Nkotsi v Machai and Others (CIV/T 99 of 2005) [2012] LSHC 62 (11 September 2012)

IN THE HIGH COURT OF LESOTHO CIV/T/99/2005 In the matter between: JOACHIM NKOTSI Plaintiff vs ‘MATEBELLO MOCHAI LYDIA KEKETSI ‘MAMAHLAKU TSOLA 1st Defendant 2nd Defendant 3rd Defendant Coram: Dates of Hearing: JUDGMENT Hon. Hlajoane J 21st February, 2008, 23rd March, 2010, 24th March, 2010, 26th April, 2010, 15th December, 2011. Date of Judgment: 11th September, 2012. Summary Plaintiff claiming damages against the defendants for defamation. Plaintiff having been referred to as a thief and murderer at the staff meeting by management and also at the bus stop where they were heard by plaintiff’s friends and members of the public - Defendants claiming qualified privilege - Reporting to the police privileged but not to members of staff, friends and members of the public. General damages for defamation and injuria awarded to plaintiff. [1] Plaintiff issued summons against the management of St Joseph’s Hospital Roma claiming damages for defamation and general damages for injuria. Plaintiff who used to be cashier then at the hospital claimed that he had been labeled as a thief by the three defendants. [2] He showed in his evidence that there had been breakings at the hospital during 2004. That in a meeting that had been called by the three defendants as top management, he had been referred to as a thief. Other members of staff were even invited to arrest plaintiff as he was held responsible for the breakings.. [3] Plaintiff had even showed that he had been called by the police who questioned him about the breakings at the Hospital. It was even said to him that the thieves were seen running to his place. He had however explained to the police that, they had a common entrance where he stayed, so that if a person enters through that entrance, unless he is followed closely, would not be easy to know which door he entered into amongst the several rooms that were there. [4] Since it was suggested to him that those whom it was alleged ran to his place were armed with guns, he too was asked to produce a gun, but showed he had none. [5] Plaintiff showed again that even before the police the three defendants still claimed that he was responsible for the breakings at the Hospital and that he had also threatened to kill them. But plaintiff still denied any knowledge of the breakings and that he ever threatened any of the defendants with death. [6] Thereafter plaintiff showed that he had met with his friends who told him that they had heard about what he had been doing at the Hospital and that he had already been arrested for such acts. They also showed were aware that plaintiff was threatening to kill the management at the Hospital. [7] Plaintiff even claimed that he had been removed from positions of trust in many organizations as he was being labeled as a thief and a killer. He could no longer be trusted as member of Roma Boys Sports and also of Maama Taxi Association. He was even relieved of his position as Treasurer of Chebelo-Pele Association. [8] Plaintiff said the utterances and the humiliation went on even after the arrests of people who were found to have been responsible for the breakings at the Hospital. This meant that according to him his name remained tainted. [9] One Samuele Mokapela testified in support of plaintiff’s story. He said he also worked at the Hospital as Security Officer. He confirmed that in a staff meeting they were told that plaintiff was a thief and that he was even threatening to kill the management. He also showed that even after the meeting he had been called by the 3rd defendant in the management office where he was told that he was going to lose his job if he failed to catch plaintiff as a thief. Present also in that office was both the 1st and 2nd defendants. [10] Samuele further showed that he was later called to the management office, this time to be told of his retrenchment. The reasons given being that management was intending to employ trained personnel who would be armed with guns not sticks like they were doing. [11] The third witness Ramabele Ntlama said in his evidence that he was at the bus stop one day when he heard some three ladies talking and referring to plaintiff as a thief. The ladies even claimed that plaintiff was even threatening to kill them. He further said that it was the 3rd defendant who uttered those words. [12] Under cross examination the 3rd defendant never denied that she was seen at the bus stop. She denied ever referring to plaintiff as a thief. Instead 3rd defendant pointed out that what she said when she was at the bus stop was that, plaintiff was reported to have stolen the Hospital money. [13] The witness went further to say that he never informed plaintiff that he was being labeled as a thief because he wanted to arrest him. He however never arrested him as he never found plaintiff stealing. He wanted to find him red handed. [14] Though a security officer at the Hospital then, the witness said he had not been on duty when the breakings took place. He never even came to know of