CIV/T/340/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

HLOMPHANG
E MACHAHA Plaintiff

And

JOHANNES
SEKOPO 1st Defendant

LEFU A.
MTHIMKHULU 2nd Defendant

BERENG
LEKHANYA 3rd Defendant

For the
Plaintiff : Mr Molefi

For the
Respondents: : No Appearance

JUDGEMENT

Delivered
by the Honourable Mr Justice T Monapathi On the 16th day of January
2004

This
action for damages for defamation came by way of summons filed on the
6th October 2000. The summons were served on the Defendants
on the
11th October 2000, per return of service of 11th October 2000. After
receiving the summons,

2

Defendants
entered appearance to defend which was filed on the 15 October 2000
and they all filed their pleas subsequent thereto.

A
pre-trial conference was later held and minutes thereof filed on the
25th July 2001. Thereafter the matter was set down for the
6th August
2001 on which day it did not proceed due to the absence of all the
Defendants and consequential withdrawal by Counsel
representing them.

On the
2nd December 2002 the matter was before Ramodibedi J (as he then was)
and he removed the matter from the roll for failure
to file proper
minutes of pre-trial conference in terms of Rule 36 of the High Court
Rules 1980. On the 28th October 2003 the matter
came before me albeit
without the proper pre-trial conference minutes. Counsel sought to
proceed by default in terms of Rule 40
of The High Court Rules,
Counsel for Defendant being absent.

Plaintiff,
a church leader, is described in the declaration as a Moderator in
the Full Gospel Church of God which has branches in
Lesotho and South
Africa. A Moderator is defined in the Concise Oxford Dictionary (10th
edition) as:

" a Presbyterian Minister presiding over an ecclesiastical body"
In its summons the Plaintiff claimed damages for defamation
in the
following terms:

1. M100,000.00
   damages for defamation of character.

   
   

2. Interest
   at the rate of 18% per annum from date of issuance of summons to
   date of payment.

   
   

3. Costs
   of suit

   
   

4. Further
   and/or alternative relief.

   
   

3

The
defamatory statements are said to have been by way of letters
whichever written by Defendants to the Principal Chiefs, Police,

District Secretaries, and Church Officialdom, sounding in the
following words;

"We have realised and seen that you (Plaintiff) are confuser of
the church mentioned above: to destroy and damage it: as well
as to
invite it to involve itself in confusion and bloodshed."

The
letters therefore received wide publicity as they were apparently
intended to. Alternatively I would conclude that Defendants
must have
foreseen that this would be the result. The Plaintiff says as a
result of these words it was constantly harassed by police
on
insinuations that he is a murderer and a criminal. Consequently he
claimed an amount of M100,000.00 which he says would compensate
him
for his fair name, fame and reputation. I would judge that the claim
was quite inflated.

On the
28th October 2003 the matter proceeded in terms of Rule 41 of The
High Court Rules which provides that in a trial, if the
Defendant
does not turn up on the date set down for hearing the Plaintiff may
proceed. Evidence was led through Plaintiff himself.
And on the 7
November 2003 I awarded damages to the Plaintiff in the sum of
M25,000.00 and here follow my reasons.

The
leading authors on defamation law Principles of Delict J M Burchell
and The Law of Delict R G Mc Kerron respectively define
defamation as
follows:

1. "
   .........the unlawful, international publication of a defamatory
   matter referring to the plaintiff which causes his or
   her reputation
   to be impaired (p. 152).

   
   

2. A
   defamatory statement has a tendency to injure the reputation of the
   person to whom it refers i.e. lower him in the estimation
   of the
   right-thinking members of the society generally and in particular to
   cause him to be regarded with feelings of hatred,
   contempt,
   ridicule, dislike, or disesteem. Hence a statement may be defamatory
   although no one believes it to be true."

