SUMMARY

CASE NO.: [P] I 3625/2006

MATHEWS KRISTOF SHIKONGO v TRUSTCO GROUP INTERNATIONAL LIMITED &
2 OTHERS

MULLER, J
29 JANUARY 2009

Action for defamation against owner, editor (author of the
article) and printer of Informante newspaper by Mayor of
Windhoek.

Recognition of liability of a newspaper and development in
South Africa and Namibia discussed.

In Pakendorf en Andere v de Flamingh 1982(3) SA 146(A) the
South African Appeal Court held that strict liability
applies in respect of the media.

In National Media & Others v Bogoshi 1998(4) SA 1196 (SCA)
the same Appeal Court held that the liability of the media
is strict and the Pakendorf decision in this regard was
rejected.

Namibia became independent while the liability of the media
was still strict and the Bogoshi decision not applicable to
Namibia.

Defamation cases in Namibia discussed.

Strict liability for the media declared not applicable in
December 2008 by two separate single judges-
 2

 Pohamba Shifeta v Raja Munamava and Others, an

unreported judgment by Parker J in Case No.: I
2106/2006 and
 Universal Church of the Kingdom of God v Namzim
Newspapers t/a Southern Times, an unreported judgment
of Silungwe AJ in Case No.: I 1404/2006.

Held: In this case- there is no strict liability of media
in Namibia and the decision of Bogoshi followed.

Although media not strictly liable, media has the
responsibility of truthful and reasonable reporting.
Responsibility of media discussed at the hand of Bogoshi
decision and Reynolds v Times Newspapers Ltd & Others
[1998] 3 ALL ER 961(CA.)

Onus discussed.

Held: That the plaintiff bears the onus to prove
publication of defendants’ allegations in respect of the
plaintiff. Once that has been proved, two presumptions
arise, namely that the defamatory allegations were unlawful
and animus unjuriandi. The defendants bears the onus on a
balance of probabilities to rebut those presumptions by
recognised defences, i.a. truth for public benefit, fair
comment, privilege, etc.

Held: That publication was proved in respect of the
plaintiff.

Held: That the article written by the second defendant in
the Informante was defamatory of the plaintiff,

Held: The presumptions arose.

Held: The article did not contain the truth for public
benefit. The tone of the article indicated a purpose to
hurt and destroy the plaintiff. The second defendant failed
to verify the information he received from his sources. The
nature if the article was to hurt and destroy the
plaintiff’s reputation. The comment was not fair or
reasonable.
 3

Held: The second defendant was negligent - the plaintiff

i.a was not given the opportunity to comment before the
article was written.

Held: The first defendant agreed entirely with the second
defendant and the defamatory article. It is as liable as
second defendant.

Held: On behalf of the third defendant, the printer, there
was no evidence and consequently no denial that it was not
aware of the defamatory allegations in the article. The
printer is also liable.

After discussing the purpose of awarding damages and
considering awards made in other cases, as well as the
defendants’ failure to apologise, an award for damages in
the amount of N$175 000.00 granted.
 4

CASE NO.: [P] I 3625/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

MATHEWS KRISTOF SHIKONGO PLAINTIFF

and

TRUSTCO GROUP INTERNATIONAL LTD FIRST DEFENDANT

MAX HAMATA SECOND DEFENDANT

FREE PRESS PRINTERS (PTY) LTD THIRD DEFENDANT

CORAM: MULLER, J.

Heard on: 05 - 08 February 2008; 09 - 11 June 2008

Delivered on: 29 January 2009

______________________________________________________________________________
JUDGMENT

MULLER, J.: [1] This is an action instituted by the plaintiff for defamation

against the proprietor, editor and publisher of a Namibian newspaper called

Informanté, who are the first, second defendant and third defendants

respectively.
 5

The plaintiff, the Mayor of Windhoek for many years, claims damages from the

defendants by reason of an article which appeared on 21 September 2006 in

Informanté. The article was titled “Fincky aids Broederbond’s land cause” with

the following by-line: “A Broederbond cartel is said to have made a killing after

buying municipal land in Olympia for one cent per square metre”.

[2] All three defendants defended the action and relied on the defences of

truth and public benefit, as well as the absence of negligence. A fairly lengthy

trial ensued. The trial could not be finished within a week and had to be

postponed to last another week, whereafter it was postponed and set down for

arguments on behalf of both parties. During the trial the plaintiff was

represented by Dr Henning SC, assisted by Advocate Schimming-Chase.

During the first week the defendants were represented by Advocate Snijman

and during the last week by Advocate Heathcote. During argument on 29

September 2008 Advocate Barnard assisted Dr Henning. Due to the

importance of this matter, as will soon become clear, the Court expresses its

gratitude for the assistance of counsel for both parties in providing the Court in

advance with comprehensive heads of argument and for the sound and

comprehensive submissions made during oral arguments.

[3] The law of defamation in South Africa has been the subject of various

decisions during the course of time. As this case involves the media, emphasis

will evidently be placed on the role of the media where the reputation of a

person has allegedly been defamed. The requirements pertaining to statements

by the media have undergone drastic exchanges during the course of time. As
 6

an example, the South African Appeal Court Decision in Pakendorf v De

Flamingh (infra) stipulated that strict liability in respect of statements made by

the media is required. This requirement has been rejected in 1998 by the same

South African Appeal Court in the case of National Media Limited and Others v

Bogoshi (infra). South Africa has also undergone a constitutional change by

the acceptance of the Interim Constitution of 1993 and the final South African

Constitution in 1996. To complicate matters further, the Bogoshi decision was

also taken in respect of constitutional requirements contained in the Bill of

Rights in the Interim Constitution. It is therefore necessary to recognise the

development of law of defamation regarding the media during all these time

periods.

[4] In Namibia the position was even more complicated. Since Namibia’s

Independence and the acceptance of its own Namibian Constitution in 1990,

the Namibian Courts are not bound by the decisions of South African Courts.

Even decisions of the South African Appeal Court only have persuasive value.

Of course an appropriate South African decision has to be considered, but it

does not bind the Namibian High and Supreme Courts. Since the event of

Namibia’s independence and acceptance of its own Constitution, constitutional

rights should be viewed against Namibian case law. It is of importance that

Namibia establishes its own jurisprudence and for that reason counsel are

required in this Court in the first instance to refer to and rely on Namibian

decisions in respect of a particular subject and they should only rely on South

African or other foreign decisions in the absence of a similar decision by the

High or Supreme Courts of Namibia.

 7

[5] When the development of the requirements for media liability in alleged

defamatory statements is considered, the position in Namibia differs from that

in South Africa. At the time when Namibia’s Constitution was adopted, the

requirements for the media was strict liability as expressed in the Pakendorf v

De Flamingh matter, referred to above. Since then the Bogoshi decision in

South Africa, setting aside that requirement, was made. However, our courts

are not bound by it and there was no specific judgment by any Namibian Court

on that point. This was the position when the alleged defamatory article in

Informante was written and published, as well as when the plaintiff instituted

action in this case. Reference will also be made to certain Namibian decisions

from which it appears that the Pakendorf v De Flamingh decision of strict

liability for the media had been followed, although not really considered. In this

case, the Court has to decide whether the media is still bound by the concept of

strict liability or not. In December 2008 this Court has held in two separate

decisions by single judges that strict liability for the media should not apply. It

is accepted that because of the importance of this principle for Namibia, any

decision made in this judgment, as well as the other two decisions, may have to

be confirmed by higher authority in future.

[6] As mentioned above, since this matter had been argued, this Court

decided in two separate defamation cases that the media in Namibia is not

subject to strict liability. Although counsel could not refer to these decisions, I

shall do so later herein. (Pohamba Shifeta v Raja Munamava and Others (infra)

and Universal Church of the Kingdom of God v Namzim Newspaper (Pty) Ltd t/a

The Southern Times (infra)).

 8

[7] Counsel for both parties referred me to a number of relevant decisions

including South African and Namibian cases relevant to this issue, as well as to

several authorities, publications and articles. Because of the importance of the

time sequence in which these cases were decided in South Africa and in other

countries, including Namibia, I shall refer to those decisions, as well as others

that I have also considered, under the headings of the periods before the

Pakendorf v De Flamingh matter, and thereafter. As mentioned before,

constitutional changes also occurred in South Africa and Namibia and during

these periods, which may have a direct influence on the determination of i.a

media liability for defamation. I intend to list all these cases now and later only

refer to them by name and specific pages. There are two Holomisa cases and to

avoid confusion, reference will be made to the name of the particular judges

who made those decisions.

The period before in 1982, and before Parkendorf v De Flammingh.