the number of occasions that the breakings took place at the Hospital. He said the stealing did not only take place at night but also during the day time. [15] The witness had said in evidence that 3rd defendant was talking in a loud voice as she was talking at the bus stop and referring to plaintiff as a thief. He was later referred to what he had said in his statement where he had said he overheard the conversation of 3rd defendant talking to people who were with her. Defendants’ counsel argued that if the witness said he overheard the conversation, the possibility would be that he did not hear well what was being said. [16] The defendants have given their own meaning to the word over- hear. But on looking at the Dictionary meaning of overhear from the Concise Oxford Dictionary we get this meaning; “hear as an eavesdropper or as an unperceived or unintentional listener.” Nowhere does the meaning imply that one could not have heard well. [17] The fourth witness Stephen Qhobosheane had also been with the third witness at the bus stop. He too testified to the effect that he heard the 3rd defendant referring to plaintiff as the person who stole money from the Hospital. 3rd Defendant said these words as plaintiff drove passed them at the bus stop. The witness, Machache Qhobosheane knew that plaintiff was working at the Hospital. [18] Later this witness said they met plaintiff and besides telling him what they had heard about him, they wanted him to confirm that he was responsible for stealing Hospital money. But plaintiff turned around and said he knew nothing about Hospital money. The witness was firm in his evidence in telling the Court that plaintiff was referred to as the person who stole money not suspected to have stolen. [19] The last witness Mosala Khare was not different from other witnesses about being called for a meeting wherein they were asked to arrest plaintiff as the thief. This witness was a watchman at the Hospital. He confirmed that there had been more than on breaking at the Hospital. [20] The witness said they were later called one by one to the management office where discussion was still on breakings at the Hospital. He was told in that office that he was loathe to arrest plaintiff yet they have been told that he was the one responsible. He was even threatened of losing his job if he was not prepared to arrest plaintiff who was even threatening to kill management. But the witness showed he was not prepared to arrest anyone whom he never found stealing. [21] At the close of plaintiff’s case counsel for defendants applied for absolution from the instance. The Court ruled that there was a case to answer and promised that reasons would follow as part of the whole judgment. [22] There were four instances at which the defamatory words were said to have been uttered. The first instance was when the three defendants reported about the breakings and stealing of money at the Hospital to Roma police. [23] The second being when first defendant reported to Mahase Ntsoa and Rethabile Makhakhe that plaintiff was responsible for the breakings at the Hospital and that he was also threatening to kill management. [24] The third occasion was when the first defendant uttered the same defamatory words to two security officers at the Hospital being Sam Mokapela and Mosala Khare. Since no evidence was led on this 3rd occasion the point is abandoned. [25] The last occasion was when the defamatory statements were uttered by the third defendant at the bus stop and were heard by Ramabele Ntlama and Stephen Qhobosheane. [26] In the application for absolution defendants’ counsel had argued that they were pleading priviledge. He relied on the passage in R. G. Mckerron on the Law of Delict1 where the learned author had this to say in dealing with priviledge: “A statement made by defendant in regard to a matter in which he has a legitimate interest is provisionally protected, provided the person to whom it is made has a legitimate interest or a duty to receive it …. The defendant must therefore establish both that he had a legitimate interest in speaking and that the communication was relevant to the furtherance or protection of interest.” [27] Further on the same topic counsel for defendants referred to Burchell on the Law of Defamation2 where it was said; “Taking into account factors of nature of information, relationship of the parties and urgency and importance of the occasion, the Courts 1 7th Edition page 192 2 1985 Edition 244 at 248 – 249 must attempt to effect a balance between officious interference, idle curiosity or desire to gossip, on the other hand and the necessary disclosure of the information.” [28] He further relied on the case of Borgin v De Villers and Another3 on this passage; “The particular category of priviledge which, would apply in this case would be that which arises when a statement is published by one person in the discharge of duty or protection of a legitimate interest to another person who has a similar duty or interest to receive it.” [29] The Court in the above case advised fellow colleagues