CIV/T/93/96
IN THE HIGH COURT OF LESOTHO
In the matter between:
EPHRAIM LEFA LEPHOLE PLAINTIFF
AND
THE EDITOR - MOHLANKA NEWSPAPER 1st DEFENDANT
BASOTHO NATIONAL PARTY 2nd DEFENDANT
RULING AT THE END OF PLAINTIFF'S CASE
Delivered by the Honourable Mr. Justice WCM Maqutu on the 16th June, 2004
On the 29th April 2004 at the end of plaintiffs case defendants applied for absolution from the instance on the grounds that plaintiff had not made a prima facie case. If plaintiff has not made a prima facie case then the case may be dismissed if a cause of action has not been disclosed.
HISTORY
This is an old case. It is old because summons were issued in 1996 but evidence was heard for the first time in a contested trial on the 28th April 2004. Plaintiff had previously taken a default judgment because the defendants took no action although they had been served with the summons on the 5th March 1996. Default judgment had been taken on the 22nd April 1996. The process of rescinding judgment unfortunately took a long time.
Application for a rescission of the default judgment was filed of record on the 15th May 1996. This application was opposed. By the 30th August 1996 all opposing papers and replying papers had been filed. That being the case, the hearing of the application for rescission of judgment should have been by September 1996. The first attempt to have the matter heard was on 24th November 1997.
The rescission of judgment was eventually granted on the 12th November 2001 after a delay of four years. By then there had been political disturbances as a result of which the civil registry of the old High Court building and the file of this case had been burnt together with the original of the Newspaper publication which is the subject of this action for defamation. A new file had had to be made from copies of the pleadings.
PLAINTIFF'S CASE
At the opening of the plaintiffs case both parties were agreed that the publication was common cause. The defence did not contest the fact that the original of the Newspaper publication (which could no more be found) had been handed in when plaintiff applied for default judgment. The extract of the Newspaper publication was admitted in paragraph 7 of Defendant's plea.
The consequence of this was that issue was joined on defamation and the damages claimed. It was clear that the proceedings would never be able to go beyond the extract complained of to deal with issues in the context of the
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publication as a whole because the original publication had been destroyed and could not be replaced. Plaintiff told the court he was still looking for that issue of the newspaper.
Nevertheless as issue was not joined on the context in which the words were said, the problems did not seem insurmountable. Neither Plaintiff nor Defendant was to blame for the fire that destroyed original file of the court in the 1998 political disturbances during which a portion of the High Court was burnt.
Plaintiff was the first witness to give evidence. His claim was that First Defendant - the editor of the newspaper Mohlanka had published an article in the Mohlanka Newspaper with the title "Re ka mpa ra sututsana fato-fatong." Second defendant the Basotho National Party was the owner of the newspaper Mohlanka. Consequently the Basotho National party was sued as the proprietor of the Mohlanka while the editor was sued personally as the editor of Mohlanka. Translated the article was headed "We better jostle at the digging place." In fact it turned out that "fato-fato" was a community project for digging dams and roads. We shall refer to it as "fato-fato" in these proceedings.
It was not denied that the article complained of stated (as more fully appears in paragraph 7of Plaintiff s Declaration);
"Those in authority in the constituency have decided to reduce the number of dam projects but money still has to come in full as if it is intended for originally planned projects. This should enable those in authority to divide the balance of the money among themselves.
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The constituency Secretary Mr. Lephole is reported to have chased about one Leeto with a firearm. The reason appears to be that Leeto is alleged to have been employed twice at Boqate and at Berea plateau and his child is also employed in the self-help scheme."
The money of the "fato-fato" scheme loosely translated as "The digging place" is from government. Its source is the Lesotho Highland Development Authority. It has been allocated by government to help the Basotho in the constituencies to help them with their different developmental projects. For example building roads and dams. Plaintiff played a role in the "fato-fato" for his constituency of which he was Secretary.
The "fato-fato" for his constituency was run by the constituency committee, which employed people in the constituency to build dams. It was this committee that paid them for work done. Payments were made by issuing cheques in the names of people who had done the work. Plaintiff (as one of the authorities in the constituency scheme) told the court that he was in a position to know what was going on. The constituency committee had not reduced the planned projects. What had happened was that there was no money left in the bank. The money was drawn from the Lesotho bank by cheques issued in the names of the payees.