1906 - Botha v Pretoria Printing Works Limited 1906 TS 710;

1917 – Crawford v Albu 1917 AD 102;

1928 – Johnson v Rand Daily Mails, 1928 AD 190;

1931 – Le Roux v Cape Times Limited 1931 CPD 316;

1934 – Trimble v Central News Agency Limited 1934 AD 43;

1940 – Young v Kemsley & Others 1940 AD 258;

1945 – Bossner v Trigger 1945 AD 33;

1946 – Conroy v Stuart Printing Company Ltd 1946 AD 1015;

1946 – Die Spoorbond & Another v SA Railways;

- Van Heerden & Others v SA Railways 1946 AD 999;

 9

1950 – Galante v Dickenson 1952(2) SA 460(A);

1962 – SA Associated Newspapers Ltd v Schoeman 1962(2) SA 613(A);

1965 – Publications CB v William Heinemann Ltd 1965(4) SA 137(A);

1965 – Hassen v Post Newspapers (Pty) Ltd 1965(3) SA 562(W)

1966 – Channing v SA Financial Gazette & Others 1966(3) SA 470(W);

1969 – SA Associates Newspapers Ltd & Others v Yutar 1969(2) SA

442(A);

1975 – Butelezi v Poorter & Others 1975(4) SA 608(W);

1975 – SA Associates Newspapers Ltd & Others v Estate Pelser 1975(4)

SA 797(A);

1977 – SAUK v O’Malley 1977(3) SA 349(A);

1978 – Deimers v Wyllie & Others 1978(4) SA 619 (D & CLD);

1980 – Deimers v Wyllie & Others 1980(1) SA 835(A);

1981 – Marais v Richard & Another 1981(1) SA 1157(A).

The period from Pakendorf & Another v De Flamingh

1982 – Pakendorf en Andere v De Flamingh 1982(3) 146(A);

1984 – Zille v Johnson & Another 1984(2) SA 186(W);

1986 – A Neumann CC v Beauty Without Cruelty International 1986(4) SA

675(C);

1987 – The Free Press of Namibia (Pty) Ltd v Cabinet for the Interim

Government SWA 1987(2) SA 614(SWA);

1989 – Smith v Die Republikein 1989(3) SA 875(SWA);

1992 – Argus Printing & Publishing Company Ltd v Inkata

Freedom Party 1992(3) SA 579(A);

 10

1992 – Esselen v Argus Publishing & Printing Company Ltd

1992(3) SA 764(T);

1993 – Financial Mail (Pty) Ltd & Others v Sage Holdings Ltd & Another

1993(2) SA 495(A);

1994 – Neethling v Du Preez: Neethling v Weekly Mail & Others 1994(1)

SA 708(A);

1994 – Argus Printing & Publishing Company Ltd v Esselen’s Estate

1994(2) SA 1(A);

1994 – Afrika v Metzler & Another 1994 NR 323(HC);

1995 – Government of the Republic of South Africa v Sunday

Times Newspaper 1995(2) SA 221(T);

1996 – Holomisa v Argus Newspapers Ltd 1996(2) SA 588(W) (Cameron,

J);

1996 – Du Plessis v De Klerk 1996(3) SA 850(CC);

1997 – Hix Networking Technologies v System Publishers (Pty) Ltd &

Another 1997(1) SA 391(A).

1998 – National Media Ltd & Others v Bogoshi

1998 – National Media Ltd & Others v Bugoshi 1998(4) SA 1196 (SCA);

1998 – Post Telecom Corporation v Modus Publications (Pvt) Ltd 1998(3)

SA 1114(ZS);

1999 – Brummer v Gorfil Brothers Investment (Pty) Ltd & Andere 1999(3)

SA 389(SCA);

1999 – SA National Defence Union v Minister of Defence 1999(4) SA 469

(CC);

2001 – In Re Chinamasa 2001(2) SA 901(ZS);

 11

2001 – S v Mamabolo (e-TV & Others Intervening) 2001(3) SA 409(CC);

2002 – Khumalo & Others v Holomisa 2002(5) SA 401(CC) (O’ Regan J);

2002 – Sprangers v FGI Namibia Ltd 2002 NLR 128 (HC);

2002 – McKay v Editor City Press & Another 2002(1) ALL SA 58(SE);

2003 – Lady Agasim-Perreira v Johnnic Publishing (Pty) Ltd & Others

[2003] 2 ALL SA 416 [SE];

2004 – Mtembi-Mahanyele v Mail and Guardian Ltd & Another

2004(6) SA 329(SCA);

2005 – Afshani & Another v Vaatz 2006(1) NA 35(HC);

2005 – Hardaker v Phillips 2005(4) SA 515(SCA);

2007 – NM & Others v Smith & Others 2007(5) SA 250(CC);

2008 – J H Shidute & Another v DDJ Investments Holdings

CC & Another, unreported Judgment of the Namibian

High Court, 11 March 2008 (Manyarara, AJ);

2008 – Pohamba Shifeta v Raja Munamava and Others,

unreported judgment of Parker J No. I 2106/2006,

delivered on 5 December 2008;

2008 – Universal Church of the Kingdom of God v Namzim Newspaper t/a

The Southern Times, unreported judgment of Silungwe AJ, No. I

1404/2006, delivered on 9 December 2008.

[8] Certain other judgments of English Courts and Courts in other countries

were also mentioned. I have considered some of them e.g. R v Central

Independent Television plc [1994] 3 ALL ER 841(CA); Reynolds v Times

Newspapers Ltd & Others [1998] 3 ALL ER 961(CA) and Reynolds v Times
 12

Newspapers Ltd & Others [1999] 4 ALL ER 609(HL). I also considered what

authors of prominent works had to say on this subject as referred to later

herein.

The Article

[9] The article that is the subject-matter of plaintiff’s claim appeared in the

newspaper Informanté on 21 September 2006. I shall hereinafter refer to it only

as “article.” The article appeared on the front page of the newspaper titled as

mentioned before with a by-line as mentioned above. Annexed to the article on

the front page was a photo of the then chairman of the Management Committee

of the City of Windhoek, Dr Bjorn von Finkenstein, in comical attire, probably

which he wore during the well-known Wika festival.

[10] Before dealing with the article itself, the newspaper which carried it

should be considered. Informanté was described in evidence as a newspaper of

which approximately 65 000 copies are printed each week and distributed

throughout Namibia, free of charge. It is also available on the Internet.

Informanté has also been referred to as a “tabloid”–newspaper. As mentioned

before, the second defendant, the editor of Informanté, was also a witness for

the defendant and spent a long time in the witness box. It is common cause

that the second defendant is the author of the article and he relied on certain

sources, which he refused to disclose. His article was based on that

information and a document, marked P1, included in the bundle of documents

handed in as Exhibit A. This document was not admitted in any respect by the

plaintiff.
 13

[11] The article which appeared on the first and second pages of the

Informanté is quoted hereunder in full:

“Fincky aids Broederbond’s land cause

By Max Hamata
A BROEDERBOND cartel is said to have made a killing after buying
municipal land in Olympia for one cent per square meter and cashing in on
millions of dollars after reselling the land. The land sale to the cartel was
facilitated by Chairperson of the City of Windhoek Management Committee
Dr Bjorn von Finckenstein. The City of Windhoek is expected to lose out by
at least N$4,8 million after the Management Committee allegedly misled
the City of Windhoek on the status of the prime land in Pioneerspark, which
was sold to Wanderers Sports Club at a subsidised price of N$1 172. The
piece of land has now been sold to Viking Developers, which is busy
constructing a N$40 million housing development, financed by Bank
Windhoek, on the land. Inside sources said the Mayor of Windhoek
Matthew Shikongo, who is a Bank Windhoek board member, should have
declared his association with the bank, instead of letting the underhand
land deal go through without scrutiny. “How could the Mayor allow himself
to be used for self-gain and to empower previously advantaged persons. He
is supposed to serve the people that have elected him, instead of just
looking after his Bank Windhoek interests,” said a concerned Council
member who preferred anonymity. In July, City of Windhoek lawyers
recommended that the land sale be rescinded. However, von Finckenstein
claimed he was not aware of this and therefore he said he could not
comment. Informanté has reliably learned that the deal has placed the City
of Windhoek’s management and the Council on a collision course because
City management was now trying to recover the lost revenue. The City of
Windhoek could have raised close to N$5 million had it placed the land on
auction and not bypassed legal advice. Wanderers Sports Club bought the
land on condition that “it may not be sold by the owner before it has been
offered to the Municipality of Windhoek.” Wanderers Sports Club undertook
not to sell the land until the City of Windhoek had been given the
opportunity to make a purchase offer. “One wonders why the Council was
never advised of its rights in terms of the pre-emptive right which was part
and parcel of selling such huge tracts of land to Wanderers Sports Club,
while it was obvious that Wanderers Sports Club was diverting from its
sporting activities,” stated legal opinion submitted to the Council. “Would
the type of facilities which Wanderers wish to provide on the erven benefit
the community at large or are they venturing into business which Council
 14

can also undertake,” asked another Council member. “It is my submission

that Wanderers Sports Club must be made to pay the difference in value as
per deed of sale and the current market value of the sub-divided
properties,” the source added. The Council now also faces the task of
reversing its decision of giving away the land cheaply after it has been
cautioned that Viking Developers have been constructing on the “site
without necessary approved building plans and foundations were excavated
and built and services were inserted without the said densities being
proclaimed by the Government”. It is also feared that the land sale to
Wanderers Sports Club will serve as precedent for other sports club in
Windhoek.”
The Pleadings
[12] The relevant paragraphs of the plaintiff’s Particulars of Claim are the

following:

