M Shikongo v Trustco Group International Limited & Others

8/14/2019 M Shikongo v Trustco Group International Limited & Others

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SUMMARY

CASE NO.: [P] I 3625/2006

MATHEWS KRISTOF SHIKONGO v TRUSTCO GROUP INTERNATIONAL LIMITED &

2 OTHERS

MULLER, J

29 JANUARY 2009

Action for defamation against owner, editor (author of thearticle) and printer of Informante newspaper by Mayor of

Windhoek.

Recognition of liability of a newspaper and development inSouth Africa and Namibia discussed.

In Pakendorf en Andere v de Flamingh 1982(3) SA 146(A) theSouth African Appeal Court held that strict liability

applies in respect of the media.

In National Media & Others v Bogoshi 1998(4) SA 1196 (SCA)the same Appeal Court held that the liability of the media

is strict and the Pakendorf decision in this regard was

rejected.

Namibia became independent while the liability of the mediawas still strict and the Bogoshi decision not applicable to

Namibia.

Defamation cases in Namibia discussed. Strict liability for the media declared not applicable in

December 2008 by two separate single judges-


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Pohamba Shifeta v Raja Munamava and Others, anunreported judgment by Parker J in Case No.: I

2106/2006 and

Universal Church of the Kingdom of God v NamzimNewspapers t/a Southern Times, an unreported judgment

of Silungwe AJ in Case No.: I 1404/2006.

Held: In this case- there is no strict liability of mediain Namibia and the decision of Bogoshi followed.

Although media not strictly liable, media has theresponsibility of truthful and reasonable reporting.

Responsibility of media discussed at the hand of Bogoshi

decision and Reynolds v Times Newspapers Ltd & Others

[1998] 3 ALL ER 961(CA.)

Onus discussed. Held: That the plaintiff bears the onus to prove

publication of defendants allegations in respect of the

plaintiff. Once that has been proved, two presumptions

arise, namely that the defamatory allegations were unlawful

and animus unjuriandi. The defendants bears the onus on a

balance of probabilities to rebut those presumptions by

recognised defences, i.a. truth for public benefit, faircomment, privilege, etc.

Held: That publication was proved in respect of theplaintiff.

Held: That the article written by the second defendant inthe Informante was defamatory of the plaintiff,

Held: The presumptions arose. Held: The article did not contain the truth for public

benefit. The tone of the article indicated a purpose tohurt and destroy the plaintiff. The second defendant failed

to verify the information he received from his sources. The

nature if the article was to hurt and destroy the

plaintiffs reputation. The comment was not fair or

reasonable.


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Held: The second defendant was negligent - the plaintiffi.a was not given the opportunity to comment before the

article was written.

Held: The first defendant agreed entirely with the seconddefendant and the defamatory article. It is as liable as

second defendant.

Held: On behalf of the third defendant, the printer, therewas no evidence and consequently no denial that it was not

aware of the defamatory allegations in the article. The

printer is also liable.

After discussing the purpose of awarding damages andconsidering awards made in other cases, as well as the

defendants failure to apologise, an award for damages in

the amount of N$175 000.00 granted.


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CASE NO.: [P] I 3625/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

MATHEWS KRISTOF SHIKONGO PLAINTIFF

and

TRUSTCO GROUP INTERNATIONAL LTD FIRST DEFENDANT

MAX HAMATA SECOND DEFENDANT

FREE PRESS PRINTERS (PTY) LTD THIRD DEFENDANT

CORAM: MULLER, J.

Heard on: 05 - 08 February 2008; 09 - 11 June 2008

Delivered on: 29 January 2009______________________________________________________________________________JUDGMENT

MULLER, J.:[1] This is an action instituted by the plaintiff for defamation

against the proprietor, editor and publisher of a Namibian newspaper called

Informant, who are the first, second defendant and third defendants

respectively.


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The plaintiff, the Mayor of Windhoek for many years, claims damages from the

defendants by reason of an article which appeared on 21 September 2006 in

Informant. The article was titled Fincky aids Broederbonds land causewith

the following by-line: A Broederbond cartel is said to have made a killing after

buying municipal land in Olympia for one cent per square metre.

[2] All three defendants defended the action and relied on the defences of

truth and public benefit, as well as the absence of negligence. A fairly lengthy

trial ensued. The trial could not be finished within a week and had to be

postponed to last another week, whereafter it was postponed and set down for

arguments on behalf of both parties. During the trial the plaintiff was

represented by Dr Henning SC, assisted by Advocate Schimming-Chase.

During the first week the defendants were represented by Advocate Snijman

and during the last week by Advocate Heathcote. During argument on 29

September 2008 Advocate Barnard assisted Dr Henning. Due to the

importance of this matter, as will soon become clear, the Court expresses its

gratitude for the assistance of counsel for both parties in providing the Court in

advance with comprehensive heads of argument and for the sound and

comprehensive submissions made during oral arguments.

[3] The law of defamation in South Africa has been the subject of various

decisions during the course of time. As this case involves the media, emphasis

will evidently be placed on the role of the media where the reputation of a

person has allegedly been defamed. The requirements pertaining to statements

by the media have undergone drastic exchanges during the course of time. As


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an example, the South African Appeal Court Decision in Pakendorf v De

Flamingh(infra) stipulated that strict liability in respect of statements made by

the media is required. This requirement has been rejected in 1998 by the same

South African Appeal Court in the case ofNational Media Limited and Others v

Bogoshi (infra). South Africa has also undergone a constitutional change by

the acceptance of the Interim Constitution of 1993 and the final South African

Constitution in 1996. To complicate matters further, the Bogoshi decision was

also taken in respect of constitutional requirements contained in the Bill of

Rights in the Interim Constitution. It is therefore necessary to recognise the

development of law of defamation regarding the media during all these time

periods.

[4] In Namibia the position was even more complicated. Since Namibias

Independence and the acceptance of its own Namibian Constitution in 1990,

the Namibian Courts are not bound by the decisions of South African Courts.

Even decisions of the South African Appeal Court only have persuasive value.

Of course an appropriate South African decision has to be considered, but it

does not bind the Namibian High and Supreme Courts. Since the event of

Namibias independence and acceptance of its own Constitution, constitutional

rights should be viewed against Namibian case law. It is of importance that

Namibia establishes its own jurisprudence and for that reason counsel are

required in this Court in the first instance to refer to and rely on Namibian

decisions in respect of a particular subject and they should only rely on South

African or other foreign decisions in the absence of a similar decision by the

High or Supreme Courts of Namibia.


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[5] When the development of the requirements for media liability in alleged

defamatory statements is considered, the position in Namibia differs from that

in South Africa. At the time when Namibias Constitution was adopted, the

requirements for the media was strict liability as expressed in the Pakendorf v

De Flamingh matter, referred to above. Since then the Bogoshi decision in

South Africa, setting aside that requirement, was made. However, our courts

are not bound by it and there was no specific judgment by any Namibian Court

on that point. This was the position when the alleged defamatory article in

Informante was written and published, as well as when the plaintiff instituted

action in this case. Reference will also be made to certain Namibian decisions

from which it appears that the Pakendorf v De Flamingh decision of strict

liability for the media had been followed, although not really considered. In this

case, the Court has to decide whether the media is still bound by the concept of

strict liability or not. In December 2008 this Court has held in two separate

decisions by single judges that strict liability for the media should not apply. It

is accepted that because of the importance of this principle for Namibia, any

decision made in this judgment, as well as the other two decisions, may have to

be confirmed by higher authority in future.

[6] As mentioned above, since this matter had been argued, this Court

decided in two separate defamation cases that the media in Namibia is not

subject to strict liability. Although counsel could not refer to these decisions, I

shall do so later herein. (Pohamba Shifeta v Raja Munamava and Others (infra)

and Universal Church of the Kingdom of God v Namzim Newspaper (Pty) Ltd t/a

The Southern Times(infra)).


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[7] Counsel for both parties referred me to a number of relevant decisions

including South African and Namibian cases relevant to this issue, as well as to

several authorities, publications and articles. Because of the importance of the

time sequence in which these cases were decided in South Africa and in other

countries, including Namibia, I shall refer to those decisions, as well as others

that I have also considered, under the headings of the periods before the

Pakendorf v De Flamingh matter, and thereafter. As mentioned before,

constitutional changes also occurred in South Africa and Namibia and during

these periods, which may have a direct influence on the determination of i.a

media liability for defamation. I intend to list all these cases now and later only

refer to them by name and specific pages. There are two Holomisa cases and to

avoid confusion, reference will be made to the name of the particular judges

who made those decisions.

