IN THE HIGH COURT OF LESOTHO
In the matter between:
Dr 'MAKOALI MAKOTOKO Plaintiff
Dr NYAMEKYE GYASI AGYEI Defendant
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 8th February.
Civil summons was issued in this case on the 12th April, 2006. On the 12th December the same year the parties were granted leave to approach the office of the Registrar for a date of hearing. It was allocated the 5th of September 2007 but it was on that day crowded by a criminal trial, and postponed to 7th and 8th February, 2008.
The matter was placed before me on the 7 February 2008. Before the matter proceeded I called both Counsel in chambers to make them aware that the Plaintiff in this case was once my Physician at Medi Clinic in Bloemfontein. They both showed that they had no problem with me proceeding with the case nonetheless.
The Plaintiff who described herself as a divorcee and Medical doctor of Hlotse in the district of Leribe, presently employed as the Head of Faculty of Medicine Universitas Bloemfontein in the Republic of South Africa. The Defendant also a Medical Doctor, presently practising and carrying on business at Maputsoe in the district of Leribe.
The Plaintiff sued the Defendant for payment of M500,000.00 (five hundred thousand) as damages for defamation and interest at the rate of 18.5% per annum a tempore morae with costs. It was the Plaintiffs case that the Defendant had unlawfully, wrongfully and with intent to defame her, published an article or story in an international website in the internet about and concerning the Plaintiff.
In the publication aforesaid, Plaintiff has set out the following allegations amongst others, about and concerning her:-
"That when she was looking for someone to take over her Practice, while she went abroad to further her studies and for reasons only known to her, she preferred a non-citizen. Perhaps someone she could easily manoeuvre. She had high political connections, she was closely connected to the King Moshoeshoe II and her mother the then Minister of Interior. Dr Makotoko's mother, was growing jealous and bitter by the day, so she kept on shifting the goal posts and the level of the playing field such that life was becoming uncomfortable. To make things worse, when Dr Makotoko came herself, she could not contain her jealousy. She immediately on our first meeting decided to raise the goodwill fee from M1,000.00 to M2,000.00, and that rent was going to be decided by her mother at three (3) months intervals whether it needed increase or not. As I was busy going up and down trying to shape my own future and destiny, the Makotoko's were equally busy doing their best to let everything come to naught. They were frantically using all their political contacts to get me out of Lesotho. The King Moshoeshoe IT was caught in the struggle. The then Director of Health Services, a Medical Officer himself, Dr Moji, took upon himself to fight the course of the Makotoko's. Most people saw his efforts as based on sheer jealousy and waiting to play for his friend Dr Makotoko........................"
It was the Plaintiffs case that the publication had been and continued to be read by thousands of people who held her in high esteem and who have understood and continued to understand same to mean inter alia that, Plaintiff was unpatriotic, discriminatory, corrupt, debased, dishonest and immoral. That she favoured foreigners against her own people, a person who discriminated and who was manipulative, a person who was grossly greedy and unprofessional, who unjustly enriched herself at the expense of others, who corruptly used her political connections with persons in authority for her own financial gains and to the detriment of others, an unscrupulous person with perverse and degenerated understanding of moral values.
She said the publication was and continued to be read by thousands of people in Lesotho, the Republic of South Africa and Africa as a whole, Asia, Europe and the United States of America.
The Plaintiffs counsel had called in the Plaintiff to give her evidence. The evidence revealed how the Plaintiff came to know about the Defendant. The Plaintiff, a Senior Lecture at the School of Medicine at the University of Free State in Bloemfontein and also a Principal Specialist in the Department of Cardiology at Universitas in Bloemfontein.
She has her permanent home in Leribe and her father Dr Seth Makotoko was also a medical doctor. After qualifying as a doctor, she practiced at her late father's surgery in Leribe. She later had the urge to further her studies to become a specialist. She then had to sell her practice as she felt that she could no longer come and practice in Lesotho once she was a specialist.
