Machaha v Sekopo and Others (CIV/T/340/2000 )

Case No: 
CIV/T/340/2000
Media Neutral Citation: 
[2004] LSHC 16
Judgment Date: 
16 January, 2004

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CIV/T/340/2000

IN THE HIGH COURT OF LESOTHO


In the matter between:

HLOMPHANG E MACHAHA Plaintiff

And

JOHANNES SEKOPO 1st Defendant

LEFU A. MTHIMKHULU 2nd Defendant

BERENG LEKHANYA 3rd Defendant


For the Plaintiff : Mr Molefi

For the Respondents: : No Appearance


JUDGEMENT


Delivered by the Honourable Mr Justice T Monapathi On the 16th day of January 2004


This action for damages for defamation came by way of summons filed on the 6th October 2000. The summons were served on the Defendants on the 11th October 2000, per return of service of 11th October 2000. After receiving the summons,


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Defendants entered appearance to defend which was filed on the 15 October 2000 and they all filed their pleas subsequent thereto.


A pre-trial conference was later held and minutes thereof filed on the 25th July 2001. Thereafter the matter was set down for the 6th August 2001 on which day it did not proceed due to the absence of all the Defendants and consequential withdrawal by Counsel representing them.


On the 2nd December 2002 the matter was before Ramodibedi J (as he then was) and he removed the matter from the roll for failure to file proper minutes of pre-trial conference in terms of Rule 36 of the High Court Rules 1980. On the 28th October 2003 the matter came before me albeit without the proper pre-trial conference minutes. Counsel sought to proceed by default in terms of Rule 40 of The High Court Rules, Counsel for Defendant being absent.


Plaintiff, a church leader, is described in the declaration as a Moderator in the Full Gospel Church of God which has branches in Lesotho and South Africa. A Moderator is defined in the Concise Oxford Dictionary (10th edition) as:


" a Presbyterian Minister presiding over an ecclesiastical body" In its summons the Plaintiff claimed damages for defamation in the following terms:


  1. M100,000.00 damages for defamation of character.


  1. Interest at the rate of 18% per annum from date of issuance of summons to date of payment.


  1. Costs of suit


  1. Further and/or alternative relief.


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The defamatory statements are said to have been by way of letters whichever written by Defendants to the Principal Chiefs, Police, District Secretaries, and Church Officialdom, sounding in the following words;


"We have realised and seen that you (Plaintiff) are confuser of the church mentioned above: to destroy and damage it: as well as to invite it to involve itself in confusion and bloodshed."


The letters therefore received wide publicity as they were apparently intended to. Alternatively I would conclude that Defendants must have foreseen that this would be the result. The Plaintiff says as a result of these words it was constantly harassed by police on insinuations that he is a murderer and a criminal. Consequently he claimed an amount of M100,000.00 which he says would compensate him for his fair name, fame and reputation. I would judge that the claim was quite inflated.


On the 28th October 2003 the matter proceeded in terms of Rule 41 of The High Court Rules which provides that in a trial, if the Defendant does not turn up on the date set down for hearing the Plaintiff may proceed. Evidence was led through Plaintiff himself. And on the 7 November 2003 I awarded damages to the Plaintiff in the sum of M25,000.00 and here follow my reasons.


The leading authors on defamation law Principles of Delict J M Burchell and The Law of Delict R G Mc Kerron respectively define defamation as follows:


  1. " .........the unlawful, international publication of a defamatory matter referring to the plaintiff which causes his or her reputation to be impaired (p. 152).


  1. A defamatory statement has a tendency to injure the reputation of the person to whom it refers i.e. lower him in the estimation of the right-thinking members of the society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, dislike, or disesteem. Hence a statement may be defamatory although no one believes it to be true."


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These authorities underscore one fundamental element which is this whether the statement would be regarded as defamatory by the right-thinking members of the community from which the person so defamed comes. The question is whether such statement would lower the person's esteem in reference and in estimation by such community. It is important therefore to answer this question by considering first the status of such person. In this case it was not disputed that Plaintiff was a person of above-average profile as he was a Moderator, a position equal to that of a Bishop by untutored estimations. He was therefore a prominent church leader.


The law does recognise that whereas a person would have freedom of speech as enshrined in the Constitution (see article 14 of the Constitution of Lesotho 1993) such right is not without limits. The law thus protects reputation and dignity, and is, in this context only a conciliatory mechanism between a person's right to protection and respect and another's freedom of expression.


In the whole statement it would appear that words which would have a defamatory effect are those insinuating criminality, that is, that Plaintiff is a "murderer and a criminal", In the law of defamation:


".........words which falsely attribute dishonesty per se." per Lehohla J in Sello

v Ramainoane & Ano 1999-2001 284 at 298 F-G.


It would be difficult not to accept that the subject words were indeed written as appears in the exhibited letters before this Court. Furthermore the Court need not investigate if these words were believed as true by the recipients thereof as long as the effect has been to stir up feelings of contempt or hatred.


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The words in issue are said to have been published in the letters as mentioned above. These letters were exhibited before this Court and marked Exhibit "A" and HM "1" respectively. Both these letters were written to the Plaintiff and copied to several chiefs and government offices. There is no doubt that the contents of the letters were consumed by these people who may have prior thereto not exhibited a contemptuous attitude towards the Plaintiff, but instantly changed to that respectful attitude upon reading the material.