The period before in 1982, and before Parkendorf v De Flammingh.

1906 - Botha v Pretoria Printing Works Limited1906 TS 710;

1917 Crawford v Albu1917 AD 102;

1928 Johnson v Rand Daily Mails, 1928 AD 190;

1931 Le Roux v Cape Times Limited1931 CPD 316;

1934 Trimble v Central News Agency Limited1934 AD 43;

1940 Young v Kemsley & Others1940 AD 258;

1945 Bossner v Trigger1945 AD 33;

1946 Conroy v Stuart Printing Company Ltd1946 AD 1015;

1946 Die Spoorbond & Another v SA Railways;

- Van Heerden & Others v SA Railways1946 AD 999;


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1950 Galante v Dickenson1952(2) SA 460(A);

1962 SA Associated Newspapers Ltd v Schoeman1962(2) SA 613(A);

1965 Publications CB v William Heinemann Ltd1965(4) SA 137(A);

1965 Hassen v Post Newspapers (Pty) Ltd1965(3) SA 562(W)

1966 Channing v SA Financial Gazette & Others1966(3) SA 470(W);

1969 SA Associates Newspapers Ltd & Others v Yutar1969(2) SA

442(A);

1975 Butelezi v Poorter & Others1975(4) SA 608(W);

1975 SA Associates Newspapers Ltd & Others v Estate Pelser1975(4)

SA 797(A);

1977 SAUK v OMalley1977(3) SA 349(A);

1978 Deimers v Wyllie & Others1978(4) SA 619 (D & CLD);

1980 Deimers v Wyllie & Others1980(1) SA 835(A);

1981 Marais v Richard & Another1981(1) SA 1157(A).

The period from Pakendorf & Another v De Flamingh

1982 Pakendorf en Andere v De Flamingh1982(3) 146(A);

1984 Zille v Johnson & Another1984(2) SA 186(W);

1986 A Neumann CC v Beauty Without Cruelty International1986(4) SA

675(C);

1987 The Free Press of Namibia (Pty) Ltd v Cabinet for the Interim

Government SWA1987(2) SA 614(SWA);

1989 Smith v Die Republikein1989(3) SA 875(SWA);

1992 Argus Printing & Publishing Company Ltd v Inkata

Freedom Party1992(3) SA 579(A);


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1992 Esselen v Argus Publishing & Printing Company Ltd

1992(3) SA 764(T);

1993 Financial Mail (Pty) Ltd & Others v Sage Holdings Ltd & Another

1993(2) SA 495(A);

1994 Neethling v Du Preez: Neethling v Weekly Mail & Others1994(1)

SA 708(A);

1994 Argus Printing & Publishing Company Ltd v Esselens Estate

1994(2) SA 1(A);

1994 Afrika v Metzler & Another1994 NR 323(HC);

1995 Government of the Republic of South Africa v Sunday

Times Newspaper1995(2) SA 221(T);

1996 Holomisa v Argus Newspapers Ltd1996(2) SA 588(W) (Cameron,

J);

1996 Du Plessis v De Klerk1996(3) SA 850(CC);

1997 Hix Networking Technologies v System Publishers (Pty) Ltd &

Another1997(1) SA 391(A).

1998 National Media Ltd & Others v Bogoshi

1998 National Media Ltd & Others v Bugoshi1998(4) SA 1196 (SCA);

1998 Post Telecom Corporation v Modus Publications (Pvt) Ltd1998(3)

SA 1114(ZS);

1999 Brummer v Gorfil Brothers Investment (Pty) Ltd & Andere1999(3)

SA 389(SCA);

1999 SA National Defence Union v Minister of Defence1999(4) SA 469

(CC);

2001 In Re Chinamasa2001(2) SA 901(ZS);


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2001 S v Mamabolo (e-TV & Others Intervening)2001(3) SA 409(CC);

2002 Khumalo & Others v Holomisa2002(5) SA 401(CC) (O Regan J);

2002 Sprangers v FGI Namibia Ltd2002 NLR 128 (HC);

2002 McKay v Editor City Press & Another2002(1) ALL SA 58(SE);

2003 Lady Agasim-Perreira v Johnnic Publishing (Pty) Ltd & Others

[2003] 2 ALL SA 416 [SE];

2004 Mtembi-Mahanyele v Mail and Guardian Ltd & Another

2004(6) SA 329(SCA);

2005 Afshani & Another v Vaatz2006(1) NA 35(HC);

2005 Hardaker v Phillips2005(4) SA 515(SCA);

2007 NM & Others v Smith & Others2007(5) SA 250(CC);

2008 J H Shidute & Another v DDJ Investments Holdings

CC & Another, unreported Judgment of the Namibian

High Court, 11 March 2008 (Manyarara, AJ);

2008 Pohamba Shifeta v Raja Munamava and Others,

unreported judgment of Parker J No. I 2106/2006,

delivered on 5 December 2008;

2008 Universal Church of the Kingdom of God v Namzim Newspaper t/a

The Southern Times, unreported judgment of Silungwe AJ, No. I

1404/2006, delivered on 9 December 2008.

[8] Certain other judgments of English Courts and Courts in other countries

were also mentioned. I have considered some of them e.g. R v Central

Independent Television plc [1994] 3 ALL ER 841(CA); Reynolds v Times

Newspapers Ltd & Others [1998] 3 ALL ER 961(CA) and Reynolds v Times


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Newspapers Ltd & Others [1999] 4 ALL ER 609(HL). I also considered what

authors of prominent works had to say on this subject as referred to later

herein.

The Article

[9] The article that is the subject-matter of plaintiffs claim appeared in the

newspaper Informanton 21 September 2006. I shall hereinafter refer to it only

as article. The article appeared on the front page of the newspaper titled as

mentioned before with a by-line as mentioned above. Annexed to the article on

the front page was a photo of the then chairman of the Management Committee

of the City of Windhoek, Dr Bjorn von Finkenstein, in comical attire, probably

which he wore during the well-known Wika festival.

[10] Before dealing with the article itself, the newspaper which carried it

should be considered. Informantwas described in evidence as a newspaper of

which approximately 65 000 copies are printed each week and distributed

throughout Namibia, free of charge. It is also available on the Internet.

Informant has also been referred to as a tabloidnewspaper. As mentioned

before, the second defendant, the editor ofInformant, was also a witness for

the defendant and spent a long time in the witness box. It is common cause

that the second defendant is the author of the article and he relied on certain

sources, which he refused to disclose. His article was based on that

information and a document, marked P1, included in the bundle of documents

handed in as Exhibit A. This document was not admitted in any respect by the

plaintiff.


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[11] The article which appeared on the first and second pages of the

Informantis quoted hereunder in full:

Fincky aids Broederbonds land cause

By Max Hamata

A BROEDERBOND cartel is said to have made a killing after buying

municipal land in Olympia for one cent per square meter and cashing in on

millions of dollars after reselling the land. The land sale to the cartel was

facilitated by Chairperson of the City of Windhoek Management Committee

Dr Bjorn von Finckenstein. The City of Windhoek is expected to lose out by

at least N$4,8 million after the Management Committee allegedly misled

the City of Windhoek on the status of the prime land in Pioneerspark, which

was sold to Wanderers Sports Club at a subsidised price of N$1 172. The

piece of land has now been sold to Viking Developers, which is busy

constructing a N$40 million housing development, financed by BankWindhoek, on the land. Inside sources said the Mayor of Windhoek

Matthew Shikongo, who is a Bank Windhoek board member, should have

declared his association with the bank, instead of letting the underhand

land deal go through without scrutiny. How could the Mayor allow himself

to be used for self-gain and to empower previously advantaged persons. He

is supposed to serve the people that have elected him, instead of just

looking after his Bank Windhoek interests, said a concerned Council

member who preferred anonymity. In July, City of Windhoek lawyers

recommended that the land sale be rescinded. However, von Finckenstein

claimed he was not aware of this and therefore he said he could not

comment. Informant has reliably learned that the deal has placed the City

of Windhoeks management and the Council on a collision course because

City management was now trying to recover the lost revenue. The City of

Windhoek could have raised close to N$5 million had it placed the land on

auction and not bypassed legal advice. Wanderers Sports Club bought the

land on condition that it may not be sold by the owner before it has been

offered to the Municipality of Windhoek. Wanderers Sports Club undertook

not to sell the land until the City of Windhoek had been given the

opportunity to make a purchase offer. One wonders why the Council was

never advised of its rights in terms of the pre-emptive right which was part

and parcel of selling such huge tracts of land to Wanderers Sports Club,

while it was obvious that Wanderers Sports Club was diverting from its

sporting activities, stated legal opinion submitted to the Council. Would

the type of facilities which Wanderers wish to provide on the erven benefit

the community at large or are they venturing into business which Council


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can also undertake, asked another Council member. It is my submission

that Wanderers Sports Club must be made to pay the difference in value as

per deed of sale and the current market value of the sub-divided

properties, the source added. The Council now also faces the task of

reversing its decision of giving away the land cheaply after it has been

cautioned that Viking Developers have been constructing on the site

without necessary approved building plans and foundations were excavated

and built and services were inserted without the said densities being

proclaimed by the Government. It is also feared that the land sale to

Wanderers Sports Club will serve as precedent for other sports club in

Windhoek.

