CIV/T/273/86

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

'MAMAHELE
RADEBE Plaintiff

V

'MAKHAPHA
MOLOINYANE Defendant

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M. Lehohla on the 2nd day of November.
1987.

Plaintiff
sues defendant for damages in the amount of M15,000, costs of suit
and further or alternative relief.

The cause
of action arises from oral publication of certain wrongful and
malicious statements allegedly uttered against plaintiff
by
defendant. These are :

"You say my husband has stolen the windscreen of a government
vehicle. You have eaten your husband so that you can go up and
down.
You have built your house through the use of the vagina and the anus.
You have also got employment through the use of the
vagina and the
anus. You have taken away my site fraudulently with your dead
husband."

Defendant
in her plea denies ever uttering defamatory words against plaintiff.
She further denies uttering words which made plaintiff
suffer in her
good name and reputation. She denies also that plaintiff suffered
damages in the amount of M15,000 which as alleged,
despite demand by
plaintiff, the defendant refuses or neglects to pay.

In all
the above instances denied by her defendant puts plaintiff to proof
thereof.

2

Plaintiff
and defendant are neighbours. Their respective sites are separated by
a security wire netting four feet high topped by
two strands of
barbed wire about an additional foot high. This fence belongs to
plaintiff. The distance between the fence and the
western side of
defendant's house was estimated at between one and half to two feet.
This fence is about four paces from the eastern
side of plaintiff's
house.

On 15th
February 1986 at about 10.30 a.m. plaintiff arrived at her place from
town in her car. Her children gave her a report about
defendant.
Plaintiff saw defendant approach her and stand at a point opposite
her on the other side of the fence and heard her
say to her "you
go about saying my husband has stolen a windscreen from a government
vehicle. Is it because you have taken
my site fraudulently with your
dead husband." Then defendant started hurling a lot of abuse at
plaintiff including the defamatory
words appearing in the summons.
Plaintiff denies that she ever said defendant's husband had stolen
the windscreen of the government
vehicle. She further testified that
defendant said her in-laws said she had killed and eaten her husband.
In response to this allegation
purported to have been made by her
in-laws plaintiff explained that her inlaws know how her husband had
died. He died in a motor
accident. At the time the accident occurred
at Ha 'Mantsebo plaintiff was at the University a very far away place
from the scene
of the accident. For this reason plaintiff denied that
her in-laws could have made the allegation ascribed to them by
defendant
for they could not have had any reason to implicate
plaintiff thus.

Plaintiff
stated that she has never sold her sexual favours for money. To her
understanding the building of her house through use
of the anus meant

3

that she
is not a human being but a prostitute. She pointed out that the house
was built before her husband's death.

Plaintiff
holds a degree of B. Com. from the National University of Lesotho.
She is currently undergoing training as philatelic
manageress in the
Lesotho Philatelic Bureau. This deals with selling Lesotho stamps to
other countries as well as issuing commemorative
stamps and souvenir
sheets. She denies that she obtained this job by means of
prostituting herself. She further testified that
her husband never
obtained the site fraudulently because he had a lease as proof of
good title to the site. Furthermore plaintiff
has been living ad
neighbours with defendant's father-in-law since February 1978.
Defendant only came to live there around 1984,
Although the
defendant's father-in-law left the place on a date forgotten by
plaintiff he is still alive but at no time did he
complain that the
site was obtained fraudulently by plaintiff or her husband before the
letter's death.

Plaintiff
testified that when the abusive words were being uttered by defendant
their respective children were present including
villagers,
passers-by and people who rent dwellings near by. As a result of
these utterances plaintiff's neighbours said what had
been said about
her lowered her. She said however that she and her neighbours still
regarded one another in a normal manner except
those of defendant's
household.

Plaintiff
was subjected to a somewhat lengthy cross-examination during the
course of which she repeated in greater detail what she
had stated in
her evidence in chief. In reply to the question put to her : "Do
I understand you correctly to say you claim
M15,000 because defendant
said you ate your husband -?" she said "Not only in respect
of that but also in respect of
her statement that I have obtained the
site fraudulently and built the house from proceeds obtained from
sale of my private parts."

4

An
attempt was also made by defendant's attorney to bring home to
plaintiff that defendant was merely reporting to plaintiff what
her
in-laws are said to have said about plaintiff. However plaintiff
indicated that from the mood that defendant manifested when
making
that report taken along with the fact that her in-laws would have no
reason for making that statement because of its falsity,
defendant
appeared to have either originated it or associated herself with it.

