DELICT – UNDEFENDED DEFAMATION CLAIM – PLAINTIFF STILL BEARS ONUS TO PROVE DEFAMATION; DAMAGES – AMOUNT CLAIMED MUST BE JUSTIFIED IN THE CIRCUMSTANCES

DELICT – UNDEFENDED DEFAMATION CLAIM – PLAINTIFF STILL BEARS ONUS TO PROVE DEFAMATION; DAMAGES – AMOUNT CLAIMED MUST BE JUSTIFIED IN THE CIRCUMSTANCES

The Plaintiff is the owner of a school in the north where the defendant was employed. The plaintiff sued the defendant payment in the amount of N$150 000.00,  for alleged defamatory statements made by the defendant that she was a thief, fraudster and or a criminal. The defendant did not defend the matter and the plaintiff applied for default judgment.

MUNSU AJ considered the evidence and the law and held that:

1. The plaintiff must establish on a balance of probabilities that the defendant had published a defamatory statement concerning her.
2. Defamation will only arise if the defamatory statement or behaviour has been published or disclosed to a third person. This means that the words or conduct must be made known or disclosed to at least one person other than the plaintiff herself.
3. The defendant made statements concerning the plaintiff in the presence of two witnesses. Requirement of publication established.
4. In assessing whether the statements were defamatory, an objective approach is employed.
5. As a businesswoman and founder of a school, the plaintiff held a prominent position in society. The statement that the plaintiff is a fraudster and a thief reduced and negatively affected her status and thereby caused injury to her reputation.
6. There is no set formula to be followed by the court in determining an appropriate award. Relying on Dikoko v Mokhatla 2006 (6) SA 235 (CC), it is the judicial finding in favour of the integrity of the complainant that vindicates his or her reputation. The damaged reputation cannot be more or less restored by the amount of the award.
7. With reliance on the matter of Mbura v Katjiri (I 4382/2013) [2017] NAHCMD 103 (31 March 2017), factors that may affect the assessment of damages for defamation include, the character, status and regard of the plaintiff; the nature and extent of the publication; justification of publication; whether there has been a retraction or apology; whether the defamation was oral or in permanent form. In addition, the court is entitled to take into account comparable awards in other defamation cases and the declining value of money.
8. There was no wider circulation of the defamatory statements in this matter and as a result, publication was limited and once-off. There was also no evidence as to the effect of the statements on the plaintiff’s business or school. The court found no aggravating circumstances in the matter.
9. The amount claimed is way excessive and not justified by the circumstances of the matter.

In the result, the court awarded damages in the amount of N$15 000.

Amushila v Cornelius NAHCNLD 12 September 2022