The Pleadings

[12] The relevant paragraphs of the plaintiffs Particulars of Claim are the

following:

5.

In its edition if 21 September 2006 an article entitled Fincky aids

Broederbonds land cause was published in the newspaper. A copy of the

article is annexed Marked A.

6.

Some 200,000 copies of the newspaper are distributed countrywide and

some 5000 e-papers are distributed worldwide via electronic mail. The

newspaper is widely read by the general public.

7.

The article stated of the Plaintiff

7.1 that he was connected to a broederbond cartel,7.2 that he was involved in an irregular land deal,7.3 that he caused the City to lose money,7.4 that he mislead the City regarding the status of land,7.5 that he abused his position as a board member of Bank Windhoek,

which he was held out to be,

7.6 that he abused his position as Mayor of the City of Windhoek forpersonal gain,

7.7

that he neglected the electorate and instead looked after his BankWindhoek interests,

7.8 that he caused a collision course between the management andcouncil of the City of Windhoek,

7.9 that he caused the City to suffer a loss of some N$5 million.


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8.

The allegation that the Plaintiff is a board member of Bank Windhoek is

false.

9.

The allegations, in the context of the article, are wrongful and defamatory

of the Plaintiff in that they were intended and were understood by readers

of the newspaper to mean that

9.1 the Plaintiff was dishonest,9.2 the Plaintiff abused his position as mayor of the City of Windhoek,9.3 that the Plaintiff neglected his duties to the public,9.4 that the Plaintiff abused his position of a board member of Bank

Windhoek.

10.

As a result of the defamation, the Plaintiff has been damaged in his

reputation and dignity, and has suffered damages in the amount of

N$300,000, 00.1

[13] The following further particulars were requested by the defendants:

1.

Ad paragraph 9

1.1. Precisely which words in the article are relied upon for the meaningset out in subparagraph 9.1?




2.

2.1. Against which of the defendants is payment claimed and on whatbasis?

2.2. In the event of the plaintiff claiming payment from the thirddefendant, plaintiff is requested to specify on what precise basis the

third defendant as printer would be liable to the plaintiff. Without

derogating from the generality of this request, is it alleged that the

third defendant is strictly liability or by reason of fault or

negligence on its part. In the latter event full particulars are

1 The amount of N$300,000 has subsequently by amendment during the trila

been increased to N$500,000.


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requested. The third defendant is embarrassed by the plaintiffs

pleading in this regard and affords the plaintiff the opportunity to

remove the cause of complaint.

[14] Further particulars were provided:1.

AD PARAGRAPH 1 OF THE REQUEST

Plaintiff relies upon all of the statements pleaded in paragraph 7 of his

particulars of claim read in the context of the article as a whole, for the

meanings set out in subparagraphs 9.1, 9.2, 9.3 and 9.4 of his particulars of

claim.

2.

AD PARAGRAPH 2.1 OF THE REQUEST

Plaintiff claims payment against First, Second and Third Defendants jointly

and severally on the basis (sic) of the actio iniuriarum.

3.

AD PARAGRAPH 2.2 OF THE REQUEST

Third Defendant is liable to plaintiff under the actio iniuriarumby reason

of strict liability, alternatively by reason of Third Defendants negligence.

Without derogating from the Third Defendants onus as regards averring and

proving lack of negligence, Plaintiff pleads that Third Defendant was

negligent in one or more or all of the following respects:

3.1 At the time of printing the article forming the subject of Plaintiffsaction, Third Defendant knew or ought to have known that thearticle was defamatory of the Plaintiff;

3.2 Third Defendant knew or ought to have known that articlescontained in the Informant newspaper of an concerning Plaintiff

were likely to be defamatory of Plaintiff.

[15] The defendants plea to the plaintiffs Particulars of Claim is the

following:

1.

Ad paragraphs 1 to 5 of the Particulars of Claim

The allegations contained in these paragraphs are admitted.

2.

Ad paragraph 6

Save to admit the second sentence in this paragraph, the remaining

allegations in this paragraph are denied. The defendants state that 65,000


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copies of the newspaper are printed and distributed and that it is available

electronically on its website and can be accessed there.

3.

Ad paragraph 7

3.1. The allegations contained in this paragraph are denied.3.2. The defendants admit that the article stated the following

concerning the plaintiff:

Inside sources said that the Mayor of Windhoek, Mathew

Shikongo, who is a Bank Windhoek board member, should

have declared his association with the bank, instead of

letting the underhanded land deal go through without

scrutiny. How could the Mayor allow himself to be used for

self gain and to empower previously advantaged persons.

He is supposed to serve the people that have elected him,

instead of just looking after his Bank Windhoek interests,

said a concerned council member who preferred

anonymity.

4.

Ad paragraph 8

The defendants admit that the plaintiff is not a board member of Bank

Windhoek Limited but state that he is a member of Capricorn Holdings (Pty)

Limited which is the holding company which owns and controls Bank

Windhoek Limited and is thus associated with Bank Windhoek. The

defendants state that, after it was pointed out to the defendants that the

plaintiff is not a member of the board of Bank Windhoek Limited, acorrection to that effect was placed in a subsequent issue ofInformant.

5.

Ad paragraph 8

5.1. The defendants deny these allegations.Alternative defences

5.2. If it is held that the statements made concerning the plaintiff as setout above in the context of the article were defamatory of the

Plaintiff, then the defendants deny the statements in the context of

the article as a whole were published in an unlawful manner by

reason of the defences set out in paragraphs 5.3 and 5.4.

Truth and public benefit or fair comment

5.3. The first and second defendants deny that the article referred to inthe particulars of claim read in the context of the article as a whole

was published in an unlawful manner in that:


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(a) the article, in so far as it contains statements of fact, wasessentially the truth and the publication thereof was in the

public interest; and/or

(b) the article, in so far as it contains comment, constitutescomment concerning matters of public interest, fairly and

reasonably made in the circumstances and based upon facts

which are essentially the truth.

Reasonable publication

5.4. In the alternative to subparagraphs 5.1 and 5.3 above, and in theevent of it being established that the publication by the defendants

of the contents of the article was defamatory as alleged, then and in

that event the defendants plead as follows:

(a) Article 21(1)(a) of the Constitution of the Republic ofNamibia provides that:

All persons shall have the right to freedom of

speech and expression, which shall include freedom

of the press and other media.

(b) The article was published by the first and second defendantspursuant to the exercise of their common law, alternatively

constitutional, right to freedom of expression;

(c) In publishing the article the first and second defendantsacted in good faith, without knowledge that any part thereof

was false or based upon untrue facts and without negligence

or recklessness in that regard;

(d) The first and second defendants moreover acted reasonablyand without negligence in publishing the article in the

circumstances, in that:

(i) The second defendant wrote the article setout in annexure A on the basis of reports

he had received from senior officials in the

employ of the City of Windhoek and one of

its Councillors and the second Defendant was

provided with a submission and certain

resolutions which served before the Council

of the City of Windhoek. A copy of the

submission and resolution is annexed and

marked P1.