   
   

4

These
authorities underscore one fundamental element which is this whether
the statement would be regarded as defamatory by the
right-thinking
members of the community from which the person so defamed comes. The
question is whether such statement would lower
the person's esteem in
reference and in estimation by such community. It is important
therefore to answer this question by considering
first the status of
such person. In this case it was not disputed that Plaintiff was a
person of above-average profile as he was
a Moderator, a position
equal to that of a Bishop by untutored estimations. He was therefore
a prominent church leader.

The law
does recognise that whereas a person would have freedom of speech as
enshrined in the Constitution (see article 14 of the
Constitution of
Lesotho 1993) such right is not without limits. The law thus protects
reputation and dignity, and is, in this context
only a conciliatory
mechanism between a person's right to protection and respect and
another's freedom of expression.

In the
whole statement it would appear that words which would have a
defamatory effect are those insinuating criminality, that is,
that
Plaintiff is a "murderer and a criminal", In the law of
defamation:

".........words which falsely attribute dishonesty per se."
per Lehohla J in Sello

v Ramainoane & Ano 1999-2001 284 at 298 F-G.

It would
be difficult not to accept that the subject words were indeed written
as appears in the exhibited letters before this Court.
Furthermore
the Court need not investigate if these words were believed as true
by the recipients thereof as long as the effect
has been to stir up
feelings of contempt or hatred.

5

The words
in issue are said to have been published in the letters as mentioned
above. These letters were exhibited before this Court
and marked
Exhibit "A" and HM "1" respectively. Both these
letters were written to the Plaintiff and copied
to several chiefs
and government offices. There is no doubt that the contents of the
letters were consumed by these people who
may have prior thereto not
exhibited a contemptuous attitude towards the Plaintiff, but
instantly changed to that respectful attitude
upon reading the
material.

The
Plaintiff says in his declaration, following the publication of the
letters in question, as a result that the police have repeatedly

arrested him calling him a criminal or a murderer. Such that as the
Plaintiff contends they regarded him with less humility and
respect.
I now deal with the amount of damages that the Plaintiff claims a
recompense it for the loss of esteem caused by the Defendants.
Such
amount according to the Plaintiff is in the sum of Ml 00,000.00.

It is
indeed trite that an award of damages is entirely in the discretion
of the Court. See Candy Ratabane Ramainoane & Ano
v Moeketsi
Sello 1999-2000 which the Court of Appeal confirmed in Moeketsi Sello
v Candy Ratabane Ramainoane & Another 131
1999-2001 LLR 284.
(Sello v Ramainoane) This is a mammoth task because there is no
yardstrick for measuring or determining such
an amount. The law of
delict has not favoured us with the limits or the range within which
such amount can fall. This calls for
consideration of the following
factors: the social status of the Plaintiff; the economic status of
the country; the apparent financial
strength of the Plaintiff and or
Defendant (for the Court must be careful also not to make an order
that could easily be thwarted
or that could be impossible to comply

6

with),
the punitive or corrective nature of the award and other mitigating
or aggravating factors. See RG Mc Kerron, The Law of
Delict RG
McKerron, 7th Edition, at page 115 for an outline of the factors.

Mr Molefi
for the Plaintiff has not been very helpful in guiding the Court as
to the determination of quantum. Plaintiff has asked
for Ml 00,000.00
which at first glance I consider an exhorbitant amount in the
circumstances of this case. The only case he puts
forth is that of
Sello v Ramainoane (supra) in which an amount of M90,000.00 damages
was awarded, without any similarities and
dissimilarities thereto,
such as that the mode of publication in the Sello v Ramainoane
(supra) case was a newspaper which is read
both in Lesotho and South
Africa both by supporters and non-supporters of the defamed political
figure involved.

