IN THE HIGH COURT OF LESOTHO
In the matter between:
NABOTHE COWSON SEIPOBI PLAINTIFF
MO-AFRIKA 1st DEFENDANT
THE EDITOR, MO-AFRIKA 2nd DEFENDANT
MANTHABISENG MOQHOLO 3rd DEFENDANT
Delivered by the Hon. Mr Justice T. Nomngcongo on the 3rd of September, 2003
This is a ruling on an application for absolution from the instance after the close of the plaintiff's case in action for defamation. The defamation complained of appears in an article published in the Mo-Afrika newspaper (lst defendant herein) and its editor (2nd defendant).
Publication of the words complained of is not denied and therefore one of the essential elements of the delict is not in dispute. The 1st and 2nd defendants argue
that the statements are true and that either they are justified or are a fair comment. It is not clear in this regard what the exact plea is, but for the purpose of this ruling this does not seem to me to be important. Mr Khauoe further argued that no wrongfulness has been proved at all.
The article in question is headlined "Mohoebi o belaelloa ka peto" (Businessman is suspected of rape". In the course of the article certain statements are complained of as constituting not mere reporting but apparently statements of fact. I refer to two in particular - "After being raped the girl went to the police" - "The doctor has confirmed that, that girl has been raped". These statements read on their own after a purported mere reporting would seem to postulate what they contain as a fact. Now this is hotly denied by the plaintiff who says the words constitute a defamation of his character.
Now the test in a case like the present one is whether
"at the close of the case for the plaintiff there is a prima facie case against the defendant.....; in other words, was there such evidence before the court upon which a reasonable man might, not should give judgment against ....[the defendant.]" Gascoyne v Paul and Hunter 1917 TPD 170.
This case has been followed religiously ever since.
Now it has been said further that" The court must consider the words
not as astute lawyer or super critical reader, but as an ordinary newspaper reader would read them." Per Mcewan J. in HRH King Zwelithini of Kwazulu V.Mervis quoting with approval Wessels J.A. in Johnson v and Daily Mails 1928 AD 190.
Now to postulate as a fact, which apparently is not supported by evidence, that a doctor has confirmed as a fact that rape has been committed is to instil in the mind of an ordinary reader that what he reads is now not a mere report but actually what has happened.
Now Mr Khauoe has urged that court must put the words in their context. I could not agree with him more, were the application not one for absolution from the instance when one carefully analyzes and goes into the merits of the case with possibly the version of the defendant at hand. But this is no such case. It is a case whether a reasonable man might find not ought to find for the plaintiff. This is such a case and therefore there is prima facie case against the defendant. Perhaps the defendant may be minded to put the apparently offending words in their proper context, but for now the plaintiff has discharged the onus that rested on him.
To impute the commission of a criminal offence and particularly one such as
rape would prima facie, in my view per se constitute defamation on which a reasonable man might find for plaintiff
Application for absolution from the instance is accordingly dismissed with costs against first and second respondents.
For Plaintiff: Mr Khauoe
For Defendant: Mr Mohau