REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
Practice Direction 61
Case Title: PENDAPALA NAKATHINGO PLAINTIFF and VESPA MUUNDA 1ST DEFENDANT LAZARUS MHATA 2ND DEFENDANT ELIFAS KENNEDY MARTIN 3RD DEFENDANT | Case No: HC-MD-CIV-ACT-OTH-2022/03112 | |
Division of Court: HIGH COURT(MAIN DIVISION) | ||
Coram: PARKER AJ | Date of Hearing: 22–25 April 2024; 24-25 May; 12 June; 16, 18, 19, 29 July; 7 August; 30 September; 1 & 3 October 2024 | |
Delivered on: 29 January 2025 | ||
Neutral citation: Nakathingo v Muunda (HC-MD-CIV-ACT-OTH-2022/03112) [2025] NAHCMD 20 (29 January 2025) | ||
ORDER: | ||
1. The defendants must, one acting the other to be absolved, on or before 28 February 2025, retract the said defamatory statements and issue a written apology in the form of letters addressed to all those who had received letters, containing the defamatory statements. 2. Judgment is granted with costs in favour of the plaintiff and against the defendants, the one paying the other to be absolved, in the amount of N$50 000, plus interest on the said amount at the rate of 20% per annum, calculated from date of judgment to date of full and final payment. 3. The matter is finalised and removed from the roll. | ||
Following below are the reasons for the above order: | ||
PARKER AJ: Introduction [1] According to the particulars of claim in the instant matter, the plaintiff was at the relevant time, employed by the Namibia Bus and Taxi Association (NABTA) as its National General Secretary. The first and second defendants were described as private persons. The third and last defendant was, at the relevant time, employed at Hardap Freight Services, Otjiwarongo in the Otjozondjupa Region. [2] All three defendants are sued in their personal capacities. The significance of this important introductory remark will become apparent shortly. [3] The plaintiff, represented by Mr Brand, testified and called no witnesses in support of his case. The defendants, represented by Mr Ngoshi, testified and called no witnesses in support of their case. [4] ‘The law of defamation is in many respects irrational and hair-splitting’, so wrote T Ellis Lewis in his authoritative work Winfield on Tort: A Textbook of the Law of Tort.1 Furthermore, Sir Frederick Pollock, 3rd Baronet, the pre-eminent English jurist said: ‘No branch of the law has been more fertile of litigation than defamation, whether the plaintiffs be more moved by a keen sense of honour or by the delight of carrying on personal controversies under the protection and with the solemnities of civil justice, nor has any been more perplexed by minute and barren distinctions.’2 [5] The aforesaid quoted statements show that the law of defamation is in many ways irrational and with over fine distinctions. Because the law of defamation is in many respects irrational and hair-splitting3, on the facts of the instant matter, it is important to go to the basics, that is, the basic elements and requisites of defamation. Basic elements and requisites of defamation [6] The primary object of the law of defamation is to protect the reputation or good name of both natural and juristic persons. The reputation of a person X is that character of social and moral worth to which X is entitled amongst X’s fellow persons.4 X’s reputation refers to the good name that X enjoys in the estimation of others: It refers to what others think of X. Therefore, reputation stands in contradistinction to dignity, which refers to what X thinks about himself.5 As I have said previously, this is an action for defamation as indicated in the pleadings. [7] Thus, a defamatory material is one which injures the person to whom it refers by lowering him or her in the estimation of reasonable persons of ordinary intelligence or right-thinking members of society generally.6 In other words, as Lord Atkin stated in Sim v Stretch,7 any imputation which may tend ‘to lower the plaintiff in the estimation of right-thinking members of society generally’, ‘to cut him off from society’ or ‘to expose him to hatred, contempt or ridicule’ is defamatory of that person. These constitute the lineaments of the elements of defamation. A defamatory material includes words, pictures, photographs and other visual images and gestures and other methods of signifying meaning. [8] Where the material alleged to be defamatory consists of words and those words are on the face of them innocent, the plaintiff must set out the defamatory sense which he or she attributes to them. In such a situation, the plaintiff must further allege that the defendant so intended them and that they were so understood by those to whom they were published.8 In that regard, the plaintiff must allege and prove the facts and circumstances giving rise to the innuendo pleaded. [9] Thus, if the plaintiff relies on an innuendo, that is, a secondary or hidden meaning of the words used, evidence is necessary. The reason is that the plaintiff must prove the special circumstances based upon which the words complained of would, to those aware of those circumstances, bear the