AG cannot act for ministers, rules Lesotho court

Summary
THE HIGH COURT of Lesotho ruled that the Attorney General of Lesotho could not act for government ministers in litigation brought in their private capacity. The court also reiterated the established principles that the government could not sue for defamation, and that ministers' personal reputations were distinct from government.

Facts
Two defamation suits were brought by some government ministers against Candi Ramainoane, editor of a small weekly Lesotho newspaper, frequently critical of the government, and one against Moeketsi Tsatsanyane, a journalist with the same paper. The Attorney General of Lesotho instituted the actions on the ministers' behalf. The defendants failed to plead timeously and, as a consequence, the applicants wanted to proceed by default to obtain judgement against them.

The defendants argued that a plea could not be made while the Attorney General continued to act for the plaintiffs contrary to a previous order made by the same judge in the High Court in another, separate, action brought against the defendants. In the interim, in a third case against the defendants, another judge of the High Court, Lehohla J, apparently unaware of the previous ruling by Maqutu J, ruled that the Attorney General could represent ministers who were suing in their personal capacities.

ENOCH MOTANYANE AND OTHERS V
CANDI RAMAINOANE CIV/T/419/96
&
ENOCH MOTANYANE V CANDI
RAMAINOANE AND ANOTHER
CIV/T/439/96
High Court of Lesotho

25 August 1997

Decision
Maqutu J held that since his ruling that the Attorney General of Lesotho could not represent ministers in their personal capacities had been made prior to the contrary decision of Lehohla J, it had to stand (p5 at 18-19). The court held that the government could not sue for defamation and that ministers' personal reputations were quite distinct from government, citing the South African Appeal Court case of Die Spoorbond v SAR (1946 AD 999). "It goes without saying that government may not use ministers' names to sue for defamation of character. Indeed the Attorney General cannot use his constitutional office of impartiality to make it appear that government is using his office to sue for defamation by using ministers' personal names as a front," Maqutu J held (p8 at 11-14).

The court noted that section 14(1) of the Constitution permits unhindered freedom of expression, which is limited by section 14 (2) (b) for the purposes of protecting the reputations, rights and freedoms of other persons. The court noted that government is not included. Section 14(3) provides that the limitations shall not abridge freedom of expression to a greater extent than is necessary in a "practical sense in a democratic society." "My approach has been conditioned by what I consider to be the needs of a democratic society as the Constitution requires of me," the court held (p9 at 10). As far as the ministers' right of action in a case of defamation goes, the court held that it was private and personal, and it must be seen to be personal. "The issuing of summons by the Attorney General in this private matter gives it a public and governmental odour. ... Ministers of the Crown must not only be treated as equals with other citizens, they have to be seen to be so treated. The Attorney General's intervention obscures this equality of treatment" (p11 at 9-10, 13-15).

In reflecting upon the history, rights and powers of the office of the Attorney General, Maqutu J held, "The rights and powers of the Attorney General in favour of the citizen only remain in respect of matters in which the public interest calls for such intervention. ... [W]hen he exercises power, he does so independent of the government" (p15 at 13-14). The court ordered the plaintiffs to obtain their own legal representation as actions of defamation are personal actions, and the defendants were ordered to plead within 14 days.

Alex Kühn
Freedom of Expression Institute