(ii) The second Defendant thereafter approacheda representative of Bank Windhoek Limited

for comment and was informed that the

Plaintiff was a director of Bank Windhoek


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Limited without mention being made to

Capricorn Holdings (Pty) Limited.

(iii) The second Defendant thereafter contactedthe chairperson of the management

committee, Dr Bjorn von Finkenstein for

comment in his capacity as chairperson of

the Management Committee of the Windhoek

City Council.

(iv) In preparing the article, the seconddefendant relied upon the submission and

resolutions provided to him together with the

information and comment provided by the

senior officials and the Councillor referred to

as well as the response by the chairperson of

the management committee.

(v) The report concerned an issue of public fundsand conduct of elected public officials in

their official capacities;

(vi) The report referred to the plaintiff in theexercise of public and official functions and

duties in his capacity as a public figure;

(vii) In preparing the article, the secondDefendant acted reasonably and without

negligence in publishing the allegations

contained in it.(viii) The second defendant prepared the article as

Editor of Informant and as a senior

journalist, duly qualified as such and with

several years of experience.

(ix) The first defendant relied upon the seconddefendant having acted reasonably and

without negligence in publishing the

allegations contained in the article.

(x) In doing so, the first and second defendantsacted reasonably and without negligence in

publishing the allegations contained in the

article.

(c) by virtue of the aforegoing, the first and second defendantsmoreover acted without negligence.

(d) By virtue of the aforegoing and in the premises the first andsecond defendants were justified in publishing the article.


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The third defendant as printer

5.5.

(a) The third defendant denies that it is strictly liable as

alleged in the particulars of claim.

(b) The third defendant furthermore denies any

negligence on its part, either in the respects referred

to in the further particulars, or at all.

Ad paragraph 10

Each and every allegation contained in this paragraph is denied as if

separately set out.

Evidence

[16] The plaintiffs case commenced by presenting the evidence of four

witnesses. The first witness was Dr Andr Du Pisani who gave evidence as an

expert in respect of the Broederbond, an organisation of white Afrikaner

supremacy. I shall refer to his evidence later herein. The plaintiff further called

Mr Fouch, who testified about the plaintiffs work record at Metropolitan Life

where Mr Fouch was employed as Managing Director. He knew the plaintiff

and relied on his experience. He testified that the plaintiff started as a

consultant and eventually became a Board member. Mr Fouch was not cross-

examined. Mr Helmut von Ludwiger, the Group Company Secretary of Bank

Windhoek and Capricorn Investment Holdings and Bank Windhoek, testified

about the plaintiffs relationship with Bank Windhoek Ltd in 2006, namely that

the plaintiff was not a director of Bank Windhoek Ltd in 2006, but of Capricorn

Investment Holdings, a holding company that has nothing to do with the day to

day operations of Bank Windhoek Ltd. The Board of that holding company only

appoints directors to the Board of Bank Windhoek Ltd and its other investment

companies, reviewing the performance of such Boards on a quarterly basis. Mr

van Ludwiger further testified that he did not receive any query from second


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defendant or anybody else about the plaintiffs membership of the Board of

Bank Windhoek Ltd. He said if he was called, he could confirm or deny it.

According to him Bank Windhoek Holdings (which was the old Capricorn

Investment -Holdings) would not have been involved in any decision concerning

financing, through a bond, the purchase of the pertinent property sold to Viking

Developers Ltd and he was not aware of such a sale. The instructing legal

representative of the plaintiff, Mr Attie Slabber, was called to testify in respect

of the present value of money based on Dr Robert Kochs Quantum Yearbook.

The reason for his evidence was to show what the monetary value of certain

awards, made in previous decisions, is today.

[17] Eight witnesses testified on behalf of the defendants. The most crucial

witness was Mr Max Hamata, the editor of Informant newspaper and the

author of the article in which the plaintiff was allegedly defamed. I shall deal

with the evidence of Mr Hamata more extensively later herein. Mr Quinton van

Rooyen, the owner of Informant newspaper and Managing Director of first

defendant, also testified. Three employees of the City Council of Windhoek were

also called to testify, namely Mr Benedictus Ngaarorue, a legal officer employed

by the City of Windhoek, Ms Utete Karimbue-Mupaine, the Strategic Executive:

Plainning Urbanization and Environment of the City of Windhoek and the Chief

Executive Officer of the municipality, Mr Nilo Taapopi. Two other witnesses

gave formal evidence in respect of certain documents, namely Ms Gwendeline

Krotz, who is responsible for taking the minutes of the Management Committee

and Council meetings of the City of Windhoek and Mr Heiko Wilhelm Stritter.

Mr Stritter is a legal practitioner and conveyancer, who obtained a copy of the


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option to purchase the pertinent property between Wanderers Sports Club and

a nominee. The defendant also called Mr Robert Christiaan Brandt as an expert

witness at the resumption of the second period of this trial. His evidence was

based on an issue that was no longer relevant, namely whether a newspaper

reporter has a duty to reveal the identities of his sources, or not.

[18] I do not intend to refer to the evidence of the witnesses in detail, except

when certain evidence may be relevant. The evidence of Mr Max Hamata will be

dealt with in more detail.

[19] Although the plaintiff reserved the right to call evidence in rebuttal, this

was not done after the defence closed its case.

[20] The plaintiff did not give any evidence in this Court. The plaintiff was

not present at any session during the trial. The only time that anything by the

plaintiff was presented to the Court, was when a statement by the plaintiff was

handed in. This occurred after an application was made by Dr Henning on

behalf of the plaintiff for the incarceration of Mr Max Hamata for refusing to

reveal the sources upon which he relied when he wrote the article. Before this

issue could have been argued the next day, a statement by the plaintiff was

handed in stating that he does not want Mr Hamata to be imprisoned for this

reason and Dr Henning thereafter did not pursue this application. During the

second session of the trial, Mr Heathcote challenged the plaintiffs legal

representatives to either call the plaintiff to testify or to make him available to


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be called by the defendant. This challenge was not taken up by Dr Henning

and the trial ended without the plaintiffs being called to testify at all.

Background

[21] I shall attempt to set out certain facts because they may be relevant to

understand the background to the incident which caused the article to be

written. I shall in the first instance refer to the undisputed facts and thereafter

to what remained disputed. This exercise is not meant to be a complete

reflection of each and every fact.

[22] The objective facts are the following:

(a) During 1974 the Municipality of Windhoek sold a certain piece of

land, approximately 12 hectares in size, to the Wanderers Sports

Club for an amount of R1 172.22, calculated at R1.00 per square

metre. Against the title deed of that property the following

conditions were registered:

Neither the earth nor any part thereof may be transferred, let or in anyway

be awarded or alienated to anybody except a white.

The earth may not be alienated by the transferee before it was offered to

the Municipality of Windhoek and then against the amount at which the

earth was sold to the transferee plus a reasonable amount for improvements

as mutually agreed whereas it determined by an arbitrator.

(b) On 6 November 2004 an option to purchase it was given by

Wanderers Sports Club to a firm of local estate agents on behalf of

a nominee;

(c) The piece of land was called The Sport Village and a mortgage

bond was registered over that property in favour of Bank


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Windhoek Ltd. The total amount of the bond was N$48 million.

The particular property was developed by The Sport Village

through a developer, namely Viking Developers Ltd;

(d) A written application was made on behalf of The Sport Village by

a local firm of city planners, Stubenrauch Planning Consultants,

to the Municipality of Windhoek to cancel the second condition in

the original deed of sale, which condition required that the specific

property must first be offered to the Municipality of Windhoek for

purchase before it can be sold to any other party;

(e) The agenda of the Management Committee i.a contained a detailed

reference to the application of Stubenrauch Planning Consultants

and reports from different departments of the Windhoek

Municipality;

(f) On 23 June 2005 the Management Committee of the Council of

Windhoek considered this application and recommended to the

Council of Windhoek to cancel this condition;

(g) On 30 June 2005 the Council of Windhoek took a decision to

cancel this condition,

(h) Subsequent to this decision of the City of Windhoek, the

document referred to earlier, namely P1, came into existence.