5.
“In its edition if 21 September 2006 an article entitled “Fincky aids
Broederbond’s land cause” was published in the newspaper. A copy of the
article is annexed Marked “A”.
6.
Some 200,000 copies of the newspaper are distributed countrywide and
some 5000 e-papers are distributed worldwide via electronic mail. The
newspaper is widely read by the general public.
7.
The article stated of the Plaintiff
7.1 that he was connected to a broederbond cartel,
7.2 that he was involved in an irregular land deal,
7.3 that he caused the City to lose money,
7.4 that he mislead the City regarding the status of land,
7.5 that he abused his position as a board member of Bank Windhoek,
which he was held out to be,
7.6 that he abused his position as Mayor of the City of Windhoek for
personal gain,
7.7 that he neglected the electorate and instead looked after his Bank
Windhoek interests,
7.8 that he caused a collision course between the management and
council of the City of Windhoek,
7.9 that he caused the City to suffer a loss of some N$5 million.
 15

8.
The allegation that the Plaintiff is a board member of Bank Windhoek is
false.
9.
The allegations, in the context of the article, are wrongful and defamatory
of the Plaintiff in that they were intended and were understood by readers
of the newspaper to mean that
9.1 the Plaintiff was dishonest,
9.2 the Plaintiff abused his position as mayor of the City of Windhoek,
9.3 that the Plaintiff neglected his duties to the public,
9.4 that the Plaintiff abused his position of a board member of Bank
Windhoek.
10.
As a result of the defamation, the Plaintiff has been damaged in his
reputation and dignity, and has suffered damages in the amount of
N$300,000, 00.1”

[13] The following further particulars were requested by the defendants:

1.
“Ad paragraph 9
1.1. Precisely which words in the article are relied upon for the meaning
set out in subparagraph 9.1?
1.2. Precisely which words in the article are relied upon for the meaning
set out in subparagraph 9.2?
1.3. Precisely which words in the article are relied upon for the meaning
set out in subparagraph 9.3?
1.4. Precisely which words in the article are relied upon for the meaning
set out in subparagraph 9.4?
2.
2.1. Against which of the defendants is payment claimed and on what
basis?
2.2. In the event of the plaintiff claiming payment from the third
defendant, plaintiff is requested to specify on what precise basis the
third defendant as printer would be liable to the plaintiff. Without
derogating from the generality of this request, is it alleged that the
third defendant is strictly liability or by reason of fault or
negligence on its part. In the latter event full particulars are

1
The amount of N$300,000 has subsequently by amendment during the trila
been increased to N$500,000.
 16

requested. The third defendant is embarrassed by the plaintiff’s

pleading in this regard and affords the plaintiff the opportunity to
remove the cause of complaint.”

[14] Further particulars were provided:

1.
“AD PARAGRAPH 1 OF THE REQUEST
Plaintiff relies upon all of the statements pleaded in paragraph 7 of his
particulars of claim read in the context of the article as a whole, for the
meanings set out in subparagraphs 9.1, 9.2, 9.3 and 9.4 of his particulars of
claim.
2.
AD PARAGRAPH 2.1 OF THE REQUEST
Plaintiff claims payment against First, Second and Third Defendants jointly
and severally on the basis (sic) of the actio iniuriarum.
3.
AD PARAGRAPH 2.2 OF THE REQUEST
Third Defendant is liable to plaintiff under the actio iniuriarum by reason
of strict liability, alternatively by reason of Third Defendant’s negligence.
Without derogating from the Third Defendant’s onus as regards averring and
proving lack of negligence, Plaintiff pleads that Third Defendant was
negligent in one or more or all of the following respects:
3.1 At the time of printing the article forming the subject of Plaintiff’s
action, Third Defendant knew or ought to have known that the
article was defamatory of the Plaintiff;
3.2 Third Defendant knew or ought to have known that articles
contained in the Informanté newspaper of an concerning Plaintiff
were likely to be defamatory of Plaintiff.”

[15] The defendant’s plea to the plaintiff’s Particulars of Claim is the

following:

1.
“Ad paragraphs 1 to 5 of the Particulars of Claim
The allegations contained in these paragraphs are admitted.
2.
Ad paragraph 6
Save to admit the second sentence in this paragraph, the remaining
allegations in this paragraph are denied. The defendants state that 65,000
 17

copies of the newspaper are printed and distributed and that it is available
electronically on its website and can be accessed there.
3.
Ad paragraph 7
3.1. The allegations contained in this paragraph are denied.
3.2. The defendants admit that the article stated the following
concerning the plaintiff:
“Inside sources said that the Mayor of Windhoek, Mathew
Shikongo, who is a Bank Windhoek board member, should
have declared his association with the bank, instead of
letting the underhanded land deal go through without
scrutiny. ‘How could the Mayor allow himself to be used for
self gain and to empower previously advantaged persons.
He is supposed to serve the people that have elected him,
instead of just looking after his Bank Windhoek interests,’
said a concerned council member who preferred
anonymity”.
4.
Ad paragraph 8
The defendants admit that the plaintiff is not a board member of Bank
Windhoek Limited but state that he is a member of Capricorn Holdings (Pty)
Limited which is the holding company which owns and controls Bank
Windhoek Limited and is thus associated with Bank Windhoek. The
defendants state that, after it was pointed out to the defendants that the
plaintiff is not a member of the board of Bank Windhoek Limited, a
correction to that effect was placed in a subsequent issue of Informanté.
5.
Ad paragraph 8
5.1. The defendants deny these allegations.
Alternative defences
5.2. If it is held that the statements made concerning the plaintiff as set
out above in the context of the article were defamatory of the
Plaintiff, then the defendants deny the statements in the context of
the article as a whole were published in an unlawful manner by
reason of the defences set out in paragraphs 5.3 and 5.4.
Truth and public benefit or fair comment
5.3. The first and second defendants deny that the article referred to in
the particulars of claim read in the context of the article as a whole
was published in an unlawful manner in that:
 18

(a) the article, in so far as it contains statements of fact, was

essentially the truth and the publication thereof was in the
public interest; and/or
(b) the article, in so far as it contains comment, constitutes
comment concerning matters of public interest, fairly and
reasonably made in the circumstances and based upon facts
which are essentially the truth.
Reasonable publication
5.4. In the alternative to subparagraphs 5.1 and 5.3 above, and in the
event of it being established that the publication by the defendants
of the contents of the article was defamatory as alleged, then and in
that event the defendants plead as follows:
(a) Article 21(1)(a) of the Constitution of the Republic of
Namibia provides that:
“All persons shall have the right to freedom of
speech and expression, which shall include freedom
of the press and other media.”
(b) The article was published by the first and second defendants
pursuant to the exercise of their common law, alternatively
constitutional, right to freedom of expression;
(c) In publishing the article the first and second defendants
acted in good faith, without knowledge that any part thereof
was false or based upon untrue facts and without negligence
or recklessness in that regard;
(d) The first and second defendants moreover acted reasonably
and without negligence in publishing the article in the
circumstances, in that:
(i) The second defendant wrote the article set
out in annexure “A” on the basis of reports
he had received from senior officials in the
employ of the City of Windhoek and one of
its Councillors and the second Defendant was
provided with a submission and certain
resolutions which served before the Council
of the City of Windhoek. A copy of the
submission and resolution is annexed and
marked “P1”.
(ii) The second Defendant thereafter approached
a representative of Bank Windhoek Limited
for comment and was informed that the
Plaintiff was a director of Bank Windhoek
 19

