via Zim journalists win Lesotho case 27/10/2014
THE Lesotho Court of Appeal has overturned a High Court ruling that had banned three journalists from practising their profession and publishing their own newspaper, The Post.
In March this year the High Court interdicted the three journalists – one Mosotho and two Zimbabweans – from starting their own newspaper on the basis that they planned to compete unlawfully against their former employer.
The court ruled that The Post should not be published and the journalists should not work in the media in Lesotho for 12 months, from September 2013 to September 2014.
But in a ruling on October 24 the Court of Appeal said Abel Chapatarongo, Shakeman Mugari and Caswell Tlali who are directors and shareholders of The Post should never have been interdicted from publishing their own newspaper and practising their profession. The three were editors of the Lesotho Times and Sunday Express until September 2013 when they resigned to set up The Post.
Apparently fearing competition the chief executive of the Lesotho Times and Sunday Express, Basildon Peta, brought an urgent application in the High Court on September 11, 2013 seeking to interdict the three from publishing their newspaper.
Peta’s argument was that the three wanted to compete with him unlawfully, had breached their fiduciary duties and wanted to lure his employees. He also claimed that the three had connived to form their own company and had breached his company’s code of ethics.
High Court Judge Justice Lebohang Molete granted an interim interdict stopping The Post from publishing and the journalists from working in Lesotho. The case was heard on November 5, 2013 and the judge promised to deliver judgement “as soon as possible”.
However, despite the urgency of the case Justice Molete only delivered his judgement on March 19, 2014, four months after the hearing. The journalists then tried to bring an urgent appeal in the April session of the Court of Appeal but the case was only heard on October 14.
The Court of Appeal said the High Court should never have interdicted the three journalists from practising their profession and ban The Post from publishing because Peta and his companies had failed to prove that there was unlawful competition.
“It is clear that none of the acts or omissions chronicled above, viewed separately or collectively, constituted unlawful competition or established the threat of unlawful competition with the respondents (Peta’s companies),” Justice Cleaver said.
He said there was nothing unlawful about the formation of The Post or the three journalists’ decision to leave Peta’s companies suddenly.
The judge said Chapatarongo had not breached his fiduciary duties when he formed The Post while he was still a director of the Sunday Express and Lesotho Times. He noted that none of the evidence brought to court proved Peta’s allegations that the three journalists intended to lure employees from his companies.
“Applications to prevent unlawful competition and for enforcement of restraint of trade provisions are by their very nature urgent and should be treated as such by the courts,” said Justice Cleaver.
“In this matter the livelihood of the appellants was at stake and because of the delay in the judicial process they were unable to challenge the orders against them for over a year.”
There was no indication why the hearing of the urgent application was delayed for some two months and why it took four months for the High Court to deliver judgement, he said.
“The delays did not end there, for according to the appellants, they were not able to obtain a copy of the judgment for another two weeks. Having regard to the nature of the application and its urgency delays of this nature are simply not acceptable.”
Chapatarongo, the managing editor of The Post, said although the Court of Appeal ruling had come a bit late it is still important. He said they had always been confident that a higher court would overturn the High Court ruling.
“This is not just a victory for The Post. It is a victory for all Basotho who dream of breaking the chains of tyranny and start their own business enterprises,” he said.
“The ruling reaffirms the rights of individuals to form their own businesses and plan their future even when they are still employed by another company,” he said. “Significantly it nullifies Peta’s argument that we breached the law and our fiduciary duties when we registered our company.”
He said what was particularly sad about this whole fiasco was that “Peta not only presented a fictitious editorial charter to court but also tried to use the High Court judgement to get some of The Post directors deported from Lesotho”.
Chapatarongo thanked the Department of Immigration, the Labour Department and the Lesotho Mounted Police Service for their professionalism over the manner in which they dealt with this matter.
He also thanked the United States-based Committee for the Protection of Journalists (CPJ) and the Media Legal Defence Initiative (MLDI) for their support.
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