C OF A (CIV) NO. 24/2001
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
ROBERT MAMBO Appellant
LIFELILE MATSOSO Respondent
HELD AT MASERU
CORAM Grosskopf, J.A.
The appellant is a senior lecturer in the Department of Language and Social Education ("LASED") at the National University of Lesotho, Roma Campus. The respondent is a lecturer in the same department.
As a result of an altercation between the parties on 6 November 2000, the respondent claimed M50 000 as damages from the appellant in the High Court, made up as follows:
(i) M10 000 for defamation; (ii) M35 000 for insult; and (iii) M 5 000 for assault.
The appellant not only denied liability but claimed M60 000 in reconvention for contumelia.
The matter went to trial before Hlajoane AJ who, after hearing evidence, dismissed the appellant's counterclaim with costs and awarded respondent -
(i) M10 000 as damages for defamation;
(ii) M25 000 as damages for insult;
(iii) Interest on the damages at 18% per annum a tempore morae; and (iv) Costs.
The appellant appeals to this Court against the orders of the court a Quo.
It is common cause that the altercation between the parties took place in the respondent's office at the University and that, apart from the parties themselves, only Mr. Raselimo, also a lecturer at the University, was present.
By way of background it may be noted that a vacancy had occurred in LASED in the field of Development Studies Education.
According to the respondent, it had been agreed at a departmental meeting that the vacancy be advertised but that at a subsequent meeting -not attended by the respondent - it had been decided to offer the vacant post to the appellant. At a third meeting, on 30 October 2000, some members of the department, including the respondent, wanted to know why the first resolution had been rescinded. She then proposed that the department should abide by the earlier decision. The appellant asked why it was necessary to advertise the vacancy as there was already a person in the department who was qualified for the post. To this the respondent replied that the appellant had previously indicated that he was more comfortable teaching history education than development studies education.
The appellant's version of the proceedings at the October meeting differed from that of the respondent. He told the court a quo that there was discussion on two matters that affected him - the question of his promotion and whether he should fill the vacant post in the development studies section, which had apparently been agreed to previously. The respondent, he said, told the meeting that he was not competent or qualified to teach the development studies education course and, moreover, she referred to his curriculum vitae ("cv") in disparaging terms.
The appellant said that he did not know what decisions were taken at the meeting as, in order to take a class, he left before it closed.
There is some considerable dispute as to what was said in the respondent's office on 6 November. On either version, however, the language used by both parties was vulgar and unbecoming mature university lecturers, however great the provocation might have been. On the respondent's version, the appellant, immediately after entering the room, called her a bitch. She retorted that if she was a bitch, he, the appellant was "the son of one." Thereupon Raselimo asked the appellant to leave. Not only did the appellant refuse but he called the respondent a whore. As the appellant moved to the door he said "fuck you, whore" and she countered with "fuck you too." His parting shot was "of course I fucked many women around here, including you."
On the appellant's version, he went to the respondent's office to find out what had been decided at the meeting of 30 October. The respondent asked him why he had left the meeting before it closed. He told her that he had had to leave to teach a class and she contorted her face and replied "we all have to teach but we remained." The appellant became angry at her attitude and mentioned that the respondent had not
yet completed her studies and added that no-one had seen her cv and yet she had torn his apart at the meeting of 30 October.
Then, said the appellant, the respondent called him "shit" to which he replied "you are also full of shit". The respondent then called the appellant a "son of a bitch" and he replied that she was a bitch. As Raselimo was ushering the appellant out of the room, the respondent said to him "your mother must have been fucked sideways (or upside down)."
Raselimo's evidence tended to support that of the respondent to the extent that he testified that the appellant used the word "whore". Significantly he said that as he was trying to get the appellant to leave the office the respondent called the appellant a "mother fucker" and the appellant replied "yes, I fucked many women, including you."
Apart from denying that he used the language alleged by the respondent, the appellant relied upon rixa as a defence. Both counsel were agreed that this defence could not succeed if it were found that the appellant went to the respondent's office with the intention of confronting her about her comments at the third LASED meeting. It is therefore convenient to deal with this matter initially. The appellant testified that his purpose in entering the respondent's office was to find out what
decisions had been taken at the meeting. Under cross-examination, however, he said:
"I wanted to find out, clarification of how the meeting went or maybe the minutes, yes the minutes, because she was the one taking the minutes."
The appellant's assertion that he wanted the minutes appears to have been an afterthought. Moreover it is not clear why the respondent was approached either for the minutes or for clarification. It is clear that the proper person to furnish the information or to supply the minutes was the head of the department and the appellant's explanation that the head was not in his office at that stage was not convincing.