Limited without mention being made to

Capricorn Holdings (Pty) Limited.
(iii) The second Defendant thereafter contacted
the chairperson of the management
committee, Dr Bjorn von Finkenstein for
comment in his capacity as chairperson of
the Management Committee of the Windhoek
City Council.
(iv) In preparing the article, the second
defendant relied upon the submission and
resolutions provided to him together with the
information and comment provided by the
senior officials and the Councillor referred to
as well as the response by the chairperson of
the management committee.
(v) The report concerned an issue of public funds
and conduct of elected public officials in
their official capacities;
(vi) The report referred to the plaintiff in the
exercise of public and official functions and
duties in his capacity as a public figure;
(vii) In preparing the article, the second
Defendant acted reasonably and without
negligence in publishing the allegations
contained in it.
(viii) The second defendant prepared the article as
Editor of Informanté and as a senior
journalist, duly qualified as such and with
several years of experience.
(ix) The first defendant relied upon the second
defendant having acted reasonably and
without negligence in publishing the
allegations contained in the article.
(x) In doing so, the first and second defendants
acted reasonably and without negligence in
publishing the allegations contained in the
article.
(c) by virtue of the aforegoing, the first and second defendants
moreover acted without negligence.
(d) By virtue of the aforegoing and in the premises the first and
second defendants were justified in publishing the article.
 20

The third defendant as printer

5.5.
(a) The third defendant denies that it is strictly liable as
alleged in the particulars of claim.
(b) The third defendant furthermore denies any
negligence on its part, either in the respects referred
to in the further particulars, or at all.
Ad paragraph 10
Each and every allegation contained in this paragraph is denied as if
separately set out.”

Evidence

[16] The plaintiff’s case commenced by presenting the evidence of four

witnesses. The first witness was Dr André Du Pisani who gave evidence as an

expert in respect of the “Broederbond”, an organisation of white Afrikaner

supremacy. I shall refer to his evidence later herein. The plaintiff further called

Mr Fouché, who testified about the plaintiffs’ work record at Metropolitan Life

where Mr Fouché was employed as Managing Director. He knew the plaintiff

and relied on his experience. He testified that the plaintiff started as a

consultant and eventually became a Board member. Mr Fouché was not cross-

examined. Mr Helmut von Ludwiger, the Group Company Secretary of Bank

Windhoek and Capricorn Investment Holdings and Bank Windhoek, testified

about the plaintiff’s relationship with Bank Windhoek Ltd in 2006, namely that

the plaintiff was not a director of Bank Windhoek Ltd in 2006, but of Capricorn

Investment Holdings, a holding company that has nothing to do with the day to

day operations of Bank Windhoek Ltd. The Board of that holding company only

appoints directors to the Board of Bank Windhoek Ltd and its other investment

companies, reviewing the performance of such Boards on a quarterly basis. Mr

van Ludwiger further testified that he did not receive any query from second
 21

defendant or anybody else about the plaintiff’s membership of the Board of

Bank Windhoek Ltd. He said if he was called, he could confirm or deny it.

According to him Bank Windhoek Holdings (which was the old Capricorn

Investment -Holdings) would not have been involved in any decision concerning

financing, through a bond, the purchase of the pertinent property sold to Viking

Developers Ltd and he was not aware of such a sale. The instructing legal

representative of the plaintiff, Mr Attie Slabber, was called to testify in respect

of the present value of money based on Dr Robert Koch’s Quantum Yearbook.

The reason for his evidence was to show what the monetary value of certain

awards, made in previous decisions, is today.

[17] Eight witnesses testified on behalf of the defendants. The most crucial

witness was Mr Max Hamata, the editor of Informanté newspaper and the

author of the article in which the plaintiff was allegedly defamed. I shall deal

with the evidence of Mr Hamata more extensively later herein. Mr Quinton van

Rooyen, the owner of Informanté newspaper and Managing Director of first

defendant, also testified. Three employees of the City Council of Windhoek were

also called to testify, namely Mr Benedictus Ngaarorue, a legal officer employed

by the City of Windhoek, Ms Utete Karimbue-Mupaine, the Strategic Executive:

Plainning Urbanization and Environment of the City of Windhoek and the Chief

Executive Officer of the municipality, Mr Nilo Taapopi. Two other witnesses

gave formal evidence in respect of certain documents, namely Ms Gwendeline

Krotz, who is responsible for taking the minutes of the Management Committee

and Council meetings of the City of Windhoek and Mr Heiko Wilhelm Stritter.

Mr Stritter is a legal practitioner and conveyancer, who obtained a copy of the

 22

option to purchase the pertinent property between Wanderers Sports Club and

a nominee. The defendant also called Mr Robert Christiaan Brandt as an expert

witness at the resumption of the second period of this trial. His evidence was

based on an issue that was no longer relevant, namely whether a newspaper

reporter has a duty to reveal the identities of his sources, or not.

[18] I do not intend to refer to the evidence of the witnesses in detail, except

when certain evidence may be relevant. The evidence of Mr Max Hamata will be

dealt with in more detail.

[19] Although the plaintiff reserved the right to call evidence in rebuttal, this

was not done after the defence closed its case.

[20] The plaintiff did not give any evidence in this Court. The plaintiff was

not present at any session during the trial. The only time that anything by the

plaintiff was presented to the Court, was when a statement by the plaintiff was

handed in. This occurred after an application was made by Dr Henning on

behalf of the plaintiff for the incarceration of Mr Max Hamata for refusing to

reveal the sources upon which he relied when he wrote the article. Before this

issue could have been argued the next day, a statement by the plaintiff was

handed in stating that he does not want Mr Hamata to be imprisoned for this

reason and Dr Henning thereafter did not pursue this application. During the

second session of the trial, Mr Heathcote challenged the plaintiff’s legal

representatives to either call the plaintiff to testify or to make him available to

 23

be called by the defendant. This challenge was not taken up by Dr Henning

and the trial ended without the plaintiffs being called to testify at all.

Background

[21] I shall attempt to set out certain facts because they may be relevant to

understand the background to the incident which caused the article to be

written. I shall in the first instance refer to the undisputed facts and thereafter

to what remained disputed. This exercise is not meant to be a complete

reflection of each and every fact.

[22] The objective facts are the following:

(a) During 1974 the Municipality of Windhoek sold a certain piece of

land, approximately 12 hectares in size, to the Wanderers Sports

Club for an amount of R1 172.22, calculated at R1.00 per square

metre. Against the title deed of that property the following

conditions were registered:

“Neither the earth nor any part thereof may be transferred, let or in anyway
be awarded or alienated to anybody except a white.
The earth may not be alienated by the transferee before it was offered to
the Municipality of Windhoek and then against the amount at which the
earth was sold to the transferee plus a reasonable amount for improvements
as mutually agreed whereas it determined by an arbitrator.”
(b) On 6 November 2004 an option to purchase it was given by

Wanderers Sports Club to a firm of local estate agents on behalf of

a nominee;

(c) The piece of land was called “The Sport Village” and a mortgage

bond was registered over that property in favour of Bank

 24

Windhoek Ltd. The total amount of the bond was N$48 million.

The particular property was developed by “The Sport Village”

through a developer, namely Viking Developers Ltd;

(d) A written application was made on behalf of “The Sport Village” by

a local firm of city planners, Stubenrauch Planning Consultants,

to the Municipality of Windhoek to cancel the second condition in

the original deed of sale, which condition required that the specific

property must first be offered to the Municipality of Windhoek for

purchase before it can be sold to any other party;

(e) The agenda of the Management Committee i.a contained a detailed

reference to the application of Stubenrauch Planning Consultants

and reports from different departments of the Windhoek

Municipality;

(f) On 23 June 2005 the Management Committee of the Council of

Windhoek considered this application and recommended to the

Council of Windhoek to cancel this condition;

(g) On 30 June 2005 the Council of Windhoek took a decision to

cancel this condition,

(h) Subsequent to this decision of the City of Windhoek, the

document referred to earlier, namely P1, came into existence.

This document contained certain advice, apparently originating

from a legal advisor of the Municipality, that the property could

not be sold unless the municipality had exercised its option to

purchase same first. Certain employees of the Municipality of

Windhoek was apparently unhappy with the state of affairs and

 25

unsuccessful attempts were made to have the decision of the City

Council reversed. The matter was even discussed with the legal

representative of Viking Developers Ltd by Mr Taaipopi, the CEO

of the Municipality of Windhoek;

(i) After an opinion from a Senior Advocate was obtained to the effect

that the decision of the City Council cannot be reversed, which

opinion was handed to the CEO of the Municipality, the latter

stopped any further proceedings to have the sale set aside;

(j) The document P1 was given to Mr Hamata, who then used it to

write the article in Informanté;

(k) Before writing the article, Mr Hamata apparently called the

plaintiff by telephone, but could not reach him. He did speak to

the chairman of the Management Committee, Dr von Finkenstein,

who just returned from overseas and could not comment on the

issue;

(l) Mr Hamata erroneously mentioned in the article that the plaintiff

was a director of Bank Windhoek Ltd on the strength of

information he received from his source in Bank Windhoek. This

mistake was later rectified by an announcement in Informante to

the extent that the plaintiff was not a director of Bank Windhoek

Ltd, but of Capricorn Investment Holdings on 12 October 2006;

and

(m) Mr Hamata never obtained a copy of the minutes of either the

Management Committee or of the City Council.

