act so as to obstruct the course of
justice. Everything
of course depends on the facts of each case. It
seems to me however, generally speaking, that where a court order
restrains one from
dealing in a particular manner with certain
property, that order restrains others, having notice thereof, from
acting likewise. Where
the use of land is involved, it can be said
that an interdict runs with the land.

In the present case the local Chief testified that he
found the plaintiff on the land building thereon, and the latter said
that "Malefetsane
had told him to be there". The Chief also
testified that Lt. Matela accompanied him on that occasion. The
Lieutenant testified
however that he sent others to the site.

26

Again, the Chief testified that Warrant Officer Mkosi
found the plaintiff with his workers on the site, and arrested not
alone the
workers, but also the plaintiff, which of course is
contrary to the remainder of the evidence. The Chief is aged 71 years
and it
may be that his recollection as to some details is not
correct. I found him nonetheless to be a truthful witness. In
particular,
there can be no doubt about his evidence that he is the
Chief of Malere and is thus (under section 12(1) of the Act) Chairman
of
the local Land Committee and that such Committee allocated the
land to Malefetsane, irregularly or otherwise. There can similarly
be
no doubt about his evidence that such Land Committee did not allocate
the land to the plaintiff. In this respect the Form C2 produced
by
the plaintiff purports to be signed by one "Mopeli",
apparently Chief Mopeli Chief of Qalo, in the Butha Buthe district.
Hence there can be no doubt about the evidence of Chief Mojela Joel
that he was surprised to find the plaintiff on the land and that
he
challenged his right to be there.

There is then the evidence of Lt. Matela that he
apprised the plaintiff's workers of the court order, and of the
arrival of the plaintiff
that same afternoon at his office. The
Lieutenant in particular testified that he did not know if the
plaintiff was aware of the
court order: nonetheless there was the
conversation as to the true ownership of the site, the plaintiff's
promise to produce documents
of ownership and subsequently the
conversation with the plaintiff's Attorney. I cannot but imagine
that the

27

plaintiff was by that stage, that is, 16th November,
1984 fully aware of the court order. But that is not to say that he
was so aware
at an earlier stage.

In this respect, there is the evidence of the Public
Prosecutor that the docket given to him indicated that the police had
advised
the plaintiff of the court order. Such evidence is hearsay,
of course, but not as to the Prosecutor's belief in the matter. And
it
is the Prosecutor whom the plaintiff has singled out in his
pleadings. In any event, there is the specific evidence of the
Prosecutor
that the Policewoman Kumari brought the plaintiff to his
office, upon the plaintiff's request or the Policewoman's suggestion,
where
he advised the plaintiff of the effect of the order. The
Prosecutor was not cross-examined on this evidence.

The plaintiff did testify, and that only at the end of
his evidence, when questioned by the Court, that "before being
charged
I was never approached by the police". That evidence
does not preclude any approach by him to the police, nor indeed any
approach
by the Chief to him in the matter. He initially testified,

"I wasn't aware of any order of court against
me".

Subsequently he testified,

"I hadn't appeared before any court beforehand and
wasn't

28

aware of any order. There was nothing on paper
on which

my name appeared in respect of which the prosecutor
could say I was in contempt". (emphasis supplied)

It will be seen that to some extent there is a shifting
of position there. Further, nowhere did the plaintiff specifically
state that
he was not aware of any order made against Malefetsane in
respect of the particular site. As I see it, the onus is on the
plaintiff
in the matter. I can see no basis for rejecting the
evidence for the defendants and I find, in all the circumstances,
that the probabilities
are that the plaintiff was aware of the order
against Malefetsane, but nonetheless continued building.

While it cannot now be said that the plaintiff was thus
necessarily aiding and abetting Malefetsane, the authorities earlier
referred
to indicate, prima facie, that the plaintiff was nonetheless
obstructing the course of justice. The contents of the reviewing
Magistrate's
judgment indicated that Malefetsane had been allocated
the land, apparently irregularly, as no application on Form A of the
Third
Schedule had been made. Nonetheless, as far as the Prosecutor
was concerned, the land belonged to Malefetsane. The question of
title
was raised with Lt. Matela, but no documents of allocation were
ever produced to him and he had no cause to doubt the efficacy of
the
Magistrate's recent order. It is not necessary to consider as to
whether or not the learned Magistrates' interpretation of the
law was
a correct one, as it is trite that

29 an order of the court must be obeyed, until
discharged or set

aside. There is no evidence before the Court that the
plaintiff's claim to the land was ever raised with the Prosecutor.
Thus it was
reasonable for him at the time to assume, while it cannot
now be said, that the plaintiff was aiding and abetting Malefetsane,
or
in the least that the plaintiff was obstructing the course of
justice.

