Manyeli v Makhele and Another (C of A (CIV) 10 of 1983) [1984] LSCA 43 (25 April 1984)

C. of A. (CIV) No.10 of 1983 IN THE LESOTHO COURT OF APPEAL In the Appeal of : ANTHONY CLOVIS MANYELI Appellant and VINCENT MAKHELE 1st Respondent and DESMOND SIXISHE 2nd Respondent HELD AT MASERU Coram: MAISELS, SCHUTZ, SCHREINER, P. J. A. A. J. A. Schutz, J. A. J U D G M E NT The appellant appeals against the decision of Molai J in the High Court dismissing the appellant's claim for damages based on three separate alleged defamations. During 1980 when the defamations were alleged to have occurred the appellant was a teacher. He was 70 years old. From 1965 to 1970 he had been Minister of Education, and thereafter from 1970 to 1972 he had been Minister of Works and Telecommunications. He had also been a member of Parliament for the Maama constituency as a representative of the Basotho National Party (B. N. P.). During 1975 he was expelled from that party. The appellant has contested the validity of that expulsion and still regards himself as a member of the B. N. P. This has caused considerable friction between him and those who control /the party. - 2- the party. In 1980 the first respondent was a M i n i s t er He was also the Secretary-General of the B. N. P. At that time the second respondent was the Executive Secretary-of the B. N. P. Subsequently he also became a Minister. Two of the defamations are alleged to have been oral. In both instances only the first respondent and not also the second is alleged to have uttered the defamation and thus be liable for it. Both defamations are said to have been uttered at two separate meetings called by the respondents on, behalf of the B. N. P. in the Maama constituency. The occasions and places are identified as 28th June 1980 at Mokema, and 13th July 1980 at Mafefoane (hereinafter referred to respectively as the first and second meetings). On both occasions a thousand or more persons were present. The defamation alleged in both instances is the same, namely, that the appellant "stole the property of the members of the Roma Valley Co-operative". The third defamation is alleged to have occurred also on the occasion of the first meeting. It was in writing consisting of a pamphlet purporting to be issued under the name of the B. N. P., which was admittedly distributed at the meeting. The case against each respondent is that he helped in distributing the pamphlet. Because of its great length I do not quote it in this judgment, but annex it as Annexure "A". It reads like an index of the seven deadly sins, ranging wide to allegations of murder, rape, robbery, theft, arson and the like. The appellant claimed damages in the sum of R10,000 for each of the oral defamations and R30.000 for the written defamations. The respondents' main pleas was essentially a denial that they /had - 3- had published any of the defamations. This plea was amended to include an alternative defence in the case of the written defamation to the effect that, even if the respondents did publish that defamation, publication was privileged. The alternative plea was as bare as that, and despite a request for further particulars, remained so. As such it was an improper plea. A defendant relying on the defence of privilege must plead the facts on which that plea is based. Nonetheless the matter went to trial. There was no plea of justification, namely, that the facts constituting the defamation were true, and that it was in the public interest that they be published. Indeed the stand of the respondents was to distance themselves as much as possible from the defamations. I believe that this judgment will illustrate how uncomfortable can become the position of a defendant in a defamation case who tries to ride at once the horses of denial and privilege. One would expect that a person really attempting to rely on privilege would accept his responsibility for what he has said {subject to any legitimate dispute as to what exactly he has said) and seek to establish that the law entitled him to say it. Although it would seem that there was an earlier history of conflict between the parties, the event immediately leading to the defamations was the publication of an article under the appellant's name in "Moeletsi oa Basotho" of 15th June 1980. The article is entitled "Time Christians Chose Between Two Roads". Again because of its length I do not quote it in this judgment but annex it as Annexure "B". The general drift of the article is to warn the Prime Minister and leader of the B. N. P., Chief Leabua Jonathan, against the dangers of being beguiled by the communist PF : and to /call - 4- call upon people to make a choice between the communist and the Christian way. This article is couched in firm even strong language. Whether it is defamatory, and is so, of whom, it is unnecessary to consider. But it certainly invited sharp retort