Malebo v Minister of Information & Broadcasting and Another (CIV/T/89/96 )

Case No: 
CIV/T/89/96
Media Neutral Citation: 
[2004] LSHC 78
Judgment Date: 
15 June, 2004

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CIV/T/89/96

IN THE HIGH COURT OF LESOTHO


IN THE MATTER BETWEEN

VINCENT MOEKETSE MALEBO PLAINTIFF

AND

THE MINISTER OF INFORMATION

& BROADCASTING 1st DEFENDANT

THE ATTORNEY GENERAL 2nd DEFENDANT


JUDGMENT


Delivered by the Hon. Mr. Justice G. N. Mofolo On the 15th day of June. 2004


The plaintiff issued summons sometime during 1996 against the Minister of Information and Broadcasting and The Attorney-General claiming:


  1. Payment of the sum of M100,000.00 damages;

  2. Costs of suit, and

  3. Further and/or alternative relief.


Defendants defended the matter. After the matter was defended defendants had accepted to the summons alleging:-


The declaration lacks necessary averments to sustain a cause of action in that it was mandatory for 1staintiff to have alleged that he gave to defendants the required statutory notice of the above action, pursuant to the Government proceedings and contracts Act no 4 of 1965 There is no such allegation and as such the declaration is bad in law and excipiable and it is submitted that this action must be dismissed with costs.


The exception had been argued and judgment reserved when, Mr. Makhcthe had indicated he was not asking for the invalidity of the summons but their rectification. Accordingly, the court had ordered that summons be rectified and/or amended within fourteen (14) days of the court's ruling. The plaintiff had failed to amend the summons within the period stipulated by the court and when, almost five (5) months after the court's order the plaintiff attempted to amend the summons defendants opposed the application for the reason that it was hopelessly out of time. The amendment out of time had been condoned.


The plaintiff P.W.I Vincent Moeketse Malebo sworn had stated though he spoke Sesotho and English he would be comfortable speaking in English and the plaintiff has stated he was Leader of the Marematlou Freedom Party and also member of the Interim Political Authority 1stus being a business man and a farmer, a member of The Evangelical Church, an elder and member of the Consistory, Presbytery and Senate of the Church, and had often practiced as a preacher. He had also been in Government as a Senior Interpreter, Director of Information, Councillor in Foreign Missions of Lesotho, Chief of Protocol, Resident Ambassador and Permanent Secretary of Information and Foreign Affairs 1stus a Government Minister in the Ministry of Information.


He had also said he is married, has five children and five grandchildren. He says he knows the Minister of Information Mr. Lira Motcete. He says he attended school with Lira Motcete at Moselinyane Primary School and him and Lira Moteete have been members of the Senate of the Church. He also knew Mr. Moteete as member of the BCP, LCD and he (the 1staintiff) is MFP member. The relationship was good though Moteete is younger being his younger brother's equal. He was no longer in the Senate and in 1995 he was leader of the MFP. He did not know


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Moteete's educational background. He says the action arises from a statement, a press release he made in November, 1995. The press release concerned teacher's strike, cross-border incidents, Fato-Fato (self-help) projects and enumerators elections and the statement was Marematlou Freedom Party statement. He says it is common cause that the then Minister of Information Mr. Lira Moteete reacted on 4th and 5th December, 1995 when the statement had been made on 15 November. In reply to the said something about the radio the witness says the Minister read it on 4th and 5th December, 1995 on Radio Lesotho. He says the radio fell under the Ministry of Information. The witness says from his experience the reception of the statement would be in all corner of Lesotho except small points where there is no reception. He says he can't say exactly what the listenership was. He says on 4th and 5th December the statement came out of News bulletins meaning three times in the morning and evening when everybody is at home. He says the statement was read by the Minister Mr. Lira Moteete in Sesotho. Of the statement the witness says he found the statement insulting and defamatory and felt bound to go to the Radio to answer. He says he felt angry. He says if the Minister was closer to him he might have reacted though he does not know how but nonetheless felt something had to be done about it. He was at home when he first heard the statement. He


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says when he heard it present was his wife and he got to know his children were listening to it and someone had called him on the telephone asking whether he was listening to the minister. He says the Secretary-General of his party was shocked. He says it is the Secretary-General who telephoned him and when they met expressed the view the statement was defamatory.


He says the reaction of party members was anger. He says following the minister's statement he wrote him a letter copied to the Prime Minister. In the letter he asked for a right of reply in terms of sec. 14. (4) of the constitution, the letter having been written on 5th December, 1995 and there was no response from either the Minister or Prime Minister. The witness says he met the Minister who said he was not going to allow him to broadcast on Radio Lesotho for "You people do not allow people to broadcast over Radio Lesotho." The Minister did not apologise. He says the Minister's remarks were directed at him. The press release of MFP read by the witness begins:


"The Marematlou Freedom Party is extremely concerned at some of the most recent developments in the country on which the government is either guilty or neglect of duty or is failing, etc, etc. He says he laid his hands on the statement by the Minister Mr. Moteete. The Minister's statement was read into the machine. PW1 has also read a

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statement without a date saying he knows it was on 4 December. The gist of the statement by the minister was a withering attack on the 1staintiff.


