Former Plan Combatants Association (FPCA) v Hamutenya (HC-NLD-CIV-ACT-OTH-2023/00342) [2025] NAHCNLD 10 (27 January 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: HC-NLD-CIV-ACT-OTH-2023/00342

In the matter between:

FORMER PLAN COMBATANTS ASSOCIATION (FPCA) PLAINTIFF

and

VENDELINUS JEREMIAH HAMUTENYA DEFENDANT

Neutral citation: Former Plan Combatants Association (FPCA) v Hamutenya (HC-NLD-CIV-ACT-DEL-2023/00342) [2025] NAHCNLD 10 (27 January 2025)

Coram: MUNSU J

Heard: 07 November 2024

Delivered: 27 January 2025

Flynote: Defamation – Claim for damages – Defamatory statements circulated on social media platforms.

Summary: The plaintiff sued the defendant for damages in the amount of N$ 1.5 million. It was claimed that the defendant circulated on social media, defamatory statements concerning the members of the plaintiff.

Held, that apart from being derogatory, the statements and insinuations made by the defendant concerning the members of the plaintiff are defamatory, as they tend to lower the members of the plaintiff in the estimation of right-thinking members of society.

Held, that the rebuttable presumption that the publication of the statements were both wrongful and intentional remained intact.

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ORDER

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1. The Defendant must pay the Plaintiff N$ 40 000 as damages.

2. Interest on the aforesaid amount at the rate of 20% per annum from the date of judgment to the date of payment.

3. Costs of suit.

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

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JUDGMENT

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MUNSU J

Introduction

[1] The plaintiff, a voluntary Association, instituted action against the defendant for damages arising from alleged defamatory statements. The matter was initially defended, however, the defence was subsequently struck due to the defendant’s non-participation in the matter. Thus, the matter proceeded undefended.

[2] Mr Matheus represented the plaintiff.

The plaintiff’s case

[3] Mr Sinsy Bamba Nghipandua, the chairperson of the plaintiff testified on behalf of the plaintiff. In both the particulars of claim, and the evidence in chief, the plaintiff states that on or about 02 July 2023, the defendant authored and featured in a video clip widely circulated on his social media platforms, to wit, Tik Tok and Facebook, and made the following defamatory statements concerning the members of the plaintiff:

1. That they are sexually promiscuous.

2. They are witches and practice witchcraft, and that they should not witch the defendant.

3. They are very stupid, and their brains are upside down.

4. They are backward people, who are worthless and good for nothing.

5. They are destitute and live in squalid conditions.

6. They urinate and defecate in plastic bags and dispose of the plastic bags every morning.

7. They lack the understanding of the purpose of the liberation struggle, and

8. They should be removed from Namibia.

[4] The plaintiff further says that the defendant wrongly accused the members of the plaintiff for being antagonistic to members of the LGBTQ+ community, and that they have insulted the defendant and members of the LGBTQ+. However, the defendant never substantiated the basis of his claim.

[5] The plaintiff claims that the aforesaid defamatory statements were circulated on the defendant’s TikTok profile named “Omuyapuki2018”, where they were accessed, viewed and listened to by over 159, 600 individuals.

[6] In addition, the plaintiff states that the aforementioned statements and innuendos made by the defendant were wrongful, malicious, false, demeaning and unlawful. That, they were made with the intention to tarnish and injure the good name, reputation, dignity and esteem of the members of the plaintiff, as well as to discredit their unwavering sacrifices and contribution to the liberation struggle of Namibia.

[7] The plaintiff went on to say that the defamatory statements and insults hurled by the defendant were capable of being understood by the listeners to mean that the members of the plaintiff:

1. Have loose morals;

2. Are promiscuous, with thirst for sex;

3. Are witches who practice witchcraft;

4. Are stupid, worthless and not capable of thinking like ordinary human beings;

5. Lack the basic understanding of the objectives and aims of the liberation struggle of Namibia.

6. Are consumed by hatred towards fellow Namibians;

7. They are without dignity, and self-respect;

8. That they are not needed in Namibia.

[8] The plaintiff asserts that, as a result of the defamatory statements, its members have been humiliated and degraded, with their reputation and dignity being gravely injured. Additionally, it is claimed that the plaintiff’s members have been subjected to ridicule, stigma and have been ostracised as witches.

[9] In the premises, the plaintiff claims to have suffered damages in the amount of N$ 1, 5 000.00 and demand such payment from the defendant.

Discussion

[10] To succeed in a defamation action, a plaintiff must establish that the defendant published a defamatory statement concerning the plaintiff.¹ In casu, the evidence was that the defendant published the defamatory statements concerning the members of the plaintiff on his TikTok and Facebook pages. The evidence was further that the publication was viewed by over 159, 600 people.

[11] Apart from being derogatory, the statements and insinuations made by the defendant concerning the members of the plaintiff are defamatory.² They tend to lower the plaintiff’s members in the estimation of right-thinking members of society.³ Once the elements of publication and defamatory statement are established, a rebuttable presumption then arises that the publication of the statement was both wrongful and intentional (animo injuriandi).⁴ Given the fact that the matter proceeded undefended, the presumptions remain intact.

[12] In determining the damages to be awarded for defamation, the court should consider that:

‘A number of general factors may affect the assessment of damages for defamation; the character, status and regard of the plaintiff; the nature and extent of the publication; the nature of the imputation; the probable consequences of the defamation; partial justification (e.g. publication of truth which is not for the public benefit); . . .; whether there has been a retraction or apology; and whether the defamation was oral or in permanent form. In addition to these and other relevant factors, the court is entitled to take into account comparable awards in other defamation cases and the declining value of money.’⁵

[13] The evidence was that the members of the plaintiff are well known to the general public in Namibia and beyond. It was also said that the members of the plaintiff have featured on national broadcasting media such as NBC TV, and print media at various private and public events where some of them received awards for their contribution to the liberation of the country.

[14] The plaintiff urged the court to take into account the fact that the defendant failed to come to court and rebut the plaintiff’s case, despite having promised to do so in an article published by the Namibian Sun Newspaper on 16 August 2023.

[15] It is considered that the statements had a wide circulation, and were viewed by a lot of people. It is further considered that, despite the demand for an apology, the defendant failed to do so. Additionally, the court was informed that the video clips and voice note recordings have not been put down as they were still visible and circulating.

[16] The court notes that the plaintiff is an association of members. The defamatory remarks were made in general without specific reference to particular members of the plaintiff. Thus, the extent of harm is not the same as where an individual is singled out.

[17] Having considered the matter, as well as awards in similar matters⁶, I am of the considered view that damages in the amount of N$ 40 000 against defendant will be appropriate.

Costs

[18] Costs shall follow the event.

The order:

[19] For these reasons, I make the following order:

1. The Defendant must pay the Plaintiff N$ 40 000 as damages.

2. Interest on the aforesaid amount at the rate of 20% per annum from the date of judgment to the date of payment.

3. Costs of suit.

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

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D C MUNSU

JUDGE

APPEARANCES

PLAINTIFF: JL Matheus

Of Slogan Matheus & Associates Inc.

Ongwediva.

DEFENDANT: No appearance.