on a political level. However, that does not mean that those who were displeased with or offended by it were given carte blanche to attack the appellant as they would. The respondents' response was to call the first and second meetings at which the defamations are alleged to have been published by the respondents. The oral defamations alleged are plainly defamatory. The written defamation is also defamatory, and grossly so. The first broad issue, and I think the main one, is whether the respondents or anyone of them published what it is alleged they or he did. More narrowly defined the issue in the case of the oral defamation is whether the first respondent uttered the words alleged, namely, that the appellant had stolen the property of the members of the co-operative. The first respondent admitted making a long speech against the appellant in similar terms at both meetings. But he denied using the words pleaded or words to like effect. It is unnecessary to set out what he says he did say or to consider whether what he admitted saying constituted a defamation, because the defamation pleaded was limited in the manner already described. The difficulty with the appellant's case as I see it in regard to the oral defamations is the uncertainty on the evidence for the appellant as to quite what was said. All parties are agreed that the first /respondent - 5- respondent criticized the appellant's administration of the co-operative. But whether he alleged theft is unclear. In his evidence-in-chief the appellant said that the first respondent had accused him of squandering money. In cross-examination that became, variously, to squander, to eat, to steal and to embezzle. He claimed that the Sesotho word used "to eat" meant to embezzle. According to his witness Fobo, the accusation at the first meeting was stealing, and at the second of eating. In his cross-examination he says that the accusation was of stealing. His next witness Shale (who was present only at the first meeting) says that the accusation was one of causing money to disappear,, The judgment of Molai J is not of assistance as to whether the defamatory words alleged were in fact spoken, because he made no finding on this aspect, confining himself to saying that there were other defamations. Such other defamations, if they were such, are irrelevant as they were not pleaded. Having considered the evidence for the appellant, and bearing in mind that the first respondent eschewed even the words "to eat", I am not persuaded that the defamatory words alleged were spoken, although there is certainly a considerable suspicion that they were. Accordingly I do not consider that the appellant has established that the oral defamations were published. The case against both respondents with regard to the written defamation is that they distributed the pamphlet. Their defence is that they had no knowledge of the pamphlet until it was brought to their attention after the meeting. Molai J held that there was no evidence that they were the authors of it, and, I agreeing with that view, the issue is whether they distributed it. The appellant says /that at - 6- that at the first meeting he saw the second respondent distributing a bunch of papers; and that the first respondent, who was sitting at a table on which there were a pile of papers, gave him one. His witness Fobo says that at this meeting he received a copy of the pamphlet from the second respondent. His second witness Shale corroborates the appellant with regard to the first respondent's conduct at this meeting. He says that he together with the appellant went up to the table at which the first respondent was sitting in order to greet him, and that the first respondent handed each of them a paper, his copy being the pamphlet. Molai J accepted the evidence on behalf of the appellant on this issue. Although he had some criticism of the appellant's evidence it is clear that he was satisfied that the evidence that he and his witnesses gave on this issue was true. In rather guarded terms Molai J rejected the evidence of the respondents. I can see no reason for disagreeing with his conclusion. On paper the witnesses for the appellant were more impressive than were the respondents. There are other factors too that weigh in the scale against the respondents. One is that the first defendant called no witnesses to support him, although there were clearly some persons sitting round the table. Another is that there was no display of righteous indignation on the part of the respondents when they learned of the pamphlet, such as I would have expected from innocent men. After all, on their version some unknown person had had the impertinence to give their party's name to a serious and insupportable defamation. Yet they did nothing to disassociate themselves from it. I find that the appellant has discharged the onus of establishing /that