The witness says in the statement there is no reference to Marematlou Freedom Party. The witness had also testified the money he earns is not earned fraudulently as the Minister had suggested. The witness has also testified nowhere in the Press Release was it said chicanery and conflicts had increased since the BCP took over government nor does it appear in the Press release that it was said 'this government is not in charge.' Nor does it feature in the Press Release that 'Mr. Malebo speaks about Police fighting with teachers having been told by some people.' The witness says he understood the minister's statement to say that he is 'a liar, a cheat, inspire violence or war and generally he is 'an agitator'. The witness says the Minister has alleged he cheated his way into the cabinet and earns money by fraud. PWI has also said the Minister has alleged he is a murderer and scares investors to Lesotho. It was PW1's evidence that he does not support overthrow of government by force. He has also said on the occasion of petitioning the King nobody died. He says on the second occasion of a group going to the palace a person was killed and when a second group of people went to the Palace following the unseating of BCP government, he


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says he was not in the group which went to the Palace and neither himself or by proxy did he organize the second group which went to the Palace. He has also testified processions to the Palace were not spear-headed by Marematlou Freedom Party or himself. P.W.I has also refuted the defence put up by the defendants.


In cross-examination it was suggested to P.W.I that in his papers he had not alleged that the statement is unlawful and P.W.1's reply was he said it is defamatory. It was also suggested PW1 did not say the statement was made to defame him and P.W.I said he did. The witness had denied there is no cause of action against the 2nd defendant. He agrees the Press Release was made by him as leader of Marematlou Freedom Party. He says the Secretary-General was concerned with the preparation of the statement. P.W.I has testified 1st defendant was not entitled to defame him. He has said 1st defendant instead of reacting to the statement he defamed him. The witness has agreed in his papers and evidence he said the entire statement by 1st defendant was false, malicious and defamatory. The witness has said though freedom of expression is guaranteed in the constitution it does not mean that willy-nilly one can go out of one's way to defame. He also says he should have been availed the opportunity to reply. The witness has


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testified while political matters and matters of public interest should be discussed openly this is not to give liberty to others to insult and defame them -. He says debate should be within the confines of responsibility. He says fortnight debate of political matters does not entail defaming other people. He says fortnight does not mean being irresponsible. The witness also agrees in Lesotho strong words are used but not defamatory words much as he agrees though that a politician is to develop thick skin to political issues which must on no account be defamatory for if they are courts are there to protect those violated. In course of his cross-examination Mr. Putsoane has disclosed that the 1st defendant is deceased. He says 'ho ikhohla ka lebotcf means sneaking and hence cheating and disagrees that it could mean change of allegiance. He says 'a e hlaha ka sefca macba' means an agitator, the other meaning being jocular though in the context in which it was used the minister was serious unless counsel is suggesting the Minister was joking. He says to say 'o ne a ja hamonale' (comfortable) is defamatory because that was not so. He has denied that the statement was anything but malicious. The witness has testified the press statement was read by him in English - but when he listened to it on the radio it was in Sesotho. The witness concedes the translation was not by a sworn translator. P.W.I has conceded he cannot vouch for the translation. In course of the


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cross-examination it emerged that an interpreter was not available and the court has caused the interpreter to attend court. However, during the interpreter's absence it emerged that certain words and phrases had not been interpreted and the court had decided that they be interpreted from Sesotho into English. It was understood that the interpreter would do this but in their wisdom counsel for the plaintiff and defendant(s) had decided to interpret them and they had accordingly been interpreted and read into the record. P.W.I has denied whatever may have been lst defendant's response to the Press release was not pertinent. He has said in the light of MFP statement which was strong and narrow there was no need for strong words. He agrees he expects robust reactions but not defamatory. He also agrees in political matters while one has to stand the heat, one also has to protect oneself against defamatory statements. As to whether being a politician where there is freedom of speech political debates are not to be stifled by running to courts, the witness has said if one has defamatory statements made about one, the courts are there to protect one. As to the claim by defendants that they did not intend to defame him, the witness has said if there was no intention to defame him he should have been allowed to go on radio to give his side of the story after-all the constitution allows him a right of reply. He


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says the minister forbade him the right of reply being the 1st defendant who is no more.


As to whether plaintiffs allegation that he went to the minister to demand that he go on the radio and refute allegations against him, and that the plaintiff had not 1staced anything before court to prove that he had requested to be given such a right, the witness had said he wrote to the Minister, had also gone to the Principal Secretary who said the minister was not prepared to comply. More than this, the Prime Minister had copy of his letter. Put to the witness that 1st defendant's assertion that he was not going to give a right to respond is hearsay, the witness has said the Principal Secretary was not going to allow him either.


