Malebo v Minister of Agriculture and Another (CIV/T 401 of 95) [2000] LSCA 93 (4 May 2000)

1 C I V / T / 4 0 1 / 95 PLAINTIFF IN T HE H I GH C O U RT OF L E S O T HO In the matter between : V M M A L E BO and T HE M I N I S T ER OF A G R I C U L T U RE C O M M I S S I ON OF I N Q U I RY T HE A T T O R N EY G E N E R AL 1ST 2ND 3RD D E F E N D A NT D E F E N D A NT D E F E N D A NT R e a s o ns for J u d g m e nt F or Plaintiff - M r. M. A. Ntlhoki F or D e f e n d a nt - M r. T. Makhethe Delivered by the H o n o u r a b le M r. Justice T. M o n a p a t hi on the 4th d ay of M ay 2 0 00 I have already m a de a ruling in this matter on the 17th day of April 2000 which was noted by Adv. Z. M d a. T he Plaintiff was one of the debtors according to the findings of a C o m m i s s i on of Inquiry. T he C o m m i s s i on w as established in terms of Public Inquiries A ct N o .1 of 1 9 94 per Legal Notice N o . 1 14 of 1 9 9 3, by H is Majesty, into Co-operatives a nd Cooperatives m o v e m e nt in Lesotho a nd m o re particularly a co- operative k n o wn as C o - op Lesotho. C o - op Lesotho w as a m a j or Co-operative with a network of depots selling agricultural products. T he C o m m i s s i on which w as chaired by M r. Justice M . L. L e h o h la completed its report on or about 29th N o v e m b er 1991 w h i ch it submitted to the First Defendant on the 30th N o v e m b er 1993. A c o py of this three h u n d r ed a nd fifty six (356) page report w as put before the C o u rt as annexure " A" to Defendants plea. T he parties agreed that the C o u rt should decide a certain t wo issues in this dispute which would be m o st convenient to decide before a ny evidence w as led, if such evidence w o u ld be necessary. T he t wo issues were: " (i) W h e t h er or not the commission m a de a finding that debtors were responsible for the downfall of C o - op Lesotho. (ii) W h e t h er or not, if the answer to (;) above be in the affirmative such finding, if a ny taken together with the whole contents a nd the nature of the report, is reasonably capable of bearing a ny defamatory m e a n i ng or such m e a n i ng claimed by the Plaintiff." T he said Commission's report contained annexure " B B B 1" w h i ch w as a list of n a m es of individuals the C o m m i s s i on reported to h a ve been indebted to the said C o - op Lesotho. T h e re were other lists of traders/debtors " B B 2 ", Societies " B B B 3" and G o v e r n m e nt Ministries a nd Projects - " B B B 4 ". A m o n g st the reported debtors w as Plaintiff w h o se n a me appeared in " B B B 1" a nd w ho w as reported to have b e en indebted to the said C o - op Lesotho in the s um of Eight T h o u s a nd a nd N i ne H u n d r ed a nd Forty T h r ee Maloti a nd Fourteen Lisente (M8,943.14). O ne of the debtors w as Lesotho Agricultural D e v e l o p m e nt B a nk ( L A D B ). T he respective contentions of the parties in relation to the disputed issues a b o ve (i a nd ii) in the second paragraph of this j u d g m e nt w e re as follows: According to the Plaintiff there w as a finding per report that debtors w e re responsible for the downfall of C o - op Lesotho . Consequently, because admittedly Plaintiffs n a me appeared in the list of debtors Plaintiff h ad b e en stated as having b en responsible for the downfall of C o - op Lesotho a nd that that h ad b e en defamatory of the Plaintiff. Defendants contended that there w as no such finding per the report that debtors h ad b e en responsible for the downfall of C o - op Lesotho. T h at if such finding w as m a de in the report, w h i ch w as not conceded, in view of the w h o le contents a nd nature of the report it w as not reasonably capable of bearing a defamatory m e a n i n g. T he parties agreed, pursuant