The newspaper Mohlanka according to plaintiff in October 1995 was widely read and distributed through out Lesotho and was read by the general public. This fact was admitted in paragraph 2 of the Defendant's plea. Plaintiff further added in his evidence that Mohlanka was also read in the SADC region and overseas. The words published to which reference is made in paragraph 7 referred to the Boqate constituency and to plaintiff.
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Plaintiff told the court that he never chased Leeto with a firearm. In 1995 it appears there were disputes about the "fato-fato" money, it was being alleged there was greed among those who administered the money. In the process people went into constituencies to destroy each other. People from other political parties were defaming members of the Boqate constituency who were serving in the "fato-fato" project.
Plaintiff told the court that a reader of that issue of Mohlanka would conclude that the Boqate constituency authorities were defrauding the government and were so corrupt that they would go to the extent of killing a person. Plaintiff informed the court that he was not dishonest; consequently he had been assigned to various responsibilities. He had been a treasurer of the constituency elected
by the constituency of the Basutoland Congress Party. He was also at the time Chairman of the district development committee. He also practiced medicine as a natural therapeutic practitioner. In the Lesotho Evangelical Church plaintiff was a member of a high church committee known as the Consistory.
Plaintiff told the court that in the face of this October 1995 publication of Mohlanka, he was helpless. Some people accepted the allegations as true. Defendants in paragraph 2 of their plea confirmed that "whatever was contained in the said articles was the truth." Plaintiff added that in some things he was demoted. Where he had been treasurer he was elected no more. Plaintiff suspected that this was because of this publication. In the past he had been loved by his party, but after this he was elected no more.
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The number of his patients, declined all over. For example he would find he had only five patients, since it had been said he chases people with a gun. Plaintiff consequently denied that the false allegations defendants published against him could be in the public interest. Plaintiff concluded by saying he had never chased a person with a gun or shared the money of the constituency with anybody.
The defendants never apologized or retracted what they published to him. He has no knowledge of the retraction of what they said in a Mohlanka publication dated 9 March 1996. It does not heal the wound or remove the defamation. Consequently he asks for damages of Ml 5000.00 and costs of suit.
In cross-examination plaintiff said he was Secretary of the Development Committee, which had three members. He was treasurer of the Basutoland Congress Party. The headline - "We rather jostle with other in the digging place" - "re ka mpa ra sututsana fato-fatong" referred to the Development Committee. Plaintiff concluded it was not referring to the Basutoland Congress Party in the political context but to the Development Committee as such. It was directed to the Fato-fato Committee as such. That committee was politically impartial.
The first paragraph, which is directed at them - says they increased the number of dams and used the money for themselves after reducing the number of dams. Where it refers to him personally is where it alleges he chased Leeto with a firearm. The first portion refers to the three people who administered "fato-fato" collectively.
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They never employed Leeto. If counsel claimed paragraph 1 and 2 of the passage complained of have nothing to do with each other, plaintiff says that is not correct. Plaintiff at first said the second paragraph seems to imply he chased Leeto for money, which belonged to plaintiff personally. Plaintiff retracted this and said the second paragraph does not imply that the money is his he was mistaken. Plaintiff added he no more knows what was written.
In answer to questions plaintiff said he knows Leeto Litlhakanyane. He was a member of Plaintiff s political party. If Leeto were to say a little before the publication in Mohlanka, he (Leeto) was waiting for a bus plaintiff would confirm this. Plaintiff says at that bus stop he had accused Leeto of going about telling people that plaintiff was using nepotism - employing Plaintiff's own relatives and misusing moneys. Plaintiff emphatically denied that he said, "he would show Leeto, Leeto's own mother." (These in Basotho society are abusive words, which are used when someone is about to attack the other person.)
Plaintiff said all he said to Leeto was that Leeto had been spreading lies about him - saying plaintiff was employing relatives such as plaintiffs wife, when in fact only plaintiffs son who had just done Form C had in fact been employed. Plaintiff denied that he had produced a firearm.
Plaintiff denied only two dams were made where four dams had been planned despite the existence of funds for the work. Plaintiff said at Makhoathi's they built five dams, at Jack Mopeli's - Koalabata they built three dams and a road. Above the plateau where Leeto lived - plaintiff said he forgets the number of dams built because LCU took over. Plaintiff told the court he only remembers one dam that was built in the valley.