This document contained certain advice, apparently originating

from a legal advisor of the Municipality, that the property could

not be sold unless the municipality had exercised its option to

purchase same first. Certain employees of the Municipality of

Windhoek was apparently unhappy with the state of affairs and


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unsuccessful attempts were made to have the decision of the City

Council reversed. The matter was even discussed with the legal

representative of Viking Developers Ltd by Mr Taaipopi, the CEO

of the Municipality of Windhoek;

(i) After an opinion from a Senior Advocate was obtained to the effect

that the decision of the City Council cannot be reversed, which

opinion was handed to the CEO of the Municipality, the latter

stopped any further proceedings to have the sale set aside;

(j) The document P1 was given to Mr Hamata, who then used it to

write the article in Informant;

(k) Before writing the article, Mr Hamata apparently called the

plaintiff by telephone, but could not reach him. He did speak to

the chairman of the Management Committee, Dr von Finkenstein,

who just returned from overseas and could not comment on the

issue;

(l) Mr Hamata erroneously mentioned in the article that the plaintiff

was a director of Bank Windhoek Ltd on the strength of

information he received from his source in Bank Windhoek. This

mistake was later rectified by an announcement in Informante to

the extent that the plaintiff was not a director of Bank Windhoek

Ltd, but of Capricorn Investment Holdings on 12 October 2006;

and

(m) Mr Hamata never obtained a copy of the minutes of either the

Management Committee or of the City Council.


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[23] It was severely disputed during argument that it was revealed to the

Management Committee or the City Council during their meetings that the

Municipality had been informed that it had the option to first purchase the

property. On behalf of the plaintiff it is submitted that it is clear from the

minutes of those meetings, that the entire process was transparently done,

while the defence submitted that there was a deliberate attempt to conceal the

existence of the option from the Municipality. The plaintiff further emphasised

that Mr Hamata did not afford the plaintiff the opportunity to comment on the

article which he intended to write, while defendants submitted that Hamata did

attempt to reach the plaintiff, but in vain. The plaintiff further submitted that

the subsequent rectification in respect of the alleged directorship of the plaintiff

of Bank Windhoek Ltd did not have any effect on what the normal reader would

understand and deduct from the article, whilst the defendants argued the

opposite. There are also other opposing submissions which are either irrelevant

or will be dealt with further herein.

[24] Two issues were not dealt with at all by counsel during argument and

although each of them may be important in future, I shall refrain to express any

view on it. In the first instance it was apparently accepted that Informanteis a

tabloid newspaper, which is usually regarded as carrying more sensational

reports. The question arises, but was not argued, whether the responsibility of

the editor, etc of such a newspaper might be different from editors, etc of other

newspapers. Secondly, the selling of a newspaper has often been considered

when it carried a report that may be regarded as containing defamatory matter,

which will sell more newspapers. It is common cause that Informante is


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distributed for free. Would that be a factor that might tip the scale more to a

specific side? As mentioned, counsel left these issues alone and so shall I.

Onus

[25] I have already mentioned that (without any argument in that regard) the

plaintiff conceded that it bore the onus to begin, and Dr Henning commenced

the plaintiffs case by calling the witnesses referred to earlier herein. The

plaintiff reserved the right of rebuttal. The defendant thereafter called his

witnesses.

[26] In respect of the onus of proof, Dr Henning conceded in his opening

statement that it has to prove publication of defamation referring to the

plaintiff, but once that has been established, two presumptions arise, namely in

the first instance that the publication was unlawful; and secondly, that the

statements were made animus injuriandi. Dr Henning submitted that to rebut

these presumptions, the defence has the onus to prove one or more of the

recognised defences. Dr Henning referred to the pleadings and in particular the

plea in which the defendants raised the defences of (a) truth for the public

benefit or fair comment, which he submitted was a common law defence, and

(b) the constitutional defence of reasonable publication, namely that the

defendants were not negligent.

[27] Before the commencement of the trial, Mr Snijman on behalf of the

defendants accepted that there was to a certain extent an onus on the

defendant, although he submitted it was not correct that the defendant has the

onus of rebuttal. In his Heads of Argument and in this Court, Mr Heathcote


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submitted that it should be taken into account that the plaintiff relies on strict

liability and if the court should uphold this to be the applicable law in Namibia,

the onus must be on the plaintiff to prove that the statements he complains of

were false and by not giving evidence, the plaintiff is bound to fail. In this

regard he referred to the South African situation with regard to the decision in

the Bogoshicase, which was decided after our constitution came into operation.

I agree with Mr Heathcote that it is important to consider the Namibian

situation in relation to the decisions in South Africa prior to the Namibian

Constitution and thereafter in coming to a decision what the law currently

applicable in Namibia should be as far as the liability of the media is concerned.

I shall consequently hereinafter deal with these decisions and the constitutional

development in determining where the onus in this particular instance should

lie. It is relevant to decide whether the media is strictly liability as South

African Appeal Court decided in the case of Pakendorf v De Flamingh, or

whether the principles as laid down in the Bogoshicase should be applied in

Namibia. I have already referred to the two recent cases in this Court where

two judges separately decided that strict liability for the media is out and the

Bogoshidecision was followed.

[28] However, the principles in respect of initial onus still remains the same.

The plaintiff bears the initial onus to prove publication of the alleged

defamation in respect of him. If the alleged defamatory statement appears in a

newspaper, publication is established and the plaintiff only has to prove it is

defamatory, relating to the plaintiff. In this case it is not in dispute that the


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article was written by the first defendant and that it was published in

Informantnewspaper2.

[29] Once publication of defamatory statements relating to the plaintiff had

been proved, the two presumptions referred to earlier herein arise and the onus

then rests on the defendant(s) to prove one or more of the known defences. In

this matter these presumptions arose and the defendants have the onus to

prove the defences relied upon in the plea. I shall later herein deal with the

type of onus and what the defendants have to prove.

The law

[30] Both parties submitted that law of defamation has not changed for 2000

years. I shall briefly refer to the applicable law.

[31] Both parties agreed that in South Africa the Pakendorfcase changed the

law in respect of liability of the media in defamation actions. In South Africa

the Bogoshicase changed that in 1998. It is common cause that until then the

media was subject to strict liability. The plaintiff in this case relied on strict

liability and in the alternative the law as defined in Bogoshi. (Further

particulars, paragraph 3). If the plaintiff did not plead as it did, he might have

faced an exception. Dr Henning submitted that when the Namibian

Constitution came into operation in 1990 the media was subjected to strict

liability according to the Pakendorfcase. Since then there were the decisions

such Afrika v Metzler, Afshani v Vaatz and Shidute, supra, in this Court. In

2 LAWSA, Vol 7 para 254, p 235


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these cases reference were made to the strict liability of the media. In the

alternative it is submitted on behalf of the plaintiff that even if the Bogoshi

principles are accepted, the defendant still has to the onus to prove these

defences, namely truth for the public benefit and fair comment on a balance of

probabilities.

[32] The law of defamation was established in the Roman Law. It did not

much change under the Roman Dutch Law3. The law of defamation considers

the protection of the personality rights of a person. Reference is usually made in

respect of the well known triad of the Roman Law regarding injuria, namely

corpus,famaand dignitas. Famaconcerns the reputation of a person while the

other rights that were also protected concerned the body of a person (corpus)

and his dignity (dignitas). These were separate rights. Famaand dignitaswere

separately protected. While the Courts identify, recognise and protect

corpus (body) and fama (good name) as separate, delimited aspects of

personality, views on the meaning and significance of the term dignitas

vary considerably4. It is recognised that dignitashas a wide meaning which

is a collective term for all personality rights with the exception of the right to a

good name and the right to bodily integrity5. According to the well-known

author Melius De Villiers6 dignitas should be widely interpreted and

encompasses all aspects of the legally protected personality, except corpusand

3 Neethling the Law of Personality, 2nd ed p 45, Burchell, the Law of

Defamation, p10, Amerasinhe: Defamation and Other aspects of the Actio

Injuriam in Roman Dutch Law, p 34 Neethling, supra, p 495 OKeeffe v Avis Printing and Publishing Company Ltd and Another

1954(3) SA 244(C; Neethling, supra, p 506 Melius De Villiers, the Roman and Roman Dutch Law of Injuries (1899)

24


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fama. On the other hand defamation emphasises an objective element and the

plaintiffs emotional reaction is of secondary importance7.

