Tlali v Litaba and Others (CIV/T/42/01)

Case No: 
CIV/T/42/01
Media Neutral Citation: 
[2004] LSHC 162
Judgment Date: 
21 October, 2004

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CIV/T/42/01

IN THE HIGH COURT OF LESOTHO


In the matter between:-

MAKHOTSO TLALI PLAINTIFF

And

SETSOMI SA LITABA 1st DEFENDANT

MOTEBANG MASIKE 2nd DEFENDANT

THE EDITOR-SETSOMI SA LITABA 3rd DEFENDANT

THE PUBLISHER-SETSOMI SA LITABA 4th DEFENDANT

THE DISTRIBUTOR-SETSOMI SA

LITABA 5th DEFENDANT

THE PRINTER-SETSOMI SA LITABA 6th DEFENDANT


JUDGMENT

Delivered by the Honourable Ms Acting Justice N. Majara

on the 21st October 2004



The plaintiff instituted a defamation law suit against the defendants whereby she claimed judgment as follows:-


  1. M80,000.00 (eighty thousand maloti) for defamation;

  2. M50,000.00 (fifty thousand maloti) for contumelia;

  3. 18.5% interest thereon per annum a temporae morae;

  4. Costs of suit;

  5. Further and/or alternative relief.


According to the pleadings and evidence before the court, it is common cause that in their issue of the 14th -20th April 1999, defendants published an article titled “Namolela Litopo Bulane” (translated from Sesotho to English as:) “Bulane Intervene on Behalf of Corpses” wherein certain allegations were made regarding Queen Elizabeth II hospital, its administration and perceived problems attributed to some members of the hospital staff.


Amongst some of the allegations contained in the publication was a complaint regarding a certain corpse which had allegedly upon its arrival there been thrown on the floor from a trolley, kicked, spat on and insulted by a colleague of the plaintiff. Of the plaintiff, the said article, a copy of which was annexed in the courts file went on to say;

(A fair translation of the words from Sesotho to English is as follows):

As for Mrs Tlali the nurse, she was happy and declaring that the hospital was going to swallow the LCD members she said ‘The majority of the LCD members will enter this hospital but they will never return; we are determined fellow women folk.’ You should remember that the said Mrs Tlali is a well and fully trained nurse. Her husband is a police officer one wonders how he carries out his duties in the police force. Mrs Tlali’s home is at Mazenod.”


It was on the basis of this portion that plaintiff claims her reputation was sullied in the eyes of reasonable minded people and her feelings injured.


In their defence, defendants pleaded that; firstly, the said statement was not a statement of fact but a comment concerning a matter of public interest namely the health and welfare of citizens. Secondly, the comment was fair in the circumstances and the facts on which the comment was made were true.


In her testimony, plaintiff testified that as a result of the said publication she suffered terrible consequences including no longer working peacefully at work, feeling afraid of people and enduring unkind comments from some members of the public. P.W.1 a witness of the plaintiff testified that she had read the article and as a result her initial good impression of the plaintiff changed because she understood her to be a bad person who kicked and spat on corpses despite being a qualified nurse who has been trained to look after patients and to care for and respect corpses. She insisted that a reasonable person would have understood plaintiff to be a nasty person.


For the defendants, only one witness, a Mr Tlali (no relation of plaintiff) took the stand. He testified that he is a journalist and that at the material time he was a sub-editor of 1st defendant. He added that he received the article in question from a correspondent of theirs upon which he went to confirm the story with the authorities not only at the hospital but also at the ministry that there was indeed such an occurrence hence why they let the news to be published. He went on to state that the article was newsworthy because it concerned a government hospital which to their understanding is a public institution about which the public has the right to know if anything was taking place.


As I have already pointed out earlier, the facts of this case are common cause. It is not disputed that the article was referring to plaintiff herein. It is also not disputed that the article was published by defendants. Plaintiff’s claim is based on the fact that as she avers the information was not true and yet defendants went ahead and published it without bothering to establish its truthfulness the result of which she was defamed.


The subject matter before this court revolves around two fundamental rights/freedoms to wit, the right to dignity (which entails the right to reputation) on the one hand and the freedom of expression on the other. One may venture to opine that the two freedoms serve as some form of checks and balances to ensure good conduct and morality on the part of an individual and to discourage the sullying of others’ reputation with impunity by another.


In casu, defendants argued through D.W.1’s testimony that as the media, they have a duty to give information to the public especially with regard to the goings-on in public institutions such as a government hospital. They argued that in executing this duty, it is enough for them on the basis of receiving a report to verify that such an incident/occurrence does exist and if it does, they will then publish the news.