 26

[23] It was severely disputed during argument that it was revealed to the

Management Committee or the City Council during their meetings that the

Municipality had been informed that it had the option to first purchase the

property. On behalf of the plaintiff it is submitted that it is clear from the

minutes of those meetings, that the entire process was transparently done,

while the defence submitted that there was a deliberate attempt to conceal the

existence of the option from the Municipality. The plaintiff further emphasised

that Mr Hamata did not afford the plaintiff the opportunity to comment on the

article which he intended to write, while defendants submitted that Hamata did

attempt to reach the plaintiff, but in vain. The plaintiff further submitted that

the subsequent rectification in respect of the alleged directorship of the plaintiff

of Bank Windhoek Ltd did not have any effect on what the normal reader would

understand and deduct from the article, whilst the defendants argued the

opposite. There are also other opposing submissions which are either irrelevant

or will be dealt with further herein.

[24] Two issues were not dealt with at all by counsel during argument and

although each of them may be important in future, I shall refrain to express any

view on it. In the first instance it was apparently accepted that Informante is a

“tabloid” newspaper, which is usually regarded as carrying more “sensational”

reports. The question arises, but was not argued, whether the responsibility of

the editor, etc of such a newspaper might be different from editors, etc of other

newspapers. Secondly, the “selling” of a newspaper has often been considered

when it carried a report that may be regarded as containing defamatory matter,

which will “sell” more newspapers. It is common cause that Informante is

 27

distributed for free. Would that be a factor that might tip the scale more to a

specific side? As mentioned, counsel left these issues alone and so shall I.

Onus

[25] I have already mentioned that (without any argument in that regard) the

plaintiff conceded that it bore the onus to begin, and Dr Henning commenced

the plaintiff’s case by calling the witnesses referred to earlier herein. The

plaintiff reserved the right of rebuttal. The defendant thereafter called his

witnesses.

[26] In respect of the onus of proof, Dr Henning conceded in his opening

statement that it has to prove publication of defamation referring to the

plaintiff, but once that has been established, two presumptions arise, namely in

the first instance that the publication was unlawful; and secondly, that the

statements were made animus injuriandi. Dr Henning submitted that to rebut

these presumptions, the defence has the onus to prove one or more of the

recognised defences. Dr Henning referred to the pleadings and in particular the

plea in which the defendants raised the defences of (a) truth for the public

benefit or fair comment, which he submitted was a common law defence, and

(b) the constitutional defence of reasonable publication, namely that the

defendants were not negligent.

[27] Before the commencement of the trial, Mr Snijman on behalf of the

defendants accepted that there was to a certain extent an onus on the

defendant, although he submitted it was not correct that the defendant has the

onus of rebuttal. In his Heads of Argument and in this Court, Mr Heathcote

 28

submitted that it should be taken into account that the plaintiff relies on strict

liability and if the court should uphold this to be the applicable law in Namibia,

the onus must be on the plaintiff to prove that the statements he complains of

were false and by not giving evidence, the plaintiff is bound to fail. In this

regard he referred to the South African situation with regard to the decision in

the Bogoshi case, which was decided after our constitution came into operation.

I agree with Mr Heathcote that it is important to consider the Namibian

situation in relation to the decisions in South Africa prior to the Namibian

Constitution and thereafter in coming to a decision what the law currently

applicable in Namibia should be as far as the liability of the media is concerned.

I shall consequently hereinafter deal with these decisions and the constitutional

development in determining where the onus in this particular instance should

lie. It is relevant to decide whether the media is strictly liability as South

African Appeal Court decided in the case of Pakendorf v De Flamingh, or

whether the principles as laid down in the Bogoshi case should be applied in

Namibia. I have already referred to the two recent cases in this Court where

two judges separately decided that strict liability for the media is out and the

Bogoshi decision was followed.

[28] However, the principles in respect of initial onus still remains the same.

The plaintiff bears the initial onus to prove publication of the alleged

defamation in respect of him. If the alleged defamatory statement appears in a

newspaper, publication is established and the plaintiff only has to prove it is

defamatory, relating to the plaintiff. In this case it is not in dispute that the
 29

article was written by the first defendant and that it was published in

Informanté newspaper2.

[29] Once publication of defamatory statements relating to the plaintiff had

been proved, the two presumptions referred to earlier herein arise and the onus

then rests on the defendant(s) to prove one or more of the known defences. In

this matter these presumptions arose and the defendants have the onus to

prove the defences relied upon in the plea. I shall later herein deal with the

type of onus and what the defendants have to prove.

The law

[30] Both parties submitted that law of defamation has not changed for 2000

years. I shall briefly refer to the applicable law.

[31] Both parties agreed that in South Africa the Pakendorf case changed the

law in respect of liability of the media in defamation actions. In South Africa

the Bogoshi case changed that in 1998. It is common cause that until then the

media was subject to strict liability. The plaintiff in this case relied on strict

liability and in the alternative the law as defined in Bogoshi. (Further

particulars, paragraph 3). If the plaintiff did not plead as it did, he might have

faced an exception. Dr Henning submitted that when the Namibian

Constitution came into operation in 1990 the media was subjected to strict

liability according to the Pakendorf case. Since then there were the decisions

such Afrika v Metzler, Afshani v Vaatz and Shidute, supra, in this Court. In

2
LAWSA, Vol 7 para 254, p 235
 30

these cases reference were made to the strict liability of the media. In the

alternative it is submitted on behalf of the plaintiff that even if the Bogoshi

principles are accepted, the defendant still has to the onus to prove these

defences, namely truth for the public benefit and fair comment on a balance of

probabilities.

[32] The law of defamation was established in the Roman Law. It did not

much change under the Roman Dutch Law3. The law of defamation considers

the protection of the personality rights of a person. Reference is usually made in

respect of the well known triad of the Roman Law regarding injuria, namely

corpus, fama and dignitas. Fama concerns the reputation of a person while the

other rights that were also protected concerned the body of a person (corpus)

and his dignity (dignitas). These were separate rights. Fama and dignitas were

separately protected. “While the Courts identify, recognise and protect

corpus (body) and fama (good name) as separate, delimited aspects of

personality, views on the meaning and significance of the term dignitas

vary considerably4”. It is recognised that dignitas has a wide meaning which

is a collective term for all personality rights with the exception of the right to a

good name and the right to bodily integrity5. According to the well-known

author Melius De Villiers6 dignitas should be widely interpreted and

encompasses all aspects of the legally protected personality, except corpus and

3
Neethling the Law of Personality, 2nd ed p 45, Burchell, the Law of
Defamation, p10, Amerasinhe: Defamation and Other aspects of the Actio
Injuriam in Roman Dutch Law, p 3
4
Neethling, supra, p 49
5
O’Keeffe v Avis Printing and Publishing Company Ltd and Another
1954(3) SA 244(C; Neethling, supra, p 50
6
Melius De Villiers, the Roman and Roman Dutch Law of Injuries (1899)
24
 31

fama. On the other hand defamation emphasises an objective element and the

plaintiff’s emotional reaction is of secondary importance7.

[33] The infringement of the reputation of a person’s (fama) must be

objectively evaluated, while dignity has a subjective element. The essential

difference is what others think of a person (reputation) and what he thinks of

himself (dignity). Perhaps due to the English influence, dignity was sometimes

described by the word “character”, while fama was sometimes described by the

word “honour8”. In South African case law dignity and fama (reputation) have

sometimes been used together and not separately with their own specific

protections. The importance of these rights, namely fama and dignity will be

discussed later. It will also be considered in respect of the argument by Mr

Heathcote that the plaintiff should have testified.

[34] It is common cause that the decision in the Pakendorf case in 1982 that

the media is subject to strict liability (before the Namibian Constitution) was

reversed the Bogoshi case in 1998 (after the Namibian Constitution). The

Namibian Courts were bound by the Pakendorf decision, namely strict liability

for the media. After 1990 the Namibian Courts were not bound by South

African decisions, even that of the South African Appeal Court and the

Constitutional Court, although those decisions have persuasive value and are

usually followed.

7
Neethling: supra, p 52
8
Burchell: The Law of Defamation in South Africa, p 19
 32

[35] Only three Namibian defamation cases were quoted by counsel. They are

the cases of Afrika v Metzler, Afshani v Vaatz and Shidute. Only in the case of

Afrika was the defendant also the editor of a local newspaper.

