Lephole v Editor - Mohlanka (Newspaper) and Another (CIV/T/93/96)

Case No: 
CIV/T/93/96
Media Neutral Citation: 
[2004] LSHC 146
Judgment Date: 
22 November, 2004

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CIV/T/93/96

IN THE HIGH COURT OF LESOTHO


In the matter between:


EPHRAIM LEFA LEPHOLE - PLAINTIFF

AND

THE EDITOR - MOHLANKA (NEWSPAPER) - 1st DEFENDANT

BASOTHO NATIONAL PARTY - 2nd DEFENDANT


JUDGMENT


Delivered by the Honourable Mr Justice W.C.M. Maqutu on the 22nd November 2004


In this case plaintiff Ephraim Lefa Lephole sued first defendant the Editor, Mohlanka newspaper and the second defendant the Basotho National Party a political party that is the proprietor and publisher of the Mohlanka Newspaper. Plaintiffs claim is for:


  1. Payment of the sum of Ml5 000.00 (fifteen thousand Maluti) damages for defamation;

  2. Costs of suit;

  3. Further and for alternate relief.


History of the case


Summons was issued on the 29th February 1996. According to the affidavit of Lekhoana Jonathan the secretary of the Basotho National Party, summons was served on the 5th March 1996. Timeous action was not taken consequently plaintiff obtained a judgment by default. An application for rescission of judgment was filed on the 9th May 1996. This was opposed. The record of proceedings shows that Guni J granted the application for rescission of judgment on the 12th November 2001.


Defendant's plea was filed on the 14th January 2002. This was followed by a pre-trial conference dated 20th March 2002. On the 28th November 2002 the matter was struck off form the roll for lack of prosecution. The matter eventually proceeded on the 28th April 2004. By this time neither the plaintiff nor the defendants had a copy of the newspaper publication which is the subject of the action for defamation. Consequently trial began based on the plaintiffs declaration of the summons. It was agreed that the publication could be handed in when it had been found.


Plaintiffs evidence was heard between the 28th April 2004 and 29th April 2004. This evidence will be summarized and analysed later. There remained the problem of a complete copy of the publication that was the subject of this case. Defendant applied for absolution from the instance at the end of plaintiff s case. The parties were invited to submit written heads of argument during argument. The matter was postponed to the 24th May 2004. On the 24th May 2004 after further argument, the matter was postponed to the 7th June 2004 and defendant was directed to supply a copy


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of the newspaper article within 14 day. Defendant was unable to find it. Both parties promised to continue looking for a copy of this publication.


The court reserved judgment on the issue of absolution from the instance. On the 16th June 2004 this court ruled that defendants have a case to answer. See the court's ruling.


After plaintiff had closed his case he filed a notice of amendment to which defendants objected. On the 4th November 2004, before defendants opened their case the application for amendment was made. The court refused to grant the amendment. After that defendants' evidence was heard. Defendants then produced a photocopy of the publication before defence evidence was heard. The court congratulated defendants for eventually locating a copy of the newspaper article after a long search.

Plaintiffs case


The plaintiffs counsel had by agreement with defence counsel agreed that evidence be heard on the basis of the extracts from the newspaper publication in the pleading. This had to happen because plaintiff copy that had been handed in when default judgment was granted had burnt with the whole file when the High Court civil registry burned during the 1998 riots.


Plaintiff gave evidence as the first witness for plaintiff. Plaintiff told the court that in 1995 Fato-fato was a government scheme funded with money from the Lesotho Highland Development Authority. Money was allocated to electoral constituencies for developmental project such as the digging of


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dams and building roads. Plaintiff told the court he was the constituency treasurer of the Basutoland Congress Party, which was the party that had won the general elections. He was a secretary of the Fato-fato project in the constituency.


In the Boqate constituency the Fato-fato project consisted of digging dams. They employed people and paid them by cheque for work done. Mohlanka was a newspaper of the second defendant the Basotho National Party. During October 1995 Mohlanka published an article with the heading "we would rather push each other at the fato-fato." It is this article in which plaintiff claims to have been defamed. The extract which in the plaintiffs view defamed him read as follows:


"...those in authority in the constituency have decided to reduce the number of dam projects but money still has to come in full as if it is intended for the planned projects. This would enable those in authority to divide the balance among themselves."


" The constituency secretary Mr Lephole is reported to have chased one Leeto with a firearm. The reason appears to be that Leeto is alleged to have been employed twice at Boqate and at Berea plateau and his child is employed in the self-help scheme."