Mr Mosito, counsel for the plaintiff contended that this submission by the defendants is wrong. He argued that the media have a duty to verify the veracity of any facts before they can publish them. His contention was that it was not enough for D.W.1 to have enquired from the authorities, whose names he even failed to disclose whether such a report had been made. Mr Mosito’s submission was that D.W.1 ought to have verified the veracity of the facts including finding out plaintiff’s side of the story. He said that D.W.1’s failure to verify its truthfulness amounted to negligence on his part. In addition, Mr Mosito argued that the defendants could not be allowed to raise the plea of reasonableness when they had failed to raise it in their pleadings.


In reaction to the above submissions, Ms Thabane, counsel for the defendants contended that the court should uphold the defendants’ plea to wit; that the statement was not one of fact but a comment concerning a matter of public interest, was fair in the circumstances and that the facts on which the comment was made were true. She submitted that the publication was a fair comment because the facts commented on, were truly stated.

Ms Thabane submitted further that a distinction should be made between the matter at hand and the case of Moeketsi

Sello v Candi RatabaneRamainoane & Another CIV/T/1997,

because in that case, at the time of publication, the defendants had not even read Leeman’s book nor had they made any attempts to verify the truthfulness of the story from either the plaintiff and/or Shakhane. She submitted that in casu, D.W.1 had verified the veracity of the story in that he went to the authorities to find out whether there was indeed such an allegation and therefore defendants could not be held liable.


It is against this backdrop, that the issues to be determined by this court are firstly, whether plaintiff was defamed as a result of the publication, secondly, whether in the circumstances, the defendants have a legal defence which would exonerate them from liability and thirdly whether plaintiff is entitled to the quantum of damages she claimed.


As a starting point, it is worthy to mention that the concept of defamation is a very complex one. This is evidenced by various factors such as the ever-changing definition of the term itself, as at p 34 in Burchell’s The Law of Defamation; the different interpretations of the legal position by the courts of law (usually those at the pinnacle in any given jurisdiction); and the often thin and blurred lines which are sometimes drawn between issues when dealing with the diverse dynamics of the concept. It therefore cannot be over-emphasized that, trying to strike a proper balance between the two fundamental freedoms is not an easy task.


With regard to the freedom of press which finds it roots within the fundamental freedom of expression, there is plethora of authorities wherein there is a general consensus that it is in the public interest that the media should enjoy the freedom to publish information that serves to inform the public. The press is allowed to enjoy wider latitude especially where the subject matter involves political and/or public figures. See Sanki Mthembi Mahanyele and Mail & Guardian and Another Case No: 054/2003 p10.


On the issue of the right to dignity, in my humble opinion, it would appear that there is a rebuttable presumption of defamation where there has been publication of a statement that concerns a person and such statement has the effect of injuring that person’s reputation. This presumption is contained within the definition(s) of defamation. In the Ramainoane Case, the learned Lehohla J. (as he then was) quoted with approval Uitsaai Korp vs O’Malley 1977 (3) S.A p 394 the position that;

“…publication of defamatory statements proved or admitted results in two inferences arising, to wit, (a) that the publication was wrongful, and (b) that the defendant acted animus injuriandi.”


The onus is thus placed on the defendant to show that his publication did not amount to a defamation of the plaintiff.


In her evidence, plaintiff testified that the publication by the defendants about her caused her a lot of grief in that people changed negatively towards her, she was subjected to a lot of media attention whereby irate people would phone in and blast her, she no longer worked peacefully, etc. She submitted that she was therefore injured in her reputation.


Under cross-examination, plaintiff insisted that the allegations made against her by defendants were not true. Ms Thabane put it to the plaintiff that since as she herself had told the court, at the time of the publication she had already been questioned by at least three (3) people being the authorities, she could not heard to be saying that her reputation was injured by the publication because the information was already known by at least three people. I must hasten to add that in their line of cross-examination it was not the defence case that plaintiff was not telling the truth in insisting that the article was a falsity. Their case was that the article did not defame her because at the time of publication some people already knew about the allegations.


On the basis of the facts before it, the court believed the plaintiff’s claim that she was injured in her reputation. This is because, in the court’s opinion, there is a difference between a person being questioned by the authorities at work on the basis of a complaint with regard to his/her duties and one being put under the spotlight and tried and convicted by members of the community on the basis of a publication in a newspaper.


The defendants pleaded that the statement was not one of fact but a comment based on the facts. The plea is one of the requirements of the defence of fair comment. This defence is another area of complexity wherein trying to draw the line between fact and comment has proven very difficult. Burchell (supra) p 221 stated that “if the imputation alleged to be defamatory is an expression of opinion (comment), based on facts, then it must be fair as well as in the public interest.” In light of the raison d’etre behind the freedom of press, I agree with this position.