both - 7- that both respondents distributed the pamphlet. It being defamatory, two inferences then arise, namely, that the publication was wrongful, and that it was made animo injuriandi : Joubert The Law of SA Vol.7 para 236 and cases there cited. The next issue is the respondent's defence of privilege. The basic principle of privilege is set out by Innes CO in Ehmke v Grunewald 1921 AD 575 at 531 as follows: "Where the person publishing the defamatory matter is under a legal, moral or social duty to do so or has a legitimate interest in so doing, and the person to whom it is published has a similar duty or interest to receive it, then the occasion of the publication would be privileged". Molai J decided the case against the appellant on the basis that the defamations (I am now concerned only with the written one) were published on a privileged occasion, and that the occasion was not abused. He reasoned that the appellant had asked for what he had got, and that the respondents were entitled to "give their side of the story" to persons who were entitled to receive it. He stated that once the appellant had created confusion in the mind of the electorate the respondents were entitled to "clarify" the confusion and to show that it was the appellant who was unworthy of the electors' choice. I do not agree with that conclusion. It is true that the appellant had entered into the field of trenchant political argument. He could not therefore complain if ho received hard blows in return for what he had said. Certainly the respondents were entitled to answer him and explain the position to the electorate. But this does not mean that they were entitled to embark on a wholesale character assassination of the appellant without either being prepared to show that what they /said - 8- said was true (justification, which was not pleaded), or at least being able to establish that they held an honest belief in what they said, and that what they said was mundane to the occasion (privilege). It may be of advantage to recall what that great Judge Innes CJ said 78 years ago at a time of some political turmoil, in Botha v Pretoria Printing Works and others 1906 T. S. 710 at 715. The learned Chief Justice said: "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 a1 public man which makes him unfit for the position which he occupies, such 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 a liability for substantial damages. These are elementary truths which are apt to be overlooked. We are entering upon a period when there may be great public excitement, and much public criticism; and I think the Court should, by its attitude, impress upon all concerned that attacks upon the private character of public men are not to be lightly made, and that if they are made, apart from privilege, they must be justified". Turning to privilege, which is the defence raised in this case, a defence of privilege may be defeated if the defendant in utilising an otherwise privileged occasion has published the defamatory statement with an improper motive. One example of an improper motive is where the defendant does not believe that the facts stated by him are true; or where the defendant states what he does not know to be /true - 9- true, regardless of whether it is true or false : Joubert The Law of SA Vol7 para 249 and cases there cited ; Basner v Trigger 1946 AD 83 at 105 per Schreiner J. A. The respondents made no case of honest belief in the truth of what was stated in the pamphlet. On the contrary the first respondent actually stated that he did not know about the truth of those facts. The position appears to me to be that their true defence was a denial of publication, and that the defence of privilege was an afterthought, which simply could not be sustained because they were quite unable to make the case that they believed in the offending allegations. This conclusion may be open to the criticism that it was for the appellant to plead and prove the improper motive. If that be so the respondents are in any event struck by another principle, namely, that it is for them to establish that their statements are relevant or germane and reasonably appropriate in the discharge of their duty or the exercise of their right : Joubert (op.cit) para 249. This, in my opinion, they have wholly failed to do. I am accordingly of the opinion that the respondents are jointly and severally liable to the appellant in damages arising out of the written defamation. There remains the question of quantum of damages. At the outset it must be said that some of the defamations contained in the pamphlet are of an extremely serious nature. In the words of Williamson AJ in Buthelezi v Poorter and another 1975 (4) SA 608(W) at 614C, they were of a kind "calculated to ruin and destroy the /plaintiff". - 1 0- plaintiff", A further feature aggravating the damages is that the appellant