By
contrast to Sello v Ramainoane (supra) in the present case
publication was merely within church membership and some government

officers. The effect could not necessarily be less injurious in my
view. The relationship between Plaintiff and other church members
is
obvious. To the Plaintiff the effect could even be deeply felt as the
Defendants are his colleagues and are immediate in terms
of power
relationship. But Plaintiff did not venture to explain what relations
it has with the government officers or rather why
was it necessary
that the letters were also served on the Government ministries? This
factor alone would serve as an aggravating
factor. As a matter of
fact these were officers were not involved in the church
establishment or environs. So can malice be strongly
suspected in the
Defendants' conduct in that regard.

7

The
following cases are however very instructive in determining quantum
of damages if only not to emphasise the Court's discretion
which
indeed must be exercised judicially. In the Court of Appeal in the
case of Manyeli v Makhele & Another LAC (1980-84)260
after
holding that verbal defamations had not been proved the Court awarded
damaged in the amount of M8,000.00 for the written
defamatory
statements against a sum of M10,000.00 claimed in the case of Matsela
and Anoter v Sello 1985-89 LAC 246 the Respondent
had been referred
to as a witch on the separate and distinct occasions. An award of Ml
,500.00 was confirmed by the Court of Appeal
although the sum was
separated Ml,000.00 for the one defamation and the remainder for the
other. This was in 1988 in which same
year my brother Lehohla AJ (as
he then was) made an award of M2,000.00 in a case of oral defamation
to wit, Elias Ntekele v Macheli
1985-90 LLR 359

The Court
has had occasion to deal with a defamation case in which the mote of
publication was through a newspaper in the case of
Ntaote v Attorney
General and Another 1991-96, 820. in that case I awarded damages in
the sum of M5,000.00 and it was in 1994.
In arriving at the amount I
was also guided by the principle that the wider the publication the
heavier the damages for one's reputation.
But to quantity the damage
as such would be misleading in a case where even as few as the
recipients may be they however hold the
livelihood of the defamed
person at stake. I have recently awarded damages in the sum of
M16,000.00 in a case involving defamation
of Principal Chief of
Quthing district in Nkuebe v Sempe, CIV/T/66/2002, (unreported) dated
19th November 2003.

8

Amongst
other factors which influence the Court in determining quantum is the
behaviour of the Defendant since the publication of
the defamatory
words. In this regard J M Burchell (supra) at page 300 has the
following to say:

"The conduct of defendant from the time of the defamatory
utterance to the time of the judicial assessment of damages is
relevant."

In all
the cases such conduct is defined as an apology. Where the Defendant
utters defamatory words and he does not proffer an apology
that is
taken as an aggravating factor. That is, it can influence the Court
into making an otherwise bigger award. But, because
it does not
influence the Court in reaching the verdict it may not be justifiable
to order upon finding that there was defamation,
that, Defendant
apologise. Suffice it to say that in the present case the Defendant
entered appearance to defend, thereby subverting
all prospects of an
early apology. J M Burchell remarks at page 331 that:

"Because of difficulties involved in litigation designed
primarily to recover damages, a prompt retraction of a statement
and
unqualified apology may well not be the effectual, and effective way
to vindicate a Plaintiffs reputation."

Whereas
litigants have through their Counsel usually tended to exaggerate an
amount of damages thereby making a "mental note"
of the
lower limit which they anticipate the endorse on presumption that the
Courts have a reciprocal tendency to lower whatever
amount is
claimed, that is not the thinking that influence the Court's
discretion. Counsel makes it appear as though the expectation
is; "by
how much can the claim be reduced?" This situation is worsened
by this that there is no apparent trend or guidelines
in the amount
of damages ever since. Notwithstanding that it would not be proper
for the Courts to carelessly fall into that trend
without tampering
with or sacrificing the judicial principle that every case is decided
upon its own facts.

9

Lack of
resourcefulness on the part of legal practitioners in guiding the
Courts perhaps worsens the situation.

In the
circumstances I have ordered that damages be in the sum of M25,000.00
and costs of suit at 18.5% interest from date of judgment.

T
Monapathi

Judge

16th
January 2004