1.1645/2000

Lew. AT 
2000-11-09

Exception granted and parts of plea struck out   

*

Case No.: I. 1645/2000

FN THE HIGH COURT OF NAMIBIA

In the matter between:

JOHANNES MARTHINUS SMITH	PLAINTIFF/EXCIPIENT
and
KAZENAMBO KAZENAMBO	DEFENDANT

Mr D Smuts acts for plaintiff and Mr T Mbaeva acts for defendant.

Mr Smuts fded Heads of Argument but Mr Mbaeva failed to do so. Neither party requested a postponement by reason of the aforegoing and asked that the matter be argued forthwith. The

Court thereupon ruled that the matter proceed.

According to the pleadings plaintiff is himself the editor of the newspaper Windhoek Observer and the letter complained of quotes an editorial which appeared in the aforesaid newspaper and defendants purported comments thereon.

For the purposes of this judgment defamation can conveniently be defined as the unlawful and intentional publication by a person of any matter which injures the fair name and reputation of another. In respect of the latter requirement the test is traditionally expressed in terms of whether the words tend to lower the plaintiff in the estimation of right thinking people generally.

1938 NPD 277 at 295

No person can bring an action for defamation unless the words complained of refer to him personally.

SA797 (A) at 812

Where unworthy conduct is imputed to a newspaper, it was ruled that evidence was permissible by members of the public that they understood that the language applied to the editor of the newspaper.

Consequently if reasonable readers would regard an article which criticises an editorial of the newspaper as referring to the editor, evidence would be unnecessary.

Rule of Court 18(3) provides:

"Every pleading shall be divided into paragraphs (including subparagraphs) which shall be consecutively numbered and shall, as nearly as possible, each contain a distinct averment."
Rule of Court 18(4) provides:

"Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his or her claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto."

Rule of Court 22(2) provides:

"The defendant shall in his or her plea either admit or deny or confess and avoid all the material facts alleged in the combined summons or declaration or state which of the said facts are not admitted and to what extent, and shall clearly and concisely state all material facts upon which he or she relies."

It is essential that these requirements for a plea be read together. It then becomes clear that a defendant who has several different defences to a claim is obliged to plead each one of his defences in a separate paragraph.

"And if the terms of the plea do indicate by implication that defendant intends to rely upon a certain defence, then I think it is the duty of the defendant to state clearly and concisely the material facts on which the defence is based."

Although the Rules do not make provision for alternative pleas, both the practice and decided cases indicate that this is permissible and that even inconsistent defences can be pleaded provided that they are in separate paragraphs or sub-paragraphs and are clearly and concisely pleaded. If the plea fails to comply with the aforegoing, it is vague and embarrassing and can be excepted to and struck out.

In paragraph 1 of his particulars of claim plaintiff alleged that defendant had "published" a letter to the editor of the New Era Newspaper of and concerning plaintiff annexing a copy of the letter. Defendant in his paragraph 2 in reply to this paragraph, pleaded as follows;

"The defendant denies having published a letter about or concerning the
           plaintiff	" (This constitutes a defence but defendant continued with
that sentence) "and pleads that he only reacted to an editorial comment published by the Windhoek Observer Newspaper." (This sentence is a different defence. It is in fact capable of several meanings including that the letter is 'of and concerning plaintiff but that it was a 'reaction' to an editorial written by plaintiff.)

The defendant then pleads in the alternative but in the same paragraph 2 that "the defamatory letter" (i.e. he admits it is defamatory) represents "fair comment".

"Fair Comment" is a recognised defence but it requires the allegation (and proof) of several preconditions which are not alleged by defendant.

Because paragraph 2 does not comply with Rules of Court and is vague and embarrassing containing several defences it should be struck out.

Paragraph 3 is therefore vague and embarrassing and falls to be struck out.
1 turn now to paragraph 4 which purports to invoke the provisions of the Constitution.
Article 21(l)(a) [and not 21(l)(b) as pleaded by defendant] enshrines the right of persons to freedom of expression but this fundamental right is specifically made subject to the provisions of Article 21(2) which provides as far as relevant:

"The fundamental freedoms referred to .... shall be exercised subject to the law of Namibia, in so far as such law imposes reasonable restrictions
on the exercise of the rights and freedoms conferred 	, which are

Free Speech therefore is specifically subject to the laws of defamation.

For this reason paragraph 4 constitutes no defence and must be struck out.

In paragraph 4 defendant again refers to his reason for writing the letter namely his reaction to the "editorial comment" which "concerned defenceless fallen heroes". In other words this editorial comment "provoked" him, and I shall accordingly deal in detail with the question of provocation as a defence to an action for damages based on defamation.

"It is my opinion that, in a case where self-defence is not involved, to hold that provocation which does not affect the defendant's mental capacity may render lawful an otherwise unlawful assault is tantamount to accepting the principle of an eye for an eye and a tooth for a tooth, and is contrary to our legal principles. I do, however, consider that provocation on the part of the plaintiff will mitigate his damages, and that in a proper case it may be held that his provocation was such as to reduce to nothing the damages recoverable by him, or that it was such as to justify an award to him of nominal damages only coupled perhaps with an order that he be deprived of his costs, or even that he pay the defendant's costs."

In paragraph 5 of the Plea, defendant admits having published the aforesaid letter but only to the editor of the New Era Newspaper. This would still constitute "publication" and is inconsistent with defendant's paragraph 2 where he denies publication, and furthermore does not constitute a defence, except perhaps to reduce the quantum of damages. It is however not pleaded with the latter purpose in mind. It is pleaded simply as a defence. Inasmuch as it is not a defence and inasmuch as it conflicts with paragraph 2 of the plea it must be struck out.

For the plaintiff/excipient;	Adv D F Smuts

Instructed by:	Messrs P F Koep & Co

for the defendant:

Instructed by:
Mr T Mbaeva

Dammert & Hinda Law Office