SADC in­quiry: Defama­tion ver­sus priv­i­lege

Lesotho Times - - Leader - 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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