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Editor fights defamation judgment

Nat Molomo

MASERU – The editor of a Roman Catholic newspaper, Moeletsi oa Basotho, is fighting a judgment that ordered his publication to pay a High Court judge M180 000 in a defamation suit.

The plaintiff, Justice Thamsanqa Nomncongo, had claimed M1 500 000. 

Justice Lebohang Molete granted a default judgment in favour of his colleague in February after the church paper failed to enter opposing arguments.

But Reverend Mathibeli, the editor of Lesotho’s second oldest newspaper, is arguing that Justice Molete should have heard evidence from both sides before granting the default judgment.

“This honourable court did not hear evidence but relied on (Justice Nomncongo)’s affidavit only before granting judgment,” Reverend Mathibeli said in an affidavit tendered to court by his lawyers.

The case stemmed from articles published in the vernacular newspaper on May 10, 2009 claiming that a land dispute between the Catholic Church and the Lesotho Evangelical Church had not been handled with the seriousness it deserved at the High Court.

Without mentioning a specific name, the paper, referring to the judge who handled the matter as a Xhosa, stated: “o ile a e fofokella.”

Translated, this would mean that the judge did not give the matter the attention and importance it deserved.

Justice Nomncongo contended that the article referred to him because he was the only Xhosa judge at the High Court and was the one presiding over the case.

“The plaintiff is the only judge of Xhosa origins in this honourable court and the second article was referring to him as he was the judge who presided over the application which was brought to court in that regard,” said Justice Nomncongo’s attorney, Masupha Klass.

Moeletsi oa Basotho’s lawyer, Haae Phoofolo, however says Justice Molete’s default judgment should be rescinded, set aside and its execution stayed pending the finalisation of the case.

He argues that according to procedure, Reverend Mathibeli should have been given three days notice of the hearing of the application for judgment.

Phoofolo said Mathibeli never waived his right to respond to Justice Nomncongo’s suit.

Instead, Phoofolo was unaware of the judge handling the matter and therefore was unable to make submissions on behalf of his client before the default judgment was granted.

“From the letters written to Justice Nomncongo’s attorney it is clear that I never waived my right to respond,” said Reverend Mathibeli in his affidavit.

“My attorney communicated with (Justice Nomncongo)’s attorney to remove the irregularity of furnishing further particulars after the notice to file a plea. Failure by myself to file a plea does not for the above reasons constitute willful default.”

Correspondence between Phoofolo and Klass show that Phoofolo was waiting for procedures for filing pleas to be followed when all of a sudden he heard that a default judgment had been granted against his client.

On February 17, the date on which the case was to be heard, Phoofolo allegedly found that it was not in the roll.

Phoofolo said his efforts to locate Klass, whom he reasoned was aware of the judge handling the matter, were futile.

He said this was because, unknown to him, Klass had instructed another lawyer, Advocate Hopolang Nathane, to appear for Justice Nomncongo.

Phoofolo may have seen Nathane at the court on that day but did not know that he was the one appearing for Justice Nomncongo, Reverend Mathibeli told the court in his affidavit.

Reverend Mathibeli argued that it was irregular for Justice Nomncongo to sue in his personal capacity because the alleged defamation arose in the performance of his duties as a judge.

But in a replying affidavit, Justice Nomncongo dismissed this notion as senseless.

“This is a very novel defence to say the least, and it is a clear indication that the applicant (Mathibeli) is simply clutching at straws,” Justice Nomncongo said.

“Indeed, this honourable court has already found for a fact that the said words were demeaning and disparaging of me and other judges,” he said.

Lesotho is a predominantly Christian country.

According to Wikipedia, 90 percent of the population are Christians of which 50 percent are Roman Catholics.

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