[33] The infringement of the reputation of a persons (fama) must be

objectively evaluated, while dignity has a subjective element. The essential

difference is what others think of a person (reputation) and what he thinks of

himself (dignity). Perhaps due to the English influence, dignity was sometimes

described by the word character, whilefamawas sometimes described by the

word honour8. In South African case law dignity andfama (reputation) have

sometimes been used together and not separately with their own specific

protections. The importance of these rights, namelyfama and dignity will be

discussed later. It will also be considered in respect of the argument by Mr

Heathcote that the plaintiff should have testified.

[34] It is common cause that the decision in the Pakendorfcase in 1982 that

the media is subject to strict liability (before the Namibian Constitution) was

reversed the Bogoshi case in 1998 (after the Namibian Constitution). The

Namibian Courts were bound by the Pakendorfdecision, namely strict liability

for the media. After 1990 the Namibian Courts were not bound by South

African decisions, even that of the South African Appeal Court and the

Constitutional Court, although those decisions have persuasive value and are

usually followed.

7 Neethling: supra, p 528 Burchell: The Law of Defamation in South Africa, p 19


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that the remarks of Maritz J are obiter in respect of the issue at

hand.

(c) S v Smith was a criminal matter and the medias liability was

neither considered, nor decided on.

(d) The media was not directly involved in the Shidute matter and

liability of the media did not feature except when the presiding

judge dealt with the calculation of damages, he referred to the

same quotation in the Afrikacase as quoted in (a) above.

(e) The Pohamba Shifeta and Universal Church judgments by this

Court were both given in December 2008, after this present case

was completed, and I shall briefly deal with the relevant decisions

therein. In both these cases the issue of strict liability for the

media were rejected.

(i) In the Pohamba Shifeta case, Parker J expressed himself

strongly in respect of the medias liability. In [10], p6 he

says:

...I think the time has come for this Court to jettision the

unconstitutional baggage of the doctrine of strict liability of the media

in the context of defamation and apply, as I do, the Bogoshi decision,

which conduces to the development of our own constitutionalism,

conduces to the strengthening of our democratic State and, moreover,

conduces to deepening Namibias culture of respect for human rights.

(ii) After quoting extracts of the Bogoshidecision, Silungwe AJ

states in [32], p18:

With those observations, I am in respectful agreement since I am

firmly of the view that strict liability is inconsistent with the

provisions of Article 21 (1)(a) of the Constitution.


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[36] I agree with Mr Heathcote that the Pakendorfdecision seems to be out of

kilter with the law that existed up to that stage and the decisions of the courts

until 1982. I am not going to enter into the arena of deciding that the common

law in Namibia has not been altered by the Pakendorfdecision, because that

decision was wrongly made. I do not regard it necessary to decide that issue.

As pointed out above, there were recently two direct decisions on this issue in

Namibia. In the absence of any decision by the Namibian Supreme Court, I still

have to decide in this matter what the legal position of the medias liability

should be, strict or not.

[37] Worldwide the trend seems to be against strict liability for the media.

Although a court should be careful not to adopt English Law in respect of

defamation, decisions by other foreign courts do not favour strict liability for the

media9. This does not mean that the media should be allowed the same

freedom as in the USA10.

[38] Although the South African Courts did not reject strict liability it seems

that even before the Bogoshi decision, some became cautious to follow the

Pakendorfdecision in this regard. In Neethling v Vryweekblad, supra, Hoexter J

made observations that were not in line with that of Rumpff CJ in Pakendorf.11

In the period when South Africa had an interim constitution, Hefer JA had the

courage to say that Pakendorfwas wrongly decided in this regard.12

9 Bogoshi, supra, p 1211C10 Jonathan Burchell: Personality Rights and Freedom of Expression,

Chapter 2, p 24-2811 Neethling v Du Preez and Others, supra, p 776I;12 Bogoshi, supra, p 1211B;


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[39] The principle in Bogoshi was followed by the Constitutional Court in

South Africa after the final South African Constitution was adopted in 1996 in

the case ofKhumalo and Others v Holomisa, supra, by ORegen J13. Except for

reversing the issue of strict liability for the media, Hefer JA in the Bogoshicase

also dealt with the onus in a case where the media is involved14. Bogoshi

confirmed that in order to rebut the presumptions that may arise, the

defendant has to prove on a balance of probabilities that the defamatory

statements were justifiable and reasonable.15

[40] In the judgment of Mthembi-Mahanyele v Mail and Guardian Ltd and

Another, supra, the South African Appeal Court came to the conclusion that

although the statement was defamatory, it was justified16. Although in that

case there was a majority and a minority decision, the minority did agree with

the legal decisions of the majority; they came to another decision based on the

facts of that particular case. The approach of Hefer JA in the Bogoshicase was

confirmed.17

[41] Having considered the cases specifically referred to above, as well as

others quoted to me and other cases that I have considered, I am persuaded

that the decision ofPakendorfto place a burden of strict liability on the media

was wrong and was correctly rejected by the South African Appeal Court in the

13 Khumalo and Others v Holomisa, supra, [20] p 415D-E;14 Bogoshi, supra, p 1217D-1218E;15 Bogoshi, supra, p 1281E;16 Mthembi-Mahanyele v Mail and Guardian Ltd and Another, supra, [75], p

360D17 Mthembi-Mahanyele v Mail and Guardian Ltd and Another, supra, [62], p

355G-I


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Bogoshicase, followed by other decisions of the South African Appeal Court and

Constitutional Court. I also agree with the approach used by Hefer JA in

Bogoshi as confirmed subsequently. Although it was not a media matter,

Maritz J thoroughly analysed the case law with particular emphasis on the

onus issue.18 I also fully agree with the decisions in this regard in the Pohamba

Shifetaand Universal Churchmatters. Consequently, I hold that the media in

Namibia is not subject to strict liability, but that media defendants bear a full

onus to rebut the presumptions ofanimus injuriandiand unlawfulness, namely

on the basis of a balance of probabilities.

[42] Hefer JA confirmed the principle of our law of defamation that a balance

must be struck between the right to reputation and the freedom of expression

in the Bogoshicase.19 The learned Appeal Court judge then dealt with the rights

of freedom of expression and of reputation extensively.20 Lewis JA in the

Mthembi-Mahanyele case approved that such a balance must be struck.21 In

evaluating the facts of this matter I regard the striking of a balance between

these two important rights as implicit.

[43] Against these principles and the defences pleaded, the liability of the

defendants will be considered. The law applicable to other issues will be

considered when such issues are dealt with.

Was the article defamatory of the plaintiff?

18 Afshani v Vaatz, supra, para [24], p 45 to para [31], p 4919 Bogoshi p 1207D.20 Bogoshi p 1207E to 12 p 1207F.21 Mthembi-Mahanyele v Mail Guardian Ltd, supra, [40], p 347I to 348A.


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[44] Dr Henning argued that the purpose of the newspaper article was to

expose a corrupt official and this was also the purpose of the second defendant,

the owner of the publication and the employer of the first defendant. Is

submitted that Court should find that the printer had a similar purpose.

[45] It is common cause that the test is an objective one, namely what a

reasonable reader with normal understanding and development would

understood when he/she reads the article. It is also common cause that the

reasonable man is not the astute lawyer or a supercritical reader.22 The Court

has to determine the meaning which a reasonable man would likely give to the

statement in its context and whether that meaning is defamatory.23 At this

stage the court is not concerned with the meaning that the author of the

statement intended to convey.

[46] I have already found that without faultor strict liability of the media is

no longer applicable. This does not mean that the media does not have a

responsibility to truthfully report and that its comments must be fair and

reasonable. The medias responsibility has been described by Hefer JA in

Bogoshias follows24:

But, we must not forget that it is the right, and indeed a vital function, of the press to make

available to the community information and criticism about every aspect of public, political,

social and economic activity and thus to contribute to the formation of public opinion (Prof

JC van der Walt in Gedenkbundel: HL Swanepoel at 68). The press and the rest of the

media provide the means by which useful, and sometimes vital, information about the daily

affairs of the nation is conveyed to its citizensfrom the highest to the lowest ranks

22 LAWSA Vol 7, para 248; Mthembi-Mahanyele v Mail Guardian Ltd, supra,

[25] p 34223 LAWSA para 248, p 230.24 Bogoshi, supra, p 1209I-1210A.


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(Strauss, Strydom and Van der Walt Mediareg 4th ed at 43). Conversely, the press often

becomes the voice of the peopletheir means to convey their concerns to their fellow

citizens, to officialdom and to government.

