- February 6, 2023
- |Concise Law Reports (CLR), Delict
This was an action for defamation where the plaintiff, a magistrate sued the defendant, an accused person in a criminal matter, for a defamatory statement presented during the defendant’s court appearance before the plaintiff. According to the plaintiff, the statement was handwritten, wherein the defendant made allegations that he did not want the plaintiff to hear her case because she is dishonest and full of corruption; that she is a friend to the complainant and that she had been paid by the complainant’s family.
The plaintiff claimed payment in the sum of N$ 70 000 for damages she allegedly suffered to her reputation as a result of the defamatory statement made by the defendant. The defendant failed to enter an appearance to defend. On 19 May 2022, the matter appeared before the High Court in order for the plaintiff to lead evidence in respect of the application for default judgment.
On the said date, the defendant who at the time was held in police custody on criminal charges, was brought to court by the court orderlies. The defendant was unaware of the reason he was brought to court. It turned out that the court orderlies noticed the defendant’s name on the court roll and found it necessary to bring him to court as is always done in criminal matters.
The defendant informed the court that he had been served with documents pertaining to the matter but that he was unsure of what the matter was all about. Following the court’s explanation of the exact nature of the case, the defendant indicated that he would defend the plaintiff’s claim and that he would apply for legal aid. The matter was duly removed from the roll to enable the defendant to file his notice to defend and the application for legal aid. The defendant failed to enter an appearance to defend and file his application for legal aid. The plaintiff once again enrolled the matter to enable her to lead evidence. On 21 September 2022, the plaintiff led her evidence.
MUNSU, AJ considered the matter and stated that:
‘[26] The law of defamation in Namibia is based on the actio injuriarum of Roman law. To succeed in a defamation action, a plaintiff must establish that the defendant published a defamatory statement concerning the plaintiff (Afshani and Another v Vaatz 2006 (1) NR 35 (HC)).
[27] In Nangolo v Jacobs (HC-NLD-CIV-ACT-DEL-2020/00103) [2021] NAHCNLD 40 (26 April 2021) this court held as follows:
‘At common law, the elements of the delict of defamation are therefore:
(a) the wrongful
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.’
[28] 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) (Trustco Group International v Shikongo 2010 (2) NR 377 (SC); Afshani and Another v Vaatz 2006 (1) NR 35 (HC) (Platt v Apols (HC-MD-CIV-ACT-DEL-2019/01211) [2021] NAHCMD 143 (26 March 2021)). In order to rebut the presumption of wrongfulness, a defendant may show that the statement was true and that it was in the public benefit for it to be made; or that the statement constituted fair comment; or that the statement was made on a privileged occasion (Nahole v Shiindi (I 220/2014) [2014] NAHCNLD 53 (03 October 2014).’
In respect of quantum, the court stated that:
‘[33] In the Nahole matter, this court observed that:
‘[11] …Courts are astute not to depart too much from previous awards in similar circumstances. The Supreme Court had already warned in Trustco Group International Ltd and Others v Shikongo that the courts are careful in granting monetary awards in defamation cases because of the difficulty involved in placing a monetary value on damage that has been caused to a person’s reputation. In that case, O’Regan AJA noted that damage caused to one’s reputation is not necessarily fully restored by a higher award of damages or less restored by a lower one. It is, the learned judge said, the judicial finding in favour of the integrity of the complainant that vindicates his or her reputation. The court further observed (at 403) that even though monetary awards do not cure one’s reputation ‘they may deter promiscuous slander and constitute a real solace for irreparable harm done to one’s reputation.’
[34] In Mbura v Katjiri (I 4382/2013) [2017] NAHCMD 103 (31 March 2017) this court opined as follows:
‘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 of comparable awards in other defamation cases and the declining value of money’.
[35] Thus, the nature of the words used; the circumstances in which the infringement took place; the behaviour of the defendant; the plaintiff’s standing in society; the extent and consequences of the publication; the extent of the plaintiff’s humiliation or distress and whether or not there has been an apology made by the defendant etc. are relevant factors.
[37] When determining damages awards in defamation cases, the courts usually take into consideration previous awards.’
Having considered the evidence and the law, the court held that:
- The allegations attributed to the plaintiff were defamatory. Such accusations conveyed the innuendo that the plaintiff lacks integrity and conducts herself in a manner contrary to the judicial oath.
- The defendant’s statement was not only defamatory to the plaintiff but also has the effect of eroding the public’s confidence in the administration of justice.
- No evidence was presented to support the allegations made by the defendant and that the plaintiff made out a case of defamation against the defendant.
- There was no circulation of the defamatory statement in this matter as the publication was once-off and therefore limited.
The court ordered the defendant to pay an amount of N$ 20 000 to the plaintiff as damages, he was also ordered to pay the costs of the action and issue an apology in writing to the defendant within ten days from the order. In the event the Defendant fails and/or refuses to issue an unconditional apology to the Plaintiff, the amount of damages and the amount on which interest is payable as per shall increase to N$ 30 000.
Ekandjo v David (HC-NLD-CIV-ACT-DEL-2022-00046) [2023] NAHCNLD 05 (06 February 2023)