Khauoe v Mokotso (CIV/T/166/2002 )

Case No: 
CIV/T/166/2002
Media Neutral Citation: 
[2003] LSHC 101
Judgment Date: 
11 September, 2003

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CIV/T/166/2002

IN THE HIGH COURT OF LESOTHO


In the Matter Between:


KHAUOE THABANG KHAUOE Plaintiff

And

MONAHENG VICTOR MOKOTSO Defendant


RULING ON EXCEPTION


Delivered by the Hon. Mrs Justice A. M. Hlajoane on 11th September, 2003.


The Plaintiff in this case instituted a defamation action against the Defendant. Plaintiff claimed damages for defamation. The defendant having entered his appearance to defend, had also requested for further particulars which were duly supplied. After the Defendant had been requested to file his plea he delivered a notice of exception.


Briefly the facts of this case as contained in Plaintiffs declaration are that: The Defendant on or about the 24th August, 2001 whilst at his rented premises popularly referred to as White House, situated at Mafeteng Urban Area, maliciously


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spoke and published the following false words of and concerning the Plaintiff to

Advocate Z. Mda:


"He (meaning the Plaintiff) is corrupt and what he is interested in is nothing but client's monies. In fact all lawyers are like that. I personally know six of them who behave likewise."


It is the Plaintiffs case that those words were intended by the Defendant and were understood by the said Advocate Z. Mda to mean that the Plaintiff is a dishonest person who has illicitly enriched himself out of clients's funds or out of some illicit means, and as such a person with perverse and degenerate misunderstanding of moral values and clearly a person not fit to be a lawyer. The Plaintiff feels that by reason of the said words, he has been injured in his good name and reputation and has sustained damages in the amount of M100,000.00.


The allegations complained of are contained in paragraph 4 of the Plaintiff's declaration. The Defendant's exception is based on that paragraph 4 of the Plaintiff's declaration and further amplified by further particulars, in that it is vague and embarrassing and discloses no cause of action. Defendant is saying this because according to him it is not clear whether the Plaintiff has based his claim on words concerning him (Plaintiff) personally or concerning a class or group of certain members of the legal fraternity of which he is a member or both. The exception goes further to request the Plaintiff to specify whether he is suing in his personal capacity or on behalf of a class of lawyers.

Without necessarily going into the merit of this case, I will just extract from the Defendant's request for further particulars and the response thereto by the Plaintiff.


Defendant: "under what circumstances were the words complained of uttered?"


Plaintiff: "Defendant was informing Advocate Mda that Plaintiff had obtained an interdict against Defendant on behalf of the latter's wife restraining him from assaulting his said wife and other reliefs."


Defendant: "Is it Plaintiff's claim that the defamatory words complained of were published of and concerning him personally or they were published of and concerning a class or group of certain members of the legal fraternity of which he is a member or both?"


Plaintiff: "On or about the 24th August, 2001 at Defendant's rented premises popularly referred to as White House situated at Mafeteng Urban Area in the district of Mafeteng, the Defendant maliciously spoke and published the following false words of and concerning the Plaintiff to Advocate Zwelakhe Mda."


The exception is that Plaintiff's declaration is vague and embarrassing and that it discloses no cause of action. In drawing a distinction between an exception and an application to strike out, Innes JA in the case of Salzmann v Holmes 1914 AD 152, had this to say that, "An exception goes to the root of the entire claim or defence, whereas striking out only affects a portion of a defence or claim."


In order to clarify his point the Defendant is saying that it is not clear from Plaintiff's claim whether he considers the attack to be directed personally on himself


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or a class or group of certain members of the legal fraternity. Also whether he is suing on his personal capacity or on behalf of a class of lawyers.


From the reading of the words complained of the Plaintiff specifically showed that the words were published concerning the Plaintiff but spoken to Advocate Z. Mda. The mention of other lawyers only came by the way as a point of emphasis. The attack clearly was directed at the Plaintiff and as such the Plaintiff is suing in his personal capacity not for any class of people or lawyers. Even the power of Attorney is clearly indicative of the point that the Plaintiff is suing in his personal capacity.


Likewise, even in a plea where the objection goes to the root of the whole plea the proper route would be to go by way of an exception. Ferreira Deep Ltd vs Olver 1903 (1) TS 86.


For the reasons shown above the Defendant's exception is misconceived inasmuch as the Plaintiff has clearly shown what his cause of action is and that he is suing in his personal capacity. The exception thus being bad in law is dismissed with costs.


A.M. HLAJOANE

JUDGE


For Plaintiff: Mr Phafane

For Defendant: Mr Fosa