Plaintiff
also indicated that apart from the fact that her neighbours told her
that what was said about her degraded her nothing
in their attitude
towards her showed that they despised her as a result of the
defamatory words. She however at a later stage indicated
that
immediately after the incident they regarded her as a prostitute but
only after some time did their relations come back to
normality. She
didn't indicate what they did though to show that they regarded her
as a prostitute. For some obscure reasons she
appeared reluctant to
say who her neighbours at Setakaneng were and what takes place in
that place. The place situated only 20
paces away from plaintiff's
house is itself a run down poor looking, squalid and depressing
neighbourhood consisting of partly
roofless walls and partly ruined
flats built of raw and dilapidated bricks: a place which no gentle
folk would be enthusiastic
to be associated with or to dwell in.
Indeed plaintiff after much pressure to say who her neighbours in
that place are said one
Sello a blind-man is a dweller at Setakaneng.
Having initially said she knew nobody from that place she later said
she knew Sello
because he usually comes to draw water from the tap in
her yard. It was only one of plaintiff's witnesses who was forthright
about
what takes place in that place, namely that beer is sold there
and further that loud music is played there as well especially on

week-ends.

I was
somehow astounded that despite her high level of education plaintiff
was not readily able to make fair estimations of distances
between
her house and places adjacent to it.

5

She was
asked in cross-examination "How far does 'Madlamini live from
you -? I don't know how many kilometres". The Court
intervened
"Is it so far away as to warrant calculation in kilometres -?
No. It is close. Why make reference to kilometres
then -? I heard
them being mentioned." Defence Counsel correctly put to her:
"Nobody made reference to kilometres in
this Court. You are the
only one -? I don't know distances hence I refer to kilometres. Can
you then give an estimation -? It is
50 metres."

On this
aspect of the matter it may well be that P.W.3 Mamoholi Maholl's
contention is accurate in that when taxed about the mind
hoggling
disparity between her estimation of the distance given in Court and
her reference to the same distance at the inspection
of the place she
said "Basotho women are not able to measure distances." In
my experience however it is doubtful whether
Basotho men do fare any
better in this regard.

It
appears that when plaintiff arrived from town P.W.2 'Madlamini had
temporarily suspended her washing at the tap in her yard,
and gone
into her house from where she was attracted by defendant's voice
saying "Yes your house is the devil's place,"
P.W.2 asked
defendant what the matter was whereupon defendant replied that "this
woman says my husband has stolen the government
vehicle's windscreen.
This woman whose shoulders are hunched like testicles of an old man."

P.W.2's
evidence corroborates that of P.W.1 not only in this regard but also
in many material respects constituting the basis of
this action. I
need not repeat them here,

She
further corroborates plaintiff's version that plaintiff hearing that
her late husband's death was referred to in derogatory
terms by
defendant she pleaded with defendant not to deride her about the sad
bereavement for defendant would not be pleased if
she be derided
should the same fate befall her own husband.

6

There and
then the defendant's husband was heard to say to plaintiff "you
should not involve me in women's affairs or else
I'll twist your neck
until you excrete."

P.W.2
denied that P.W.1 at any stage said defendant's features are like her
front passage. She also denied that plaintiff swore
at defendant by
the latter's mother's private parts. She denied that plaintiff said
defendant is a vagabond who went to Cape Town
where she got
impregnated by Coloured men as a result of which she produced
coloured children. She also denied that plaintiff said
defendant was
destined to slave for Roman Catholics till the crack of doom.

In all
these respects P.W.3 is supported not only by the plaintiff but also
by P.W.2 'Mamoholi whose house is as correctly pointed
out by P.W.1
some 50 yards away from plaintiff's house.

P.W.2
testified that when she came out of her house she saw the parties
speaking to each other. When she came nearer to them she
heard.
plaintiff inquire of defendant "Why do you say mine is the
devil's place in reply to which defendant said "it
is in fact
the devil's place and hellish. How do you account for your statement
that my husband has stolen the windscreen of a
government vehicle? Is
it because you have fraudulently taken our site, you and your dead
husband. You will only afford to point
at it with your finger like
your dead husband is doing from the grave."

Thereafter there was reference to the unwholesome means through which
plaintiff obtained employment and built her house.

It was
when plaintiff mentioned that defendant's husband might suffer the
same fate as plaintiff's husband and warned that defendant
would not
be pleased should anybody deride her on her bereavement that Lesoli
threatened to twist plaintiff's neck with unsavoury
consequences and
that PW.3 speedily asked PW2 to take

7

plaintiff
to her house. P.W.2 complied.

Although
P.W.1 earlier had said after the quarrel was over she and a 5½year
old son got into the car to report at the chief's
place she later in
her evidence said she proceeded to the chief's place only after she
had been escorted into her house by P.W.2,

It is not
denied though that she did go to the chief's place to report.