secondary or hidden meaning, that is, the innuendo, relied on, as discussed in para [8] above. The plaintiff must also prove that there were persons, among whom the publication of the words was made, who were aware of the special circumstances and to whom it can therefore be inferred that the words used were likely to have conveyed the imputation relied on.9 [10] Different considerations apply where words are alleged to be defamatory in their ordinary meaning. In the Zambia Supreme Court case of Zulu v Times Newspaper, Ngulube DCJ stated: ‘The established rule is that where words are alleged to be defamatory in their ordinary meaning it is neither for the plaintiff nor for any witness to give evidence as to, or to interpret, the meaning of the allegedly defamatory words. This is the proper prerogative and function of the court.’10 [11] Therefore, if the plaintiff relies on the defamatory nature of the words complained of in their ordinary meaning, evidence of how a witness understood the words is inadmissible.11 [12] Keeping the foregoing principles and approaches in my mind’s eye, I proceed to determine the plaintiff’s claim and any defences put forth by the defendants. The relief, which the plaintiff claims, is set out neatly in the particulars of claim. [13] The cause of action relied on by the plaintiff is the following: The defendants, on diverse occasions, made defamatory remarks against the plaintiff in the period June 2017- February 2022. The defendants have rejected the claim. The essence of their defence in their plea is that the published statements complained of were true and were made in the public interest. The defendants’ admission of liability [14] The trial of the instant cause took a dramatic turn during the hearing of counsel’s oral closing submissions; that is, after the hearing of viva voce evidence. Mr Ngoshi submitted that having applied their minds, the defendants concede that the publication of the impugned statements was unlawful and defamatory of the plaintiff. But brought out of their hats the following: The defendants ‘contends (contend) that the defamatory remarks and their conduct were made in the course and scope of their employment with (by) NABTA and further argues (argue) that it is their employer who is to be held vicariously liable for the delictual damages occasioned by its employees’. [15] Mr Ngoshi has an unsurmountable obstacle in his way. Vicarious liability was not pleaded by the defendants; and, naturally, no evidence was led to prove it. Little wonder then that Mr Brand did not deal with it. His clients had not been called upon to meet the plea of vicarious liability. Therefore, nothing flows from Mr Ngoshi’s contention from the bar. The plea of vicarious liability is, accordingly, rejected. The upshot is that by their own concession made seemingly under legal advice, the defendants have no defence to the plaintiff’s claim. Therefore, the next level of the enquiry is to consider appropriate quantum of damages. Quantum of damages [16] The plaintiff claims: ‘(a) A full retraction and an apology letter to be sent to all parties previously engaged, stating the incorrectness of the letters and published articles; (b) Payment in the amount of N$1,500,000.00; (c) Interest on the aforesaid amount at the rate of 20% per annum from the date of judgement to date of final payment.’ [17] The law is well entrenched that when it comes to the award of such damages, the court has a wide discretion to be exercised judicially. In that regard, the court ought to be guided by comparable awards for defamation, and bearing in mind the peculiar facts and circumstances of the matter at hand.12 [18] In considering the award of damages for defamation and the quantum thereof, we are reminded by the salutary and deeply insightful words uttered in the Constitutional Court of South Africa by Sachs J in Dikoko v Mokhatla: ‛There is something conceptually incongruous in attempting to establish a proportionate relationship between vindication of reputation on the one hand and determining a sum of money as compensation on the other. The damaged reputation is either restored to what it was, or it is not. It in favour of the integrity of the complainant that vindicates his or her reputation, not the amount of money he or she ends up being able to deposit in the bank’.13 [19] Be that as it may, Sachs J stated further in Dikoko that ‛even if damages do not cure the defamation, they may deter promiscuous slander, and constitute a real solace for irreparable harm done to one's reputation’. [20] In the instant matter, no evidence was led to persuade the court to grant the gargantuan monetary claim of N$1 500 000. Such claims have been described as ‘excessive or exorbitant’, having ‘no relationship …. to past awards in similar circumstances’.14 [21] I have, accordingly, taken a cue from awards made recently in circumstances similar to those that exist in the instant case. I have considered Geingos (born Kalondo) v Hishoono,15 where N$250 000 was awarded in favour of the plaintiff, the