(a) In the Afrika case the Learned Judge only referred in passing to

the issue of strict liability of the media. On pages 331I to 332A,

with regard to the determination of the quantum of damages, it is

stated:

“Only then will persons, especially newspaper editors/reporters, publishers/

printers and/or owners be more on their qui vive and be mindful of the
strict/absolute liability applicable to members of the press and hopefully act in
accordance with the special duty of care that rests upon their shoulders and
subject to law pursuant to the reasonable restrictions on the exercise of the
fundamental freedoms imposed by art 21(2) of the Namibian Constitution, if they
know that substantive exemplary/punitive damages could be visited upon them if
they defamed another animus incuriandi. This might prevent these aforementioned
persons from being motivated by and/or frolicking with journalistic
sensationalism”.
The learned judge apparently accepted that in Namibia the press

and media are subject to strict liability. This issue was not

specifically argued or decided.

(b) In Afshani v Vaatz, Maritz J said the following in respect of the

onus on page 49, [31]:

“I therefore hold that the presumptions of unlawfulness and animus injuriandi—

which arose where the plaintiffs established defamatory content of the defendant’s
statement—cast a full onus on the defendant, which requires rebuttal on a balance
of probabilities.”
Although this was not a matter where the alleged defamatory

statements were made in a publication by the press or media,

Maritz J referred to and dealt extensively with previous South

African decisions, as well as where Namibian Courts should hold

that the onus lies in this type of matter. Mr Heathcote submitted

 33

that the remarks of Maritz J are obiter in respect of the issue at

hand.

(c) S v Smith was a criminal matter and the media’s liability was

neither considered, nor decided on.

(d) The media was not directly involved in the Shidute matter and

liability of the media did not feature except when the presiding

judge dealt with the calculation of damages, he referred to the

same quotation in the Afrika case as quoted in (a) above.

(e) The Pohamba Shifeta and Universal Church judgments by this

Court were both given in December 2008, after this present case

was completed, and I shall briefly deal with the relevant decisions

therein. In both these cases the issue of strict liability for the

media were rejected.

(i) In the Pohamba Shifeta case, Parker J expressed himself

strongly in respect of the media’s liability. In [10], p6 he

says:

“...I think the time has come for this Court to jettision the
unconstitutional baggage of the doctrine of strict liability of the media
in the context of defamation and apply, as I do, the Bogoshi decision,
which conduces to the development of our own constitutionalism,
conduces to the strengthening of our democratic State and, moreover,
conduces to deepening Namibia’s culture of respect for human rights”.
(ii) After quoting extracts of the Bogoshi decision, Silungwe AJ

states in [32], p18:

“With those observations, I am in respectful agreement since I am

firmly of the view that strict liability is inconsistent with the
provisions of Article 21 (1)(a) of the Constitution”.
 34

[36] I agree with Mr Heathcote that the Pakendorf decision seems to be out of

kilter with the law that existed up to that stage and the decisions of the courts

until 1982. I am not going to enter into the arena of deciding that the common

law in Namibia has not been altered by the Pakendorf decision, because that

decision was wrongly made. I do not regard it necessary to decide that issue.

As pointed out above, there were recently two direct decisions on this issue in

Namibia. In the absence of any decision by the Namibian Supreme Court, I still

have to decide in this matter what the legal position of the media’s liability

should be, strict or not.

[37] Worldwide the trend seems to be against strict liability for the media.

Although a court should be careful not to adopt English Law in respect of

defamation, decisions by other foreign courts do not favour strict liability for the

media9. This does not mean that the media should be allowed the same

freedom as in the USA10.

[38] Although the South African Courts did not reject strict liability it seems

that even before the Bogoshi decision, some became cautious to follow the

Pakendorf decision in this regard. In Neethling v Vryweekblad, supra, Hoexter J

made observations that were not in line with that of Rumpff CJ in Pakendorf.11

In the period when South Africa had an interim constitution, Hefer JA had the

courage to say that Pakendorf was wrongly decided in this regard.12

9
Bogoshi, supra, p 1211C
10
Jonathan Burchell: Personality Rights and Freedom of Expression,
Chapter 2, p 24-28
11
Neethling v Du Preez and Others, supra, p 776I;
12
Bogoshi, supra, p 1211B;
 35

[39] The principle in Bogoshi was followed by the Constitutional Court in

South Africa after the final South African Constitution was adopted in 1996 in

the case of Khumalo and Others v Holomisa, supra, by O’Regen J13. Except for

reversing the issue of strict liability for the media, Hefer JA in the Bogoshi case

also dealt with the onus in a case where the media is involved14. Bogoshi

confirmed that in order to rebut the presumptions that may arise, the

defendant has to prove on a balance of probabilities that the defamatory

statements were justifiable and reasonable.15

[40] In the judgment of Mthembi-Mahanyele v Mail and Guardian Ltd and

Another, supra, the South African Appeal Court came to the conclusion that

although the statement was defamatory, it was justified16. Although in that

case there was a majority and a minority decision, the minority did agree with

the legal decisions of the majority; they came to another decision based on the

facts of that particular case. The approach of Hefer JA in the Bogoshi case was

confirmed.17

[41] Having considered the cases specifically referred to above, as well as

others quoted to me and other cases that I have considered, I am persuaded

that the decision of Pakendorf to place a burden of strict liability on the media

was wrong and was correctly rejected by the South African Appeal Court in the

13
Khumalo and Others v Holomisa, supra, [20] p 415D-E;
14
Bogoshi, supra, p 1217D-1218E;
15
Bogoshi, supra, p 1281E;
16
Mthembi-Mahanyele v Mail and Guardian Ltd and Another, supra, [75], p
360D
17
Mthembi-Mahanyele v Mail and Guardian Ltd and Another, supra, [62], p
355G-I
 36

Bogoshi case, followed by other decisions of the South African Appeal Court and

Constitutional Court. I also agree with the approach used by Hefer JA in

Bogoshi as confirmed subsequently. Although it was not a media matter,

Maritz J thoroughly analysed the case law with particular emphasis on the

onus issue.18 I also fully agree with the decisions in this regard in the Pohamba

Shifeta and Universal Church matters. Consequently, I hold that the media in

Namibia is not subject to strict liability, but that media defendants bear a full

onus to rebut the presumptions of animus injuriandi and unlawfulness, namely

on the basis of a balance of probabilities.

[42] Hefer JA confirmed the principle of our law of defamation that a balance

must be struck between the right to reputation and the freedom of expression

in the Bogoshi case.19 The learned Appeal Court judge then dealt with the rights

of freedom of expression and of reputation extensively.20 Lewis JA in the

Mthembi-Mahanyele case approved that such a balance must be struck.21 In

evaluating the facts of this matter I regard the striking of a balance between

these two important rights as implicit.

[43] Against these principles and the defences pleaded, the liability of the

defendants will be considered. The law applicable to other issues will be

considered when such issues are dealt with.

Was the article defamatory of the plaintiff?

18
Afshani v Vaatz, supra, para [24], p 45 to para [31], p 49
19
Bogoshi p 1207D.
20
Bogoshi p 1207E to 12 p 1207F.
21
Mthembi-Mahanyele v Mail Guardian Ltd, supra, [40], p 347I to 348A.
 37

[44] Dr Henning argued that the purpose of the newspaper article was to

expose a corrupt official and this was also the purpose of the second defendant,

the owner of the publication and the employer of the first defendant. Is

submitted that Court should find that the printer had a similar purpose.

[45] It is common cause that the test is an objective one, namely what a

reasonable reader with normal understanding and development would

understood when he/she reads the article. It is also common cause that “the

reasonable man” is not the astute lawyer or a supercritical reader.22 The Court

has to determine the meaning which a reasonable man would likely give to the

statement in its context and whether that meaning is “defamatory”.23 At this

stage the court is not concerned with the meaning that the author of the

statement intended to convey.

[46] I have already found that “without fault” or strict liability of the media is

no longer applicable. This does not mean that the media does not have a

responsibility to truthfully report and that its comments must be fair and

reasonable. The media’s responsibility has been described by Hefer JA in

Bogoshi as follows24:

“But, we must not forget that it is the right, and indeed a vital function, of the press to make
available to the community information and criticism about every aspect of public, political,
social and economic activity and thus to contribute to the formation of public opinion (Prof
JC van der Walt in Gedenkbundel: HL Swanepoel at 68). The press and the rest of the
media provide the means by which useful, and sometimes vital, information about the daily
affairs of the nation is conveyed to its citizens—from the highest to the lowest ranks

22
LAWSA Vol 7, para 248; Mthembi-Mahanyele v Mail Guardian Ltd, supra,
[25] p 342
23
LAWSA para 248, p 230.
24
Bogoshi, supra, p 1209I-1210A.
 38

(Strauss, Strydom and Van der Walt Mediareg 4th ed at 43). Conversely, the press often
becomes the voice of the people—their means to convey their concerns to their fellow
citizens, to officialdom and to government.”