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Plaintiff said even about this he could not swear that it is so. He added the constituency is a big thing - so is the plateau he is referring to. On top of the plateau one dam was built. Papers would show what was planned, plaintiff does noremember as they handed over to others. At Thuathe on top of the plateau they built two dams. Near Mokhokho's valley they built a dam. Plaintiff denied they only built a road at Koalabata. Three dams were built on the plateau - some were planned and built by LCU. LCU was brought by government not because of misuse of funds but for reasons known by government.
Challenged by Counsel to show the specific words that showed plaintiff himself was bent on defrauding government, plaintiff said such words do not exist. Nevertheless plaintiff said the article in Mohlanka defamed him even if the passage does not coincide with the conclusion arrived at paragraph 9 of Plaintiff s Declaration. Plaintiff added he could not have known that as a result of summons issued on the 29th March 1996, defendants issued a withdrawal in the Mohlanka of 9th March 1996 because Plaintiff did not read Mohlanka regularly. The defamation is that he, the Plaintiff chased Leeto with a firearm.
In re-examination, plaintiff said the paragraphs complained of should be read holistically.
The court drew defence counsel attention to the fact that he had not put to the plaintiff what Leeto said in his affidavit in support of defendants' application for rescission of judgment. The court told counsel that in fairness to the witness defence counsel should have put this to Plaintiff. The court put to the witness that Leeto in his affidavit had challenged plaintiff to
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produce his gun as plaintiff is in the habit of threatening people with his gun, plaintiff replied, he did not produce the gun, instead plaintiff drove off. Plaintiff denied that was true, although Leeto in that affidavit does not say plaintiff produced a gun.
The next witness for the plaintiff was Litelu Kolanyane who gave evidence duly sworn. He said he lives at Piting Ha Tumo. He said he knows plaintiff. He saw an article about plaintiff in the Mohlanka newspaper in October 1995. He lives in a neighbouring village from that of plaintiff. He was a foreman in the construction of dams in the Boqate constituency. Plaintiff was the Secretary in the main working committee. The committee employed people and used cheques to pay them. Pw2 said he was part of the group that completed 12 dams. Two other dams were not yet completed between the end of 1995 and the beginning of 1996.
The two uncompleted dams were on the plateau. They were at Makhokho and Thabakhoali. The powers of plaintiffs committee were taken away by the government because in the country generally there were complainants who claimed some cheques were missing and that there were abuses.
In the Boqate constituency there were no abuses or missing cheques. Pw2 said he read from Mohlanka newspapers that there were abuses in Boqate constituency. It was alleged that those in authority in the Boqate constituency had reduced the number of dams to be built so that they could keep money for themselves. It was said in the newspaper article in Mohlanka plaintiff even chased Leeto with a gun. What was written taught him that
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plaintiff is not a good person, he and others share money meant for the "fato-fato" project and plaintiff chases people with a gun for that money.
Under cross-examination Pw2 said it is wrong that three dams were built of which two were not completed, and that this was a reduction. What was in the newspaper was not true. He has no real knowledge because he was not in the Committee. What was said in the newspaper in Pw2's opinion referred to plaintiffs committee and said they were not honest to the nation. The dams at Makhokho and Lefikeng were not completed.
Those in authority in that Committee were plaintiff, Jack Mopeli and T. Molotsi. They were in-charge of the constituency. The words in paper referred to those in charge of "fato-fato" who included plaintiff. The publication singled out Lephole as misusing the moneys of "fato-fato" in the constituency. Those words associate plaintiff with fraud. Pw 2 told the court that he did not see the retraction by defendants.
Under cross-examination Pw 2 said, the dams were not completed because in the whole country work was removed from constituency development
committees. "Fato-fato" began in 1995 on a month he forgets - it could have been March or April. Around November work that had begun was in October or in November stopped. Pw2 said he was a foreman of work on the Boqate plateau - 12 dams were supposed to be built on it, but only 2 dams were built. The rest could not be completed because government took the powers to built away from the constituency development committee. They had been surveyed and work might have taken eight months. What
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work was done on the dams did not take two months, even the two dams on the plateau was not even completed.
Plaintiff closed his case but promised to find us a copy of the Mohlanka newspaper publication that is the subject of this litigation to replace the one that burnt with the Courts original file when the old court civil registry was burnt. The defendants were directed to find that issue of the Mohlanka newspaper. They promised to do so, but on the 7th June they said they also could not find it. I then gave the parties the date of judgment hoping to do the best I can without it.