The 1staintiff closed his case. The defence also closed its case.


Facts of this case are simple. It is that the plaintiff, leader of the Marematlou Freedom Party issued a Press statement in respect of which the party in some respects condemned the government of the Basutoland


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Congress Party about the way it conducted national affairs and the route it was taking. The Press release was in particular critical of the way Teachers' strike was being handled, Police fighting, cross-border incidents and 'fato-fato (self-help projects) and surreptitious appointment of enumerators for elections. The press statement was issued in Maseru on 15 November, 1995. In the Press Conference a number of questions were put to the 1staintiff. It was after the Press Statement that the 1st defendant reacted to the Press Release via Lesotho Radio. In the Lesotho Radios communication by the 1st defendant, 1staintiff has alleged that he was defamed but that first he asked the Minister and 1st defendant to go on radio to defend himself and refute 1st defendants' allegations and secondly demanded an apology both of which requests were either refused or ignored by the defendant Minister. Faced with this the 1staintiff had had no alternative but to approach courts of law against the defendant Minister as he has done. I must quickly dispose of whether the 1staintiff demanded the right to go on Lesotho Radio to give side of his story. The 1staintiff has on oath claimed that he sought such a right basing himself on the constitution. That the 1staintiff sought such a right has not been denied and even if by reason of the demise of the 1st defendant it was not possible to deny it, the 1staintiff has claimed that he went to the Principal Secretary who informed him the minister was not prepared to


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comply; more than this, a copy of the letter was served on the Prime Minister. I do not agree that there was hearsay in these transactions for the Minister was himself first approached and failing his channel of communication the Principal Secretary was approached and the Prime Minister served with copy of the letter. In the absence of the 1st defendant for good cause, it was up to the then Principal Secretary and office of the Prime Minister to deny the allegations. In the absence of such denial I have no option but to believe the 1staintiff that he took the alleged steps. Sec. 14 (4) of the constitution of Lesotho reads:


"Any person who feels aggrieved by statement or ideas disseminated to the public in general by a medium of communication has the right to reply or to require a correction to be made using the same medium, under such conditions as the law may establish. '


What the plaintiff wished to excise is a legal right sanctioned by the Supreme Law of the country. Thering in his deist des Romishen Rechts III $60 says a legal right is 'an interest protected by the authority of the state; Salmond in his Jurisprudence 7th Ed. (1924) $60: of 12 ed (1966) says: it is 'an interest recognized and protected by law'. While Austin's Jurisprudence cf Huber HR 3.1.2 and Grotius 2.1. 58.9 say 'a party has a right, when another or others are bound or obliged by the law, to do or to forebear, towards or in regard of him and lastly Hohfeld Fundamental Legal


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Conceptions (1923) whose analysis is summarized in Paton's Jurisprudence 290 4 and in Hahlo and Kahn Legal System 81-2, and has been referred to on occasion by South African courts as in Estate Orpen v Estate Atkinson, 1966 (2) SA 639 (c) where it was said: 'a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others.' lst defendant was no more that a Minister of government and a repository of government functions to recognize and protect others interests and bound and obliged by law to forebear towards the plaintiff and in regard to him. And yet, without regulating with patience and tolerance V defendant appears to have assumed high moral ground over the plaintiff. plaintiff has also said 1st defendant did not offer an apology and he was obliged to approach the court for defamation.


In his summons and evidence plaintiff has alleged 1st defendant defamed him by uttering the following false, malicious and defamatorywords of and concerning plaintiff (paragraph 5 of the declaration) the translated version of which is.


"Basoiho are a peace-loving nation, further, it is a nation that works hard to preserve their peace An example Since the usurping of democratic Government in 1970, the nation bore all sorts of misery perpetrated on it by those in charge of previous Governments since 1970 This is an example of a nation that strives for peace Despite all this there are some people whose statements and actions are designed to disturb this peace of the nation These


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are the likes of the Leader of The Marematlou Freedom Party Mr Moeketse Malebo.'


A few days back Mr. Malebo held a Press Conference here in Maseru. It is clear that the purpose of this Conference was to vilify Government with false statements and to cause agitation in the nation by giving it an impression that civil strive (or war) was looming or impending.


Before I straighten out the issues he twisted in his statement in that press conference would like to remind the nation that:


  1. Mr. Malebo is one of the Public Servants who spared no effort to stand in the way of national peace for several years. He lived comfortably in the undemocratic Government of Chief Leabua pre-1986, as the Chief of Protocol Like the rest, when the undemocratic Government was toppled, he meandered and found himself a Minister in the Military Government. His types are not afraid to utter embarrassing and shameful statements about Basutoland Congress Party and its Government

  2. 2 After loosing the 1993 elections by polling 1% of the votes, he was nominated to the Senate It was when he was a Senator that he spoke affirmatively (and correctly so) in favour of the Education Bill of 1995 and he even tried to straighten out certain aspects by amendments. Later in his statement he says (he Bill should not proceed until negotiations with teachers are concluded. In other words he says the bill he passed in Parliament in order to operate should be withheld in accordance with his wishes and that it should be brought into operation the day he wishes so.