There was
also evidence that a complaint about defendant's swear words was
lodged with the police and a criminal charge was laid
against her at
Matala Local Court but that because counsel for defendant had no
audience there the case was transferred to a Subordinate
Court.

Despite
the tenor of her evidence that it was plaintiff who swore at her
defendant did none of the basic things that she should
have done if
her story is to be believed. She never complained to the chief or to
the police to take proceedings against plaintiff
who had allegedly
wronged her or committed a crime against her. In the proceedings
presently before this Court she has not counter
claimed. This makes
her story totally suspect.

In her
evidence she revealed new matters which should have been put to the
plaintiff but were not. By this attitude she placed her
counsel in a
rather uncomfortable position. The rest of her story was briefly a
charge against her counsel's incompetence. I am
not prepared however
to conceal my disagreement with the slurs cast by defendant on Mr.
Khauoe's competence.

Apart
from asserting as correct the version put to plaintiff and her
witnesses the defamatory utterances levelled against defendant
by
plaintiff, defendant and her witnesses brought a litany of new abuse
and said it was hurled at her and at her husband by plaintiff.

8

Defendant
said among other things that plaintiff said that she is a child
conceived of urine mixed with pus. The sought of mixture
referred to
here may be what is scientifically termed pyuria. Defendant's witness
D.W.2 'Majohannes Ratiea repeated in the main
what abuse is alleged
to have been hurled at defendant by plaintiff and went further to
include fresh brands of swear words such
as that defendant was
referred to as child of plastic penis and Sconfana urine in response
to which she alleges defendant only
said "you too" or "so
you are". Apparently incensed by defendant's failure to live up
to plaintiff's , proficiency
in the use of foul language D.W.2 says
plaintiff made a mock mimicry of the phrase "you too."

Mr.
Khauoe conceded that this case turns on credibility and also stated
that the position in law as set out in Mr. Maqutu's heads
of
arguments 10 accurate on the nature of delict of defamation. I need
therefore not repeat it in detail.

I agree
that defamation is a species of a claim against the violation of a
person's privacy. The action for defamation is directed
against the
impairment of a plaintiff's dignitas. It is an essential element in
defamation that the hurtful words were said with
malice against the
person, dignity or reputation of another. See Maisel vs Van Nacren
1960(4) SA at 843.

In Young
vs Kennedy 1940 A.D. at 277-8 Tindall J.A. says :

"As the court cannot look into the mind of the speaker, it
starts with the principle that a person is presumed to intend the

natural consequences of his acts and, therefore, that a person who
uses defamatory language of another is presumed to injure."

As stated
earlier it was contended for defendant that the words to the effect
that plaintiff's in-laws said she had killed and eaten
her husband
was a report to plaintiff. The agency of the report was not
unequivocally revealed as the defendant. But the context

9

in which
these words are alleged to have been said cannot be ignored. It would
be idle to disregard the perspective constituting
the participants in
the encounter. If the defendant conveyed these particular words as a
mere conduit, it would be expected that
she would summon plaintiff's
in-laws to support her on this aspect of the matter against
plaintiff. She did not. Yet it behoved
her to give local colour to
her version. The court should have been told in what circumstances
she felt obliged to make this utterance
if at all she did. But she
left this hanging in the air. Having failed in this regard it is not
difficult, taking the surrounding
circumstances of the case into
account that, she uttered the other defamatory statements against the
plaintiff,

I
consequently believe the plaintiff's version and disbelieve that of
the defendant.

It is
clear from the evidence that the defamation was heard by all sorts of
people i.e. the immediate neighbours of the plaintiff
who seem to be
elderly ladies who shun immorality and therefore who can correctly be
regarded as self-respecting citizens of good
character, the children
of tender years who must have recoiled with shock and disbelief to
hear the abuse including the Setakaneng
dwellers who may not
necessarily have reacted with any form of interest in the matter save
that they might have felt that plaintiff
was not as good as she held
herself to be in relation to themselves. What is uppermost in my mind
however is that the words complained
of were defamatory. There was no
innuendo in them. It is highly defamatory to say that another person
is dishonest for dishonesty
and criminality are closely related. It
is equally defamatory to say that a lady of plaintiff's status and
education is a prostitute
who sought and obtained employment and also
managed to build her house through prestitution and sodomy.

Much as
it is difficult to measure in monetary terms the degree of
plaintiff's hurt, regard being had to the fact that the type
of
neighbourhood in

10

which
plaintiff was defamed does not consist of the class of persons to
which she belongs, I make an order that defendant is liable
to
plaintiff in the sum of M3,5OO plus costs.

ACTING
JUDGE.

2nd
November, 1987.

For
Plaintiff : Mr. Maqutu

For
Defendant : Mr. Khauoe.