CIV/T/312/84

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

NGAKA
MAKHALANYANE )

SEKESE
SEKESE ) Plaintiffs

TIMOTHY
NQOSA )

V

P.K.
MEYER )

WATTS
SALEMANE) Defendants

A.T.
MOSAKENG)

E.E.
BROWN )

JUDGMENT

Delivered
by the Honourable Sir Peter Allen, on the 8th day of April, 1987.

The three
plaintiffs brought this action for damages for defamation against the
four defendants. All parties were working for the
same firm of Moshal
Gevisser (or Frasers) in February 1984.

The first
plaintiff testified first before Cotran C.J. on 7 February, 1986 and
he was cross-examined. The hearing was then adjourned
and the then
Chief Justice left the country.

When this
part-heard case came before me for hearing the plaintiffs were
represented by different counsel and I had on record the
former Chief
Justice's notes of the examination and cross-examination of the first
plaintiff.

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However,
at the request of both counsel I agreed to start the trial all over
again and the first plaintiff commenced his testimony
before me. He
did not get very far before counsel for the plaintiffs applied to
amend the pleadings. I gave two rulings as a result
of that and a
subsequent application and the effect was that the proposed
amendments were not allowed, and the plaintiffs' attempt
to withdraw
was also refused.

After
some further testimony by the first plaintiff, in the course of which
I held that my first ruling was being ignored, Mr. Ngakane
for the
plaintiffs decided to close the plaintiffs' case. Mr. Edeling for the
defendants then closed the defendants' case without
calling any
evidence and he applied for dismissal of the plaintiffs' claim with
costs.

The
pleadings, in the declaration, asserted that the first three
defendants on 22 February, 1984, made a defamatory statement alleging

that the three plaintiffs were thieves and that they had stolen goods
belonging to the firm.

The
defendants' counsel had no opportunity to cross-examine the first
plaintiff when he testified this time because of the sudden
closing
of the plaintiff's case. Thus that testimony was of little value.
However, before Cotran C.J on 7 February, 1986, that
same witness

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was
cross-examined thoroughly. The trial judge's record shows on page 5
of the handwritten notes (at the top of the page) the witness
was
asked about what happened at the gate when the alleged accusation was
made. The . witness replied, "I was busy at my section.
I only
noticed that the lorry was sent back to the yard. I did not hear
conversation at the gate."

Then
further down on the same page the witness was asked if the second and
third defendants said anything that he (P.W.1) could
hear. His reply
was: "Kepa and 3rd defendant and I met at Meyer's and Botha's
office on the same day." When it was pointed
out that the
witness had not mentioned this in his evidence-in-chief, he replied,
"Well nothing happened." Whereas before
me this same
witness alleged that in the office at that time the defendants had
accused him of stealing the property. This was
a clear contradiction
and, in view of the witnesses earlier testimony,about which he was
cross,examined, I find it is not credible.

There was
no evidence at all to support the allegation made in para 6.2 of the
further particulars that the statement was made
to 5 named persons
in the presence of members of the public.

Para 5.1
of the plaintiffs' declaration alleges the exact words said to have
been spoken by the first,

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second
and third defendants, but there was no evidence of this at all.

Para 5.2
alleges that the defamatory statement was made to the fourth
defendant but, again, there was no evidence of this.

The three
plaintiffs claimed substantial damages in their summons, M30,000 and
M20,000 and M15,000 respectively but there was no
attempt to prove
that any damage at all was suffered by any of them, let alone the
actual amount of such damage.

Accordingly
I find that the plaintiffs have failed to prove their claims against
the defendants and their whole claim is dismissed
with costs.

P.A.P.J.
ALLEN

JUDGE

8/4/87.

For
Plaintiffs : Mr. Ngakane

For
Defendants : Mr. Edeling Judgment delivered.

P.A.P.J.
ALLEN

JUDGE

8/4/87.