Further, I wish to inform (advise) Mr. Malebo that Government has never ceased to negotiate with teachers. Despite his allegations that Government does not negotiate with teachers. Government was negotiating with them the person who refuses to speak the truth is him. It is dangerous to lack in truth, but it is most dangerous if it is a leader of


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a political Party, who is devoid of truth. In like manner on this issue he was devoid of truth.


Here are the issues he referred to that day:


  1. Concerning the boarder disturbances around Qacha'snek, the gentleman alleges that there are no negotiations between RSA and Lesotho because consultations are held at a hotel and consequently there will be an outbreak of war on a national scale. It is time that Government negotiates with the Government of RSA concerning the problems of Qacha'snek. Government is well-ahead in coming to the assistance of the people of Qacha'snek. All about war comes from Mr Malebo alone.

  2. He alleges that Government caused the tension within the police force as a result of what transpired at the Police headquarters where deaths occurred. Government should address this issue.

This matter is being investigated by order of Government and the latter will not hamper lawful investigations.

  1. He continues to draw an increased salary this year. If so, the Ministry of Finance will demand a refund of these Public monies from him. He earns it dishonestly.

  2. Civil strife is on the increase since the time BCP became a Government. It is not true that civil strife is on the increase. What exists are deaths some of which are attributable to the occasion when Mr. Malebo and his friends took what they styled a national petition to the Former King Letsie III. Mr. Malebo knew in advance that such a move would cause unrest in the nation. All the same he went ahead. By so doing, he scared potential investors in Lesotho.

  3. This government fails to govern. That this government does govern is borne out by the fact that Mr Malebo is able to express his opinion, irrespective of whether or not it is acceptable without being tortured and incarcerated. He derives benefits from the democratic government. He forgets that during his tenure as Minister no member of the Basutoland Congress Party could approach Radio Lesotho. There is peace in the country despite his disturbance of it.

  4. Mr. Malebo says a great deal about the impending wars in Qacha, those of the Police and Teachers and he even says he is informed by people.


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If the gentleman is in fact a leader who is leading the Nation to peace, he ought to take up these issues with The Prime Minister or go straight into parliament with them. The manner he goes about it is of someone who instigates violence.'


The plaintiff has claimed that 1st defendant has, in his statement, portrayed plaintiff as a liar, a cheat, a political agitator, a killer and instigator of violence and civil strife despite being a leader of a political party. The words and impression so created were so understood by the listeners to the broadcast of the statement and by reason of the false, malicious and defamatory words aforesaid plaintiff had suffered damages in his fair name, dignity, fame and reputation both in his private and public capacities and suffered damages jointly and severely in the sum of Ml 00,000.00.


The original summons was amended it is not clear what was being amended and the plaintiff has given no indication of it. Although Rules of Court (Rule 33(1) is curt being only to the effect that a party desiring to amend any 1steading or document may do so by giving notice to the other party of the intention to do so, it is the practice of courts that while there has to be such notice to the other party, the amending party is to in addition state in respect of what paragraph(s) it is intended to effect amendment showing what is to be added or deleted from the 1steading or document.


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This was not done and I have been at pains to determine what the amendment was about. However, defendants have not objected to the amendment. Summons, if it is intended to amend them, must be properly done and in terms of the Rules of Court instead of resorting to slipshod and slapdash procedures hoping they will go unnoticed. It is incredible how, lately, process of court does not run the gauntlet of dismissal for inelegance if improper draftsmanship. It would appear, however, from the body of amended summons that the plaintiff was adding paragraph 8 after paragraph 7 of the original summons.


The claim was opposed and in opposing it defendants denied the statement was false or malicious in that it was made in good faith, fairly and honestly without malice; alternatively fair comment on a matter of public interest and have denied there was any falsity or malice and have denied there are liable in damages to the plaintiff or at all. Defendants have called no evidence on facts or defences raised in their defence.


I would like now to comment on 1st defendant's reply to The Press Release noting that the Press Release was by the plaintiff as Leader of the Marematlou Freedom Party. During the cross-examination of the plaintiff,


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there was some confusion as to who issued the Press Release but I am satisfied that it was issued by the leader Mr. V. M. Malebo the plaintiff herein. The first paragraph of the Press Release reads:-


'The Marematlou Freedom party is extremely


concerned, etc, etc.


Second paragraph


'concerning the recent intra-police fighting in Maseru which has resulted in about three deaths, The Marematlou Freedom Party is astonished, etc, etc.


Third paragraph


'With regard to cross-boarder conflicts, especially those between Matatiele district of South Africa and Qacha'sNek and Quthing districts of Lesotho which have resulted not only in loss of Basotho stock but lives as well, the Marematlou Freedom Party demands a public statement, etc, etc


Fourth paragraph


as regards the Teachers' suspended strike, the MFP condemn the use of force by the Government, etc, etc


Fifth paragraph


"concerning 'fato-fato', the constituency-based development projects, the MFP, etc., etc.

