Mubita v Shipwikineni (HC-MD-CIV-ACT-OTH-2024/00857) [2025] NAHCMD 44 (14 February 2025)

Case Title:

Dr Charles Mubita Plaintiff

and

Reinhold “Iita Nayitsikile” Shipwikineni Defendant

Case No:

HC-MD-CIV-ACT-OTH-2024/00857

Division of Court:

Main Division

Heard on:

Heard before:

Honourable Lady Justice Rakow

Delivered on:

14 February 2025

Neutral citation: Mubita v Shipwikineni (HC-MD-CIV-ACT-OTH-2024/00857) [2024] NAHCMD 44 (14 February 2025)

Order:

1. The application for absolution from the instance is granted with costs.

2. The matter is removed from the roll and regarded as finalised.

Reasons for order:

RAKOW, J:

Background

[1] The plaintiff is Dr Charles Mubita and the defendant is Reinhold “Iita Nayitsikile” Shipwikineni. The plaintiff instituted a defamation claim against the defendant, and in addition, he claims damages as part of the defamation pertaining to violation of and harm to his dignity protected under Article 8(1) of the Namibian Constitution. This is an absolution from the instance application, brought by the defendant after the plaintiff closed his case.

[2] It is alleged that on or about 2 March 2024 and in Namibia, the defendant authored a WhatsApp audio message which he widely and maliciously published and circulated in which he made allegations that the plaintiff was being used by those who are violating the SWAPO Party Constitution and Rules, that he is being used by others like toilet paper, that the plaintiff is involved in activities subversive of the SWAPO Party and its political program, that the plaintiff is not suitable and fit to represent former PLAN combatants in the SWAPO Party structures, that the plaintiff is betraying the SWAPO Party and former PLAN combatants, that the plaintiff cannot be trusted and is captured by the enemies of the SWAPO Party and that the plaintiff is involved in activities aimed at delaying benefits to ex-PLAN combatants and war veterans.

[3] As a result of the defamatory and false suggestions and statements, the plaintiff claimed from the defendant damages in the amount of N$370 000 together with a special punitive cost order on a scale of attorney and own client.

The allegations

[4] The transcription of the message reads as follows:

‘In SWAPO Party there are some of the intelligent comrades, members of SWAPO Party like Cde Dr Charles Mubita, I myself, Cde Reinhold “Iita Nayitsikile” Shipwikineni, and a few others.

Cde Mubita is a well-educated person or a graduate. I am also well-educated, because being well-educated is not about qualifications you hold, it is about how intelligent you are. That is why I am also a well-educated person, so nobody can deny it. But Cde Dr Charles Mubita is now being used by those who violating SWAPO Party Constitution and rules. Cde Mubita is now tarnishing his higher qualification educational background and his future political career.

As a member of the Party you cannot be used like a toilet paper. But when we look at Cde Dr Charles Mubita, he is now being used by those who violate the SWAPO Party Constitution and rules. They are using him just like the way they can use the toilet paper. But my message to Cde Dr Mubita is: Cde Mubita, what you need to register in your mind, I know you are older than me but in politics there is no old, there is no young. The young is only about age and wing of the youth, but when it comes to political realities there is no younger and there is not any older person before SWAPO Party or political debate. You are only an old person when you are attending the Elders Council wing but in general political debate nobody shall be any older than others.

So, my message to you, Cde Mubita, I send this very strongest and powerful message to Dr Charles Mubita. Cde Mubita, what you need to know is that the future of the toilet paper is only the drain. The house of the toilet paper is only the toilet pot. This is what you need to register in your mind. You are tarnishing your own future political career. That is why I come to this point and send this very strongest message straight-forward to you, Cde Charles Mubita, a member of SWAPO Party.

I am also a member of SWAPO Party that the house for toilet paper is only the toilet pot and the future of toilet paper is only the drain. So, that is what you need to register in your mind. So, what you are doing today is not what you are supposed to do, that is why I believe that some people are only good when they did not get high titles, but once if someone got high titles, like Cde Mubita when he became a member of the Central Committee, he lost the focus. And I was informed that Cde Mubita is the representative of the war veterans of the liberation struggle, ex-combatants, or something like that, but no-one can represent the war veterans or ex-combatants in their best interest when the same person is being used or bought by those who are betraying the Party Constitution and Party election rules and procedures.