to the statement of the case pursuant to H i gh C o u rt R u le 32 (1) (2) a nd (3) read with (7), as follows: "(i) In the event of this H o n o u r a b le C o u rt finding/holding that per the report there w as alleged finding by the C o m m i s s i on that the debtors w e re responsible as alleged, the i m m e d i a te question to be decided w o u ld be w h e t h er or not given the contents of the report as a w h o le a nd the nature thereof, such a finding w as reasonably capable of bearing defamatory m e a n i n g. (ii) In the event of being held chat the finding, if a ny is reasonably capable of bearing a d e f a m a t o ry m e a n i n g, t h en the m a t t er w o u ld be subjected to trial so that w h a t e v er defences h a ve b e en raised in the pleadings are tested. (iii) In the event of the H o n o u r a b le C o u rt finding/holding that there w as no s u ch finding p er the report that: the debtors w e re responsible as alleged then that w o u ld be the e nd of the m a t t er a nd the w h o le proceedings. (iv) In the event of this H o n o u r a b le C o u rt finding/holding that p er the report there w as the alleged finding by the C o m m i s s i o n, b ut that the finding is n ot reasonably capable of bearing a d e f a m a t o ry m e a n i n g, taken together with the w h o le contents a nd then nature of the report, t h en that w o u ld be the e nd of the matter." I w o u ld say f r om the onset that the suggestion a b o ut the finding of debtors "as responsible for the downfall of C o - op L e s o t h o" w as misleading in the sense that the C o m m i s s i on w as looking at various causes of the downfall of C o - op Lesotho. T h is m e a nt that there could be a n u m b er of other factors. A nd indeed m a ny factors w e re f o u n d. A nd m o re t h an five h u n d r ed (500) debtors w e re unearthed. T he parties h o w e v er m o st usefully s p o ke a b o ut "the w h o le contents a nd the nature of the report." T h is suggested that the inquiry could n ot as a fact h a ve h ad its eyes on o ne factor as a sole cause b ut on a n u m b er of causes as the t e r ms of reference indicated. A reference to the introduction of the C o m m i s s i on a nd the terms of reference w o u ld bear fruit, as s h o w i ng the true nature of the report. It w as said in the report that the C o m m i s s i on h ad b e en set up against the b a c k g r o u nd of a general d o w n w a rd trend in the Co-operative m o v e m e nt in L e s o t ho w h i ch h ad culminated in the closure of C o - op Lesotho. Its depots a nd w a r e h o u s es h ad b e en closed a r o u nd the c o u n t ry a nd its staff h ad b e en laid off on the 19th M a r ch 1 9 9 3. C o - op Lesotho h ad g r o wn into a giant a c c o r d i ng to local standards. It h ad provided sizeable e m p l o y m e nt opportunities a nd h ad r un extensive n e t w o rk of facilities primarily for agricultural inputs."Co-op L e s o t ho w as also v i e w ed as an a p ex organization for the Co-operative m o v e m e nt in L e s o t h o ." T he a b o ve situation h ad b r o u g ht a b o ut extensive t e r ms of reference w h i ch w e re contained in the Legal notice 1 1 4 / 1 9 9 3. U n d er section 4 of the t e r ms of reference the C o m m i s s i on w as asked to e x a m i ne eight (8) items in all. U n d er Section 5 the C o m m i s s i on w as asked to e x a m i ne (i) A c c o u n t i ng a nd b u d g et procedures of C o - op L e s o t h o; (ii) (iii)................................................. (iv (iv) Identification of debtors of C o - op L e s o t ho a nd a ny irregularities in respect of accounting procedures relating to debtors a nd creditors of C o - op Lesotho. (v) (vi) (vii) So that the C o m m i s s i on w as a b o ut several issues or causes