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Sixth paragraph


'While the MFP is prepared to contest by-elections at Boleka constituency ......, the Party is extremely concerned at the reports of surreptitious hiring of enumerators, etc, etc.


Seventh paragraph


'Regarding the announcement about the status of Basotho miners in South Africa, the MFP wishes to support, etc, etc.


Eighth paragraph


The MFP is amazed at the hysterical reaction of the Government etc, etc.


Ninth paragraph


'in conclusion. The MFP wishes to appeal to government, etc, etc (I have underlined for the sake of emphasis).

The Press Release shows convincingly that the 1staintiff as Leader of the Mareinatlou Freedom Party consistently referred to the MFP as responsible for the Press Release in its entirely. In his evidence, the 1staintiff has claimed defamation by reason of 1st defendant going for him when the statement was not his personal release. Indeed 1st defendant went for


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systematic denunciation and belittling of the plaintiff who was attacked and hammered in his personal capacity. Defendants have said plaintiff triggered the whole episode' (para. 2 (c) of the 1stea) and 1 wonder how because plaintiff was not speaking on his behalf but on behalf of his Political Party which was responsible for the Press Release. plaintiff throughout appeared to be a faithful servant of the Party by neither usurping the powers of the Party nor going beyond the mandate of his Party. There is collective responsibility in political party affairs and I wonder how fair it was for plaintiff to be stigmatized as he was. Mow can it be said that 1st defendant was not actuated by malice and how can it be said his outburst was fair comment when 1st defendant singled out 1staintiff for systematic hammering from among so many with equal responsibility? And how can it be said 1st defendant did not have the requisite malicious intent for exposing plaintiff in his private capacity to public ridicule? Has to be recalled that 1st defendant was no ordinary person but a public figure and Minister of a Ruling Political Party not elected by 1% of the electorate as 1st defendant has claimed of the MFP.


In his reply the Minister (1st defendant) has looked back on plaintiff's days in public office saying plaintiff 'spared no effort to stand in the way of


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national peace for several years.' plaintiff then lived 'comfortably' in the undemocratic government as Chief of Protocol'; and then 'he meandered and found himself a Minister in the Military Government,' at (para 1.). It may be asked, what was plaintiff expected to do, he was only a civil servant. As for meandering and finding himself a Minister in the Military Government, counsel have agreed 'ho ikhohla-ka-lehotcf be interpreted as meandering along the well. I doubt the translation for meandering connotes innocence as for example a river meandering along 1stains and gullies on its course. The Sesuto-English Dictionary', Mabille and Dieterlen 2nd Reprint 2000 says the word 'ikhohla' is to rub oneself against. Not exactly for the word means to lean against with rubbing effect. Surely one leans against the wall so as not to be noticed? Leaning against the wall with rubbing effect cannot be an innocent exercise, we have also to consider that throughout the publication lst defendant's mood was one of anger and I have no doubt that the phrase was made mockingly if satirically. Needless to say the onslaught on plaintiff by 1st defendant was such that it made plaintiff unrecognizable in the eyes of the public leaving him a caricature of laughter and ridicule. The criticism was directed at BCP and if 1st defendant did not intend to hurt plaintiff he should also have directed the criticism to MFP instead of harassing its mouthpiece after all plaintiff was called upon to serve by


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relevant authority nor do I accept that a preference for one political system over another is the in thing, after all one's man's meat is another man's poison. It was totally uncalled for and degrading to say that a man in his public service is comfortable. Anyway the plaintiff has denied this saying he earned his service the hard way. And then there is paragraph 2 where 1st defendant claims plaintiff polled 1% of the votes and so on and so forth. This is a misrepresentation of facts. 1staintiff is not a political party, and his polling 1% of the votes has nothing to do with the Press Release unless 1st defendant deliberately twisted facts to give himself excuse for going for the plaintiff and representing him in poor light as he did. How can I say that this is fair comment in public interest? I do not know 1st defendant's educational background though from these misconceptions it cannot have been impressive. 1st defendant, a public figure, has not been able to distinguish between individuals and entities and the latter's collective responsibility. Political parties are often likened to companies for the sake of a distinction between the company and those forming the company or rather servants of the company. Thus so long as directors of the company act within the company's mandate the company is responsible for their deeds and not so responsible if directors act outside the company's mandate for in the event their deeds are deemed ultra virus of the specific mandate. When


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the plaintiff released the Press statement it was on behalf of the MFP as we have shown above for he was acting in course of duty on behalf of the MFP and any misrepresentations he made was the responsibility of the MFP and not the leader of the MFP.