(Also Reynolds v Times Newspapers Ltd and Others, supra, at 1004a-e). Later in

his judgment in Bogoshi, Hefer JA commented on the nature, extent and of

allegations and stated25:

“Ultimately there can be no justification for the publication of untruths, and members of the
press should not be left with the impression that they have a licence to lower the standard
of care which must be observed before defamatory matter is published in a newspaper.”

[47] Dr Henning analysed the article, sentence by sentence, and argued how

the reasonable reader would read and understand it. According to him a

reasonable reader will view the whole transaction against the negative view that

the reader would have of the “Broederbond”, namely an octopus-like

organisation based on white supremacy in the apartheidsera and will connect

this with what is regarded as an important issue in Namibia, namely the

appropriation of the land. Similarly, reasonable reader will have a negative view

of those persons who want to make a financial killing, by using underhand

methods and may cause a loss of public money. The reasonable reader of the

article with regard the plaintiff as such person. According to him, the

reasonable reader will understand that not only Dr Von Finkenstein as

Chairman of the Management Committee was involved this underhand

transaction, but also the Mayor, who is the Chairman and the representative of

the City Council of Windhoek that took this decision. According to him, when

reading this, the reasonable reader would view the plaintiff’s association with

25
Bogoshi, supra, p 1212J-1213A.
 39

Bank Windhoek negatively and understand that he was involved in this

underhand land deal which was to the detriment of the tax payers of Windhoek

and those people he (the plaintiff) is supposed to represent. The amounts

mentioned therein are huge and the reasonable reader would view it that the

plaintiff did this for self-gain. In Dr Henning’s view the entire article should be

read in context and is defamatory of the plaintiff.

[48] Mr Heathcote denied that the entire article was defamatory of the

plaintiff and argued that only two sentences thereof referred to the plaintiff

directly. He conceded that the reference to the plaintiff as being a director of

Bank Windhoek Ltd was wrong in the article, but argued that it was later

corrected. Mr Heathcote also strenuously argued that what the plaintiff now

considers to be defamatory, was not fully pleaded. Furthermore he submitted

that as a black man, the plaintiff would never have been associated by the

reasonable reader with a white supremacy organisation, such as the

“Broederbond”.

[49] It is so that the plaintiff has to set out the terms of the statement, which

he alleges to be defamatory in his pleadings and that he must prove that

statement26. According to Mr Heathcote the plaintiff limited himself when he

referred in paragraph 9 of his particulars of claim to the interpretation that a

reasonable reader would attach to the way that the plaintiff was referred to in

the article, namely: that he was dishonest, abused his position as Mayor of the

26
LAWSA, supra, para 248, Muller v Nel 1942 CPD 337 at 348; Deedat v
Muslim Digest and Others 1980(2) SA 922(D); Amerasinghe: Defamation in
South Africa and Ceylon, Chapter VIII.
 40

City of Windhoek, neglected his duties to the public and abused his position as

Board Member of Bank Windhoek. Relying on the decision of the Deimers v

Wyllie, supra, Mr Heathcote submitted that the plaintiff elected to rely on

certain meanings and cannot now rely on others. According to him, it is

nowhere stated in the article that the plaintiff was dishonest or abused his

position or received any favours. The only concession that Mr Heathcote makes

in this respect, is that the article does indicate that the plaintiff “neglected his

duties” and this, he submitted, is not defamatory.

[50] Dr Henning denied that this argument has any ground. He submitted

that the reference to page 8, paragraph 9 of the particulars of claim cannot be

read alone and must be read in context with paragraph 7 of the Particulars of

Claim.

[51] I do not agree with Mr Heathcote in this regard. Although the plaintiff

pleaded how the reader would understand the article, it must clearly be read in

the context of the whole article27. The allegation pleaded in paragraph 7 cannot

be ignored. In my opinion, the normal reasonable reader will come to no other

conclusion, after reading the article, than that the plaintiff was part of an

underhand and dishonest deal and in this regard abused his position as Mayor

of City of Windhoek to further his own interest for which he used his

association with Bank Windhoek, which he failed to declare to the City Council

when the decision was taken. I agree with Mr Heathcote that the article

indicated that the plaintiff, as Mayor of Windhoek, has neglected his duties to

27
Deedat v Muslim Digest and Others, supra, p 928-9
 41

the public, but the reasonable reader would not understand that that is not all

he did. The normal reader would think that the Mayor of Windhoek did not do

anything to stop this corrupt underhand deal; he did not even declare that he

was associated with Bank Windhoek. Dr Von Finkenstein was part of the

elected executives of the Municipality of Windhoek of which the Plaintiff was the

leader, the Mayor.

[52] The evidence of Dr Du Pisani in respect of the “Broederbond” is not in

dispute. Although Mr Snijman, who initially appeared for the defendants,

seemed to create the impression that at least on the Internet the book, “Super-

Afrikaners”, referred to by Dr Du Pisani, was criticized, Mr Heathcote made it

clear, when he took over, that the defendants do not take issue with Dr Du

Pisani’s evidence regarding the “Broederbond”. Consequently, it should be

accepted that the “Broederbond” was a white Afrikaner supremist organisation

with its claws in the public society at the time. There can also not be any doubt

that the “Broederbond” was viewed very negatively, something like the Nazi

Regime in the Second World War. Mr Heathcote’s argument that the plaintiff

would not be associated by the reasonable reader with the “Broederbond”

because he is a black man, does not hold water. In my opinion a black man

who is linked to such a white supremist organisation as the “Broederbond” will

be considered by the normal reasonable black reader in Namibia as a “sell-out”

or a “puppet”. In my opinion it would be more defamatory to link a black man

to such an organisation as the “Broederbond,” than a white man. I also do not

agree with the submission by Mr Heathcote that only two sentences refer to the

plaintiff and that those references should be considered in isolation. The whole
 42

article should be read and in my opinion any defamatory statement in that

article would be understood by the reasonable reader as also referring to the

plaintiff. I agree with Dr Henning that the purpose of that article was

undoubtedly to defame and destroy the self-esteem of the plaintiff. Whether Dr

Von Finkenstein was also defamed and had the option to institute his own

action for defamation against Informanté, but didn’t, does not exonerate the

defendants in respect of the plaintiff.

[53] I have already referred to the publication of the article and it is clear that

the person who was defamed is the plaintiff. In my opinion, the statements

made in the article are clearly defamatory of the plaintiff.

[54] The two presumptions, referred to earlier herein, require rebuttal by the

defendant. These two presumptions that arose are that the publication was

unlawful and the defendant acted with animus injuriandi. The onus is now on

the defendant to establish justification or that the article was reasonable. The

two defences that the defendants rely on are “truth and public benefit or fair

comment” and “reasonable publication”. These defences will be considered

hereinafter.

Truth and public benefit or fair comment

[55] Unlike in English law in an action for tort, the publication of truth alone

is not a defence. Publication of truth must also be for the public benefit28. It is

not required that everything alleged need to be true in every minute detail. As

28
Jonathan Burchell, supra, Chapter 18, p 272;
 43

long as the material allegations of the statement are true, the defence may

succeed. Some protection is allowed for erroneous statements of defamatory

facts in the interest of free and fair political activity. This central question is

whether the publication was “unreasonable”. In the Bogoshi case Hefer JA said

the following29:

“In my judgment we must adopt this approach by stating that the publication in the press
of false defamatory allegations of fact will not be regarded as unlawful if, upon a
consideration of all the circumstances of the case, it is found to have been reasonable to
publish the particular facts in a particular way and at the particular time”.

The statements in the publication must of course be in the public interest to

disclose it. It was further held that the elements of truth and public benefit

must be examined together in relation to each other and not separately. The

approach to what is in public benefit is a broad approach and it has been held

that public benefit lies in telling the public something of which they are

ignorant, namely that what is conveyed to the public must contain some

advantage by communicating certain information to the public30.

[56] Fair comment is regarded as one of the fundamental rights of free

speech. The requirements for the defence of fair comment was set out in

Crawford v Albu, supra, and followed by the South African Appeal Court in the

case of Marais v Richard, supra. These requirements are the following:

(a) the allegation in question must amount to comment (opinion);

(b) it must be fair;

(c) the factual allegations on which the comment is made must be

true; and

29
Bogoshi, supra, p 1212G;
30
Jonathan Burchell, Chapter 18, p 273.
 44

(d) the comment must be on the matter of public interest31.