How can you be trusted by the ex-combatants if you are already captured by their enemies within the Party? You are captured by those who are betraying the policy of the war veterans and ex-combatants in this country. They did not only betray the policy and the benefit of the war veterans and ex-combatants, but they also betrayed the natural resources of our country and betrayed the Namibian nation in general. Because as a Namibian citizen without the status as a war veteran or as a (indistinct), we were supposed to benefit from our natural resources all those years prior to our political independence. But when we look back since 2015 up to date, 2024, Namibian citizens are suffering from poverty and economic deprivation simply because of the same people who used Cde Mubita just like they are using toilet paper.

So, how can you be trusted by your colleagues former ex-combatants if you are captured by those who are delaying policy and benefit of the ex-combatants and war veterans? People like war veterans are there, waiting for their benefits while here their representative, Cde Mubita, is no longer acting in the best interests of those who elected him to that position. So comrades, let us be fair. The Central Committee of SWAPO Party, I also send this message to you, to all members of the Central Committee of SWAPO Party, that coming next weekend our hope is that you are going to nominate Cde Jerry Ekandjo for the SWAPO Party Presidential candidate of Presidential post.

And those who are saying the future is female, there are a lot of females in this country and in SWAPO Party. There are (indistinct) ladies, capable ones, like Cde Pendukeni Iivula-Ithana. She is also capable than some of those who are using you, Cde Mubita. So, let us be clear and act fairly. We cannot be used like a toilet paper, because the toilet can never refuse to enter into the toilet pot, you understand. The toilet paper, does it have a house which is better than a toilet pot? A better house the toilet paper has is only toilet pot, and the better future the toilet paper has is a drain. So, it is not good. We have a lot of women in SWAPO Party but someone only tell us ‘the future is female’. We have a comrade like Dr Martha Namundjebo-Tilahun. She is also a female, a capable and visionary one than some of those comedians.’

Arguments on behalf of the parties

[5] On behalf of the defendant, who is the applicant in these proceedings, it was argued that the plaintiff (“Dr Mubita”) has not made out a prima facie case in respect of the statements by the defendant were defamatory.

[6] It was further submitted that the plaintiff is a public figure. He is not only a member of the largest political party, but he serves in that political party’s Political Bureau and Central Committee (which he stated is the second highest decision-making body in the political party), but he is also the Rector of the Swapo Party School, a position which he admitted is the highest administrative position in that school – similar to a Vice Chancellor of a tertiary institution or a principal of a school. In his particulars of claim, and bolstered by his testimony, he further states that he is an accomplished academic and writer, politician and political reader. As a public figure, the plaintiff should be able to tolerate far more robust critique than an ordinary person. The South African Constitutional Court in The Citizen v McBride 2011 4 SA 191 (CC), said that the criticisms of public figures should be protected ‘…no matter how critical, exaggerated, biased, ill-considered or unbalanced it is.’ This in spite of the particularly harsh and offensive manner in which The Citizen newspaper criticized McBride in a series of publications.

[7] On behalf of the defendant, it was further argued that a reasonable person considers and construes matters on both its context and text. The context of the statements made by the defendant are obvious. The defendant was commenting on a very pertinent and relevant matter to the members of his and the plaintiff’s political party: the issue of electing a successor President of the SWAPO Party after the death of President Dr Hage G Geingob. The listener of the audio – who are members of a WhatsApp group of some members of the SWAPO Party – would understand the comments in that context: that the defendant is frustrated and thus, raising his opinion about the plaintiff’s leadership qualities to his fellow SWAPO party members.

[8] On behalf of the plaintiff, it was argued that the plaintiff did not institute a normal and conventional defamation claim. His claim is an aggravated one because the allegations made by the defendant are false, the defendant had no factual basis to make the allegations, and knew that they were false. The sole purpose of making the false allegations was to injure and harm the plaintiff’s reputation and dignitas for political reasons and were by the defendant using his position in the community in order to somehow legitimise and give credence to his false statements

[9] It is further contended that during the cross-examination of the plaintiff, the defendant for the first time sought to put to the plaintiff additional information covered neither in the plea nor in the defendant’s witness statements. They were amongst others, the allegation that the defendant met the plaintiff twice after the death of Dr Hage G Geingob.