Plaintiff showed he was one of the people in authority in the constituency and what was said above referred to him and also that he was referred to by name. All what had been said was false. The money was in the Lesotho Bank and payments were made by cheque to those who had worked. These cheques would be honoured by the Lesotho Bank.


At the time of publication of the article in Mohlanka it appears there was a dispute about Fato-fato moneys. It was alleged there was greed. Some


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people were going into constituencies to destroy each other. Other parties were defaming them in that fato-fato project.


In the plaintiffs view a reader would conclude that plaintiff and two others who were running the fato-fato project of the Boqate constituency were defrauding the government of Lesotho through corruption and would go to the extent of killing a person. Plaintiff concluded by saying he never shared constituency money with anybody nor did he chase any person with a gun. Plaintiff denied that what was said about him was true and in the public interest.


Plaintiff said public esteem for him went down. He used to be treasurer of the Basutoland Congress Party and chairman of the district development committee. After the publication people no more elected him. Plaintiff said he used to be a member of the consistory of the Lesotho Evangelical Church even there too he was no more elected. Plaintiff earned a living as a natural therapeutic practitioner - his practice was affected by this defamation. The number of patients fell drastically. Plaintiff consequently felt helpless because people believed these allegations.


Plaintiff also told the court that the apology and retraction of the allegations made by Mohlanka dated 9th March 1996 did not come to his attention. Plaintiff consequently claimed damages of M15 000.00 and costs of suit.


Under cross-examination plaintiff said he was a treasurer of the BCP constituency committee of about 12 members if he was not mistaken. In constituency the Development Committee of three members he was the


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secretary. The other two member were 'Molotsi and Mopeli. He was included in the article "we had rather push each other in the fato-fato" The development committee had no political complexion. The publication was directed at the BCP (Basutoland Congress Party) rather than the development committee that was politically impartial.

The first paragraph of the extract was directed at them because it said they had reduced the dams so that they could eat the money. Where it refers to him directly is where it says he (plaintiff) chased Leeto with a gun. The first portion refers to the three of the collectively - not to him alone.


Plaintiff continued and said they never employed Leeto. Plaintiff said he would not dispute that paragraphs one and two of the extract have nothing to do with each other. Paragraph 2 states he chased Leeto for the money that belonged to him. Plaintiff withdrew that statement and say the money did not belong to him he was mistaken. Plaintiff added that he more knows what was written.


Plaintiff continued his evidence and said he knows Leeto Litlhakanyane. Leeto was a member of the Basutoland Congress Party. They had met at the Bus Stop a little before the publication of the article. Plaintiff in answer to questions told the court that he accused Leeto of having said to Kori Masika that plaintiff employs relatives and is misusing moneys. He denied saying he is not Leeto's mother and that he would show him his mother for speaking ill against him. Plaintiff said Leeto had been spreading lies about plaintiff saying he had employed his wife. Plaintiffs son had just done Form C. It was not true that four dams were built but only two were


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completed although money was available. 8 dams were built but Plaintiff said he is not sure of the actual position on the plateau where Leeto Lithlakanyane lives. Plaintiff told the court that he forgets because LCU took over. On the Thuathe plateau they built 2 dams. Some dams were planned but executed by LCU. Government brought LCU for its own reasons, they had not misused funds.


Although no specific words state they were bent on defrauding government or that he was a fraudster, plaintiff still maintained he was defamed by Mohlanka. He conceded that paragraph 7 was wrongly taken to be defamatory. Plaintiff did not often read Mohlanka, consequently he could not know that defendants had published an apology on 9th March 1996. It was defamatory to say he chased Leeto with a gun when in fact that did not happen.


In re-examination plaintiff said a reader does not read the article separating paragraph - the reader takes what is published holistically. Consequently plaintiff concludes the article, as a whole is defamatory. In the affidavit in support of an application for rescission of judgment Leeto admitted plaintiff did not chase him with a gun.


Plaintiffs second witness Pw2, was Litelu Kolonyane of Pitseng ha Tumo. Pw2 told the court that he lives in a village close to that of plaintiff. Pw2 told the court that in 1995 he was a forman in the dam constructing scheme in the Boqate constituency. Plaintiff was secretary of the big working committee. That committee of which plaintiff was a member paid people who worked in the scheme through cheques. Two of the dams were not yet


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completed at the end of 1995 and the beginning of 1996. Those two dams were at the plateau.


The committee powers (according to Pw2) in the country as a whole were seized by the government because there were complaints that cheques were missing and that there were abuses. In the Boqate constituency there were no abuses or missing cheques. Pw2 further said he read Mohlanka in October 1995. That newspaper said those in authority in the Boqate constituency had abuses. They had reduced the number of the planned dams so that they could keep money for themselves. Furthermore the newspaper said plaintiff had chased Leeto with a firearm.


