Download The law of defamation in Namibia: Recent developments

Recent cases
The law of defamation in Namibia: Recent
developments
Karin Klazen*
The recent appeal judgment in the case of Trustco Group International Ltd
& Others v Matheus Kristof Shikongo1 is a watershed judgment for legal
jurisprudence in the Namibian context. The Supreme Court not only confirmed
that the principle of strict liability for the media in defamation actions did not
form part of Namibia’s common law after Independence, but the Court also
developed the law of defamation to include a defence of reasonable publication
in respect of media defendants.
In a challenge to the High Court’s ruling in favour of the respondent in 2009,
the fundamental question which arose in the appeal matter was as follows:2
[H]ow … the law of defamation [should] give effect to both the right to freedom
of speech as entrenched in article 21(1)(a) of the Namibian Constitution and the
constitutional precept that the dignity of all persons shall be inviolable as set out
in article 8 of the Constitution.
In response to this question, the appellants argued that a plaintiff in a
defamation action should be required to establish the falsity of the defamatory
facts in question. Strictly speaking, however, a plaintiff is never tasked with
proving the falsehood of a defamatory statement, but is required merely to
establish that the defendant published a defamatory statement concerning
the plaintiff. A rebuttable presumption then arises that the publication of the
statement was both wrongful and intentional. The argument thus proffered
by the appellants in this regard called for the burden of proof in defamation
actions to rest with the plaintiff.
The respondent, on the other hand, argued for the adoption of a defence of
reasonable publication of facts that are in the public interest. The defence
of reasonable publication dictates that publication in the press of false
defamatory allegations of fact would not necessarily be regarded as unlawful
if, upon consideration of all the circumstances of the case, it was found to
have been reasonable to have published the facts in a particular way at the
time in question. It is this defence, as opined by the respondent, that would
strike a careful balance between a plaintiff’s right to dignity and a defendant’s
right to freedom of expression.
*
1
Hereafter referred to as the appellants and respondent, respectively.
Trustco Group International Ltd & Others v Matheus Kristof Shikongo SA 8/2009 at
2
para. 1.
Namibia Law Journal
113
RECENT CASES
Ultimately, the Supreme Court rejected the appellants’ argument of burdening
a plaintiff with the duty to establish falsehood and found, in favour of the
respondent, that a defence of reasonable publication “will provide greater
protection to the right of freedom of speech … protected in article 21 without
placing the constitutional precept of human dignity at risk”.3 The court did not
find it necessary to decide whether the reasonable publication defence was
available only to media defendants.
Other than awarding costs of suit to the respondent and simultaneously
reducing his award for damages from N$175,000 to N$100,000 (and thereby
placing this case on par with Shidute & Another v DDJ Investment Holdings
CC & Another4 in respect of the highest amount ever awarded for damages
in a defamation suit in Namibia), with this judgment the Supreme Court
concretised the law of defamation and has, for the time being, settled all
challenges to this realm of law.
3
4
114
(ibid.:para. 26).
(P) I 2275/2006.
Volume 3 Issue 1 January 2011