of the d o w n w a rd trend in the Co-operative m o v e m e nt a nd closure of C o - op Lesotho. If 5(v) a b o ve w as to h a ve a ny m e a n i ng identification of debtors by n a me w as clearly the intention of H is Majesty in establishing this C o m m i s s i o n. T h e re a nd t h en a d o u bt w o u ld arise as to w h e t h er a ny intention to injure the Plaintiff in his g o od n a me (animo injuriandi) c an e v en be remotely suspected. A nd if not so w h y? It has not been difficult for the Court to discover that the C o m m i s s i on did in fact m a ke a finding that debtors w e re o ne of the factors that caused the downfall of C o - op Lesotho. I firstly referred to page 82 in paragraphs 26 a nd 2 7. T h e re it w as recorded as follows: D E B TS " 26 " O ne other factor that accounted for the b ad performance of C o - op Lesotho w as slack control of debts on the part of the m a n a g e m e n t. Evidence s h o w ed that everybody especially high ranking authorities of that time could accumulate h u ge debts without anything being d o ne by the authority of C o - op Lesotho. So lax w as C o - op Lesotho in this regard that it s e e ms possible that if a customer w as k n o wn to be well to d o, he could not only be believed to be in credit but w o u ld be granted discounts even w h en he b o u g ht on credit." ( My underlining) H u ge debts a nd customers not being in credit being granted facilities are spoken about in the clearest of terms as having contributed to " b ad p e r f o r m a n c e" a nd as examples of "laxity" on the part of m a n a g e m e nt a nd staff. Secondly it w as w h at w as stated in page 1 78 of the report at paragraph 80.1. T h e se w e re the lists of debtors a nd w h at they o w ed C o - op Lesotho as s h o wn in the annexures at the e nd of the report. T he total in " B B B 2" w as M 4 4 4 , 1 0 7 . 3 2. " B B 1" h ad a total of M1,042,461.06. This excluded the t wo other lists w h i ch also ran into h u ge sums. Thirdly, there w as a finding in the report at p a ge 68 paragraph 18 w h i ch w as styled: " B a ck to Colonel Tsotetsi's involvement in factors w h i ch led to C o - op L e s o t h o 's failure." T h is c o u ld safely be r e ad w i th the c o n c l u s i on a nd finding on p a ge 1 83 at p a r a g r a ph 1 3. It said: " S o me of the debts arose as a result of s o me military councillors, s o me ministers a nd s o me h i gh r a n k i ng g o v e r n m e nt officials treating C o - op L e s o t ho as a fine s o u r ce of acquisition of p r o p e r ty a nd t h e r e by s h o w i ng no intention or p r e p a r e d n e ss to p ay for t h o se g o o ds a nd services o b t a i n ed f r om C o - op L e s o t ho for instance. (a) e v i d e n ce strongly suggests that s o me g o o ds a nd services w e re p r o v i d ed w i t h o ut a ny relevant d o c u m e n t a t i o n. (b) Instances a b o u nd in e v i d e n ce to s h ow h ow g o o ds destined to C o l o n el Tsotetsi's place left C o - op L e s o t ho p r e m i s es w i t h o ut a ny p r o of to the organization for t h o se g o o d s. In s u ch c i r c u m s t a n c es the c o n c l u s i on is irresistible that C o l. Tsotetsi a c q u i r ed s u ch g o o ds free of c h a r ge a nd at no m e an resultant loss to C o - op L e s o t h o ." ( My underlining) T he a b o ve revelations n e e d ed no c o m m e n t. Lastly, on p a ge 1 83 at p a r a g r a ph 14 to 1 84 it w as c o n c l u d ed as follows: " On this basis therefore the C o m m i s s i on is of the firm v i ew that L A DB o w es C o - op L e s o t ho M 2 , 5 2 5 , 2 0 3 . 