(Also Reynolds v Times Newspapers Ltd and Others, supra, at 1004a-e). Later in

his judgment in Bogoshi, Hefer JA commented on the nature, extent and of

allegations and stated25:

Ultimately there can be no justification for the publication of untruths, and members of the

press should not be left with the impression that they have a licence to lower the standard

of care which must be observed before defamatory matter is published in a newspaper.

[47] Dr Henning analysed the article, sentence by sentence, and argued how

the reasonable reader would read and understand it. According to him a

reasonable reader will view the whole transaction against the negative view that

the reader would have of the Broederbond, namely an octopus-like

organisation based on white supremacy in the apartheidsera and will connect

this with what is regarded as an important issue in Namibia, namely the

appropriation of the land. Similarly, reasonable reader will have a negative view

of those persons who want to make a financial killing, by using underhand

methods and may cause a loss of public money. The reasonable reader of the

article with regard the plaintiff as such person. According to him, the

reasonable reader will understand that not only Dr Von Finkenstein as

Chairman of the Management Committee was involved this underhand

transaction, but also the Mayor, who is the Chairman and the representative of

the City Council of Windhoek that took this decision. According to him, when

reading this, the reasonable reader would view the plaintiffs association with

25 Bogoshi, supra, p 1212J-1213A.


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Bank Windhoek negatively and understand that he was involved in this

underhand land deal which was to the detriment of the tax payers of Windhoek

and those people he (the plaintiff) is supposed to represent. The amounts

mentioned therein are huge and the reasonable reader would view it that the

plaintiff did this for self-gain. In Dr Hennings view the entire article should be

read in context and is defamatory of the plaintiff.

[48] Mr Heathcote denied that the entire article was defamatory of the

plaintiff and argued that only two sentences thereof referred to the plaintiff

directly. He conceded that the reference to the plaintiff as being a director of

Bank Windhoek Ltd was wrong in the article, but argued that it was later

corrected. Mr Heathcote also strenuously argued that what the plaintiff now

considers to be defamatory, was not fully pleaded. Furthermore he submitted

that as a black man, the plaintiff would never have been associated by the

reasonable reader with a white supremacy organisation, such as the

Broederbond.

[49] It is so that the plaintiff has to set out the terms of the statement, which

he alleges to be defamatory in his pleadings and that he must prove that

statement26. According to Mr Heathcote the plaintiff limited himself when he

referred in paragraph 9 of his particulars of claim to the interpretation that a

reasonable reader would attach to the way that the plaintiff was referred to in

the article, namely: that he was dishonest, abused his position as Mayor of the

26 LAWSA, supra, para 248, Muller v Nel 1942 CPD 337 at 348; Deedat v

Muslim Digest and Others 1980(2) SA 922(D); Amerasinghe: Defamation in

South Africa and Ceylon, Chapter VIII.


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City of Windhoek, neglected his duties to the public and abused his position as

Board Member of Bank Windhoek. Relying on the decision of the Deimers v

Wyllie, supra, Mr Heathcote submitted that the plaintiff elected to rely on

certain meanings and cannot now rely on others. According to him, it is

nowhere stated in the article that the plaintiff was dishonest or abused his

position or received any favours. The only concession that Mr Heathcote makes

in this respect, is that the article does indicate that the plaintiff neglected his

duties and this, he submitted, is not defamatory.

[50] Dr Henning denied that this argument has any ground. He submitted

that the reference to page 8, paragraph 9 of the particulars of claim cannot be

read alone and must be read in context with paragraph 7 of the Particulars of

Claim.

[51] I do not agree with Mr Heathcote in this regard. Although the plaintiff

pleaded how the reader would understand the article, it must clearly be read in

the context of the whole article27. The allegation pleaded in paragraph 7 cannot

be ignored. In my opinion, the normal reasonable reader will come to no other

conclusion, after reading the article, than that the plaintiff was part of an

underhand and dishonest deal and in this regard abused his position as Mayor

of City of Windhoek to further his own interest for which he used his

association with Bank Windhoek, which he failed to declare to the City Council

when the decision was taken. I agree with Mr Heathcote that the article

indicated that the plaintiff, as Mayor of Windhoek, has neglected his duties to

27 Deedat v Muslim Digest and Others, supra, p 928-9


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the public, but the reasonable reader would not understand that that is not all

he did. The normal reader would think that the Mayor of Windhoek did not do

anything to stop this corrupt underhand deal; he did not even declare that he

was associated with Bank Windhoek. Dr Von Finkenstein was part of the

elected executives of the Municipality of Windhoek of which the Plaintiff was the

leader, the Mayor.

[52] The evidence of Dr Du Pisani in respect of the Broederbond is not in

dispute. Although Mr Snijman, who initially appeared for the defendants,

seemed to create the impression that at least on the Internet the book, Super-

Afrikaners, referred to by Dr Du Pisani, was criticized, Mr Heathcote made it

clear, when he took over, that the defendants do not take issue with Dr Du

Pisanis evidence regarding the Broederbond. Consequently, it should be

accepted that the Broederbond was a white Afrikaner supremist organisation

with its claws in the public society at the time. There can also not be any doubt

that the Broederbond was viewed very negatively, something like the Nazi

Regime in the Second World War. Mr Heathcotes argument that the plaintiff

would not be associated by the reasonable reader with the Broederbond

because he is a black man, does not hold water. In my opinion a black man

who is linked to such a white supremist organisation as the Broederbond will

be considered by the normal reasonable black reader in Namibia as a sell-out

or a puppet. In my opinion it would be more defamatory to link a black man

to such an organisation as the Broederbond, than a white man. I also do not

agree with the submission by Mr Heathcote that only two sentences refer to the

plaintiff and that those references should be considered in isolation. The whole


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article should be read and in my opinion any defamatory statement in that

article would be understood by the reasonable reader as also referring to the

plaintiff. I agree with Dr Henning that the purpose of that article was

undoubtedly to defame and destroy the self-esteem of the plaintiff. Whether Dr

Von Finkenstein was also defamed and had the option to institute his own

action for defamation against Informant, but didnt, does not exonerate the

defendants in respect of the plaintiff.

[53] I have already referred to the publication of the article and it is clear that

the person who was defamed is the plaintiff. In my opinion, the statements

made in the article are clearly defamatory of the plaintiff.

[54] The two presumptions, referred to earlier herein, require rebuttal by the

defendant. These two presumptions that arose are that the publication was

unlawful and the defendant acted with animus injuriandi. The onus is now on

the defendant to establish justification or that the article was reasonable. The

two defences that the defendants rely on are truth and public benefit or fair

comment and reasonable publication. These defences will be considered

hereinafter.

Truth and public benefit or fair comment

[55] Unlike in English law in an action for tort, the publication of truth alone

is not a defence. Publication of truth must also be for the public benefit28. It is

not required that everything alleged need to be true in every minute detail. As

28 Jonathan Burchell, supra, Chapter 18, p 272;


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long as the material allegations of the statement are true, the defence may

succeed. Some protection is allowed for erroneous statements of defamatory

facts in the interest of free and fair political activity. This central question is

whether the publication was unreasonable. In the Bogoshicase Hefer JA said

the following29:

In my judgment we must adopt this approach by stating that the publication in the press

of false defamatory allegations of fact will not be regarded as unlawful if, upon a

consideration of all the circumstances of the case, it is found to have been reasonable to

publish the particular facts in a particular way and at the particular time.

The statements in the publication must of course be in the public interest to

disclose it. It was further held that the elements of truth and public benefit

must be examined together in relation to each other and not separately. The

approach to what is in public benefit is a broad approach and it has been held

that public benefit lies in telling the public something of which they are

ignorant, namely that what is conveyed to the public must contain some

advantage by communicating certain information to the public30.

[56] Fair comment is regarded as one of the fundamental rights of free

speech. The requirements for the defence of fair comment was set out in

Crawford v Albu, supra, and followed by the South African Appeal Court in the

case ofMarais v Richard, supra. These requirements are the following:

(a) the allegation in question must amount to comment (opinion);

(b) it must be fair;

(c) the factual allegations on which the comment is made must be

true; and

29 Bogoshi, supra, p 1212G;30 Jonathan Burchell, Chapter 18, p 273.


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(d) the comment must be on the matter of public interest31.