immediate past First Lady of Namibia, and an order that the defendant apologize to the plaintiff for his defamatory statements. I have also looked at Nyambe v Mushabati,16 where the defamatory statements formed part of the complaint that the defendant had made against the plaintiff, a legal practitioner, to the Law Society. There, the award made was N$70 000. Additionally, I have considered Ekandjo v David.17 There, the defendant accused the plaintiff, a magistrate, of corruption. The defendant had the opportunity to apologize to the plaintiff for making the defamatory statement, but he failed or refused to do so. In Hinda v Amupanda,18 an award of N$100 000 was made against the defendant in favour of the plaintiff, a deputy Minister of Finance. There, the publication of the defamatory materials went beyond the borders of Namibia as it was carried on Facebook and X (formerly Twitter). The plaintiff claimed N$1 000 000 but the court awarded damages of N$100 000. [22] As I stated in Hinda v Amupanda,19 ‘an appropriate quantum of damages awarded ought to meet the substantial justice of the case in hand’. Having taken a cue from the aforesaid cases, in my discretion, I think an award of N$50 000 meets the justice of the instant case, considering the circumstances in which the defamatory statements were made, coupled with the fact that the court has granted the order sought, namely, that the defendants retract those statements and issue a written apology for publishing the defamatory statements. Costs [23] As I have found previously, no sufficient and satisfactory evidence was led to explain the reason why the plaintiff pegged his claim at an excessive and exorbitant amount. To the other side of the suit, I say that it was too late in the day for the defendants to realize that they had no defence to the claim. They had ample time – particularly during the judicial case management of case – to have made the concession made by their counsel at the late hour during his oral submission. In the end, as Mr Brand submitted, costs should follow the event. [24] Based on these reasons, I find and hold that the plaintiff has succeeded in establishing that he was defamed by the defendants, and they have no defence. I disincline to apportion blame between the defendants for the defamation of the plaintiff, as Mr Brand appeared to suggest in his submission. What counsel submitted was not pleaded. [25] In the result, I order as follows: 1. The defendants must, one acting the other to be absolved, on or before 28 February 2025, retract the said defamatory statements and issue a written apology in the form of letters addressed to all those who had received letters, containing the defamatory statements. 2. Judgment is granted with costs in favour of the plaintiff and against the defendants, the one paying the other to be absolved, in the amount of N$50 000, plus interest on the said amount at the rate of 20% per annum, calculated from date of judgment to date of full and final payment. 3. The matter is finalised and removed from the roll. | ||
Judge’s signature | Note to the parties: | |
Not applicable. | ||
Counsel: | ||
Plaintiff | Defendants | |
JS Brand Of PD Theron & Associates, Windhoek | MK Ngoshi Of Mwakondange & Associates Incorporated, Windhoek |
1 T Ellis Lewis Winfield on Tort: A Textbook of the Law of Tort 6 ed (1954) at 287.
2 Quoted in T Ellis Lewis Winfield on Tort: A Textbook of the Law of Tort footnote 1 loc. cit.
3 See para [3] above.
4 O’Keefe v Argus Printing and Publishing Co Ltd 1954 (3) SA 244 (C) at 247-8.
5 Max Loubser (Ed) and Rob Midgley (Ed) The Law of Delict in South Africa (2015) at 339-340.
6 Universal Church of the Kingdom of God v Namzim Newspaper (Pty) Ltd 2009 (1) NR 65 (HC) para 12.
7 Sim v Stretch [1936] 2 All ER 1239 (HL) at 1240. In Max Loubser (Ed) and Rob Midgley (Ed) The Law of Delict in South Africa footnote 8, where at 347, the learned authors state that South African courts apply the benchmark criteria set out in Sim v Stretch.
8 LTC Harms Amler’s Precedents of Pleadings 4 ed (1993) at 109, and the cases there cited.
9 LTC Harms Amler’s Precedents of Pleadings footnote 10 at 110, and the cases there cited.
10 Zulu v Times Newspaper (1985) ZR 30 (SC) at 32-33.
11 Hassen v Post Newspaper (Pty) Ltd 1965 (3) SA 562 (W).
12 Hinda v Amupanda [2024] NAHCMD 465 (14 August 2024) para 41, relying on Trustco Group International v Shikongo 2010 (2) NR 377 (SC) para 92.
13 Dikoko v Mokhatla 2006 (6) SA 235 (CC) paras 93-95; cited with approval by the Supreme Court in Trustco Group International v Shikongo footnote 20 para 90.
14 Petrus T Damaseb Court-Managed Civil Procedure of the High Court of Namibia 1ed (2020) at 358-359.
15 Geingos (Born Kalondo) v Hishoono 2022 (2) NR 759 (HC).
16 Nyambe v Mushabati [2022] NAHCMD 389 (4 August 2022).
17 Ekandjo v David 2023 (1) NR 192 (HC).
18 Hinda v Amupanda [2024] NAHCMD 465 (14 August 2024).
19 Ibid para 56.
Cited documents 1
Judgment 1
1. | Nyambe v Mushabati (HC-MD-CIV-ACT-DEL- 4399 of 2021) [2022] NAHCMD 389 (4 August 2022) | 4 citations |