Fato-fato is the work of building dams. What is written in Mohlanka according to Pw2 teaches people that plaintiff is not a good person. He divides money meant for fato-fato with others secondly he chases people for fato-fato money.


In cross-examination Pw2 said only 2 dams out of 12 were completed. There was a reduction in the number of dams that were supposed to be built. What was stated in the newspaper was not correct. Pw2 conceeded that because he was not in the committee he had no knowledge of the truthfulness of what was said in Mohlanka. Pw2 concluded that the people referred to in the newspaper were not honest. Those in authority in the Boqate constituency were Jack Mofeli, T. Molotsi and plaintiff. They were in charge of the constituency. The words in the extract referred to the development committee of the Boqate constituency dealing with Fato-fato. Plaintiff was a member of the party committee. According to Pw2


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publication singles out Lephole the plaintiff as misusing the moneys. Plaintiff is one of those in authority in that constituency. Those words associate plaintiff with fraud. Pw2 told the court he did not see defendants retraction of what had been published in re-examination. Pw2 said dams were not completed because the work was removed from constituency development committees all over the country. Pw2 said irregularities had not been reported by planning officers who used to come and check.

Defence case


When first defendant gave evidence he had the full article which was the subject of the defamation action. He had just found a photocopy of it. It is convenient at this stage to read the entire certified translation of the newspaper article:


"We had rather push each other in the fato-fato This is a statement originating from Mahatammoho (Basutoland Congress Party) members of the constituency of Boqate at their gathering at Ha Makube on the Berea Plateau. They were very angry the cause being work, their grievance being discrimination in the way people are employed at the fato-fato project. They were saying that they have heard that those responsible in the constituency have reached a decision that the work of the dams should be reduced, but the money should continue to come in full as if it is coming to complete the entire project as originally planned so that those in authority may share the balance of the money among themselves.


The secretary of the constituency Mr Lephole is reported as having chased around one Leeto with a gun. The reason was that it is said Leeto alone was alleged to have been employed


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twice at Boqate and at the plateau of Berea and his child is still employed in the fato-fato project.


The people who were involved in that anger wanted to meet the constituency elected candidate Mr Ramolahloane whom they were unable to find.


Their decision was to go and see the Honourable Prime Minister. They are reported to have been so angry that they decided to march (toi- toi) to the office of the Prime Minister. It appears they were stopped from marching (toi-toi) by being told that the great one has said he already knows their grievance, and he can only allow them to elect five people to come to his office not that crowd.


Could these news really be true? If the affair of work atfato-fato has discrimination all over the country since Basutoland Congress Party members (Mahatammoho) say they are the only ones who have the right to work, how will government reprimand and stop this?"


Duly sworn first defendant said he was the editor of Mohlanka and had written that article. First defendant said it did not defame plaintiff at all. It was on pages 4 and of the Mohlanka newspaper of October 1995. He got the information from Basutoland Congress Party members. First defendant said he believes the information given to be correct.


First defendant referred the court to page 6 of the article where he had asked the government if it was in fact true that there was discrimination in the fato-fato project. At the conclusion of the article first defendant had asked government to reprimand those responsible for discrimination. Government acted and stopped the Fato-fato work completely. Consequently first defendant said what he wrote was in Mohlanka was meant for the public to read and it was for the public benefit. It was a fair comment. First


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defendant added that he was also exercising his freedom of expression and the freedom of the press. Defendant handed in the article and it was marked defendant Exhibit "A1".


First Defendant told the court that when he got a complaint from plaintiff, he immediately wrote an apology because his intention was not to hurt any one. He handed in the apology and it was marked Ex "B. First defendant told the court that his informant was Leeto Litlhakanyane. First defendant consequently asked the court to dismiss plaintiffs claim with costs.


Cross-examined plaintiff said he did not meet plaintiff to hear plaintiffs side of the story. There was no reason compelling him to meet plaintiff before he could publish the article because the complaint in the article was known all over the country. First defendant did not meet the constituency authorities because he had no doubt about the correctness of the information - if he doubted the information he could have approached the constituency authorities. First defendant therefore found it correct to say he did not verify the information in question before he could publish it.


Answering further questions first defendant said government stopped fato-fato because of what first defendant had written. The reason in the view of first defendant was that all these projects in the constituencies had the same problem. First defendant therefore found it unnecessary to make further investigations. Nor only in politics but in normal life people say untrue things with ulterior motives. Discrimination and the way money might not be used in the manner intended might have led people to conclude that those in authority in the constituency were enriching themselves.


