Leepile thrashes Phumaphi again
Goitsemodimo Kaelo | Friday February 19, 2021 16:07
In the marathon case that has been ongoing for over 20 years, Justice Phumaphi had sued The Voice newspaper, its editor, publishers and Leepile for P850, 000 for allegedly defaming him. This was after Leepile drafted a study critical of Botswana’s constitutional amendments in the Year 2000.
Leepile had sent the study to his peers for feedback, but it was circulated without his consent. Some parts of the study were published in The Voice and statements leaked in the newspaper were critical of Botswana’s judicial service and alleged it was corrupt and nepotistic.
The Voice newspaper had initially opposed the suit, but later settled, withdrew its defence and settled their damages while Leepile carried on his defence, which he ultimately won at the High Court in 2014.
However, Phumaphi appealed the High Court judgement on grounds that the Court a quo erred in finding that he had failed to prove publication of the ‘draft chapter document, which formed the subject of his claim in the declaration and that the Court ought to have found such publication proved, since evidence of it was led by the Respondent himself.
He also argued that the Court should have found the publication to Leepile’s ‘intellectual sparring partner’, Titus Mbuya as sufficient to found the action, since the evidence of it was introduced by the Respondent (Leepile) himself, and the issue was fully canvassed at trial.
The Court of Appeal (CoA) last week brought an end to the longest running defamtion suit, when it dismissed the Phumaphi’s appeal after finding out none of the grounds of appeal he raised had substance.
In the judgement, CoA Judge President Ian Kirby, justices Isaac Lesetedi and Monametsi Gaongalelwe were all in agreement that the publication of the ‘draft chapter’ to Mbuya was never brought up during High Court proceedings and was an entirely different publication to that relied upon by the Appellant in his declaration.
“At no stage during the High Court proceedings, or indeed before this Court, was any application made for an amendment of the pleadings to introduce this new cause of action, so as to have it adjudicated. This was readily conceded by Mrs Makati-Mpho, who appeared for the Appellant,” the CoA judges argued.
The justices said while in her head, the appellant had argued that an amendment to add further cause of action would have been a formality, and that the appellant would be entitled to move such an appeal, no such amendment was motivated or moved at any stage of the appeal and was argued almost 20 years after the defamation.
The Court ruled that the Rules of the Court provide that amended pleadings are to be formally filed and substituted in the record, and are to be served on other parties.
“In the present, the alleged publication to Mr Mbuya took place at least two months earlier, and clearly represented an entirely different different cause of action. It was open to the appellant to seek to amend his pleadings at any stage to introduce that new cause of action, in which endeavour he may or not have been successful. But he chose not to do so, and nor has such an application been made in this court,” read CoA’s judgement in part. The judges also said the appellant lost the Replication right when he failed to call the author of The Voice article to testify that she had been given the ‘draft chapter’ document by Leepile. At the end, the Judges dismissed the appeal with costs.