Elsewhere 1st defendant attacks plaintiff's entitlement to an emolument calling for a refund. Here again 1st defendant displays appalling ignorance and no doubt a malicious intent. plaintiff is entitled to the emolument by reason of sitting in parliament. How can he be deprived of his entitlement simply because his party is criticizing government? Surely it is the right of those sitting on benches opposite to government to criticize government? Or is it not? They are not enemies of government but competitors with government in the race for control of government. It is erroneous to believe criticizing government is being hostile to it or that in criticizing government this scares investors from the country. In any event, whatever may have been the criticism against the government of the day, it was not 1staintiffs and it was wrong to lay it at his door.


I come now to the inquiry (!) what is defamation? (2) How is it proved? (3) Has it been proved in these proceedings? Regarding (1)


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above, Burchell (The Law of defamation in South Africa, a 1985 publication) is of the view at pp 34-35:-


The wrong of defamation consists in the publication of defamatory matter concerning another without lawful justification or excuse.' (from McKerron The Law of Delict 170


Another:


'Defamation may be defined as consisting of the intentional publication of matter which tends to lower the esteem in which the 1staintiff is held by others (Ranchod, Foundations of The South African Law of Defamation', 154).


And another:


The delict of defamation is the unlawful publication animo injuriandi of a statement concerning another person which has the effect of injuring that person in his reputation? (Kiiighorn, Joubert LAWSA vol 7 para 235).


Burchell after criticizing some aspects of the definition above comes to the conclusion that in case law defamation is:-


"The unlawful, intentional, publication of defamatory matter (by words or conduct) referring to the 1staintiff, which causes his reputation to be impaired'


Notwithstanding Burchell's definition, ( have found Ranchord's and Kinghorn' s defiations to be most instructive.


Other writers, and particularly Van der Merwe and Olivier see defamation as the 'unlawful, intentional publication of words or conduct


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concerning a specific person whereby his good name, reputation and estimation in the community is impaired'. This definition is very attractive, too.


Burchell sees advantages and disadvantages in damages for vindication of reputation and sees additional ways of achieving the end for, as was the case in Roman-Dutch law, in addition to amende profitable for pecuniary damages, there existed the amende honourable for retraction of the words and an apology. Indeed an apology is part of our law. It is said Voet 1st Tspicaciously staled thai the object of the recantation or restoration was the retraction of honour or reputation which had been taken away or destroyed by a defamatory statement. Voet, according to Burchell (p.31 above) has also pointed out that the object of the recantation or retraction was the appropriate remedy for an oral injury, because the person who has injured another by way of speech has to erase the injury by speech as well. Difficulty in this matter is that 1st defendant is since deceased and although summons was issued during his lifetime he does not seem to have retracted his statement or offered an apology.


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Quoting from several sources Burchell (p.32) has also said a right of reply may also be a possible remedy for an aggrieved plaintiff and says this is a basic remedy for defamation in Europe and in France for a newspaper that refers to a person even in a non-defamatory way is bound, on pain of fine, to allow that person a right of reply being the so-called droit de response. We have already seen above that this court has believed the 1staintiff that he was denied a right of reply even although this is a constitutional right. I also wish to add that at paragraph 5 of his Reply to Press Release lst defendant has alleged referring to the 1staintiff: He forgets that during his tenure as Minister no member of the Basutoland Congress Party could approach Radio Lesotho.' I am of the view that the 1st defendant has said this to counter 1staintiffs wish to approach Radio Lesotho to put his side of the story. This, in my view, is admission by 1st defendant that 1staintiff approached him as he has alleged; otherwise why does 1st defendant mention the incident, or is it coincidental? 1 don't think so for in my view all the Minister is saying is: in your government members of Basutoland Congress Party had no access to Lesotho Radio, why should I allow you access?


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As to how defamation is proved, according to Prof. Price, the treatment of defamation in Roman Law as a wrong for which the actio injuriarum would He was clearly and concisely set forth by Buckland at p. 590, Buckland and McNair (Ist Ed) pp 297-298; (2nd Ed.) p. 381; Lee, p. 390, Moyle, pp. 534-535 where it was said:


'— the wrong consisted of outrage or insult or wanton interference with rights, any act, in short, which showed contempt of personality of the victim or was such as to lower him in the estimation of others, and was so intended.'


In the above quotation "insult", "wanton interference with rights" and "contempt of personality' comes out clearly and the similarity as to what the 1staintiff claims was portrayed of him by the 1st defendant is striking. Prof. Price has gone further to say these propositions were accepted in the Netherlands as part of Roman-Dutch law where the authorities consistently asserted that animus injunandi was the essence of the wrong, proof of its absence being a good defence.


On page 255 (Acta Juridica, 1960 pp, 254-255) Prof. Price is on record as emphasizing that:-


Defamation in Roman-Dutch law is, as in Roman law. merely one aspect of the general wrong of injuria, and is consistently treated as such by the authorities."


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Prof. Price has gone on to say the word 'malice' soon began to creep into some judgments though it seemed it was no more than a convenient English paraphrase of the term animus injuriandi.