was, on the evidence a man of standing in the community, who had held high office. A further factor is that many people were present {a thousand or more) when the pamphlet was broadcast, even although it is not known how many received it, A yet further factor in aggravation is that nothing approaching a proper apology has been proffered. Against these factors there is the consideration, for what it is worth, that the respondents have not been proved to be the authors of the pamphlet, but only distributors. Questions of quantum of damages are often difficult. On a consideration of the facts as a whole I consider that an award of MS,000 will meet the justice of the case. Finally a question of costs arises. The appellant has failed to bring home the oral defamations. Much of the trial Court's time was taken up on this issue. In such a case the Court may make an allocation of costs : Verwoerd v Paver 1943 WLD 153 at 215. The Court has a discretion in the matter. I consider that in the circumstances the appropriate order should be that the appellant should recover only one half of the trial costs. The appeal stands on a different footing. The hearing of it was not greatly protracted by the issue of the oral defamations, and the appellant has enjoyed very substantial success on appeal. I do not consider that there should be any allocation. In the result the appeal in relation to the written defamation succeeds with costs. The order of Molai J in that regard is set aside and the following order is substituted. The respondents are ordered to pay the appellant the sum of M8,000 jointly and severally. The /respondents - 1 1- respondents are further ordered, also jointly and severally, to pay one half of the appellant's costs in the Court below. This latter order replaces Molai J's order as to costs. Signed: .... W. P. Schutz W. P. SCHUTZ Judge of Appeal I agree Signed: I. A. Maisels I. A. MAISELS President I agree Signed: ... W. H. R... Schriener W. H. R. SCHREINER Acting Judge of Appeal Delivered this 25th day of April 1984 at MASERU. For Appellant : Mr. Pearson For Respondents: Mr. Beckley MR. A N T O NY MANYELI IS AN ENEMY OF B. N. P. You will r e m e m b er that the c o m m i t t e es r e c e i v ed a letter that w as i n f o r m i ng y ou a b o ut t he d e c i s i on of the E x e c u t i ve C o m m i t t e e, t h r o u gh w h i ch letter all m e m b e rs of o ur Party w e re m a de a w a re that an e x - M i n i s t er of E d u c a t i on , Mr . A . C . M a n y e l i, is no l o n g er a m e m b er of B a s o t ho N a t i o n a l. Party ( B . N . P . ). T h is d e c i s i on to e x p el M r. A. C. M a n y c li w as r e a c h ed and p ut into e f f e ct by t he E x e c u t i ve C o m m i t t ee on t he 1 1 th N o v e m b e r, 1975 u n d er s e c t i on 7 ( 2) (ii) of o ur P a r ty C o n s t i t u t i o n. Although it is now over five years since Mr. A. C. Manyeli was expelled from the Party he still goes about deceiving the BNP members and some other people who do not know that he is no longer a Party member, he also creates confusion among our Party members.. The Committee at Maama ' s constituency No . 27 where Mr. A. C. Manyeli once stood for elections as a BNP Member also agreed with the decision of the Executive Committee in this regard that it should] have nothing to do with Mr. A. C. Manycli because of the enemity which he now ,has towards our party. Mr. A. C. Manyeli has tried for a long time and with many methods to sneak through to the leadership of the party - under the boers' deceit -and also tried to depose our Party leader. Chief Leabua Jonathan, from his post but he hopelessly failed. When Mr. A. C. Manyeli became aware that his intenti f insergency had failed today he is out on compaign of deliberately hurling blatant lies against Chief Leabua Jonathan and some of our Party members who are in the executive. Manyeli says Chief Leabua Jonathan is a communist and that he sells Basotho to the communists: This is a lie similar to the one that was labriated by the Basotho Congress Party ( B CD and Maremation freedom Party (MFP) a few years ago when they said you should not elect Rasotho National Party (BVP) because Chief Leabua would sell you to the Boers. The BNP members refused to heed those lies, they elected Rasotho National Party to lead them to an independent Lesotho; to date (under RNP) Lesotho still belongs to Rasotho. The development and success that have been reached by Chief Leabua JOnathan's government is admired by the whole world which have aroused envy in the minds of the enemies of this country. We all know that Chief Leabua Jonathan is a perfect Christian who is firm to his religion and who has always disagreed with the parties that wanted to turn Lesotho into a communist country and a spring board for those who wanted to fight South Africa with fire-arms; this is the reason why he stopped