to judge the situation by the standard of a reasonable man, having regard to the relationship of the parties and the surrounding circumstances. The issue being whether the circumstances in the eyes of a reasonable man created a duty, or interest which entitled a party, sued to speak? That the Court here must be guided by the criterion as to whether public policy justifies publication and required that it be found to be a lawful one. [30] Counsel therefore in the circumstances of this case claimed qualified priviledge. He further submitted that under such a defence the concern should never be on the truthfulness or otherwise of the publication. But was also quick to submit that, where there is proof that defendant did not believe in the facts as 3 1980 (3) S. A 556 at 577D stated by him to be true, then that may give rise to the inference that he was actuated by express malice. [31] For the Court to deal with the priviledge pleaded by the defendants in the application for absolution the four instances at which the statements were made had to be looked at one by one. [32] When reporting a matter to police, in most instances the police are going to ask you if you have a suspect. That information would fall under the privildge claimed by the defendants as police would have a legitimate interest and duty to receive such information. [33] Also when the information claimed to be defamatory was given to the two security officers, Sam Mokapela and Mosala Khare, being the security officers at the Hospital that information fell within the claimed priviledge. The security officers were under a duty to receive such information and had legitimate interest to arrest whoever was responsible. [34] But when plaintiff was referred to as the thief in a staff meeting, and again when third defendant uttered the defamatory words about the defendant at the bus stop defendants must be taken to have forfeited that qualified priviledge. Members of staff were not entitled to have been told by the defendants such information about plaintiff. Even the people at the bus stop where third defendant was heard uttering the defamatory statement, were not entitled to receive such information. [35] It was enough for the defendants to have reported the matter to the police. It would also have been proper to have only reported to the security officers privately, but not to have publicly uttered the words in a staff meeting. Hence why the Court felt that the defendants had to answer the allegations against them from the evidence led by the plaintiff. [36] The defendants gave their evidence in an effort to contradict what has been said in plaintiff’s evidence and submissions. It was the first and the third defendants who gave evidence. [37] The third defendant in her evidence said plaintiff was threatening to kill them because he had learned that they were claiming that he was the one responsible for the breakings. She denied ever referring to plaintiff as a thief at any stage. [38] Though the third defendant in giving evidence was now denying ever uttering any words against the plaintiff, but when his counsel cross examined P. W.3. Ramabele Ntlama it was never denied that the (3rd defendant) was at the bus stop, what was said was that she did not refer to plaintiff as a thief but said the person reported to have stolen money was passing, referring to plaintiff. [39] It was not only P. W.3 who heard the defendant utter those defamatory words but also P. W.4 Qhobosheane. The two were together at the bus stop. Also Samuele Mokapela P. W.2 and Mosala Khare P. W.5 confirmed that they were told in a staff meeting that plaintiff was a thief and were even invited to arrest him. [40] For a claim of defamation to succeed the following elements must be shown to exist: - - - - - unlawfulness intention publication of defamatory statement which referred to plaintiff causing reputation to be impaired. [41] As shown earlier on when dealing with the defence of priviledge, it would have been sufficient for the defendants to have reported to the police about the plaintiff on the information they had received and also to have privately talked to the security at the hospital. But when the defendants publicly made an announcement in a staff meeting and third defendant publicly referring to plaintiff as a thief as he drove passed them at the bus stop that was a clear forfeiture of the qualified priviledge which they pleaded, thus making such utterances unlawful and defamatory. [42] According to Mckeron at page 193 the person to whom the statement is made must have a legitimate interest or duty to receive it. The staff and the public at the bus stop had no such duty. The interest which the defendants had in spreading the information must not be too remote, but had to be one which affected them personally. But the defendants had no reason to have suspected the plaintiff. [43] Could it then said that the issue of theft at the hospital affected the defendants personally? Surely not, that hospital was for members of the community not the defendants alone. Reporting to police