HIGH COURT OF LESOTHO
LEFA LEPHOLE PLAINTIFF
EDITOR - MOHLANKA NEWSPAPER 1st DEFENDANT
NATIONAL PARTY 2nd DEFENDANT
THE END OF PLAINTIFF'S CASE
by the Honourable Mr. Justice WCM Maqutu on the 16th June, 2004
29th April 2004 at the end of plaintiffs case defendants applied for
absolution from the instance on the grounds that plaintiff
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
an old case. It is old because summons were issued in 1996 but
evidence was heard for the first time in a contested trial
28th April 2004. Plaintiff had previously taken a default judgment
because the defendants took no action although they had
with the summons on the 5th March 1996. Default judgment had been
taken on the 22nd April 1996. The process of rescinding
unfortunately took a long time.
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
rescission of judgment was eventually granted on the 12th November
2001 after a delay of four years. By then there had been
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.
opening of the plaintiffs case both parties were agreed that the
publication was common cause. The defence did not contest
that the original of the Newspaper publication (which could no more
be found) had been handed in when plaintiff applied
judgment. The extract of the Newspaper publication was admitted in
paragraph 7 of Defendant's plea.
consequence of this was that issue was joined on defamation and the
damages claimed. It was clear that the proceedings would
able to go beyond the extract complained of to deal with issues in
the context of the
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.
as issue was not joined on the context in which the words were said,
the problems did not seem insurmountable. Neither
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.
was the first witness to give evidence. His claim was that First
Defendant - the editor of the newspaper Mohlanka had
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.
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
it is intended for originally planned projects. This should enable
those in authority to divide the balance of the money
The constituency Secretary Mr. Lephole is reported to have chased
about one Leeto with a firearm. The reason appears to be that
is alleged to have been employed twice at Boqate and at Berea plateau
and his child is also employed in the self-help scheme."
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"
constituency of which he was Secretary.
"fato-fato" for his constituency was run by the
constituency committee, which employed people in the constituency
build dams. It was this committee that paid them for work done.
Payments were made by issuing cheques in the names of people
done the work. Plaintiff (as one of the authorities in the
constituency scheme) told the court that he was in a position
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.
newspaper Mohlanka according to plaintiff in October 1995 was widely
read and distributed through out Lesotho and was read by
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.
told the court that he never chased Leeto with a firearm. In 1995 it
appears there were disputes about the "fato-fato"
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
told the court that a reader of that issue of Mohlanka would conclude
that the Boqate constituency authorities were defrauding
government and were so corrupt that they would go to the extent of
killing a person. Plaintiff informed the court that he was
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
practiced medicine as a natural therapeutic practitioner. In the
Lesotho Evangelical Church plaintiff was a member of a high
committee known as the Consistory.
told the court that in the face of this October 1995 publication of
Mohlanka, he was helpless. Some people accepted the
true. Defendants in paragraph 2 of their plea confirmed that
"whatever was contained in the said articles was
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
number of his patients, declined all over. For example he would find
he had only five patients, since it had been said he chases
with a gun. Plaintiff consequently denied that the false allegations
defendants published against him could be in the public
Plaintiff concluded by saying he had never chased a person with a gun
or shared the money of the constituency with anybody.
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.
cross-examination plaintiff said he was Secretary of the Development
Committee, which had three members. He was treasurer of
Basutoland Congress Party. The headline - "We rather jostle with
other in the digging place" - "re ka mpa ra
fato-fatong" referred to the Development Committee. Plaintiff
concluded it was not referring to the Basutoland Congress
the political context but to the Development Committee as such. It
was directed to the Fato-fato Committee as such. That
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.
never employed Leeto. If counsel claimed paragraph 1 and 2 of the
passage complained of have nothing to do with each other,
says that is not correct. Plaintiff at first said the second
paragraph seems to imply he chased Leeto for money, which
plaintiff personally. Plaintiff retracted this and said the second
paragraph does not imply that the money is his he
Plaintiff added he no more knows what was written.
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
said all he said to Leeto was that Leeto had been spreading lies
about him - saying plaintiff was employing relatives
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.
denied only two dams were made where four dams had been planned
despite the existence of funds for the work. Plaintiff
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.
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.