Communist Party of Lesotho to function in 1070. It is Chief Leabua Jonathan who is still fighting a fierce battle to day against communism which Manyeli himself and Ntsu assisted by the boers) arc trying to introduce into Lesotho. EXAMPLE NO.1 By raping people's wives (as they did with Rasotho women in Butha-Buthe district and raped an Indian woman at Mafeteng) EXAMPLE NO.2 It is Manyeli and Ntsu Mokhehle w ho fight and kill Basotho Chiefs (as they did with the late Chief Lepatoa 'Mou in Butha-Buthe district). EXAMPLE NO.3 It is Manyeli and Ntsu Mokhehle (assisted by the Boers) who have gone out on campaign mercilessly slaughtering innocent Basotho (as they did to our Party members at Kolo, that is the late M r. Sello Mpakanyane and Mrs. Mathabo Kolonyane; they also cruelly murdered a young woman by the name of Manyeoe Leloha of Butha-Buthe district. . . . /3 EXAMPLE NO. 4 They are the ones who burnt The two boys of Mr. Kopano Chere in his cattle post hut at Ralobisi at Marakabei. EXAMPLE NO.5 They are the ones who took away by force monies, vehicles and some other business and household property from Basotho (as they did to Mr. Tseliso M. Makhele and Mr. William Mbangula and many business people in the country). EXAMPLE NO.6 They are the ones who burnt Chief Maseribane's shop and caused injuries to his employees. EXAMPLE NO.7 They are the ones who go about speaking ill of our respectable police and misrepresenting them to the nation with the intention of spoiling relations between the police and Basotho. EXAMPLE NO.8 They are the ones who go about stealing Basotho's livestock and stealthily going to religious ministers and some Christian organisations under guise of sheep while in fact they are wolves in sheeps' skin's" The BNP members have always said Manyeli is not trustworthy and that his talks and movements were questionable. Some even said Manyeli wanted to usurp the party leadership and to depose Chief Leabua Jonathan and his Deputy, Chief Sekhonyana Maseribant because (Manyeli) hates the Chiefs. it h as n ow b e c o me c r i s t a l ly clear and plain that M a n y e li h as bitter h a t r ed t o w a r ds o ur L e a d e r, Chief Leahua J o n a t h an a nd s o me o t h er P a r ty m e m b e rs w ho are in the executive . He s p e a ks ill of them and calls them by shameful names. Manyeli is on campaign to mar the BNP leadership to the nation. Me has recently shamefully lied that the Party Executive Secretary, Mr Desmond Tsepo Sixishe, said the Pope__Joannes II of the Catholic Church is a communist. Mr. D. T. Sixishe , as we all know him, is an Anglican and therefore cannot in any way insult or distort what the Holy Father, the Pope, stands for. There is no person who is not aware that in recent years, when the members of BCP were attacking the Catholic' Church trying to burn it and also at the time when the same BCP members wanted to bring it to an end (because they alleged that it was the Catholic Church Ministers who had made BCP lose the elections) it was Mr. Sixishe (this very one) through his newspapers said and uncompromisingly protected the church and the ministers. In his acts of valour you will recall how Mr. Desmond T. Sixishe was called by many names such as a refugee who had been bribed by Roman Catholic Ministers and staunch catholic women government to go about telling lies. This is what is said by Mr. Manyeli today when he emphasises how Mr. Sixishe is not a Mosotho and a BNP member. According to Mr. Manyeli the only people that are Basotho are those of Bataung clan like himself. A person who is possessed of sober and sound mind may pause here and quickly ask himself how Mr. Sixishe could somersault and insult the Pope! After Manyeli was rejected by Maama people and had been expelled from the party, he visited one boor by the name of Van der Berg, and that boer advised him that if the BNP members refused to dance to his tune - he should use teachers and ministers who were his friends (like Ntsu Mokhehle did when he wanted to use the Lesotho Evangelical Church as a means to achieve his goal) to start on a low scale a party called "Christian Democratic Party" and then say how Chief Leabua Jonathan and RNP are now communists. place w h e re Manyeli s n e a ks in to s p e ak ill of C h i ef At all and o ur p a r t y, c h r i s t i a ns r e f u se to he d e c e i v e d; M a n y e li f a i l ed find l e ft in an e m b a r a s s i ng m a n n er as t he d e v il d id w h en he h ad • M a n y e li is r i d d i ng h i m s e lf of f a i l ed to b e g u i le t he L o rd J e s u s. the e m b a r a s s m e nt by w r i t i ng d r e a ms a nd lies about o ur l e a d er in the boers' newspapers and the local newspapers like "Moeletsi" and "Leselihyana". L e a b ua We end up by expressing our gratitude to people at Maama's and. other places in Lesotho who refused to swallow this bait of: Manyeli and other enemies