Legal considerations

Absolution from the instance

[10] The test to be applied by the court at this stage of the trial is: is there evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff?¹ Another approach is to enquire whether the plaintiff has made out a prima facie case.

[11] In the case of Bidoli v Ellistron T/A Ellistron Truck & Plant² this court stated and approved the following test for absolution from the instance, at 453D-F:

‘In Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) the Court of Appeal held that when absolution from the instance is sought at the end of the plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. The phrase 'applying its mind reasonably' requires the Court not to consider the evidence in vacuo but to consider the admissible evidence in relation to the pleadings and in relation to the requirements of the law applicable to the particular case.’

[12] In Ramirez v Frans and Others,³ this court dealt with the application and the principles applicable. Concerning case law, the following principles were extracted:

‘(a) (T)his application is akin to an application for a discharge at the end of the case for the prosecution in criminal trials i.e. in terms of s 174 of the Criminal Procedure Act — General Francois Olenga v Spranger⁴ ;

(b) the standard to be applied is whether the plaintiff, in the mind of the court, has tendered evidence upon which a court, properly directed and applying its mind reasonably to such evidence, could or might, not should, find for the plaintiff — Stier and Another v Henke⁵

(c) the evidence adduced by the plaintiff should relate to all the elements of the claim because, in the absence of such evidence, no court could find for the plaintiff — Factcrown Limited v Namibian Broadcasting Corporation,⁶

(d) in dealing with such applications, the court does not normally evaluate the evidence adduced on behalf of the plaintiff by making credibility findings at this stage. The court assumes that the evidence adduced by the plaintiff is true and deals with the matter on that basis. If the evidence adduced by the plaintiff is, however, hopelessly poor, vacillating, or of so romancing a character, the court may, in those circumstances, grant the application — General Francois Olenga v Erwin Spranger; ⁷

(e) the application for absolution from the instance should be granted sparingly. The court must, generally speaking, be shy, frigid, or cautious in granting this application. But when the proper occasion arises, and in the interests of justice, the court should not hesitate to grant this application — Stier and General Francois Olenga v Spranger (supra).’

Defamation

[13] In Nangolo v Jacobs⁸, this Court held as follows regarding the elements of a delict of defamation:

‘At common law, the elements of the delict of defamation are therefore:

(a) the wrongful

(b) intentional

(c) publication of

(d) a defamatory statement

(e) concerning the plaintiff.’

[14] All the above elements need to be proofed by the plaintiff to successfully proof his claim of defamation. It is, therefore, also necessary that these allegations should be proofed at the time of the close of the plaintiff’s case in order for the defendant not to be successful with an application of absolution. Angula, DJP, in Nangolo v Jacob⁹ stated that:

‘It is settled law that he who alleges bears the burden of proof of such allegation to prove that allegation on a balance of probabilities in order to sustain his or her claim. (See Damaseb JP in Dannecker v Leopard Tours Car and Camping Hire CC)¹⁰. In assessing what makes a statement defamatory, one needs to look at the meaning and understanding of such a statement from the perspective of a reasonable person (ordinary person) and the context under which the statement was made. After hearing the statement, what inference would a reasonable person have drawn? The test is objective, it does not concern itself with the sting alleged by the plaintiff or the conclusions the third person may have drawn. Would a reasonable person have drawn an inference that the plaintiff reputation injured by the allegation that he was poisoning people or giving third persons poison for them to poison other people?’

[15] In respect of persons in the position (politicians/public figures) of the plaintiff, a South African Court in Cele v Avusa Media Ltd¹¹ recounted that:

‘[9] The law of defamation requires the balancing of two constitutional rights, neither of which can be regarded as being of greater a priori significance: the right to reputation, which forms part of the right to dignity, and the right to freedom of expression¹². In Khumalo v Holomisa¹³, which dealt in some detail with the balance to be struck between the rights to human dignity and freedom of expression, the Constitutional Court posed the question in the following manner:

“The law of defamation seeks to protect the legitimate interest individuals have in their reputation. To this end, therefore, it is one of the aspects of our law which supports the protection of the value of human dignity. When considering the constitutionality of the law of defamation, therefore, we need to ask whether an appropriate balanceis struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other.”