[57] Section 16 of the Local Authorities Act No. 23 of 1992 provides that the

minutes of a Local Authority Council, such as the Windhoek City Council, are

available during office hours for inspection by any person.

[58] To establish whether the Defendants have succeeded in proving the

defences that rests upon them, e.g. truth for public benefit or fair comment, it

is necessary to determine what really occurred and to view the statements in

the article published byInformantagainst that.

[59] I have already indicated earlier herein that the subject-matter of the

article was the purchase of erf 1277, Tunchell street, Pioneerspark. The

operation of the City Council is well known and has been confirmed in evidence.

This entails an agenda for the Management Committee meeting containing the

subjects for discussion, together with reports containing comments from the

various relevant departments of the City of Windhoek e. g. transportation,

electricity, planning, immunization and environment, as well as comments from

the legal advisor of the municipality. The minutes of the Management

Committee contain recommendations on the particular subject-matter, which

then form part of the agenda for the next City Council meeting. After

discussion at its meeting, the City Council takes certain resolutions which are

reflected in the City Councils minutes. These minutes are available to anyone

in terms of the Local Authorities Act, No. 23 of 1992.

31 Jonathan Burchell, supra, Chapter 19, p 277.


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[60] In respect of this particular issue, namely the subdivision of erf 1277 and

the rezoning thereof, the agenda of the Management Committee of 20 June

2005, which was handed in as an exhibit, contained the following relevant

information:

(a) it referred to an application that has been received from Messrs

Stubenrauch Planning Consultants on behalf of the owner, the

Wanderers Sports Club for the subdivision of erf 1277, Tunchell

street, Pioneerspark into fourteen portions, and the remainder in

subsequent rezoning of portions one to thirteen to residential

with a specific density. The motivation thereof is set out as

follows:

The management of Wanderers Sports Club has resolved to try to optimise

a vacant area to the South of the existing sports facilities by developing a

club village. According to the applicant, the intention is to sell the

residential units to be build to interested people who will then

automatically become paying members of the Wanderers Sports Club. The

monthly payments are to be used for upkeep of the sports facilities (sports

fields, restaurant and club house). By associating the new property owners

with the club it is expected that an increase patronage of the restaurant

and club facilities will be obtained, directly contributing to the viability of

these facilities.

As the club does not intend to be involved in property development and the

leasing and maintenance of the housing stock to be provided, the unites are

to be sold as either freehold title or sectional title units. (My emphasis)

(b) The agenda then deals with the location and the size of the erven,

the zoning thereof, advertisements and the services to be provided.

[61] The minutes of the Management Committee dated 23 June 2005

contained all the recommendations depicted in the agenda. The agenda of the


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Council contained all that formed part of the agenda of the Management

Committee, plus the recommendations of the Management Committee.

[62] On 30 June 2005 the City Council took the resolutions as reflected in its

minutes of that date. Its important to note that Councillor Dr B von

Finkenstein proposed the resolutions, which was then adopted. These

resolutions are exactly the same as the recommendations of the Management

Committee to the City Council.

[63] All these documents are common cause and have been admitted by the

defendants. They were proved by Ms Krotz and admitted by the CEO of the City

Council, Mr Taapopi. The correctness of these minutes were never disputed.

They indicate that there was a proper consideration of the proposed transaction

by both the Management Committee and the City Council. The important issue

of the condition contained in the title deed of the property, namely that the City

of Windhoek had the right of first refusal, was clearly indicated and even quoted

in italics in the documentation. The decision of the City Council of 30 June

2005 was an approval of the recommendations which was contained in a

bundle of documents. Anybody, including the second defendant, had the right

to inspect the minutes of the City Council. Ms KarimbueMupaine, the

Strategic Executive: Planning, Immunization and Environment also made a

positive recommendation on behalf of her department. According to the

documents referred to herein, the issue was referred to her department and she

recommended it. However, during her evidence she doubted that the correct

information was provided to the City Council. She developed this doubt after


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being made aware thereof by a colleague and when cross-examined she said

that she wanted this mistake to be rectified:

then draft an item to council to rectify the mistakes so that council could

rescind the previous council resolution and address the issue that was not

addressed. (record 371)

[64] A document, P1, referred to earlier, then saw the light. This document

was never submitted to the Management Committee, nor to the Council, but

was only discussed internally with the CEO, Mr Taapopi. Dr Henning

submitted that P1 was conceived on the basis of a complete fallacy, namely that

the City Council took a decision without being aware of the relevant condition

(the pre-emptive issue), while that condition was pertinently brought to the

attention of the Management Committee and the Council. These meetings had

the input of the relevant departments before taking their decisions and the facts

that were subsequently discovered by Ms KarimbueMupaine and others,

were in fact known and considered by the Management Committee and the

Council as reflected in the Councils resolutions.

[65] I shall refer to P1 later herein. At this stage it is convenient to refer

briefly to what happened in respect of the alleged mistakes or subsequent

discovery. It appears that Mr Taapopi discussed this issue with the legal

representative of the developers and Bank Windhoek, Mr Andr Swanepoel. A

legal opinion of a senior advocate, Advocate Frank, was also obtained and

provided to Mr Taapopi. This opinion was handed in by Mr Taapopi. The

opinion made it clear that the decision of the City Council cannot be reversed.

That apparently led to the death of this entire issue within the Municipality of


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Windhoek, because Mr Taapopi killed it there and then. However, certain

employees of the Municipality of Windhoek and City Councillors apparently

remained unhappy with this development. Unidentified sources of the second

respondent within the Municipality of Windhoek provided him with P1. It is

clear that P1 was the sole documentary source of the second respondent, which

convinced him of the correctness of the truth thereof. On page 174 of the record

the second respondents belief is stated as follows:

...a serious corruption deal was unfolding at the City of Windhoek.

(record page 174 )

Second respondent then wrote the article, which is quoted fully earlier herein.

According to second respondents evidence, the purpose of the article was to

expose corruption:

The highlight of the story was on the corrupt transactions. (record page 304).

[66] The managing director of the first defendant read the article and testified

that the purpose of the article was to expose a corrupt official. He had no

objection to the printing of the article.

[67] In Bogoshiat 1213 B Hefer JA said the following:

I have mentioned some of the relevant matters; others such as the opportunity given to the

person to respond, and the need to publish before establishing the truth in a positive

manner, also come to mind. The list is not intended to be exhaustive or definitive.

In respect of the printer the learned judge had the following to say: (1213BE)

Matters like these are of course relevant when the liability of an owner, publisher or editor

is under enquiry. The examination of the facts in order to determine the liability of the

printer will obviously follow different lines which will concentrate mainly on his ability to

become aware of and prevent publication of defamatory material.


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No evidence was given on behalf of the printer, the third defendant. Jonathan

Burchell also deals at the hand of the Bogoshidecision with the position of the

printer:

The Supreme Court of Appeal in Bogoshi thought that there was much to be said for the

approach that the liability of the printer should be brought into line with that of the

distributor of published material, ie based on negligence. However, in the light of the

decision of the Court setting the standards of due diligence for the media and an

unlawfulness test, the particular factors affecting the printers position could be

accommodated there.

[68] With regard to P1, Dr Henning submitted that any journalist taking

ordinary care should have concluded that document P1:

(a) was not a primary document,

(b) had no identifiable order; referred to events which must have been

recorded in official documentation; had no file or reference

number; was not signed and contained no basis or a theme of

corruption, even if a mistake was made by a particular

department.

[69] Dr Henning then discussed the credibility, or lack thereof, of the second

defendant in respect of article against his claim to be a highly qualified

investigative journalist. In this regard he referred to the history of the second

respondent, who was apparently expelled from the Peninsula Technikon. This

ended in the Cape High Court, but the second respondent testified that he

regarded that Courts finding that he fabricated allegations in the article as

untrue. (Hamata and Another v Chairperson, Peninsula Technikon Internal

Disciplinary Committee and Others2000(4) SA 621 (CPD). Dr Henning pointed


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out several allegations of the second respondent in his reliance on annexure P1

and contradictory evidence given by him in Court. An example of this is that he

could not provide any reference in the article of his conversation with Dr von

Finkenstein. When this was specifically put to him, he conceded that it does

not appear in the article. It was put to him that this was reckless, irresponsible

and incompetent journalism, but he denied it. Dr Henning analysed the art

M Shikongo v Trustco Group International Limited & Others

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