The Plaintiff says in his declaration, following the publication of the letters in question, as a result that the police have repeatedly arrested him calling him a criminal or a murderer. Such that as the Plaintiff contends they regarded him with less humility and respect. I now deal with the amount of damages that the Plaintiff claims a recompense it for the loss of esteem caused by the Defendants. Such amount according to the Plaintiff is in the sum of Ml 00,000.00.


It is indeed trite that an award of damages is entirely in the discretion of the Court. See Candy Ratabane Ramainoane & Ano v Moeketsi Sello 1999-2000 which the Court of Appeal confirmed in Moeketsi Sello v Candy Ratabane Ramainoane & Another 131 1999-2001 LLR 284. (Sello v Ramainoane) This is a mammoth task because there is no yardstrick for measuring or determining such an amount. The law of delict has not favoured us with the limits or the range within which such amount can fall. This calls for consideration of the following factors: the social status of the Plaintiff; the economic status of the country; the apparent financial strength of the Plaintiff and or Defendant (for the Court must be careful also not to make an order that could easily be thwarted or that could be impossible to comply


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with), the punitive or corrective nature of the award and other mitigating or aggravating factors. See RG Mc Kerron, The Law of Delict RG McKerron, 7th Edition, at page 115 for an outline of the factors.


Mr Molefi for the Plaintiff has not been very helpful in guiding the Court as to the determination of quantum. Plaintiff has asked for Ml 00,000.00 which at first glance I consider an exhorbitant amount in the circumstances of this case. The only case he puts forth is that of Sello v Ramainoane (supra) in which an amount of M90,000.00 damages was awarded, without any similarities and dissimilarities thereto, such as that the mode of publication in the Sello v Ramainoane (supra) case was a newspaper which is read both in Lesotho and South Africa both by supporters and non-supporters of the defamed political figure involved.


By contrast to Sello v Ramainoane (supra) in the present case publication was merely within church membership and some government officers. The effect could not necessarily be less injurious in my view. The relationship between Plaintiff and other church members is obvious. To the Plaintiff the effect could even be deeply felt as the Defendants are his colleagues and are immediate in terms of power relationship. But Plaintiff did not venture to explain what relations it has with the government officers or rather why was it necessary that the letters were also served on the Government ministries? This factor alone would serve as an aggravating factor. As a matter of fact these were officers were not involved in the church establishment or environs. So can malice be strongly suspected in the Defendants' conduct in that regard.


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The following cases are however very instructive in determining quantum of damages if only not to emphasise the Court's discretion which indeed must be exercised judicially. In the Court of Appeal in the case of Manyeli v Makhele & Another LAC (1980-84)260 after holding that verbal defamations had not been proved the Court awarded damaged in the amount of M8,000.00 for the written defamatory statements against a sum of M10,000.00 claimed in the case of Matsela and Anoter v Sello 1985-89 LAC 246 the Respondent had been referred to as a witch on the separate and distinct occasions. An award of Ml ,500.00 was confirmed by the Court of Appeal although the sum was separated Ml,000.00 for the one defamation and the remainder for the other. This was in 1988 in which same year my brother Lehohla AJ (as he then was) made an award of M2,000.00 in a case of oral defamation to wit, Elias Ntekele v Macheli 1985-90 LLR 359


The Court has had occasion to deal with a defamation case in which the mote of publication was through a newspaper in the case of Ntaote v Attorney General and Another 1991-96, 820. in that case I awarded damages in the sum of M5,000.00 and it was in 1994. In arriving at the amount I was also guided by the principle that the wider the publication the heavier the damages for one's reputation. But to quantity the damage as such would be misleading in a case where even as few as the recipients may be they however hold the livelihood of the defamed person at stake. I have recently awarded damages in the sum of M16,000.00 in a case involving defamation of Principal Chief of Quthing district in Nkuebe v Sempe, CIV/T/66/2002, (unreported) dated 19th November 2003.


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Amongst other factors which influence the Court in determining quantum is the behaviour of the Defendant since the publication of the defamatory words. In this regard J M Burchell (supra) at page 300 has the following to say:


"The conduct of defendant from the time of the defamatory utterance to the time of the judicial assessment of damages is relevant."


In all the cases such conduct is defined as an apology. Where the Defendant utters defamatory words and he does not proffer an apology that is taken as an aggravating factor. That is, it can influence the Court into making an otherwise bigger award. But, because it does not influence the Court in reaching the verdict it may not be justifiable to order upon finding that there was defamation, that, Defendant apologise. Suffice it to say that in the present case the Defendant entered appearance to defend, thereby subverting all prospects of an early apology. J M Burchell remarks at page 331 that:


"Because of difficulties involved in litigation designed primarily to recover damages, a prompt retraction of a statement and unqualified apology may well not be the effectual, and effective way to vindicate a Plaintiffs reputation."


Whereas litigants have through their Counsel usually tended to exaggerate an amount of damages thereby making a "mental note" of the lower limit which they anticipate the endorse on presumption that the Courts have a reciprocal tendency to lower whatever amount is claimed, that is not the thinking that influence the Court's discretion. Counsel makes it appear as though the expectation is; "by how much can the claim be reduced?" This situation is worsened by this that there is no apparent trend or guidelines in the amount of damages ever since. Notwithstanding that it would not be proper for the Courts to carelessly fall into that trend without tampering with or sacrificing the judicial principle that every case is decided upon its own facts.


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Lack of resourcefulness on the part of legal practitioners in guiding the Courts perhaps worsens the situation.


In the circumstances I have ordered that damages be in the sum of M25,000.00 and costs of suit at 18.5% interest from date of judgment.


T Monapathi

Judge

16th January 2004