WHETHER DEFENDANTS SHOULD ANSWER PLAINTIFF'S CASE
When defendants apply for the dismissal off plaintiff s case, they are saying plaintiff has not adduced evidence that calls for an answer - even assuming every fact were true. In other words the evidence placed before the court does not support the case plaintiff is making and the remedy he seeks. Issues of credibility are not in issue unless the evidence given is of such a hopelessly low quality that no reasonable court properly directed might act on it.
In every case that comes before a court the onus of proof is on the plaintiff except for those facts the defendants admit. Courts do not ordinarily go into issues of credibility at the end of plaintiffs case. At this stage whatever evidence plaintiff has given stands alone and unrebutted. As Burger J said in Hasselbacher Papier Import and Export & Another v M V Stavroula 1987 (1) SA 75 at 79 J:
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"The respondent's failure to reply does not by itself prove the applicant's case; this must obviously be taken into consideration
with the evidence provided by the applicants together with such consideration as to whether the relevant information is or is not
readily available to the applicants or the respondent."
At this stage therefore the court will assume that the facts as given by the plaintiff and his witness are correct. There is the puzzling failure of defendants to furnish the court with a copy of the publication that is the subject of this defamation action. In a country like Lesotho where records are badly kept the court will not assume that the particular issue of Mohlanka is readily available to defendants - now that the plaintiffs copy of the Mohlanka issue was destroyed by fire in the court's file when the court's registry burnt down.
What the court will do is to determine whether in law, assuming all the evidence given is true, the plaintiff has given evidence that could entitle him . to a judgment unless the defendants give evidence to the contrary. To put this in the words of Isaacs in Beck's Theory and Principles in Civil Pleadings 5th Edition at page 125 the defendants' application for dismissal amounts to:
"... a legal objection which admits the correctness of the facts averred but urges that, the truth thereof notwithstanding, those facts do not in law establish any sufficient case either of the claim or defence as the case may be."
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EVALUATION OF MIXED FACTS AND LAW
Mr. Mphalane for the defendants argues that the words complained of do not potray plaintiff either directly or by way innuendo as dishonest and dangerous in the following respects.
(i) He is part of the clique bent on defrauding the government of Lesotho in the Boqate constituency.
(ii) He is a fraudster;
(iii) He is a desperate cheat who will use whatever means, including violence to unlawfully enrich himself.
If Mr. Mphalane is right then plaintiffs claim should be dismissed with costs. He is not even entitled to absolution from the instance.
Absolution from the instance occurs where an important element of the case has not been proved, consequently plaintiff is given an opportunity to remedy that defect, by starting the case afresh should he so desire.
Mr. Mohau for plaintiff argues that the defence of the defendants is that of a combination of truth, fair comment in the public interest. Consequently basing himself on Johnson v Rand Daily Mail 1928 AD 190 the defence has to prove the following:
(i) The statement complained of was a comment.
(ii) The comment was fair.
(iii) The facts commented on were truly stated; and
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(iv) The matter was of public interest.
If I were to approach the matter as Mr. Mohau suggest, then the court would go fully into the merits, when there was no evidence in rebuttal. At this stage the courts approach should be to deal with preliminary the legal issues before I delve deeply into the merits.
I specifically asked the parties to address me the latitude that must be allowed the press or the media to discuss and report on matters of public concern, especially where they concern the government or the state. It is only after I have gone through this aspect that I shall deal with the rights of the individual. I propose to discuss the passage in paragraph 7 of Plaintiff s Declaration, which both parties agree upon as having been published. I will discuss both paragraphs separately and then collectively.
Paragraph 1 of the extract
"Those in authority in the constituency have decided to reduce the number of projects but the money, has still to come in full as if intended for originally planned projects. This should enable those in authority to divide the balance of the money among themselves."
This passage is not general but specifically states that the people responsible for a constituency are reducing projects but not the money allocated. Where uncertainty might have existed as to which constituency was being discussed, the particular constituency is identified in the second paragraph as the one, whose Secretary is Mr. Lephole the plaintiff.
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The second paragraph states that:
"The Constituency Secretary Mr. Lephole is reported to have chased about one Leeto with a fire arm. The reason appears to be that Leeto is alleged to have been employed twice at Boqate and at Berea Plateau and his child is also employed in the self help scheme."