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First Defendant said in answer to further questions he never examined the books of account of the dam projects. Plaintiff was one of those in authority in the Boqate Constituency if he was the secretary but first defendant did not know him. First defendant admitted he did not know if plaintiff chased Leeto with a firearm. First defendant noted that Leeto in the affidavit in support of the rescission of judgment had shown that plaintiff had not chased him with a firearm.


The second defence witness was Leeto Lithlakanyane, Dw2. Duly sworn he said he was from a neighbouring village from that of plaintiff and told the court that he was a member of the Basutoland Congress Party. Dw2 said further that he supplied the information to the editor of Mohlanka and that the publication dated 4th October 2004 is based on the information he supplied.


Dw2 said he was the member of the constituency committee of which plaintiff was the secretary. There was a fato-fato project in the Boqate constituency that constructed dams. A suspicion developed among Basutoland Congress Party members that its employment practices were discriminatory. Some members of the committee were hiring their wives and children repeatedly. These people were being employed on a monthly basis. Their elected member of Parliament was not available for consultations about the fato-fato project.


Dw2 told the court that there was quarrelling and fato-fato work was not going well. One of the complaints was that dams were being reduced


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although money would still came in full. It was part of what Dw2 told the editor of Mohlanka that the balance of the money would be shared by those committee members that operated the fato-fato project. Dw2 further told the court that this part of their Basutoland Congress Party Committee that ran the fato-fato project was hiding information about how the moneys of fato-fato were spent. Consequently they decided to approach the member of Parliament to find out what was going on.


The discontented Basutoland Congress Party members went to Parliament but did not find their member of Parliament. They then went to the Prime Minister's office where (after the advice they were given) a delegation of 5 people who included Dw2 met Mr Tom Thabane who had been assigned to meet them. Mr Tom Thabane informed them that the Prime Minister was aware of their complaint as the matter was already before him. Action was taken and the fato-fato construction of dam was stopped immediately.


On the way to see their member of parliament Mr Ramolahloane, Dw2 had met Plaintiff at a Bust Stop. Plaintiff had called him and asked him (Dw2) why he was going about saying plaintiff was consuming public money with his family. Dw2 asked who plaintiffs informant was; plaintiff said it was Kori Masika. Plaintiff would not answer Dw2's question of why he had not brought them together with Kori. Plaintiff reached out for a gun which Dw2 actually saw. Dw2 held the door of the motor vehicle in which plaintiff was, to stop plaintiff from getting out of the motor vehicle.


Plaintiff at the time was in a fighting mood and said to Dw2 - he was not Dw2's mother. In the Basotho culture (to which counsels on both sides, the


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parties and the court belong) - when a person refers to somebody's mother, he is taken as insulting that person. Dw2 ran away plaintiff got out of his motor vehicle and stopped behind it and flexed his arm that was holding a firearm. Dw2 who was some distance away and had stopped, retorted and said, plaintiff was referring to defendant's mother because plaintiffs mother was beautiful. That remark was meant to insult plaintiff in return.


The affidavit Dw2 made in support of an application for rescission of judgment is not correct where it says plaintiff did not actually produce a firearm. The report in Mohlanka was not accurate when it said Dw2 had been employed in the Fato-fato together with his son. It was plaintiff that Dw2 had said had been working with his family in the fato-fato - not Dw2 Leeto himself. The editor of Mohlanka had misheard him. The information he gave to the editor Mohlanka was otherwise correct and good for public consumption.


Cross-examined Dw2 said the editor Mohlanka substituted him (Dw2) for plaintiff in the report. It was plaintiff who was hiring his family in the fato fato. Dw2 and his child were never hired in the fato-fato.


The fato-fato project according to Dw2 (in answer to questions) was run by a section of the Basutoland Congress Party committee for the Boqate constituency. The fato-fato project began when there was already disagreements in the Basutoland Congress Party. Consequently the fato-fato project was run by the chairman, the secretary and treasurer of the Boqate constituency of the Basutoland Congress Party Committee. These three people did not want to hear anything from other members of t


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committee. Dw2 Leeto was the publicity officer of the Boqate constituency in that committee, while plaintiff was its treasurer. When fato-fato began plaintiff became its secretary. The chairman, the secretary and the treasurer had appointed themselves as the fato-fato administrators. Dw2 told the court that he could not participate in fato-fato because quarrels had begun and consequently he hated the faction to which plaintiff belonged. Dw2 Leeto and other members of the committee were kept in the dark about what was happening in fato-fato by the clique of the above-mentioned three officers who included plaintiff.