And in Moaki v Reckitt and Coleman (AFRICA) Ltd and Another, 1968 (3) SA 98 (AD) it was said Pollock on Torts, 15th Ed. at p. 18 in dealing with 'motive and malice' in English Law concludes:-


The use of such terms as 'malice' and 'maliciously,' appears therefore more likely to perplex the law and hinder the study of its true principle than to advance justice in any substantial manner. Unluckily the terms have been freely employed, and without any clear or constant meaning, and this has been the cause of great confusion which is not yet wholly removed' In Tsose v Minister of Justice & Ors, 1957 (3) SA 10 (AD) Schremer JA at 176 had dismissed motive as a determining element in liability and Wcsscls JA in Moaki's case above after consideration of various judgments including Hart v Cohen and Lemne v. Zwartbooi (16 Sc 363 and 13 Sc 403 respectively) had indicated 1staintiffs remedy is provided by the actio injuriantm and where relief is claimed by action the 1staintiff must allege and prove that the defendant intended to injure him either dolus directus or dolus indirectus. The learned judge had come to the conclusion that although it was customary to allege 'malice' in the 1steadings of the kind, the law had always required a plaintiff to prove only the existence of the


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requisite legal intention to injure without requiring him to establish defendant's motive namely, that he acted maliciously. Mr. Putsoane for the defendant's alleged the summons was imperfect in that it had not been alleged 1st defendant acted maliciously. I have no option but to dismiss the contention.


And then there is the case of Minister of Justice v SA Associated Newspapers Ltd, 1979 (3) SA 466 at 474 (CPD) where the Minister complained that published words were defamatory and the court found the words and phrases complained of did not directly charge or accuse the Minister of a crime or fault, nor did they directly involve him with any accusation or charge.


Actually, at p. 475 Van Zijl JP had said.lt is the right of every citizen to concern himself with the affairs of the country by expressing his views, approving or disapproving, of the actions of the persons concerned directly in the government of the country, and as long as he does not impute to them improper motives or dishonorable conduct, his words arc not defamatory, however unfair or unfounded his criticism or condemnation may be.


The words or phrases of which the 1st defendant complained of do not directly charge or accuse government of a crime, it may be said they fault or


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find fault with government. It may also be said the words and phrases were unfair, unrealistic and unfounded in the criticism or condemnation of government, but certainly they did not impute improper motives or dishonourable conduct of the part of government. This apart, whatever may have been the unseemly criticism of government from the point of view of the 1st defendant, the criticism should not have been directed at the 1staintiff personally since he was MFP's agent and mouthpiece.


I also concede that lst defendant was obliged to react to defend government by reason of collective responsibility but find that 1st defendant went beyond limits of fair comment and abused his privilege. Indeed whether or not in the final analysis it may be found acts of the 1staintiff and his MFP arc inextricably bound up together, there can be no doubt that in the Press Release it was not imputed to government improper motives or dishonourable conduct, the MFP having exercised its political right to express its views approving and disapproving of acts of the government. What was distasteful and objectionable was of the 1st defendant not to engage the MFP in its criticism of government, but to go for the 1staintiff in his personal capacity as if wrongs (if any) committed by the MFP were wrongs committed by the plaintiff.


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In Mavromatis v. Douglas, 1971 (2) SA 520 Goldin, J had at p.521 found the allegation by defendant was defamatory per se for defendant had said the 1staintiff was responsible for hiring others to commit the thefts and there was no doubt that imputing to a person the commission of a criminal offence or dishonesty or unscmpulousness constitutes defamatory statement per se (see Sutter v. Brown, 1926 AD 155 at 163; Johnson v. Rand Daily Mails, 1928 AD 194 at 204; Wille's Principles of South African Law - 5th Ed., pp. 521 -2. The learned Judge had also held where words complained of arc defamatory per se it is not necessary for the witness (by implication the 1staintiff) to state whether or not he believed the allegations made for as the learned Judge found, whether or not the 1staintiff believed the allegations does not affect the question whether or not the words are defamatory. Of course the words complained of were defamatory per se. What's more, 1st defendant has imputed to 1staintiff that he is unscrupulous and will spare no effort to secure a job (reference to the lowly means by which 1staintiff secured the military post and served under the undemocratic government of Chief Leabun Jonathan; also, earning an emolument under the BCP government and criticizing the government that feeds him).


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I quote again remarks from Pienaar and Another v. Argus Printing and Publishing Co. Ltd., 1956 (4) SA 310 at 327 (WLD) where it was said"


'I cannot find that an inference of dishonest conduct for financial gain is a reasonable one on the facts which have been proved in this case and it is clear that the defence of fair comment must fail '


Nor do I for the imputation is of such nature that a person to whom it was directed cannot but be lowered in the eyes of all right thinking members of society. I find, therefore, that the 1staintiff has established that he has been injured in his reputation by the lst defendant publishing the statement complained of on Lesotho Radio. That the plaintiff as a public figure seeking election to public office has been held to scorn by imputation that he would do and has done something dishonest for the sake of seeking office. Undoubtedly the 1st defendant has overstepped the mark in circumstances that were relatively calm. I also have no doubt in my mind that 1st defendant bore spite and ill-will towards plaintiff.


