SADC inquiry: Defamation versus privilege



Maaparankue Mahao
Maaparankue Mahao

Utloang Kajeno

IN keeping with the thrift of the pulse of the nation and the media, most of my recent columns have been confined to the SADC Commission of Inquiry probing the circumstances surrounding the death of the former Commander of the Lesotho Defence Force (LDF), Lieutenant-General Maaparankoe Mahao and the legality of his removal, re-appointment of Lt-Gen Tlali Kamoli to the helm of the LDF and its alleged polarizing effect on the LDF and therefore the Basotho nation.

One aspect of the law that persistently keeps on cropping up, at least in the mind of most people who are conversant with the law, is the delict of defamation.  In broad terms, delict may be defined as a wrongful act or an infringement of a right other than a contract, leading to legal liability.  Defamation is a branch of both the criminal and civil law but I will confine this column to the latter, which is defined as “the wrong or delict which is committed when a person makes an injury and false imputation, conveyed by words or signs, against the character or reputation of another”, as Professor Cooper in “Defamation and Verbal Injury” correctly puts it.

The requirements for an action for defamation are that there is a false statement communicated by the defender to the receiver concerning the claimant. The statement must be defamatory and the statement must have been made maliciously, that is to say, in respect of hurt feelings and negligently or harmfully in respect of injury to the public reputation.

I was piqued to write this column because in giving testimony before the Commission, most witnesses inevitably tend to mention names, utterances and conduct of other persons that border on defamation and therefore have to skate on very thin ice, so to speak.  However, we should not lose sight of the fact that the law of defamation endeavours to achieve a balance between protecting an individual’s reputation and freedom of speech.  These are called at times, “public interest” defences.  I will not for the life of me attempt to discuss individual testimonies as proffered by any witness in deference to the sub judice rule, which limits comment and disclosure relating to judicial proceedings, in order not to prejudice the issue or influence the court or the Commission.

However, let me hasten to add that I am not at all encouraging witnesses to desist from giving testimony before courts or the Commission.  Rather, like the rest of all the stakeholders and the general public, I am also keenly interested in the Commission and indeed the courts, in making informed findings and recommendations for the benefit of the nation at large and our nascent democracy which however, admittedly is now under a stern test of character.  In this regard therefore, the following are a few defences that can be put against an action for defamation as a result of facts that emanate from courts.

However, let me state categorically that the rationale behind any judicial inquiry be it a court of law or a commission, is to elicit and establish the truth and legality of matters before it and sometimes the motive behind the matter placed before it.  It is therefore only fair that in this endeavour certain defences are available to witnesses or litigants so that their testimonies can assist whatever tribunal to come to a justiciable, informed and well-founded finding.  I will, however, as alluded to earlier, confine myself in this column, to a few defences to defamation claims.  These defences are that of absolute privilege, qualified privilege, fair and bona fide (honest) comment on a matter of public interest published without malice and justification by truth in the public interest.

Firstly, absolute privilege is fully protected from any action based on defamation or verbal injury. Absolute therefore allows persons to speak their minds freely.  However, whether a statement is absolute privilege is a matter of law.

The most common category of absolute privilege is that of Parliamentary privilege in that statements made on the floor of the august House or in any Committee of Parliament or any other parliamentary proceedings over which Parliament has jurisdiction is privileged.  The rationale behind this is that the Courts do not have any control over what is said on the floor of the House and that from the public interest point of view, it is deemed desirable that Members of Parliament should be free to say what they like on any matter without fear of being sued for defamation.

Secondly, witnesses have absolute privilege when giving evidence which is relevant to the case before the court.  If a witness lies in court, the sanction the law imposes is either, contempt of court, or liability for the act of perjury.  It was held in AB versus CD, where a medical practitioner gave evidence in a proof which was for separation of a man from his wife.  He produced a notebook, the contents of which were read out in court, that this evidence is privilege.  The court said: “Nothing I think is serious than this, that a witness is absolute privileged in giving his evidence, pertinent to the issue, and cannot be subject to damages for slander for what he says is court”.  In a similar vein, witnesses in tribunals and other quest-judicial bodies also have absolute privilege when giving evidence.

Thirdly, qualified privilege concerns statements in circumstances where it is necessary for a person to speak freely in the interest of society regardless of whether the statement is defamatory.

Qualified privilege will exist where there is a legal, moral or social duty to make a statement and the communication of the statement is for the protection of the communicator’s interests or the interests of some other person. A statement has qualified privilege if it has been made by a person in the discharge of some public or private duty, or in the conduct of his own affairs where his interests are concerned.

Fourthly, fairness is also a defence to privilege if the defender establishes that the statement is comment which is based on facts that are truly stated, it is then for the claimant to show that the comment was unfair.  It would further appear that the law is that honesty is not an issue but that a comment has to be fair if it is relevant to the facts being commented upon.

From the foregoing, it is patently clear that witnesses are at liberty, albeit circumscribed somewhat by law of course, to offer their testimony before courts, to the Commission or any tribunal in order to reach an informed and justiciable finding. It is in the public interest that judicial inquiries are conducted in a fair manner with all the evidence and facts available to such a tribunal so that the administration of justice is not unduly impacted on negatively. Without access to the relevant information, it would be very difficult for any public inquiry to reach an informed decision and if fear of civil litigation would be allowed to be the impediment to the administration of it would be a sad day of justice. It would open the floodgate to civil litigation if the ends of justice would be defeated by a threat of defamation claims.  Of course there ae exceptions, but the greater interests of society at large are paramount.

The underlying rationale behind this privilege is to ensure that witnesses testify freely without fear of possible future litigation so that the tribunal reaches an informed decision based on all the facts known.


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