Although Mohlanka was the newspaper of another political party, he did not care. All the wanted was a journalist who could publish their grievance because plaintiff and his two colleagues were keeping them in the dark about the fato-fato moneys from government. Dw2 Leeto did not know if there was money left as a credit balance when number of dams were reduced.


Dw2 did not know that a son of plaintiff Tsepo was a trained forman for fato-fato project and that he was trained by the LCU for that purpose. Cross-examined about his averment that plaintiff did not point a gun at him. Dw2 said that was wrongly stated in the affidavit - plaintiff did in fact point a gun at him. Plaintiff, 'Molotsi and Mopeli who administered Fato-fato were not there at the meeting he told the editor Mohlanka about. Dw2 had made the affidavit in support of an application for rescission of judgment in May 1996. Dw2 Leeto confirmed that it was him who told first defendant the editor Mohlanka that those in charge share the money. He was told by Kori Masike that those in charge of the fato-fato project would share the money. Kori Masike was not running fato-fato. In re-examination Dw2


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said plaintiff became secretary when the trio appointed themselves to run fato-fato. Dw2 told the court that he believes what was written in Mohlanka was the truth.


Constitution and freedom of expression


The following are the guidelines that have to be followed in exercising the right of freedom of expression:


  1. In Lesotho's constitution there is no separate and specific freedom of the press. See Section 14 (!) of the Constitution. The Constitution recognizes the press as one of several means of expression. See section 14 (4) of the Constitution which speaks of media of communication.

  2. Freedom of expression like other enumerated rights under section 4 (1) of the constitution have specific limitations. These limitations are:

"Limitations designed to ensure the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.".

  1. Other people are in terms of section 11 (1) "entitled to respect" for their private lives. Consequently the constitution under section 11 (2) upholds laws that interfere with individuals right "for the purpose of protecting the rights and freedoms of others." Section 11 (2) (b) of the constitution.

  2. The right which the editor or a newspaper or any medium of expression enjoys in Lesotho is in fact an individuals right of expression. This individual's right includes in term of Section (14) (1) "freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons)..."


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  1. The constitutional court of South Africa has crisply sumarised the correct approach to the application of rights under the Constitution in SvMakwanyane]995 (3) SA 391 at 431 at 436 as follows;


"The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing of competing values, and ultimately an assessment based on proportionality...there is no absolute standard which can be laid down for determining reasonableness and necessity."


Kumleben JA in Ramainoane v Sello 1999 - 2000 Lesotho Law Reports and Legal Bulletin 411 at page 413 crisply put this principle as follows:


"There are no closed number of defences available to such a defendant in a defamation action." Kumleben JA relied on National Media Ltd others v Bogoshi 1998 (4) SA 1196 at page 1208 D".


Guidelines which the press has to follow:


Although the rights and duties of the press in exercising the freedom of expression are those of the individual, the common law of Lesotho has recognized that the press is a social and public asset. See E.R. Sekhonyana v M. Morrison & another 1991 -96 LLR 1431 at 144 1. In the United States of America basing itself on the First Amendment, the role of the press "is regarded as essential to the smooth functioning of a representative government, and the main function of the media is said to be the control of state action." See Burns Communication Law (Butterworths 2001) at page 27. This view was clearly expressed in Maseko v Attorney General & Others 1990 - 94 LAR 13 where newspapers were encouraged in the public interest to publish information of misdeeds by ministers and people in public office.


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Because plaintiff was a public officer and politician (although a minor one) the guidelines will be approached form the vantage of politicians and the law of defamation.


  1. In a Cape case of Mackay v Phillip 1 Mez 455 at 463 it was held that where plaintiff was public officer and his misdeeds are observed, it was " the duty of every honest man to publish such misconduct of plaintiff, and through the powerful medium of the press to rouse public voice..." In Maseko v Attorney General & another 1990 -94 LAR 13 at page 36 Ackermann JA put the same principle as follows:


"The article was an attack on the probity of a Minister of state. I fail wholly to see why attempting to expose corrupt acts of a Minster of state is detrimental to national security unless sufficient material is placed before the court to establish that second respondent had reasonable grounds for suspecting that the allegations made were deliberately or recklessly false."


  1. In the exercise of freedom of expression which the press and individuals enjoy, other people enjoy a right not to be unlawfully defamed. "The law had devised a number of defences, such as fair comment, justification (i.e. truth and public benefit) and privilege, which if successfully invoked render lawful the publication of matter which is prima facie defamatory" Argus Printing and Publishing Co Ltd v Esselen 's Estate 1994 (2) SA 1 at page 25 per Corbert CJ. See also E.R. Sekhonyana v Morrison & another 1991 -96 LLR 1436 at 1448.


