Makakole v Vodacom Lesotho (Pty) Ltd (CIV/T/380/02)

Case No: 
Media Neutral Citation: 
[2003] LSHC 105
Judgment Date: 
23 September, 2003




In the matter between:





Delivered by the Honourable Mrs. Justice K.J. Guni on the 23rd September 2003.

Plaintiff in this matter is THABO MAKAKOLE, a male mosotho adult and a building contractor of MASERU. The defendant is VODACOM LESOTHO (PTY) LTD, a limited company registered in accordance with the laws of LESOTHO, with its principal place of business at the POST OFFICE building along KINGSWAY, MASERU, LESOTHO. Defendant is a cellular telephone service provider.

The plaintiff is suing the defendant for the payment of (M50 000.00) fifty thousands maloti. It is alleged that the defendant invaded the plaintiffs privacy by wrongfully and


unlaw Cully publishing and making available on request to one MR.EPHRAIM GAMA information containing cell phone numbers and dates on which calls were made to and received by plaintiff from one MRS. LIPALESA GAMA.

Seemingly MR. & MRS. GAMA are the husband and wife. It is further alleged by the plaintiff that as a result of this invasion of his privacy by the defendant, plaintiff was unduly dragged into costly and embarrassing litigation by MR. EPHRAIM GAMA in CIV/T/651/97 in the High Court for damages in the amount of fifty thousands maloti (M50 000.00). It is further alleged that as a consequence of the defendant's action of providing MR. GAMA WITH THE FULL ACCOUNT WITH information including the incoming and outgoing calls between MRS. GAMA and the plaintiff herein, his marriage broke up. Plaintiffs wife successfully sued him for divorce in CIV/T/362/97. Plaintiff blames the break up of his marriage on the defendant's action, though not indicating precisely how the defendant caused their break up. There must have existed an improper relationship between this plaintiff and MRS.GAMA because the release of the information containing cellphone numbers and dates on which calls were made to and received by plaintiff from MRS. GAMA, apparently resulted in the break up of their respective marriages, as shown in the plaintiffs declaration. This declaration raised more questions


than could be answered. A lot has been left untold and remains to be desired or rather private.

The plaintiff claims that he suffered damages in the sum of five hundred thousands maloti (M500 000 .00) as a result of the defendant's action. The defendant has taken an EXCEPTION to the plaintiffs declaration on the ground that the declaration lacks avernments necessary to sustain his claim. The plaintiff merely alleges that he suffered damages in the amount of five hundred thousand as a result of unlawful and wrongful action of the defendant.

The concise Oxford English Dictionary indicates "privacy" as meaning a state in which one is not observed or disturbed by others or freedom from public attention. How was this plaintiffs privacy invaded, wrongfully and unlawfully? It is not alleged that there was a duty upon the defendant not to disclose to MR. GAMA the information which he requested in respect of his wife's incoming and outgoing telephone calls. Was there such a duty of non disclosure contractual or otherwise? The lack of an allegation that the defendant owed the plaintiff such a duty, makes the pleadings excepiable.


Our HIGH COURT RULES, 29 (!) (a) and (b) set out the proper procedure to be followed when pleadings are defective as it is alleged in this case. The relevant portion reads as follows:-

(1) (a) Where any pleading lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party, within the period allowed for the delivery of any subsequent pleading, may deliver an exception thereto.

(b) The grounds upon which the exception is founded must be clearly and concisely stated.

There are no rules laid down as to the degree of precision required in pleading or claiming damages. The character of the acts themselves which produce the damage and the circumstances under which these acts complained of, are done, must regulate the degree of certainty and particularity with which the damage done ought to be alleged and proved. In our present case it is alleged that MR. EPHRAIM GAMA requested from the defendant information regarding the calls made and received by his wife. Plaintiff in his declaration complains that the release of that information to MR. GAMA was invasion of his privacy. How? Plaintiff does not show whether or not the defendant was legal obliged contractually or otherwise, not to oblige as requested by MR.GAMA. What does he mean by "invasion"? The information was with regard to MRS. GAMA and her own husband who requested it. To make public what was private would mean divulging the


information to a third party. The plaintiff is not alleging that what was private was published to a third party.

What made the publication of that information unlawful and wrongful? Nowhere in the pleadings does this plaintiff show why the revelation was alleged to be unlawful and wrongful.

It would appear that MR.EPHRAIM GAMA used the information to sue this plaintiff for damages in CIV/T/651/97. Plaintiff claims that he is unduly being dragged into costly and embarrassing litigation in that action. Perhaps he can successfully defend himself in that action. By indulging in improper relationship with another man's wife, he should have seen what he is complaining of, coming. He really has no one to blame but himself. This action against the cellular telephone service provider mere indicates that plaintiff has got his knickers in a twist.

The exception is properly taken and must succeed. It is therefore upheld with costs.