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.
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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
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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."
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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.
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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.
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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
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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.
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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
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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
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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.