  1. The right of people in public life such as politicians was summarised by Hartzenberg J as follows in the case of Mangope v Asmal & another 1997 (4) SA 277 at 289 (1)


"A defamatory statement even about a politician aimed at his personal dignity and his reputation, and not aimed at his public conduct and policy, cannot be justified under the guise of freedom of speech and is therefore actionable."


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  1. "Where the defence of truth and in the public benefit was relied upon, the statement alleged to be true need not be true in every minute detail, but ... at the very least be substantially true. That indeed has been laid down in various authorities -" per Leach J in Kemp & another v Republican Press (Pty) Ltd 1994 (4) SA 261 at 264 1J.

  2. A person who publishes defamatory matter cannot escape liability by saying he merely passed on a defamatory rumour but did not believe it or endorse it. Farrar v Madelay 1913 CPD 888 at 890. See also the Newspaperman 's guide to the law 3r Edition at page 32.


  1. A publisher must avoid publishing defamatory statements that are deliberately or recklessly false" even when he is discussing political issues and dealing with actions of politicians. See Maseko v Attorney General & another 1990 -94 LAC 13 at page 36 FG. In Holomisa v Argus Newspapers Ltd 1996 (2) 601 at page 618 regarding falsehood this was said:


"A defamatory statement which relates to free and fair political activity is constitutionally protected, even if false, unless plaintiff can show that, in all circumstances of its publication, it was unreasonably made."


To put this in the words of Kumleben JA in Ramainoane v Sello 1999 -2000 Lesotho Law Reports and Legal Bulletin 411 at page 413 "obversely stated, that it was not recklessly and negligently published."


  1. Where there is reason to doubt the correctness of a report and it is practical to verify the correctness thereof, it should be verified. This is because freedom of the press does not belong to the journalist alone, it is part of the public right to know. Therefore the public must as much as possible rely on the press. See The Newspaperman's guide to the Law 3rd Edition. See also National


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Media Ltd & Ors v Bogoshi 1998 (4) SA 1196 or page 1212 I where Hefer JA said:

"What will feature prominently is the nature of the information on which the allegation is based and the reliability of their source as well as steps taken to verify the information" my underlining Plaintiff's submission Mr Mohau argued that the defendants went beyond fair comment when they said:


" The money intended for the originally planned projects this showed enable those in authority to divide the money amongst themselves." He quoted Neethling Portgieter & Visser. The Law of Delict 2nd Edition page 326.


On the defence of truth and public interest Mr Mohau argued that the above statement need not have been literally true - all that was required was that the remark be substantially true. Mr Mohau further conceded that the press is allowed a reasonable latitude quoting from Corbett CJ's words in Argus Printing & Publishing Co. Ltd v Esselen 's Estate 1994 (2) SA 1 at page 25 C Mr Mohau argued:


"But it is trite that such freedom cannot be unrestrained. The law does not allow the unjustified savaging of an individual's reputation. The right of free expression enjoyed by all persons, including the press, must yield to the individual's reputation. The right of free expression enjoyed by all persons including the press, must yield to the individual's right, which is just as important, not to be defamed."


Mr Mohau further argued that defendants never took reasonable steps to see what they published was reasonable. He referred the court to National Media Ltd v Bogoshi, 1998 (4) SA 1196 at 1212 I where Hefer JA said:


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"What will also figure prominently is the nature of the information on which the allegation is based and the reliability of the source, as well as the steps taken to verify the information. Ultimately there can be no justification to publish untruths, and members of the press should not be left with the impression that they have a licience to lower the standards of care which must be observed before defamatory matter is published in a newspaper."


Defendants' submissions


Mr Mphalane agreed with what Mr Mohau had said. But Mr Mphalane argued for the defendants that plaintiff must rely on the ordinary meaning of the words complained of, alternatively the alternative meaning he has selected. Burchell the Law of Defamation in SA page 93.


Mr Mphalane argued that the public interest involved is "having public affairs known by all." Consequently " a conduct which would otherwise be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance ... even at the expense of harm to plaintiffs reputation. Prosser & Keeton on Torts page 815.


Evaluation


The view I take is that the literal meaning what was said about plaintiff sharing fato-fato money is per se defamatory in an unlawful way unless it is true. There could be defences - these I shall proceed to analyse. I note that the article which is the subject of this action is on page 4 of the newspaper. This I have to take into account in assessing its effect. I have also to take into account that a newspaper of a political party was attacking members of


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the governing party. In other words I am dealing with politics and politicians.