Again remarks of Innes CJ in Botha v Pretoria Printing Works Ltd 1906 T.S 710 where the defendant alleged General Botha had accepted a bribe could not be more relevant, namely –


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'The public acts of public men are, of course matters of public interest, and criticism upon them does a great deal of good provided corrupt motives are not imputed. But the character of a public man is not only a possession precious to himself, but is, in a very real sense, a public asset. If any person knows anything against the character of a public man which makes him unfit for the position which he occupies, such a person is not only justified, but bound, if he occupies a position which casts that duty upon him, to inform the public of the facts, and to substantiate them for the public benefit if necessary. But if he makes attacks without verifying his facts, and is not prepared to justify them, he incurs liability for substantial damages. These are elementary rules which are apt to be overlooked. We are entering a period when the court should, by its attitude, impress upon all concerned that attacks upon private character of public men are not to be lightly made, and that if they are made, apart from privilege, they must be justified.'


Mr. Putsoane for the defendants has submitted, as we have seen above, that 1st defendant was privileged to have countered the Press Release and that by reason of the position he occupied, 1st defendant was obliged to react as he did for it was in public interest to do so. I also subscribe to this view save that in doing so 1st defendant imputed to plaintiff corrupt motives and unscrupulousncss. 1 take exception to 1st defendant attacking plaintiffs character without verification and in circumstances in which plaintiffs private character was not in issue. I have already said that 1st defendant abused his privilege by going off the tangent; not only going off the tangent, but by using the privilege to benefit himself at the expense of the plaintiff for had 1st defendant's privileged position been property employed, he should have allowed plaintiff to state his side of the story instead of taking it upon himself that since 1staintiffs government did not allow BCP's to go on Lesotho Radio, plaintiff could not be allowed to go on radio, either. 1st defendant was not, by any account, justified to act as he did and I reject the contention that the communication was privileged


I have found Wille's exposition very attractive. According to him, 'defamation is the unlawful and intentional publication by a person of matter which injures the reputation of another and that the elements are;- (a) conduct (in the form of publication) (b) wrongfulness; (c) fault (in the form of intention or animus injuriandi; (d) causation and (e) harm ( in the form of an injuria to the 1staintiffs reputation.' Wille (p. 684) has also said on the same page unlike an action under the Aquilian law where all the elements have to be established prima facie, the 1staintiff in an action for defamation need only establish wrongful conduct in the form of publication of matter injurious to the 1staintiffs reputation and once wrongful conduct has been proved the other elements of liability are presumed to exist.


Moreover, upon proof of publication of defamatory matter fault {animus injuriandi) is also presumed as is causation and injury to the plaintiffs reputation, (also see Smith v Die Republikein (Edms) Bpk 1989 (3) SA 872 (SWA) at 875; Walton v Cohn, 1947 (2) SA 225 (N) at 229; Burchell Defamation 144 where it is said it follows that if the plaintiff


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establishes the first two elements mentioned, he or she is entitled to damages unless the defendant succeeds in showing that one or more of the elements which have been prima facie established or are presumed to exist, are in fact not present.


I come to the conclusion that the plaintiff has established necessary elements for his claim of defamation and I reject defendants' defences in their entirely either in the substantive or alternative form or that one or more of the elements which have been prima facte established or presumed to exist by the plaintiff are in fact not in existence

As for damages, I am of the view that a Radio is a powerful media cutting across social and cultural barriers and making itself heard in remote and inaccessible areas after all, the broadcast was in Sesotho, the major linguistic means of communication in the country and the broadcast by 1st defendant must have been beamed to a sizeable proportion of radio listeners however much the broadcast may have been limited in time.


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There is also authority for the proposition that the law presumes that the plaintiff has suffered loss by reason of the contumelia or insult and under the actio injuiarum he is entitled to damages for the injury to his reputation. The plaintiff has not proved and need not prove that he sustained actual loss or damage (see Die Spoorbond and Another v South African Railways, 1946 AD. 999 at 1005).


Undoubtedly allegations are of a serious nature requiring effect to be given to them. As cases above have shown, and considering 1st defendant's publication, it was tackless and reckless attracting dolus directus. Any resentment against 1staintiff was out of 1stace because 1staintiff was acting in course of duty expressing the views of his party approving, and disapproving of the actions of persons concerned directly in the government of the country. In my view, plaintiff in no way imputed improper motives or dishonorable conduct on the part of the government.


Consequently, I have found no mitigating factors lessening the moral turpitude of the 1st defendant.


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After careful consideration of the facts before me, I assess the damages at Ml00,000.00. In the result, judgment is entered for the 1staintiff in the sum of M100, 000.00 1stus costs thereof.


G.N.MOFOLO

JUDGE


For the Plaintiff: Mr. Ntlhoki

For the Defendant: Mr. Putsoane


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