was enough and spreading the rumour showed that the defendants were up in arms in destroying plaintiff’s reputation particularly because they had not even got their facts straight about the plaintiff. That was a clear indication of defendants’ intention to defence the plaintiff. [44] I have already shown that the statements were defamatory. The issue here would be whether there has been publication. As shown earlier on, when the plaintiff was labeled as a thief in a staff meeting it was enough publication. Also when the third defendant uttered the publication of those defamatory words at the bus stop where there were other members of the community who had no legitimate interest in the affairs of the hospital. [45] The publication of those defamatory words referred to plaintiff as he was the one referred to as a thief at the staff meeting and when he drove passed at the bus stop and referred to as a thief by the third defendant. [46] The last point would be whether such publication caused the reputation of the plaintiff to be impaired. [47] Defendants submitted that even where the Court were to consider that plaintiff was defamed his only entitlement would be nominal damages. The reason being that except for his own evidence of being a committee member of Maama Taxi Association and Roma Boys, and Treasurer of Chebelopele Association, no supporting evidence was led from independent community members to confirm what he said. [48] Defendants were thus arguing that the Court was left in the dark as to how the alleged defamation affected plaintiff’s fame. But rather that in the contrary the alleged defamation must be taken to have not affected plaintiff in any way financially as he is still employed at the hospital to date. [49] It has however been argued on behalf of the plaintiff that as plaintiff has shown in his evidence that on hearing and learning of the publication of the unlawful statements he became hurt and even had to seek for advice. He no longer had peace at work as the publication had caused him depression. Further that he was worried that should anything happen to the defendants, as he had been labeled a killer, he would be linked with those unfortunate acts. He said he had been removed from his position of Treasurer for Chebelopele as a result of the publication about him. [50] It was further argued on behalf of plaintiff that all what was said by plaintiff was never challenged under cross examination. So that such evidence must be admitted. [51] On the evidence presented before this Court the Court has thus found that there has been publication of defamatory words about plaintiff by the defendants. The defence of priviledge pleaded by the defendants could not work for them safe when the report was made to the police. [52] As rightly pointed out by plaintiff’s counsel, it was never denied in cross examination that the publication affected plaintiff’s fame as he was viewed by his friends, the community and workmates as a thief and a killer. He showed he was even expelled from Association’s positions of trust as a result of such publication. [53] Though defendants’ counsel had argued that the defamatory words alleged must not be based on any personal animosity and lacked malice as it happened in the work situation, and that defendants were trying to curb or prevent further attempts of robbery at their place of work, but plaintiff nonetheless was still entitled to protection of his dignity, fame and reputation. [54] R. G. Mc Kerron in his book on “The Law of Delict4,” had this to say that; “It should be observed that expressions of abuse, although not actionable as constituting an impairment of the plaintiff’s fama, may nevertheless be actionable as constituting an impairment of his dignitas.” [55] The utterances about plaintiff at the staff meeting being labelled as a thief and killer must have clearly affected his dignitas. Not only them, but also his friends who even had to confront him and ask if it was true what was being said about him. [56] There can be no relationship between money and the humiliation that one may have suffered in cases of this nature, but we can always compare awards in similar cases. In Manyeli v Makhele and Another5 M8,000.00 was awarded where plaintiff had been a Minister and member of Parliament for something like seven years and publication was by pamphlets distributed during a political rally. Also in Ntsamo v Letsie6 M2000.00 was awarded where publication was effected at a funeral. But these cases were both decided in the eighties. 4 7th Edition P.174 5 C of A (CIV) No.10 of 1983 6 CIV/T/233 of 1987 [57] Plaintiff at the time of the publication of the defamatory words was working as a cashier at Roma hospital. The publication was made to his colleagues, friends and members of the public. [58] Judgment is thus entered for the plaintiff in the amount of M30,000.00 general damages for defamation; and M20,000.00 as general damages for injuria with costs, the one paying and the others to be absolved. A. M. HLAJOANE JUDGE For Plaintiff: Mr Metsing For Defendants: Adv. Matooane KC