It is also clear that the appellant was hurt and offended by the remarks made by the respondent at the LASED meeting. While there is some uncertainty as to precisely what she said, he undoubtedly considered that her comments reflected adversely on his academic competence and he felt that she had called into question his teaching ability and his experience in the presence of other members of the department. It is not unlikely that he would have held feelings of resentment, if not hostility, towards the appellant. In the light of these facts, the trial court's view, that the appellant went to the respondent's office to seek confrontation and not information, is correct. It is therefore
probable that it was the appellant, and not the respondent, who started the exchanges of verbal abuse. It also follows from this that the respondent's version of what transpired in her office is the more probable one and it is on this basis that the matter should be approached. I add in this regard that the appellant became more angry and annoyed as the altercation progressed. Both the respondent and Raselimo testified that he "wagged" his finger at her, albeit not in a threatening or menacing manner, and both said that Raselimo had to persuade the appellant to leave the office.
What, then, are we to make of the language used by the appellant? Some words, viewed in isolation, might amount to meaningless abuse while others, also viewed out of the context of the quarrel as a whole, are possibly defamatory of the respondent. Assuming, without deciding, that it is permissible to treat some of the words as constituting an injuria and others as being defamatory, it would at least be essential to specify which remarks fell into which category. This is what the trial judge failed to do. On the face of it she appeared to hold that the same words amounted both to an injuria and that they were defamatory. The law of defamation, it hardly needs to be said, seeks to protect a person's reputation, while in the case of an injuria it is the plaintiffs dignity that is protected by law. (See Brenner v Botha 1956 (3) SA 257 (T) at 259-260). On this ground alone it is necessary to interfere with the judgment of the judge a quo.
We are here concerned with an exchange of insults between two people. The quarrel was obviously of very short duration. To take some of the words out of their context and to place them into a particular category would not seem to be the appropriate way of resolving this matter. It may be observed, too, that the words became more vulgar and crude as the quarrel progressed. This presumably occurred as tempers were raised while the argument flared. Out of context, therefore, some of the words might have had a defamatory meaning but in the circumstances of an altercation where pure vulgarity was the order of the day, the law of defamation seems to have no proper place. We also have difficulty in accepting Raselimo's assertion that the respondent's reputation was lowered in his esteem. He should have realized that he was present at a quarrel where the combatants were merely hurling insults at each other in the crudest language they could muster.
In the result we have no difficulty in holding that the respondent, while injured in her dignity and subjected to insulting and degrading words, should not be entitled to claim damages for defamation. She is, however, entitled to damages for injuria having regard to the totality of the insulting language used by the appellant. The defence of rixa fails, for the reason mentioned earlier but in assessing the respondent's
quantum of damages we may properly take into account that she did not succumb to the appellant's vilification with meekness but, on the contrary, that her responses spurred the appellant to use even more robust language.
The trial court's assessment of the damages for injuria was out of all proportion to the severity of the impairment to her dignity. She was obviously upset by the whole traumatic experience, so much so that she immediately reported the incident to the head of the department and telephoned her husband who went to the University to comfort her. She also reported the matter to the registrar of the University. The appellant apologized by letter written to the respondent on 20 November. The apology, although unconditional in its terms, did not contain an unreserved retraction of all the imputations made against the plaintiff. Moreover, at the trial, the appellant tried to distance himself from the apology by suggesting that it was tendered only because he felt sorry for the respondent.
There is no doubt that this Court should interfere with the trial court's assessment of damages for injuria and, taking into account all the relevant factors, a fair award to compensate the respondent would be the sum of Ml 000.00. She is also entitled to interest on the damages at the
legal rate from date of the judgment in the court a quo and to the costs in the trial court. For the rest, her claims should be dismissed. It may be noted in this regard that the claim for assault was not persisted in.
The appellant's counterclaim was correctly dismissed with costs. As he commenced the quarrel and persisted therein, he cannot complain if the respondent replied in kind, provided, of course, that the respondent's replies were not out of proportion to the insults which he had hurled at her. No argument was advanced to suggest that the respondent's verbal retaliation was not proportionate to the appellant's attack. That, in our view, disposes of the counterclaim and the appeal in that regard must fail.
Although the appellant achieved substantial success on appeal in respect of the respondent's claim, he failed to disturb the order of the court a quo in respect of the counterclaim. In the result it would be appropriate to make no order as to the costs of the appeal.
The result is the following.
The order of the court a quo is set aside and is replaced by the following:
"I. Judgment for the plaintiff as follows:
Ml 000 as damages for injuria together with interest thereon from date of judgment to date of payment at the legal rate;
II. The defendant's counterclaim is dismissed with costs."
For the rest the respondent's claims in the court a quo are dismissed.
The appeal succeeds only to the extent set out in para 1 above.
For the rest the appeal is dismissed.
There will be no order as to the costs of appeal.
ACTING JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered on the 11th day of April 2002.
For Appellant: K.E. Mosito
For Respondent: M. Mosae