The particular Form C2 was produced by the plaintiff, by
agreement, after the defendants had closed their case. The defendants
were
thus deprived of the opportunity of giving evidence to the
contrary, much less of cross-examining the plaintiff thereon. The
document
was accepted by the Court as an "agreed" document,
that is, agreed as to its existence, but not necessarily as
constituting
evidence of allocation under the Act. There is the
evidence of the local Chief before the Court that no allocation was
ever made
to the plaintiff. The document is signed by other than the
local Chief. Further, the contents of Form C2 (see section 9 of the
Act)
require the allottee to apply for a lease within six months, or
a further three months after notice from the Commissioner, failing
which the allocation "shall be of no effect". The Court was
informed, from the Bar, without objection, that no lease had
as yet
been issued. Again there is the Chief's evidence and further, that of
the Public Prosecutor, as to pending litigation in the
matter.

30 Even had the Public Posecutor been aware of any claim
by the

plaintiff, there is the aspect that the Magistrates'
Court had but two weeks earlier in effect recognized the allocation
to Malefetsane,
Further, the terms of the Magistrate's judgment
indicated that no building could lawfully be erected thereon until
certain statutory
conditions had been met by the plaintiff and the
particular Land Committee itself, which clearly could not be the case
when the Chairman
of that Committee had himself made complaint to the
Police concerning the plaintiff. It was then reasonable to assume in
the present
case that the Magistrate's order would also bind any
subsequent allottee, that is, until the statutory conditions were
met.

While the Public Prosecutor's interpretation of the
particular passage in Gardiner & Lansdown was incorrect,
nonetheless that
did not affect the plaintiff's liability in the
matter, and the Prosecutor's view of such liability was, in my view,
correct. In
the least it can be said that a difficult question of law
was involved and it is not evidence of absence of reasonable and
probable
cause that a mistake has been made as to such question: see
Phillips v Naylor (19). As Lord Atkin said in the
leading case of Herniman v Smith (20) at p.319,

"It is not required of any prosecutor that he must
have tested every possible relevant fact before he takes action. His
duty
is not to ascertain whether there is

31 a defence but whether there is reasonable and
probable

cause for a prosecution."

Certainly there is no evidence before the court in the

present case that the Prosecutor himself did not believe
in the plaintiff's guilt: indeed, he testified that he intended
making submissions
on the law to the learned trial Magistrate, but
was given no opportunity to do so, as the record indicates, the
Magistrate, quite
irregularly in my view, entering a verdict without
reasons and without calling for submissions. As I see it, the
information before
the Prosecutor was, in all the circumstances, such
as to lead a reasonable man to conclude that the plaintiff was
probably guilty.
The plaintiff has therefore failed to prove want of
reasonable and probable cause. The plaintiff's claim cannot then
succeed.

In any event, as to whether or not the Prosecutor acted
animo injuriandi, there are but two items of evidence which in any
way give
rise to that aspect. The plaintiff is a well-to-do and
well-known local businessman. The Public Prosecutor testified that he
knew
of the plaintiff, but did not know him pesonally, that is,
before the prosecution. There is the aspect that he knew of the
relationship
of the Policewoman to the plaintiff, but that might well
be consistent with the remainder of his evidence. Lt. Matela
testified that
he believed that the Prosecutor "knew the
plaintiff" when the charge was preferred, as "Butha-Buthe
is a small district",
he said. He did not elaborate however on
the extent of

32

such knowledge. Even if the Prosecutor did not tell the
truth in the matter, I do not see that that necessarily indicates an
intent
to injure the plaintiff.

The only evidence which could be remotely indicative of
any such intention, is the aspect that the Prosecutor has charge of a
further
possible prosecution against the plaintiff, that is, in
respect of an allegation of occupying land without proper authority,
contrary
to section 87(1) of the Land Act. No charge had been
preferred however, and it was the Prosecutor's position that he had
taken instructions
from the Director of Public Prosecutions in the
matter. In all the circumstances, I cannot say that such evidence
establishes that
the Prosecutor probably intended to injure the
plaintiff.

Accordingly I dismiss the plaintiff's claim with costs
to the defendants.

Delivered at Maseru This Day 27th of June, 1990.

B.P. CULLINAN CHIEF JUSTICE