In the case of Crawford v Albu 1917 A.D. when applying the law to the facts, the judges of the appellate division were not unanimous. Solomon JA held that the words did constitute a comment but the majority found that the defendant’s words did not constitute a comment but a statement of fact and on that basis the defence of fair comment failed. In determining whether words constitute a comment or are statements of fact, the test to be applied is the objective one to wit; how a reasonable reader would understand the published words.


In applying this position in casu, I revisit the actual wording of the article and it was couched as follows and in so far as it referred to the plaintiff;

Haele Mrs Tladi oa nurse o ne a thabile…”

(interpreted as follows:)

As for Mrs Tlali the nurse she was happy (my underlining)….”


Ex facie the quotation, can it truthfully be said that words couched in the above manner really constitute a comment or are they stating facts? In other words, could a reasonable reader impute the words as facts or as an opinion/comment? From my own understanding, the wording reads as a statement of fact and not a comment. Even the context of the article is couched as a statement of fact and not a comment. For instance, the very first line of the first paragraph of the whole article reads as follows:

Litaba tse etsahalang sepetleleng se seholo sa ‘muso Queen II ke pale e tsoellang pele; pale ea mahlomola le litsikitlano tsa meno tseo bakuli le litopo ba fetang ho tsona ka linako tsohle.”

(A fair translation from Sesotho to English is as follows:)

The goings on at the main government hospital, Queen II are a sad tale; a tale of pain and suffering which patients and corpses endure all the time. It has been years since the Basotho nation have been complaining about the services and unbecoming and disgusting conduct of some of the members of staff at Queen II hospital.”


In my opinion on the face of it, applying the objective test, the whole article is a statement of fact and not a comment and therefore the defence of fair comment falls by the wayside.


The defendants further pleaded that the facts on which the comment was based were true. Truth is another requirement of the defence of fair comment. In his evidence in chief, D.W.1 stated that after receiving the article from a correspondent, he took the trouble of going to the authorities at Queen II to verify whether such an event had been reported and the answer was in the affirmative. On the basis of this response, he published the article. During cross-examination Mr Mosito asked D.W.1 whether he knew for a fact that the alleged incident had taken place and he replied that he did not but he had asked the authorities whether such an incident had been reported. He went further to explain that he believed the investigator who gave them the story had confirmed its veracity.


For instance some of the questions were responded to as follows:

Why didn’t you go and find out from the plaintiff the truthfulness of the allegations? …. I believed the correspondent had made full investigations, mine was just to confirm.


Why did you not confirm with her, she is alleged to have done this?....My correspondent could have done that or could have witnessed the incident, mine was to confirm.


Why not with her?....Because all I needed was whether there was such an occurrence at the hospital.


From the above, it is undisputable that D.W.1 did go to the authorities at Queen II to confirm. However, this begs the question; What exactly did D.W.1 go to confirm? Was it that the plaintiff had done what she was alleged to have done or that the authorities had received a report of such an occurrence? I believe the answer is that he confirmed that such a complaint had been made and not that the allegations made against plaintiff were true. Can it therefore be said that this was satisfactory verification of the veracity of the said allegations?


In the court’s opinion, the answer must be in the negative. I do not agree with the contention that if one asks a third party whether he/she has heard of something and their answer is that they have, that in itself is proof that what one heard is actually true. Over and above that, the court was informed that following the allegations against her, amongst other things, plaintiff was taken through disciplinary proceedings before the Adjudicator whereby she was acquitted on the basis that there was no corroboration of the witness’ evidence to prove that the plaintiff had indeed conducted herself in the alleged manner.


Ms Thabane’s contention was that that fact alone did not mean that the plaintiff was found not to have made the alleged utterances and that this did not mean that the article written about her was a falsity. I agree with this contention but I must also hasten to add that neither does it advance the defendants’ case. It only means that the allegations that were made against the plaintiff were not proven. In my opinion, this should be used in favour of the plaintiff because the onus was not on her to prove her innocence.


In light of the above, I find that the defendants have failed to discharge the onus of proving that they did confirm the veracity of the defamatory allegations about the plaintiff. As D.W.1 himself admitted under cross-examination, he believed that someone else had carried out such investigations so he published the article. This means that the defendants were negligent in their publication of the article. I therefore find that the requirement of truth has not been satisfied and it also falls away.


On the submission that the comment was fair, it is my humble opinion that the question of fairness only becomes relevant where the court finds the publication to constitute a comment/opinion. In casu, as I have already stated, when applying the objective test to the facts, I found that the article was not a comment but a statement of fact therefore the question as to its fairness or otherwise would also not advance the defendants’ case any further.

