Defamation / Reputation
Commonwealth v. Pon
Closed Mixed Outcome
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The High Court of Lesotho held that the Mirror newspaper and its journalist were liable for defamation by failing to ascertain the truth of statements about the Plaintiff before publication. The Plaintiff politician sued following an article accusing him of using a community-owned tractor for his personal benefit. The High Court reasoned that although the paper’s statements could be considered as fair comment on existing facts, its failure to verify information on which it had imputed corrupt motives made the publication unreasonable and unfair.
In May 2003, Vincent Moeketsi Malebo, leader of the Marematlou Freedom Party, a political party in the Kingdom of Lesotho, sued the Mirror Newspaper, a national newspaper, for defamation. The Mirror had published a story on 28 May 2003 which stated that Malebo used a community-owned tractor for his personal use. The article stated that the tractor had been donated to the community, but that Malebo had been using it since 1987. The article quoted representatives of the community who stated that they had felt unable to seek to regain possession of the tractor because of Malebo’s powerful political position.
Malebo applied to the High Court arguing that his reputation as a Member of Parliament, a political party leader, a farmer and businessman and a member of the community had been damaged (para 18). The newspaper admitted the publication of the article and its contents but submitted that the article was true and that it was published in the public interest.
Maqutu J delivered the judgment of the High Court.
The Court had to determine whether the publication of the defamatory statements by the newspaper had been reasonable or not.
Malebo explained that he had been a farmer for many years, and had helped establish a farming community by providing the community with certain farming implements. He disputed the article’s assertion that he had used a tractor meant for the community, and argued that the comment that the community had been unable to raise the issue with him implied that he had misused his power as a government minister. He accepted the importance of the right to freedom of expression, but said that the media’s role of informing the public could not extend to defamation of individuals.
During the cross-examination of Malebo it emerged that the tractor was registered in the community’s name, and Malebo conceded that if it was true that the tractor belonged to the community the statements in the article were therefore not defamatory. However, he emphasised that he was not using the tractor for his personal use, but that the tractor was being used by a different community for its own farming interests.
The author of the article testified in court and explained that after hearing that the community owned two tractors but that one was in Malebo’s possession he went to the traffic department and ascertained that the tractor in question was registered to the community. He stated that he merely reported on the facts that he had discovered. He said that he believed the publication of the story was in the public interest, and that it might assist the community in obtaining possession of the tractor. He denied that he had intended to defame Malebo (page 27).
The newspaper submitted that its article was “substantially true and the publication was in the public interest; the comments were fair and based [on] true facts; the publication, even if defamatory, was not wrongful because it was legitimate and justified by surrounding facts and circumstances; [and] there was absence of negligence on the part of the media before publication. (p. 33)”
Maqutu then examined the law of defamation in Lesotho. He referred to South African academic authorities which stated that an individual’s right to dignity and a reputation can only be infringed if there is a justification that is in the public interest. He quoted a Lesotho case, Ramainoane v. Sello 1999 LLR 411 which quoted the South African case of National Media Ltd v. Bogoshi 1998 4 SA 1198 (SCA) which had introduced the standard of reasonableness into defenses to defamation (paras. 34-36).
Maqutu explained that, since the adoption of the Constitution in 1993, defamation law in Lesotho had changed and “strict liability of the media has been gradually replaced by a rational and balanced approach”. He noted that the Lesotho Constitution does not refer to the press as having a special freedom as the South African Constitution does. However, the South African courts have so far treated press freedom as freedom of expression, as the Lesotho Constitution does in its Section 14. Consequently the press has no greater liability than an individual and merely exercises the freedom of expression that an individual has (para. 47). However, relying on the 1905 South African decision of Botha v. Pretoria Printing Works 1905 TS 710, he went on to say that if corrupt motives are imputed, they must be backed up by surrounding facts (para. 37).
The Court acknowledged that the tractor in question was registered in the name of the community and that it was in Malebo’s possession and that the Mirror’s statements could be considered fair comment being opinion based on existing facts. However, the Court said that there was no proof that Malebo was actually using the tractor for his own personal use, and that the journalist and the newspaper were negligent in failing to ascertain how the tractor was being used (page 54). Maqutu referred to the South African case of Mthembi-Mahanyele v. Mail and Guardian 2004 6 SA 320 (SCA) which established that a balance must be reached between freedom of expression and protection of dignity and reputation (p. 51). In that case the Court emphasised that “unchecked, unjustifiable imputations of dishonesty detract from the proper use of freedom of expression” (p. 51-52).
The Court concluded that Malebo had been unlawfully defamed by the publication of the article and awarded him damages of 60,000 Maloti (approx US$9,800 at the time).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Court held that the paper had defamed Malebo by failing to check its facts thereby restricting media freedom, its review of comparable international law and resulting comments suggested the possibility of adopting a reasonableness defense into Lesotho defamation law.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This case establishes binding precedent over the High Court, but its findings could be overturned by the Court of Appeal.
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