00 as revealed in the exercise u n d e r t a k en by the C o m m i s s i on at great pains a nd i n c o n v e n i e n ce to itself." T he d e bt by L A DB m u st h a ve c a u s ed no m e an resultant loss to C o - op L e s o t h o. T h at a b a nk w as a big d e b t or to a C o - o p e r a t i ve Society w as yet a n o t h er revelation. It c o u ld o n ly be a strange o n e. T he m o st i m p o r t a nt thing, h o w e v e r, w as that it b e c a me b e y o nd d o u bt that debts a nd d e b t o rs w e re responsible factor to h a ve b r o u g ht C o - op L e s o t ho to its k n e e s. T h at C o l. Tsotetsi w as singled o ut for a b o ve c o m m e nt w as n ot an accident. T he C o m m i s s i on h ad h ad a lot to say a b o ut h i m. It also s p o ke of several others. T h at w as o ne o t h er r e a s on w hy r e a d i ng the report w as indeed a v o y a ge of discovery. In my ruling I a d d ed that it m i g ht p e r h a ps be f o u nd that the Plaintiff w as incorrectly cited as a d e b t or in the event that the m a t t er w o u ld be disputed in C o u r t. It m i g ht be that the a m o u nt o w ed w as inaccurately calculated. T h is w o u ld not m a ke the findings a nd statements of the C o m m i s s i on d e f a m a t o r y. T he principle w o u ld be that the proceedings of judicial or C o m m i s s i on inquiry are n o r m a l ly privileged w h e t h er provisionally or absolutely. S ee for instance the case of B A S N ER v T R I G G ER 1 9 46 AD 8 3. T h e re should be a n u m b er of s u ch authorities in l aw reports a nd textbooks c o m m e n t i ng in a similar m a n n e r. S o me w o u ld say that a ny claim w h e r e in findings of reports or statements by witnesses are being questioned are o ut of b o u n d s. T h at is besides w h e t h er the C o m m i s s i on of , inquiry intended to d e f a me a p e r s on of the n a me or stature of the Plaintiff. Individual witnesses w o u ld definitely, without d o u b t, seek protection f r om o ne of various defences raised in the D e f e n d a n ts pleas, including that of privilege as I h a ve s p o k en a b o ut earlier o n. T he dramatis personae in the report c a n n ot only m a ke o ne believe that o ne c an never fully understand the p e o p le of this country. T h ey reveal that soft a nd extensive i m m o r al underbelly of lack of respect for public property that is to be f o u nd in this country. T he t h o r o u g h n e ss of the report h as e x p o s ed the unpalatable m a n n er in w h i ch people got their undeserved wealth a nd gained respect at the s a me time in this country. S o me still expected to be respected. S o me w e re so arrogant not to anticipate that g o v e r n m e n ts will s o m e t i m es boldly investigate s u ch c o n d u ct by m e a ns of public inquiries like the C o m m i s s i on subject of the dispute. T he C o u rt w o u l d, as I digressed in my ruling, n o r m a l ly decry the fact that the Plaintiff m ay not h a ve b e en i n f o r m ed or h a ve b e en called before the C o m m i s s i on a b o ut the aspect of his alleged indebtedness as it affected h i m. On the general n e ed for fairness before a C o m m i s s i on of Inquiry see the case of L E S O T HO C O - O P E R A T I VE H A N D I C R A F TS L TD A ND O T H E RS v L E S O T HO C O M M I S S I ON OF I N Q U I RY I N TO C O O P E R A T I V ES 1991 - 1 9 9 6 ( 1 ) L LR 3 43 a nd section 13(2) of the Public Inquiries A ct N o .1 of 1 9 9 4. T h is w o u ld n ot h o w e v er m a ke the statements in question (about Plaintiffs indebtedness) intentionally injurious in the context of a C o m m i s s i on of Inquiry without m o r e. T he result w as that, as I f o u nd as in p a r a g r a ph 7D(iv) of the agreed statement, this should be the e nd of the matter. I did h o w e v er h a ve the question of costs deferred to a date to be arranged by the Registrar or p e n d i ng a g r e e m e nt b e t w e en C o u n s e l. T M O N A P A T HI J U D GE