It is clear that the digging of dams in the Boqate constituency was run by members of a political party. It is also clear that allegations of discrimination in employment were being hurled left right and center. Those in authority in the Boqate constituency included plaintiff who was even mentioned by name. Even if he was not mentioned by name, if plaintiff could show that a reader would not have any doubt that the publication referred to him, he had a title to sue. This fact has been demonstrated. The defendants as a political party and its newspaper were entitled to take full advantage of divisions in the Basutoland Congress Party that was running the fato-fato dam digging project. Consequently Hefer JA in National Media Ltd & Others v Bogoshi 1998 (4) SA 1198 at 1212 it said:


"In considering the reasonableness of the publication account must obviously be taken of the nature, extent and tone of the allegations. We know for instance, that greater latitude is usually allowed in relation to political discussion..."


I am therefore obliged to take the political atmosphere in which the article was written. I also note that issue has not been joined on the discrimination in the way those in authority were alleged to employ people. The sting in the nepotism alleged against plaintiff was dissipated because Leeto's name was substituted for that of plaintiff.


It is clear that only people in the constituency of Boqate would know that plaintiff as party secretary or treasurer of the Boqate constituency is one of


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those in authority in the Boqate constituency where the fato-fato dams projects were taking place. People in the country as a whole would not easily relate the report in the Mohlanka newspaper to plaintiff. The sting of the article is that those in charge of the Boqate constituency had decided to reduce the number of dams so that they could share the money. People who were not in the Boqate constituency would not necessarily know that plaintiff Mr Lephole is being referred to. Yet people in the Boqate constituency among them Pw2 had no problem in deducing that what was being said about misappropriatingT&fo-Tafo money referred to plaintiff.


It would also be people of the Boqate constituency who would associate the chasing around of Leeto with the illegal sharing of the money and the way fato-fato was being run. I have already shown the sting of nepotism had been taken out of that second paragraph by the fact that the editor Mohlanka mixed up the facts. It however seems plaintiff did not sufficiently focus on the false allegation that he chased Leeto with a gun to sufficiently highlight the defamatory nature of the allegation.


What appears in a newspaper cannot be understood in the same way by people living in different parts of the country. The understanding of the reader will depend on the reader's knowledge of the subject matter and of the people involved. In defamation this has to be taken into account. The resident of the Boqate constituency know the type of fato-fato they had in their constituency. They also knew the people who administered it. They also would know plaintiff as a person. The sting of the newspaper publication and its defamatory meaning would be clear and unambiguous to


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them while the whole publication to the rest of the people of Lesotho might not have the same impact.


In the case Good v Smith 1964 (4) SA 374 Milne JP noted at page 375 that sometimes without the requisite prior knowledge on the part of persons who heard a statement, the statement would be incapable of conveying a specific defamatory imputation. At page 376 GH Milne JP said:


"It was accepted by Mr Feetham that words or gestures are not defamatory unless they impute to the person concerned conduct which would lower him in the estimation of right -thinking members of society generally."


It is also common cause that fato-fato had problems, cheques were being misplaced and corruption was accepted as occurring in some places. Eventually government had to hand over fato-fato projects to LCU. This is bound to have an impact on the way a reasonable man will view the publication in Mohlanka. In Rhodesian Printing & Publishing Company & Others v Howmann N.O 1967 (4) SA 1 the minister of Information had defamed the press in general merely because it did not tow the government line. Fieldsend J noted that the press must expect " to get as good as they give." The Minister had accused the press of a high degree of irresponsibility. At page 18 CD Fieldsend J continued:


"Whilst obviously the imputation I have found to be conveyed by the words is not nearly as serious as an imputation of dishonesty, it is still a serious imputation to make of a man in his profession..."


The imputation that plaintiff and his co-administrators in the fato-fato project reduced the number of dams so as to divide the balance of money among themselves is a definite imputation of dishonesty. It goes beyond fair


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comment. It is not a vehement criticism or even an exaggeration. If what was said above is the truth then it was the duty of the press to expose that group of swindlers in the public interest. In such circumstances the press can legitimately claim that it had no animus injuriandi towards plaintiff. In such a situation the press would be acting in the public interest.


In Hassen v Post Newspaper (Pty) Ltd 1965 (3) SA 565 the head-note reads:


"A high degree of care is required of those who act for a newspaper whom they are proposing to publish or cause the publication therein, of matter injurious to the reputation of someone."


First defendant told the court that he was sure that the information he got from Leeto Litlhakanyane Dw2 was correct that he did not take any steps to verify it. It turns out that first defendant's informant had no basis to make the allegation or to impute that plaintiff and his two co-administrators of the fato-fato project funds were asking for the whole of budgeted amount despite the reduction of dams so that they could divide the balance among themselves.