of Basotho. We convey to you the hearty gratitude of our leader Chief leabua Jonathan for the hard work, courage and trust which the BNP members have shown him and also for supporting our government during trying times. The leader says you should be vigilant and hold fast,in your prayers to your All-mighty God. It is through, your untiring work, being firm to your religion and your support to the government up to this stage that we have succeeded to defeat the enemies of Basotho. The Leader assures you all of his loyalty to you, the Party and to consider your wishes foremost. "Forward ever even amidst the hardships" "Victory over ,Basotho nation hardship". BASOTHO NATIONAL. PARTY P O. Box 124 , MASERU 100. LESOTHO. Certified that to the best of my ability this a true and correct translation. INTERPRETER :(SENIOR) HIGH COURT OF LESOTHO, SWORE TRANSLATION TIME CHRISTIANS CHOSE: BETWEEN TWO ROADS • It is long, on many occasions and even with comparisons, that I have advised and warned Leabua Jonathan about the danger that will befall him for befriending P. F. which is his enemy, the enemy of B. N. P. and Basotho. All that I said P. F. would do to him have been fulfilled as I said. For how many times have I advised him that P. F. would make all his friends turn away from him. I have often stated that the aim and intention of P. F. is to capture Lesotho Government for communists. Today it is clear that we have come to crossroads. Chief Leabua has placed the B. N. P. members in trouble by setting Sixishe at them, whom I wonder if there is one B. N. P. member who can tell us how he gets involved in the administration of B. N. P. when his home is in Thembuland in the Cape. He has already been in Russia as he himself states. As I write this he has again gone to the communists. It seems like he is undergoing a training to learn ways which a communist Government adopts in oppressing a nation that does not like communism. We of Maama area say it will be our dead bodies which will go to communism. I wander if Chief Leabua is a Catholic like myself. Is the insult that Sixishe has insulted the Father of Catholics in all the world (me inclusive) nothing to Leabua. I say this because this insult came out of his messenger's mouth. Chief Leabua is dead silent. In Lesotho we say the messenger does not have to be blamed for messages he conveys, it is the person who sent him that has to be blamed - "moro-muoa ha a na lonya, lonya le na le Khaloli". His Excellency the Head of Catholic Church Tin Lesotho has already stated that the Catholic Church has nothing in common with communism. A testing....... Page 2. A testing time has come to Christians There has come a time when Christians have to choose between two pads; to listen to the Church or the Government, to hear God or man. The B. N. P. members have to choose between two roads; to adhere to the B. N. P. manifesto which says "We are against leaders" who "work together with Communist countries in deliberately placing the future Lesotho in danger" or to go with those who throuqh receiving monies from communist countries have become Russian and Chinese stooges. Not through our own liking we have been brought to this point which,I call cross roads, and we have to choose between two roads. At a pitso which was held at Taung on 24-5-80, Chief Leabua said to the Bataung that a Nationalist who publishes his news through Leselinyana is a Judas Iscariot. All Christians know from the Bible that Judas is the man who rebelled against the Lord Jesus, he befriended the enemies of Jesus and planned with them to kill him. Chief Leabua should know that Bataung (of whom I am a member) have never been rebels and will never be. In Lesotho history there have been rebels. During the 1865 war (ntoa ea seqiti) the person who rebelled against Basotho was Chief Molapo. Mokoena, not a Mataung). Was it not the sons of Molapo who lived at a place of one boer by the name of Janefeke? During Gun War (1880) it was the son of Molapo, Jonathan who their enemies to fight them. It appears like a Molapo it is a great pride to rebel which even Chief Jonathan Molapo himself is proud of because when he sings his praises he says : . . Basotho and joined "Tsukulu of Leribe rebels Sebehla meets Mokutu half way The Whirlwind of Lejaha's battalion!" In 1865 when it was fierce Molapo joined the enemy (Boers) to fight Basotho. In 1880 when it was bad, Jonathan Molapo joined the enemies (English) to fight Basotho. Today in 1980 Chief /Leabua Leabua Jonathan when it is bad he joins the enemy (communist Russians) to fight B. N. P. members, Christians, Basotho. For this reason and many others, if Chief Leabua still wants rebels like Judas he should go to Leribe, he will find them there, not anywhere else. A. C. Manyeli - Roma I certify this to be a true and. correct translation of the original photocopy, (to the best of my ability-