Defining defamation in the Namibian context

DEFINITION, GROUNDS AND TEST FOR DEFAMATION

Definition

The law of Defamation forms part of the law of delict and can be defined as follows:

“The intentional infringement of another’s right to his good name. To elaborate, defamation is the wrongful, intentional publication of words or behavior concerning another which has the tendency to undermine his status, good name or reputation.” [1]

Defamation can also be defined as: 

“defamatory statement is one which injures the person to whom it refers by lowering him in the estimation of the ordinary intelligent or right thinking members of society”. [2]

Grounds

Based on the common law, to succeed in proving that defamation has been suffered by a party, four elements need to be present namely; publication, wrongfulness, intention and the defamatory word or conduct about the party. [3] Should a party succeed in proving that a person published a defamatory statement about him or her, the courts will infer that the publication is wrongful and that there was an intention to injure. [4] Establishing the element of publication will be satisfied once the defamatory statement is made know to at least one other person, including it being made on various platforms or forms including newgroups, bulletin boards and speech. [5]

Test

The test for defamation is whether, in the opinion of a reasonable person with ordinary intelligence, the words have the tendency to undermine, subvert, or impair a person’s good name, reputation or esteem in the community. [6] A two staged enquiry is adopted in this regard: [7] The first is to establish the natural or ordinary meaning of the statement by employing an objective test of the reasonable observer. The second is whether the statement is defamatory, based on the statement’s natural or ordinary meaning, would it tend to lower or injure a party’s good esteem in which the party is held by the reasonable or average person to whom it had been published.

DEFENCES FOR DEFAMATION

Defamatory statements are permitted by way of three fundamental defences. Firstly, whether it can be proved, on a balance of probabilities that the statement is true and in the public interest. Secondly, whether the statement amounts to fair comment or freedom of expression. Lastly, whether the statement is made under privileged circumstances, meaning that under circumstances where the party who made the statement believed that it was their moral or legal duty to make a certain statement, they will be protected. [8] This list of defences are, however, not exhaustive and if any of these elements can be proven then the defamation claim will fail. 

SUMMARY OF DEFAMATION DECISIONS IN NAMIBIA

Trustco Group International Ltd and Others v Shikongo [9]

In the Supreme Court matter of Trustco Group International Ltd and Others v Shikongo, the appellants who were the proprietors/owners of the Informante newspaper appealed against the judgment made in the High Court, in terms whereof the mayor of Windhoek was awarded damages in the amount of N$175 000. In the High Court, the former Mayor of Windhoek sued the appellants for a publication made in the Informante newspaper on 21 September 2006, which article alleged that the former Mayor was connected to a “boerdery cartel”, involved in irregular land deals and that the mayor was responsible for causing the City of Windhoek to lose money. The Supreme Court had to consider the following: how the law of defamation should give effect to both the right to freedom of speech under Article 21(1) of the Namibian Constitution and the constitutional precept of dignity; [10] and whether the media may avoid liability for defamation by showing that the defamatory statement was not made with the intention to injure.[11]

The court importantly followed the principle that the  media will be liable for the publication of defamatory statements unless they can establish that they were not negligent and that as an elementary principle of fairness, an individual should be provided with an opportunity to respond to the article about them. [12] The court found that the statements made about the former mayor were not reasonable, and did not constitute reasonable journalism. The decision of the High Court was upheld in part, in respect of the finding that the statements made about the mayor were defamatory. The court overturned the quantum of damages of N$175,000.00 to N$100,000.00 as it was of the considered view that the award made by the High Court was considerably high in the circumstances. [13]

Geingos v Hishoono [14]

In this matter, slanderous averments were made against the First Lady of the Republic of Namibia, Mrs Monica Geingos, on social media. Here, the court importantly considered the constitutional right of dignity to assess whether the statements were defamatory and noted the following:

“Reputation and dignity are two distinct concepts. Reputation, as stated before, constitutes the perception and good name of a person in the eyes of the community. Dignity which is inviolable, as per the Constitution, is a given. Everyone has it for inherently being human and cannot be taken away. The right to life, would mean less, without respect for human dignity. That is the magnitude of dignity. Respect for reputation and dignity of others is a requirement of law with consequences for defaulters.” [15]

The court consequently found that the statements made about the First Lady were barbaric and defamatory and awarded damages in the amount of N$250,000.00.

Angula v Tjirdonda [16]

In this matter, Koep and Partners successfully represented a legal practitioner (the plaintiff)   against Mr. Tommy Tjaronda (the defendant) for statements made about the plaintiff on Twitter. Particularly, that the plaintiff is a “liar” and a “lying practicing attorney”. [17] The defendant relied on the defence of truth and that the statements were made in the public interest. The court importantly noted the following:

“In my view, it is clear, on the evidence adduced that the statements tweeted by the defendant were totally false and untrue. Assessed within the context in which they were made, the statements were made with actual malice and total indifference to the plaintiff’s right to dignity and reputation. The defence of “public interest” applies only if the impugned statements are factually true.”

After considering the facts of the matter, the court found that the statements made about the plaintiff were false, awarded the plaintiff damages in the amount of N$100,000.00, and ordered the defendant to publish a retraction and an apology. 

CONCLUSION

A rising popularity of defamation cases exist in Namibia, and our courts have developed the law of defamation by following a strict two staged enquiry in order to establish the elements of defamation, as well as considering defamation against the backdrop of the rights enshrined in the Namibian Constitution. Our courts have shown a reluctance to tolerate defamatory remarks, whether these remarks are made through the media or on social media platforms. 

Citations List

[1] Neethling, Potgieter and Visser The Law of Delict 7eds (2015) 352. 

[2] Hix Networking Technologies v System Publishers (Pty) Ltd and Another (222/95) [1996] ZASCA 107 ; 1997 (1) SA 391 (SCA) ; [1996] 4 All SA 675 (A) (25 September 1996).

[3] Platt v Apols [2021] NAHCMD 143 (26 March 2021). 

[4] Platt v Apols [2021] NAHCMD 143 (26 March 2021) para 49. 

[5] Desan Iyer “An Analytical Look into the Concept of Online Defamation in South Africa”    Speculum Juris at 126.

[6] South African Associated Newspapers Ltd and another v Yutar 1969 (2) SA 442 (A), para 451. 

[7] Le Roux v Dey (Freedom of Expression Instute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 89. 

[8] Borgin v De Villiers 1980 3 SA 556 (A).

[9] Trustco Group International Ltd and Others v Shikongo SA 2009. 

[10] Supra, para 1. 

[11] Supra, para 25. 

[12] Supra, para 85. 

[13] Supra, para 86. 

[14] Geingos v Hishoono [2022] NAHCMD 48 (11 February 2022).

[15] Supra, para 47. 

[16]  [2022] NAHCMD 364. 

[17] Supra, para 33.