The Defendant was introduced to her as a potential buyer by her accountants who happened to come from Ghana as the Defendant. They negotiated their deal and came to its final conclusion. She then left for her studies. She came back as the first mosotho Cardiologist. She also told the Court that she was the first black woman Cardiologist in the whole of South Africa, thus suggesting a high academic achievement.
The Plaintiffs evidence revealed that the publication subject matter in this case came from the internet, from a website of a College of Ghana called Prempeh College. She had explained to the Court about this modern technology of dealing with a Computer, feeding and accessing information from the internet. The website was www.google.com. She had down loaded the information from that website and produced a document which she handed in as an exhibit. It was accordingly marked as an exhibit.
She went further in her evidence to show that once information is entered in a website from anywhere, it becomes accessible to everybody in the world. It can be accessed by going to some two known search sites, www.google.com and www.yahoo.com. Once a person enters anyone of those search, he is open to the whole world.
In order for her to demonstrate how widely the information about her must have circulated, she mentioned that the usage of the internet lately has become so common that even at Primary and High Schools children are exposed to the Information Technology (IT) as one of their subject. Computer Literacy has become a must rather than an option. She said for professionals the use of a computer is universal.
After the Plaintiff had given her evidence the matter was stood down to the following day as the time was up. But because before the matter was stood down, Counsel for the Defendant had objected to the handing in of the document downloaded from the internet, I had given both sides an assignment to go and make a research on the admissibility or otherwise of such documents from the internet.
When we next resumed the next day, Counsel for the Plaintiff showed that he was ready with the authorities but Counsel for the Defendant intimated that they wanted to see me in chambers before we could proceed.
As we were in chambers, Defendant's Counsel with his head lowered, was asking me to recuse myself from the case. I had thought he was going to come up with reasons not known to us as to why I had to recuse myself at that stage. His reason was that because the Plaintiff was once my Physician there was some likelihood of bias. There was no other reason.
I must mention at this stage that when I informed both Counsel of my association with the Plaintiff, the Defendant did not ask that he be allowed time to go and consult his client, not even after he had met his client before we commenced the proceedings. We proceeded with the case without any interruptions.
The Application for recusal was strongly opposed by the Plaintiffs Counsel showing that the Court had been fair to them by mero motu informing them of the relations before the case commenced. The Application only came after the Plaintiff had led evidence and was about to be cross examined.
It would also be worth mentioning at this stage that, that information from the internet alleged to be defamatory had mentioned the Plaintiff by name and her mother, the King and other people.
Before the Court could give a ruling on the Application for recusal, Counsel on both sides asked for some ten minutes break for privately discussing the matter. When they came back after 30 minutes or so, they did not allow me anymore time to give my ruling on the Application for recusal which Application was made from the bar.
Counsel for the Plaintiff after the break showed that they had reached a settlement which they wished to be made an order of the Court. The terms of the settlement between the parties and their Counsel were as follows:-
That the Defendant shall pay to the Plaintiff a sum of M100,000.00 damages in full settlement of the matter.
That the Defendant pays a sum of M20,000.00 on or before the 1st March, 2008 and that the balance be paid by way of sixteen instalments of M5,000.00 each payable with effect
from the 1st April 2008, and thereafter on the 1st of every month.
Further that, this balance be paid by way of sixteen post dated cheques all of which are to be delivered to the Plaintiffs counsel together with the M205000.00 referred to in 2 above.
The Defendant shall publish in the Prempeh College Website a retraction and apology to the Plaintiff in the form and text to be agreed to by the parties within seven days hereof.
That the agreed text of retraction and apology shall be published at the instance of the Defendant within fourteen days of such an agreement.
The amount to be without interest.
That each party bears its own costs.
That the agreement be made an order of this Court.
The agreement between both parties was thus made an order of this Court.
For Plaintiff: Mr Phafane
For Defendant: Mr Snyman