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.
re-examination, plaintiff said the paragraphs complained of should be
drew defence counsel attention to the fact that he had not put to the
plaintiff what Leeto said in his affidavit in support
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
his gun as plaintiff is in the habit of threatening people with his
gun, plaintiff replied, he did not produce the gun,
drove off. Plaintiff denied that was true, although Leeto in that
affidavit does not say plaintiff produced a
witness for the plaintiff was Litelu Kolanyane who gave evidence duly
sworn. He said he lives at Piting Ha Tumo. He said
plaintiff. He saw an article about plaintiff in the Mohlanka
newspaper in October 1995. He lives in a neighbouring village
that of plaintiff. He was a foreman in the construction of dams in
the Boqate constituency. Plaintiff was the Secretary in
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.
uncompleted dams were on the plateau. They were at Makhokho and
Thabakhoali. The powers of plaintiffs committee were taken
the government because in the country generally there were
complainants who claimed some cheques were missing and that
Boqate constituency there were no abuses or missing cheques. Pw2 said
he read from Mohlanka newspapers that there were abuses
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
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.
cross-examination Pw2 said it is wrong that three dams were built of
which two were not completed, and that this was a reduction.
in the newspaper was not true. He has no real knowledge because he
was not in the Committee. What was said in the newspaper
opinion referred to plaintiffs committee and said they were not
honest to the nation. The dams at Makhokho and Lefikeng
authority in that Committee were plaintiff, Jack Mopeli and T.
Molotsi. They were in-charge of the constituency. The words
referred to those in charge of "fato-fato" who included
plaintiff. The publication singled out Lephole as misusing
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.
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
begun was in October or in November stopped. Pw2 said he was a
foreman of work on the Boqate plateau - 12 dams were supposed
built on it, but only 2 dams were built. The rest could not be
completed because government took the powers to built away
constituency development committee. They had been surveyed and work
might have taken eight months. What
done on the dams did not take two months, even the two dams on the
plateau was not even completed.
closed his case but promised to find us a copy of the Mohlanka
newspaper publication that is the subject of this litigation
replace the one that burnt with the Courts original file when the old
court civil registry was burnt. The defendants were directed
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.
DEFENDANTS SHOULD ANSWER PLAINTIFF'S CASE
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
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.
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:
"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."
stage therefore the court will assume that the facts as given by the
plaintiff and his witness are correct. There is the
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.
court will do is to determine whether in law, assuming all the
evidence given is true, the plaintiff has given evidence
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,
facts do not in law establish any sufficient case either of the claim
or defence as the case may be."
OF MIXED FACTS AND LAW
Mphalane for the defendants argues that the words complained of do
not potray plaintiff either directly or by way innuendo as
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.
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
opportunity to remedy that defect, by starting the case afresh should
he so desire.
for plaintiff argues that the defence of the defendants is that of a
combination of truth, fair comment in the public
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
(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
specifically asked the parties to address me the latitude that must
be allowed the press or the media to discuss and report on
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.
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
passage is not general but specifically states that the people
responsible for a constituency are reducing projects but not
money allocated. Where uncertainty might have existed as to which
constituency was being discussed, the particular constituency
identified in the second paragraph as the one, whose Secretary is Mr.
Lephole the plaintiff.
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
Leeto is alleged to have been employed twice at Boqate and at Berea
Plateau and his child is also employed in the self
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
second paragraph read together with the first paragraph however gives
it a different overall meaning. It does show plaintiff
violence to protect the dam making scheme from other people (who like
the constituency authorities of whom plaintiff is
unlawfully defrauding the project.
right and proper to criticize the "fato-fato" project for
incompetence and to make political capital of its failure
the dams that were planned for. It is also right and proper to
criticize the constituency authorities for financial irregularities
and misuse of funds.
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
press to rouse the public voice..."
past there was a tendency to restrict the press requiring absolute
accuracy about what the press reports. Consequently Innes
CJ said the
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.
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
reasonable. All that has changed now, the press is allowed a
reasonable margin of error provided
says is reasonable and not recklessly untrue. To report the abuses
and alleged financial irregularities in the Boqate constituency
Lesotho generally is what the press is expected to do. If it goes
beyond this then, if challenged the press has to justify
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
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.
(as Mr. Mphalane has correctly cited) the Australian case of
Theophanous v The Herald Weekly Times Limited and Another
CLR 104,1 agree that it represents the law of Lesotho where Mason CJ
"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:
was unaware of the falsity of the material published;
did not publish the material recklessly; that is, not caring whether
the material was true or false; and
publication was reasonable in the circumstances.
publication that attracts the freedom implied in the Commonwealth
constitution can be described as a publication on an occasion
to me that the plaintiff has shifted the burden on the defendants to
show that, their publication in the Mohlanka newspaper
above three requirements.
and all people in public life must be criticized robustly in the
media. Public affairs must be discussed broadly and
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.
National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 Hefer JA
after extensively discussing the public interest served by
and the constitutional need to protect it including certain margins
of error in publications by the media at page 1215
"In my judgment it is for the defendant to prove all the facts
on which he relies to show that the publication was reasonable
that he was not negligent. Proof of reasonableness will usually (if
not inevitably) be proof of lack of negligence."
clear therefore that plaintiff has made a prima facie case for the
defendant to answer.
application at the end of plaintiffs case for dismissal of plaintiffs
claim or for absolution from the instance is
refused with costs.
Plaintiff : G.G. Nthethe & Co.
Defendants : N. Mphalane & Co.
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