Both counsel agree with what is stated in the rubric of Hassep-2Xn v Post Newspaper Ltd 1965 (3) SA 562 that:


"A defamation is not actionable if it was published in the honest, though mistaken belief in the existence of circumstances which would have justified or excused its publication; but that is to say only if the mistake is not attributable to recklessness or negligence of the defendant, or of those for whose acts or omission he is responsible."


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First defendant had to show that there are circumstances which would have justified the publication. There are circumstances that are common cause of maladministration, corruption even loss cheques, and discrimination in the employment of people in the Boqate constituency. However first defendant has also to show the court the grounds on which the imputation that the whole budgeted amount was asked for so that plaintiff and his colleagues who administered the fato-fato project would divide the balance among themselves.


The issue which the court has to determine is whether the unsubstantiated defamatory allegations in the publication were not attributable to the recklessness or negligence of first respondent. As Colman J said in Hassen v Post Newspaper Ltd & Others 1965 (3) SA 562 at page 565 said:


"Thus a newspaper cannot escape liability for damages merely because the defamatory matter published by it was put forward as no more than a repetition of a speech made at a political meeting, or a statement made to its reporter by someone."


Both first respondent and Dw2 Leeto Litlhakanyane say first defendant has merely reproduced what Leeto Litlhakanyane told the editor of Mohlanka. This of course does not relieve first respondent from liability. The first respondent might however, escape liability under certain circumstances. Hefer JA in National Media Ltd & Others v Bogoshi 1998 (4) SA 1196 at 1212 says "the reliability of the source, as well

as steps taken to verify the information" could help first defendant. It turns out that Dw2 Leeto hated plaintiff and had no access to any information about the financial


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administration of fato-fato in the Boqate constituency. In Hassen v Post Newspaper (Pty) Ltd (supra) at page 574 H Colman J said:


" The law clearly does not sanction such publication if it is made out of spite or ill-will. But, nor, I think, does the law sanction a defamatory publication which, though not tainted by spite or ill-will, was made unreasonably or negligently."


The only credential Leeto had was that he was a member of the Basutoland Congress Party constituency committee along plaintiff, although he belonged to the faction of that Committee hostile to plaintiff and his two colleagues that administered the fato-fato project. Unfortunately first respondent did not take any steps to verify the information supplied by Leeto Dw2 as he was (as a journalist) expected to do. This is surprising because political party factions are notoriously inclined to hurl insults, polemics and untrue defamatory statements against each other.


Failure to verify the information is taken along with other factors to determine whether first respondent acted reasonably. Consequently Cameron J in Holomisa v Argus Newspaper Ltd 1996 (2) SA 588 at 617 concluded:


"The reasonable standard offers a powerful tool for resolving difficulties inherent in protecting reputations while at the same time giving recognition to the role the constitution accords free speech and expression. It will not be reasonable to publish most untrue statements of fact. Only due enquiry and application of reasonable care will mark such conduct out for protection."


It seems to me first respondent has not supplied this court with sufficient facts that render his conduct in publishing the words complained of


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reasonable. Consequently I agree fully with what Hefer JA said in National Media Ltd & Others v Bogoshi page 1212 J to the effect that:


"Ultimately there can be no justification for publication of untruths, and members of the press should not be left with the impression that they have the licience to lower the standards of care which must be observed before defamatory matter is published in a newspaper."


Since first defendant does not dispute that he did not check whether what he published is true or not, I have no difficulty in concluding that first respondent acted recklessly and negligently when he published an untrue defamatory statement about plaintiff. Second defendant as owner of Mohlanka is vicariously liable for first defendant's conduct as first defendant was engaged in second defendant's political activity.


Damages

I have already found that the rest of Lesotho would not have appreciated the real sting in the defamatory statement. They would have taken it as a criticism against the widespread corruption and discrimination in the fato-fato project. My award of damages will center around the injury to plaintiffs good name in the Boqate constituency in which he lived. The injured feelings and the lowering of his esteem in his community and among his neighbours in the Boqate area.


I have taken into account that plaintiffs claim was moderate. He claimed only Ml5 000.00 when most claimants claim considerably inflated amounts.


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Order of Court

  1. Defendants are ordered jointly and severally to pay M10 000.00 (Ten Thousand Maluti) damages for defamation of Plaintiff.

  2. Defendants are similarly directed to pay costs of this action.


W.C. M. 'MAQUTU

JUDGE OF THE HIGH COURT


For Plaintiff: Mr Mohau

For Defendant: Mr Mphalane


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