CONSTITUTIONAL LAW – RIGHTS AND DUTIES OF THE MEDIA IN REPORTING ON MATTERS OF PUBLIC INTEREST (Appeal on the merits)

CONSTITUTIONAL LAW – RIGHTS AND DUTIES OF THE MEDIA IN REPORTING ON MATTERS OF PUBLIC INTEREST (Appeal on the merits)

The appellants are the editor and owner of the daily newspaper, the Namibian Sun. The issue emanates from an article which appeared in the Namibian Sun on 24 October 2017 concerning the respondents – that they unlawfully captured and transported elephants; that the elephants in question were kept in horrific and deplorable conditions; and that the respondents were cruel and mean to the elephants. A defamation action against the appellants followed. The appellants admitted publication of the article and admitted paragraphs 6.1 to 6.4 of the respondents’ particulars of claim. Appellants further pleaded that the statements in the article were based on what was said by Dr Malan Lindeque, the Permanent Secretary (now Executive Director) of the Ministry of Environment and Tourism (the Ministry) and its Minister, Mr Pohamba Shifeta, on 23 October 2017 at a public press conference. The appellants also pleaded that the contents of paragraph 6.3 (i.e., ‘That the elephants were being kept for months in containers in horrific and deplorable conditions’) constituted a verbatim quotation of what was stated by the Minister at that press conference. The appellant pleaded the defences of truth, public benefit, fair comment, and reasonable publication.

At the conclusion of the trial, the court found in favour of the respondents on the merits and awarded damages in the sums of N$70 000 and N$50 000 respectively. The court a quo further found that the appellants had not discharged the onus upon them to establish the truth of the statements contained in the article. Additionally, the court found that, even though the treatment of elephants is a matter of public interest, the appellants had not established the defences of truth and public interest, fair comment and reasonable publication. The appeal is against these orders of the court a quo.

After a survey of the developments on the defence of reasonable publication in this court and regard being had to the approach in other jurisdictions (i.e., the United Kingdom and Canada) where the defence of reasonable publication of facts in the public interest originated from and has developed, this Court finds the following:

1. In adopting the defence of reasonable or responsible publication of matters in the public interest, the court in Trustco Group International Ltd v Shikongo 2010 (2) NR 377 (SC) made it clear, that defamation defences previously available under the common law were inadequate to protect the right to freedom of expression and the media protected under Art 21 of the Constitution. The common law thus needed to be developed, as had happened in other jurisdictions ‘to provide greater protection to the media to assure that their important democratic role of providing information to the public is not imperilled by the risk of defamation claims’.
2. This court in Trustco further observed a considerable convergence in judicial approaches concerning the need to liberalise the law of defamation in recognition of the crucial role of the media in democracies but at the same time acknowledging the need to balance the right of the media with the right to reputation (protected by Art 8 of the Constitution), given the power of the media.
3. It was plain from the journalist’s evidence that she believed in the truth of the allegations contained in her report as they had been confirmed by or were stated by the Minister and the Permanent Secretary of the Ministry (officials charged with the responsibility of enforcing and implementing the provisions of the Nature Conservation Ordinance 4 of 1975 and protecting Namibia’s wildlife and implementing Namibia’s obligations under the Convention on International Trade in Endangered Species on Wild Fauna and Flora (CITES)). At no stage of the trial did the respondents take issue with the accuracy of her report concerning the statements of the Minister and Permanent Secretary.
4. The court a quo misdirected itself when it found that there was a duty on the journalist to approach the respondents before publishing. As stated by the House of Lords and later the UK Supreme Court in the self-same context in Flood v Times Newspapers Limited [2012] UKSC 11, the guidelines governing journalistic practice are to be applied in a practical and flexible manner with due regard to practical realities.
5. The journalist has satisfied the test of a reasonable or responsible journalist by accurately reporting on the statements made by the Minister and Dr Lindeque. This defence should have succeeded, and the defamation action dismissed with costs.

As a result, the appeal against both the judgment and order of 2 March 2020 and the ruling of 12 July 2019 succeeded with costs, including those occasioned by employing one instructing and one instructed legal practitioner.

Namibia Media Holdings (Pty) Ltd v Lombard NASC (8 July 2022) – (Rulling on the merits)