CIV/T/628/95
IN THE HIGH COURT OF LESOTHO
In the matter between:
'MALEFU FRANCINA LETSIELO PLAINTIFF
AND
ERNEST LETHOLA KHOBETHI 1st DEFENDANT
MINISTRY OF HOME AFFAIRS 2nd DEFENDANT
ATTORNEY-GENERAL 3rd DEFENDANT
JUDGMENT
Delivered by the Honourable Mr. Justice G. N. Mofolo on the the 30th September, 2005
This is a most regrettable case. Judgment was reserved sometime on 11 November, 1999 and it would appear the file was misfiled. There is, in my chambers, a tray for reserved judgments and this case was never on reserved judgments. I do not remember plaintiff counsel coming to inquire about this judgment but distinctly recall plaintiff calling my chambers about her judgment the answer being the file is untraceable.
Recently (to be precise on 23/09/05) the file Landed on my desk it being said it was apparently misfiled. This is a most regrettable omission very much regretted by me for there was no reason whatsoever why judgment was not given timeously except in the hurly-burly and rush of events the file could not be found.
The plaintiff Francina 'Malefu Letsielo issued summons against Ernest Lethola Khobethi and two (2) others claiming:
Damages in the sum of M67,000.00
Interest thereon at the rate of 18% per annum.
Costs of suit and
Further and/or alternative relief.
Defendants entered appearance to defend and pleaded. In terms of plaintiffs declaration plaintiff sued her husband for desertion and maintenance in Vereeniging Magistrate's Court (para. 4.1). Confidential documents were removed from the Ministry of Home Affairs and telecopied to an address in South Africa being:
a letter from 1st defendant dated 24 June, 1995.
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Copies of payslips in favour of Plaintiff the said documents being used in evidence against Plaintiff as a result of which plaintiff lost her case against her husband (para. 4.2)
According to plaintiff 1st defendant removed "both the written letter and the payslips" to South Africa without plaintiff's knowledge or consent (para. 4.3) Plaintiffs has alleged 1st defendant is the custodian of all confidential documents including duplicate payslips pertaining to all staff of the Ministry of Home Affairs, Plaintiff included (4.4).
Plaintiff has also alleged 1st defendant as a Public Servant has taken oath of office and secrecy in terms of Public Service Regulation 105 (para. 4.5) - and 1st defendant is Plaintiffs senior officer and he owes Plaintiff the duty of secrecy.
Defendants in their plea do not deny that a letter was removed from the Ministry of Home Affairs and telecopied to an address in South Africa or that copies of payslips in favour of plaintiff were used against the plaintiff by her husband. Defendants have instead asserted "defendants deny that the document alleged was of a confidential nature with possible exception of the
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payslip." This Court is of the view that defendants acknowledge the fact that a letter of 24 June, 1995 and the said payslips were removed as alleged and telecopied to an address in South Africa. As to whether the plaintiff lost her case as a result thereof, defendants have denied this.
With regard to para. 4.3, defendants have admitted this adding that "it was with full knowledge and request and consent of plaintiff's own husband and request by a Court of law. Paragraph 4.4 above has been admitted by defendants as was para. 4.5; although para. 4.6 is admitted, it is with the rider that "such duty is relative other than absolute."
This Court has understood defendants' case to be that they did not remove the documents in question wrongfully and/or negligently but that it was in good faith without an intention to injure the plaintiff for, afterall, it was in compliance with the dictates of administration of justice. At paragraph 7 of their plea defendants have pleaded:
"The alleged breaking of secrecy is feasible only in relation to the payslip, but even there it is denied that plaintiff suffered any injury-----"
There is judicial dispute whether at this stage of the trial the Court may go into credibility of evidence though speaking for myself I do not think this is the right stage for there is authority for the proposition that "questions of
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credibility should not normally be investigated until the Court has heard all the evidence which both sides have to offer" as was the case in Siko v. Zonsa, 1908 TS 1013 where Solomon J. said that a magistrate should not grant absolution merely because he does not believe the plaintiffs evidence. I do not think that in this case the plaintiff palpably broke down or that what she stated was intended to deceive. I am of the view that plaintiff has established a prima facie case demanding an answer from the defendants particularly because there are certain facts which appear to be within the exclusive knowledge of defendants requiring to be ventilated and clarified.
A problem which this Court faces at present is that at this stage of the trial Courts are chary to grant absolution without hearing a defendant in circumstances in which the plaintiffs case is a clear case requiring an answer. Another problem is that at this stage as I have said the plaintiffs evidence may not be evaluated deserving such treatment only when both the plaintiff and defendant have closed their case. Indeed in Theron v. Behr, 1918 E.P.D. 443 it was stated by Juta J. at p. 451 that "according to the practice in this Court in later years Judges have become very loath to decide upon questions of fact without hearing all the evidence on both sides." It has been said a feature of this application is that the defendant is giving no
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evidence and that if the defendant closed his case without giving evidence an inference could always be drawn against him for failure to give evidence contradicting that of the plaintiff. Fact of the matter is that defendants have adduced no evidence to refute that of the plaintiff, a factor this Court has taken into account in deciding whether or not to grant absolution. It has also been said rules of procedure are made to do justice between parties and that these rules of procedure are not to be used to cause an injustice and as I have said above, since the defence is something peculiarly within the knowledge of defendants and the plaintiff has made out a case to answer, the plaintiff should not be lightly deprived of her remedy without first hearing the defendant for "a defendant who might be afraid to go into the box should not be permitted to shield behind the procedure of absolution from the instance." (see Supreme Service Station v Fox Goodridge (Pty) Ltd, 1971 (4) SA 90 (R.A.D.) at 93).
This Court is loath to decide on question of fact without hearing defendants' evidence and accordingly absolution from the instance is refused and it is ordered that the case go to trial. Costs will be costs in the trial.
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G.N.MOFOLO
JUDGE
For the Plaintiff: Ms. Kotelo
For the Defendants: Mr. Makhethe
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