Plaintiff in this paragraph is referred to directly by name. The evidence that has been given so far is that plaintiff did not chase Leeto with a firearm. The rest of the paragraph does not make sense. It is rather far-fetched for plaintiff to chase Leeto for being employed twice at Boqate and Berea Plateau and if his child is employed in the self-help scheme. It would appear from this paragraph that plaintiff is so keen to protect the funds of the self-help scheme that he chases people who cheat by working at two places with their children that he resorts to threatening them with a firearm. This zeal makes plaintiff a figure of scorn. While it is true that to falsely publicize a false story about plaintiff chasing people around with a firearm is defamatory, plaintiff is not claiming damages on this account. It would be therefore legitimate to grant him absolution from the instance, if plaintiff were to claim damages for this aspect of defamation.
The second paragraph read together with the first paragraph however gives it a different overall meaning. It does show plaintiff as using violence to protect the dam making scheme from other people (who like the constituency authorities of whom plaintiff is part) are unlawfully defrauding the project.
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It is right and proper to criticize the "fato-fato" project for incompetence and to make political capital of its failure to finish the dams that were planned for. It is also right and proper to criticize the constituency authorities for financial irregularities
and misuse of funds.
The importance of the press and criticism of those who hold public office has long been recognised. In Mackay v Phillips (1830) 1 Menz 455 at 463 it was said that where such a person had committed misdeed:
"It was right, nay - the duty, of every honest man to publish such misconduct of plaintiff, and through the powerful medium of the press to rouse the public voice..."
In the past there was a tendency to restrict the press requiring absolute accuracy about what the press reports. Consequently Innes CJ said the following:
"But the character of a public man is not only a precious possession to himself, but it is, in a real sense a public asset. If any person knows anything against the character of a public man which makes him unfit for the position, he occupies, such a person is not only justified, but bound, if he occupies a position which casts such a duty upon him, to inform the public of the facts, and substantiate them for the public benefit if necessary." - Botha v Pretoria Printing Works 1906 TS 710 at page 715.
This is the role of the press, but in the past, if the press could not substantiate any fact, it was roasted alive even if the report was reasonable. All that has changed now, the press is allowed a reasonable margin of error provided
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what it says is reasonable and not recklessly untrue. To report the abuses and alleged financial irregularities in the Boqate constituency and Lesotho generally is what the press is expected to do. If it goes beyond this then, if challenged the press has to justify its report.
It is an entirely different thing to say the constituency authorities of whom plaintiff was part were reducing the number of dams to share and pocket the money that would be saved thereby. Defendants could be mistaken about the causes of the failure and legitimately ascribe all sorts of reasons without directly claiming that plaintiff and his constituency committee colleagues were cutting down on work that was being done in order to take the money for themselves. If the press does, then it should justify the reasonableness of its conduct.
Consequently (as Mr. Mphalane has correctly cited) the Australian case of Theophanous v The Herald Weekly Times Limited and Another 1994 182 CLR 104,1 agree that it represents the law of Lesotho where Mason CJ said:
"In the light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable under the law
relating to defamation if the defendant establishes that:
it was unaware of the falsity of the material published;
it did not publish the material recklessly; that is, not caring whether the material was true or false; and
the publication was reasonable in the circumstances.
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A publication that attracts the freedom implied in the Commonwealth constitution can be described as a publication on an occasion of qualified privilege."
It seems to me that the plaintiff has shifted the burden on the defendants to show that, their publication in the Mohlanka newspaper meets the above three requirements.
Government and all people in public life must be criticized robustly in the media. Public affairs must be discussed broadly and extensively. The suitability of people for public office and other political and social responsibilities must be discussed. Criticism even if unfair is quite permissible provided care is taken not to publish defamatory material recklessly or without caring whether it is true or false.
In National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 Hefer JA after extensively discussing the public interest served by the press and the constitutional need to protect it including certain margins of error in publications by the media at page 1215 I concluded:
"In my judgment it is for the defendant to prove all the facts on which he relies to show that the publication was reasonable and that he was not negligent. Proof of reasonableness will usually (if not inevitably) be proof of lack of negligence."
It is clear therefore that plaintiff has made a prima facie case for the defendant to answer.
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Consequently application at the end of plaintiffs case for dismissal of plaintiffs claim or for absolution from the instance is refused with costs.
W.C.M .MAQUTU
JUDGE
For Plaintiff : G.G. Nthethe & Co.
For Defendants : N. Mphalane & Co.
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