Leepile triumphs against Phumaphi
Oarabile Mosikare | Monday March 31, 2014 16:32
In the contentious case, which has been before the High Court for 13 years, Justice Phumaphi sued The Voice newspaper, its editor, publishers and Leepile for P850,000 for defaming him. The suit arose after Leepile’s draft study document critiquing the 2000 Balopi Commission preceding the Botswana constitutional amendments of section 77, 78 and 79, received unauthorised publication in the weekly tabloid in July 2001.
The paper, which Leepile argued effectively in court was an internal discussion document meant for a few scholarly friends to comment on, went under the heading, ‘The ethnic composition of the public service - The case of the Administration of Justice and the Attorney General’s Chambers’. While the document was sent to a peer at Mmegi for feedback, it was circulated and ended up being published in The Voice without his consent, Leepile argued in court.
In the judgment at the Gaborone High Court last week, Justice Walia said it would be seen from the aforegoing that Phumaphi has been unable to prove the defendant liable for the publication of the article.
“He has been unable to prove that the fifth defendant [Leepile] caused the document to be published by handing it to [Titus] Mbuya and the others, as that was not the case the fifth defendant was required to meet,” said Walia. In his defence Leepile denied having given the document to the editor of The Voice Emang Bokhutlo and maintained that stance throughout his evidence. He further argued that, passing of the document to Mbuya, the Managing Director of Dikgang Publishing Company and the others was not the act of publication pleaded by Phumaphi.
Walia also found Phumaphi’s argument fallacious for asking the court to find that Leepile had given the article to Bokhutlo on the basis that the latter’s allegations remain uncontroverted by Leepile. “This argument is fallacious. It clearly arises from the plaintiff confusing pleadings with evidence... A pleading, standing alone, is not proof of what is alleged,” said Walia.
He also said he could not find that Bokhutlo’s plea or consent to judgment could be elevated to the status of evidence.
He also noted that Bokhutlo had two versions to the story – at first said Leepile gave her the document, but later in the statement submitted by her lawyers, she said when she met the author, she was already in possession of the paper. Justice Walia therefore found that there was no evidence to dispute that Leepile did not pass the paper over to The Voice editor. It follows that though statements in the document are defamatory of the plaintiff, Phumaphi has been unable to prove publication, said Justice Walia.
In dismissing Phumaphi’s defamation lawsuit against Leepile with costs, still to be determined, Justice Walia however did not exonerate the publishers of the said document. He said a date would be set to assess damages against the first, second and forth defendants - being The Francistowner (PTY) LTD t/a (publisher), The Voice newspaper and editor, Bokhutlo.
To fight the lengthy and costly case Leepile, a well-known media activist and owner, received international backing. To his aid was the Media Defence Legal Assistance Initiative, a non-governmental organisation, which helps journalists and independent media outlets around the world to defend their rights.