As restated by the Constitutional Court in Khumalo v Holomisa¹⁴, the elements of an action for defamation are the wrongful and intentional publication of a defamatory statement concerning the plaintiff. The plaintiff is, however, not required to establish every one of these elements in order to succeed¹⁵. If the plaintiff is able to prove at the outset that there has been publication of defamatory matter concerning him or her, it is then incumbent upon the defendant to raise a defence that excludes either wrongfulness or intent. The onus on the defendant to rebut these presumptions is a full onus that must be discharged on a preponderance of probabilities.¹⁶

[10] In a case where the plaintiff pleads that the publication is defamatory per se, as in the present matter, a two-stage enquiry must be followed. This enquiry was set out in Le Roux v Dey as follows:

"Where the plaintiff is content to rely on the proposition that the published statement is defamatory per se, a two-stage enquiry is brought to bear. The first is to establish the ordinary meaning of the statement. The second is whether that meaning is defamatory. In establishing the ordinary meaning, the court is not concerned with the meaning which the maker of the statement intended to convey. Nor is it concerned with the meaning given to it by the persons to whom it was published, whether or not they believed it to be true, or whether or not they then thought less of the plaintiff. The test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the statement in its context and that he or she would have had regard not only to what is expressly stated but also to what is implied. The reasonable reader or observer is thus a legal construct of an individual utilized by the court to establish meaning. Because the test is objective, a court may not hear evidence of the sense in which the statement was understood by the actual reader or observer of the statement or publication in question."¹⁷

…

“[24] It is well established in our law that public figures, including politicians, are required to withstand greater scrutiny and criticism. In Delange v Costa¹⁸ the Court observed that:

"[b]usinessmen who engage in competition (like politicians who take part in public life) expose themselves to, and must expect, a greater degree of criticism than the average private individual."

Similarly, in Argus Printing and Publishing Co Ltd v Inkatha Freedom Party¹⁹ the Court held that:

"the law's reluctance to regard political utterances as defamatory no doubt stems in part from the recognition that right-thinking people are not likely to be greatly influenced in their esteem of a politician by derogatory statements made about him..."

Although politicians are not expected to endure every infringement of their personality rights, they must expect to be criticized²⁰ and "they do have to be more resilient to slings and arrows than non-political, private mortals."²¹ In Pienaar v Argus Printing and Publishing Co Ltd²², the Court held that:

"I think that the Courts must not avoid the reality that in South Africa political matters are usually discussed in forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too, that the public and readers of newspapers that debate political matters, are aware of this. How soon the audiences of political speakers would dwindle if the speakers were to use the tones, terms and expressions that one could expect from a lecturer at a meeting of the ladies’ agricultural union on the subject of pruning roses! Some support for this view is to be found in a passage in Gatley on Libel and Slander, 3rd ed. p. 468. It reads:

'In cases of comment on a matter of public interest the limits of comment are very wide indeed. This is especially so in the case of public men. Those who fill public positions must not be too thin-skinned in reference to comments made upon them.'"

Discussion

[16] It is clear from the evidence that the plaintiff was indeed aggrieved by what the defendant said during his voice broadcast and that he took exception to the content of the wording used and the descriptions and references made towards him. It is also so that the broadcast indeed criticized the actions of the plaintiff and compared him to toilet paper.

[17] What, however, is very clear from the quite lengthy extract from the matter of Cele v Avusa Media Ltd, is that when dealing with politicians and political expression of views, it becomes more difficult to pass the test of defamation in that there is a general expectancy from the public for politicians to have a thicker skin and political commentary can at times be robust. Here, the interest of the public comes into play and their interest to debate political matters and make political comments.

[18] The plaintiff is clearly a public persona and a politician and the comments made by the defendant relates to political matters and have political context.

[19] For these reasons, I find that the application for absolution must be upheld with costs.

[20] In the result, I make the following order:

1. The application for absolution from the instance is granted with costs.

2. The matter is removed from the roll and regarded as finalised.

Judge’s signature

Note to the parties:

E RAKOW

Judge

Not applicable

Counsel:

Plaintiff:

Defendants:

S Namanje

Sisa Namandje & Co. Inc, Windhoek

N Tjombe

Tjombe-Elago Incorporated, Windhoek