A panel of three Court of Appeal Judges has dismissed with costs a case in which the proprietor of Bamangwato Coach Tours, Dichaba Tangane was appealing a High Court judgment in which he had lost a defamation case he had brought against Mmegi newspaper and The Telegraph columnist Sonny Serite. The lawsuit emanated from a letter written by Serite and published by Mmegi in 2009 in which he had described Tangane and his business as “inhospitable, rude, insensitive and lacking in botho and common sense”. The facts of the case are that, in September 2009, Tangane commenced an action for damages for defamation against Mmegi newspaper, its then editor Gideon Nkala and Serite whose letter was published in the opinion pages of the newspaper. Tangane and his company, Bamangwato Coach Tours had demanded P500 000 as damages for what they termed “damages for the wrong of defamation”.
In the letter to the Mmegi newspaper editor, titled ‘Tangane and his bus services need to wake up’, Serite labeled Tangane as insensitive and arrogant after Tangane was reported to have promised to hunt down and beat up Mmegi newspaper photo journalist Moreri Sejakgomo for protesting that Tangane’s bus was using bare-thread tyres, leading to passengers disembarking and boycotting Bamangwato Couch Tours bus which was destined for Serowe from the Francistown bus rank. Serite had also mentioned in his letter that he had lobbied his friends and family members to boycott Bamangwato Couch Tours buses after his friend (Keatle Mmolainyana) died from a road traffic accident while on board one of Bamangwato Coach Tours buses. Tangane took issue with Serite’s labeling of his bus as the “killer bus” and referring to Tangane as “insensitive, arrogant and lacking of botho” after it was reported in the media that he had absolved his driver from any wrong-doing because, according to him, his bus had killed passengers only because his driver was trying to avoid collision with cows that had strayed on the road. Serite had written that Tangane’s comments regarding the accident were “shocking and insensitive”. Delivering his judgment on 18 April 2012, the then High Court Judge Stephen Gaongalelwe( now with the Court of Appeal) pronounced that on the strength of all factors canvassed in the case, Tangane and his company’s case be dismissed with costs.
“Besides, some of the portions in the publication which are complained of are not defamatory as they do not have a defamatory imputation at all but are only emotive, disrespectful and perhaps irrational”, Justice Gaongalelwe said in his ruling. He also said that one thing which is important in a defamation case is that the court should not bestow upon and further seek to protect a character that a litigant does not otherwise possess. During cross examination, attorney Omphemetse Motumise of Motumise and Moeletsi Law Firm, representing Mmegi and Serite, asked Tangane how much he pays out to the families of each person who dies in accidents that involve his buses and how much he has spent so far in compensation. Perhaps not knowing where the question was leading to, Tangane told the court that he pays out 500 pula per casualty and that he has thus far spent half a million pula in compensation. The court calculated Tangane’s compensation expenses and derived that his buses had killed 1000 passengers at the time of the hearing of his defamation case. Tangane, through his attorneys, Makuyana Legal Practice, took up the matter with the Court of Appeal which last week Thursday upheld Judge Gaongalelwe’s earlier ruling that Tangane and his company “failed to establish that the words complained of were defamatory per se”. The three Court of Appeal Judges constituted of Judge President Ian Kirby, Justice Isaac Lesetedi and Justice John Foxcroft. The unanimous decision was read out by Justice John Foxcroft who said, “In the result, the appellants failed to establish that the words complained of were defamatory per se and the Court a quo, while reaching the result which it did via a different route in respect of some of the allegations, was correct in dismissing the action with costs. It is ordered that the appeal is dismissed with costs”.
Justice Foxcroft had also said in his ruling, “Mr Sonny Serite gave evidence in regard to the letter which he had written and gave his evidence in a commendable and credible fashion. He explained his reasons for writing the letter in a convincing manner, and the cross-examination did nothing to shake his testimony”. Asked for comment, Serite said while he had all along viewed Tangane’s lawsuit as ludicrous, he respected Tangane’s constitutional right to seek legal recourse.