It was also the defendants’ case that the publication was in the public interest. Ms Thabane’s contention was that in casu, the matter published involved the welfare and treatment of patients and corpses in a public hospital and thus its nature was in the public interest. I agree with this contention because as has correctly been argued, a government hospital is a public institution whose goings on are a matter of public interest. However, this is but one of the requirements of the defence of fair comment. It cannot stand alone otherwise it would mean that it is enough for any defendant to claim that he made a publication in the public interest and he/she would escape liability regardless of all the other requirements and/or circumstances.


With regard to Ms Thabane’s contention that the defendants had acted reasonably, Mr Mosito’s submission was that this was not raised in their plea and therefore the court should not allow them to plead at this stage. Ms Thabane’s reaction was that although not pleaded, this issue was fully canvassed therefore a departure ought to be taken from the Court of Appeal decision in Candi Ratabane Ramainoane & Another v Moeketsi Sello LLR/LB 1999-2000 p411 at p 414 wherein it was stated that the defence of reasonableness not having been raised in the plea, nor even fully canvassed could not stand. The court stated that parties to a civil suit are bound by their pleadings unless it could be said that an issue not pleaded was fully canvassed.


Coming back to the present case, the question is whether the issue of reasonableness was fully canvassed? In order to establish this aspect, the court went over the evidence in chief and cross-examination of the witnesses.


But for the one or two occasions when it was put to the plaintiff that the defendants acted responsibly I could not find that the issue was fully (my underlining) canvassed. My understanding of fully canvassed is that even if not pleaded, from the word go, starting with P.W.1 up to D.W.1 himself, the issue ought to have formed an integral part of the defence thus affording the other side the opportunity to appropriately respond to it. In casu, this was not the case, therefore the plea cannot be allowed to stand. In addition, even assuming that the issue had been fully canvassed, the court has already found that the defendants had not satisfied the requirement of checking on the veracity of the allegations in pleading fair comment. This analogy finds authority in the Ramainoane Case (supra) where the Court of Appeal stated as follows:

Quite plainly reasonable and responsible dictates required the author of the article, and first appellant as editor if necessary, to check on the veracity of the far-reaching and highly defamatory allegations in the book before including them in the article. For instance, by making enquiries from the police authorities as to whether respondent was arrested; if so, for what reason and whether the arrest turned out to have been justified.” (my underling)


For the above reasons, the plaintiff is found to have discharged the onus of proving her case against the defendants.


On the questions of damages, plaintiff has claimed the sum of M80,000 .00 for defamation, M50,000 .00 for contumelia and interest thereon per annum a temporae morae.


As has been already pointed out in previous cases, the issue of damages is usually the most burdensome for the court to determine. This is the case more especially where plaintiff is seeking damages of a non-pecuniary nature. Some guidelines have been suggested for the courts in determining what would amount to the appropriate amount in each particular case. For instance, in R. G. McKerron’s The law of Delict p 208, some of the factors which have been adapted from Krause J’s judgment in Skinner v Shapiro 1924 W.L.D. 157 at 167 have been stated as follows:

The amount of damages is entirely in the discretion of the court. Such discretion, however, is exercised on reasonable and not arbitrary principles. One is entitled to have regard to the character of the defamatory words, their falseness and the malice displayed by the defendant; the rank and position of the parties in society, the special relationship which existed between them, the persons to whom the defamatory words were published and the place, time and mode of publication; the continuance of the circulation of the defamatory words, the tardiness, inadequacy or absence of an apology.”


These factors are not exhaustive but are merely suggestions to assist the court when assessing the appropriate quantum of damages. Other suggested factors are the existence of malice, the general conduct of the defendant from the date of publication up to the trial, including his demeanour as well as the nature of his defence.


Coming to the matter at hand, the court has already found in favour of the plaintiff for the reasons that in making the publication, the defendant was negligent as a result of which plaintiff was injured. Before issuing the publication defendant took some steps, albeit unsatisfactory to establish the truthfulness of the story. He fell short in that he only verified the existence of the allegations with the authorities which does not necessarily mean verification of the veracity of the facts. This in the court’s opinion, somewhat diminishes the degree of blameworthiness on the part of the defendants.


It has also been stated that when determining the amount of damages, courts should always take into account the fact that in cases such as the one at hand damages are of a sentimental and not punitive nature and that courts should also be guided by inter alia, amounts awarded in similar cases in the past (due allowance being made for the depreciation in the value of money), MacKerron (Supra) p 115. See also JC Van Der Walt and JR Midgley in Delict Principles and Cases; 2nd Edition P 183.


Having taken account of the above factors/guidelines, damages are awarded to plaintiff as follows:

  1. M50,000 .00 for defamation

  2. M30,000 .00 for contumelia

  3. 18.5% interest a temporae morae

  4. Costs on a party and party scale.






N. Majara

Acting Judge



For Plaintiff : Mr Mosito

For Defendants : Ms Thabane





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