[57] Section 16 of the Local Authorities Act No. 23 of 1992 provides that the

minutes of a Local Authority Council, such as the Windhoek City Council, are

available during office hours for inspection by any person.

[58] To establish whether the Defendants have succeeded in proving the

defences that rests upon them, e.g. truth for public benefit or fair comment, it

is necessary to determine what really occurred and to view the statements in

the article published by Informanté against that.

[59] I have already indicated earlier herein that the subject-matter of the

article was the purchase of erf 1277, Tunchell street, Pioneerspark. The

operation of the City Council is well known and has been confirmed in evidence.

This entails an agenda for the Management Committee meeting containing the

subjects for discussion, together with reports containing comments from the

various relevant departments of the City of Windhoek e. g. transportation,

electricity, planning, immunization and environment, as well as comments from

the legal advisor of the municipality. The minutes of the Management

Committee contain recommendations on the particular subject-matter, which

then form part of the agenda for the next City Council meeting. After

discussion at its meeting, the City Council takes certain resolutions which are

reflected in the City Council’s minutes. These minutes are available to anyone

in terms of the Local Authorities Act, No. 23 of 1992.

31
Jonathan Burchell, supra, Chapter 19, p 277.
 45

[60] In respect of this particular issue, namely the subdivision of erf 1277 and

the rezoning thereof, the agenda of the Management Committee of 20 June

2005, which was handed in as an exhibit, contained the following relevant

information:

(a) it referred to an application that has been received from Messrs

Stubenrauch Planning Consultants on behalf of the owner, the

Wanderers Sports Club for the subdivision of erf 1277, Tunchell

street, Pioneerspark into fourteen portions, and the remainder in

subsequent rezoning of portions one to thirteen to “residential”

with a specific density. The motivation thereof is set out as

follows:

“The management of Wanderers Sports Club has resolved to try to optimise

a vacant area to the South of the existing sports facilities by developing a
‘club village’. According to the applicant, the intention is to sell the
residential units to be build to interested people who will then
automatically become paying members of the Wanderers Sports Club. The
monthly payments are to be used for upkeep of the sports facilities (sports
fields, restaurant and club house). By associating the new property owners
with the club it is expected that an increase patronage of the restaurant
and club facilities will be obtained, directly contributing to the viability of
these facilities.
As the club does not intend to be involved in property development and the
leasing and maintenance of the housing stock to be provided, the unites are
to be sold as either freehold title or sectional title units.” (My emphasis)
(b) The agenda then deals with the location and the size of the erven,

the zoning thereof, advertisements and the services to be provided.

[61] The minutes of the Management Committee dated 23 June 2005

contained all the recommendations depicted in the agenda. The agenda of the
 46

Council contained all that formed part of the agenda of the Management

Committee, plus the recommendations of the Management Committee.

[62] On 30 June 2005 the City Council took the resolutions as reflected in its

minutes of that date. It’s important to note that Councillor Dr B von

Finkenstein proposed the resolutions, which was then adopted. These

resolutions are exactly the same as the recommendations of the Management

Committee to the City Council.

[63] All these documents are common cause and have been admitted by the

defendants. They were proved by Ms Krotz and admitted by the CEO of the City

Council, Mr Taapopi. The correctness of these minutes were never disputed.

They indicate that there was a proper consideration of the proposed transaction

by both the Management Committee and the City Council. The important issue

of the condition contained in the title deed of the property, namely that the City

of Windhoek had the right of first refusal, was clearly indicated and even quoted

in italics in the documentation. The decision of the City Council of 30 June

2005 was an approval of the recommendations which was contained in a

bundle of documents. Anybody, including the second defendant, had the right

to inspect the minutes of the City Council. Ms Karimbue–Mupaine, the

Strategic Executive: Planning, Immunization and Environment also made a

positive recommendation on behalf of her department. According to the

documents referred to herein, the issue was referred to her department and she

recommended it. However, during her evidence she doubted that the correct

information was provided to the City Council. She developed this doubt after
 47

being made aware thereof by a colleague and when cross-examined she said

that she wanted this “mistake” to be rectified:

“…then draft an item to council to rectify the mistakes so that council could
rescind the previous council resolution and address the issue that was not
addressed.” (record 371)

[64] A document, P1, referred to earlier, then saw the light. This document

was never submitted to the Management Committee, nor to the Council, but

was only discussed internally with the CEO, Mr Taapopi. Dr Henning

submitted that P1 was conceived on the basis of a complete fallacy, namely that

the City Council took a decision without being aware of the relevant condition

(the pre-emptive issue), while that condition was pertinently brought to the

attention of the Management Committee and the Council. These meetings had

the input of the relevant departments before taking their decisions and the facts

that were subsequently “discovered” by Ms Karimbue–Mupaine and others,

were in fact known and considered by the Management Committee and the

Council as reflected in the Council’s resolutions.

[65] I shall refer to P1 later herein. At this stage it is convenient to refer

briefly to what happened in respect of the alleged mistakes or “subsequent

discovery”. It appears that Mr Taapopi discussed this issue with the legal

representative of the developers and Bank Windhoek, Mr André Swanepoel. A

legal opinion of a senior advocate, Advocate Frank, was also obtained and

provided to Mr Taapopi. This opinion was handed in by Mr Taapopi. The

opinion made it clear that the decision of the City Council cannot be reversed.

That apparently led to the death of this entire issue within the Municipality of
 48

Windhoek, because Mr Taapopi “killed it there and then”. However, certain

employees of the Municipality of Windhoek and City Councillors apparently

remained unhappy with this development. Unidentified sources of the second

respondent within the Municipality of Windhoek provided him with P1. It is

clear that P1 was the sole documentary source of the second respondent, which

convinced him of the correctness of the truth thereof. On page 174 of the record

the second respondent’s “belief” is stated as follows:

“...a serious corruption deal was unfolding at the City of Windhoek”.

(record page 174 )

Second respondent then wrote the article, which is quoted fully earlier herein.

According to second respondent’s evidence, the purpose of the article was to

expose corruption:

“The highlight of the story was on the corrupt transactions”. (record page 304).

[66] The managing director of the first defendant read the article and testified

that the purpose of the article was to expose a corrupt official. He had no

objection to the printing of the article.

[67] In Bogoshi at 1213 B Hefer JA said the following:

“I have mentioned some of the relevant matters; others such as the opportunity given to the
person to respond, and the need to publish before establishing the truth in a positive
manner, also come to mind. The list is not intended to be exhaustive or definitive.”

In respect of the printer the learned judge had the following to say: (1213BE)

“Matters like these are of course relevant when the liability of an owner, publisher or editor
is under enquiry. The examination of the facts in order to determine the liability of the
printer will obviously follow different lines which will concentrate mainly on his ability to
become aware of and prevent publication of defamatory material.”
 49

No evidence was given on behalf of the printer, the third defendant. Jonathan

Burchell also deals at the hand of the Bogoshi decision with the position of the

printer:

“The Supreme Court of Appeal in Bogoshi thought that there was much to be said for the
approach that the liability of the printer should be brought into line with that of the
distributor of published material, ie based on negligence. However, in the light of the
decision of the Court setting the standards of due diligence for the media and an
unlawfulness test, the particular factors affecting the printers position could be
accommodated there.”

[68] With regard to P1, Dr Henning submitted that any journalist taking

ordinary care should have concluded that document P1:

(a) was not a primary document,

(b) had no identifiable order; referred to events which must have been

recorded in official documentation; had no file or reference

number; was not signed and contained no basis or a theme of

corruption, even if a mistake was made by a particular

department.

[69] Dr Henning then discussed the credibility, or lack thereof, of the second

defendant in respect of article against his claim to be a highly qualified

investigative journalist. In this regard he referred to the history of the second

respondent, who was apparently expelled from the Peninsula Technikon. This

ended in the Cape High Court, but the second respondent testified that he

regarded that Court’s finding that he fabricated allegations in the article as

untrue. (Hamata and Another v Chairperson, Peninsula Technikon Internal

Disciplinary Committee and Others 2000(4) SA 621 (CPD). Dr Henning pointed

 50

out several allegations of the second respondent in his reliance on annexure P1

and contradictory evidence given by him in Court. An example of this is that he

could not provide any reference in the article of his conversation with Dr von

Finkenstein. When this was specifically put to him, he conceded that it does

not appear in the article. It was put to him that this was reckless, irresponsible

and incompetent journalism, but he denied it. Dr Henning analysed the article

in detail in context of the second defendant’s evidence. I do not intend to repeat

all the submissions in respect of second defendant, but will refer to some of

them. Dr Henning pointed out that P1, does not refer to the “Broederbond” or a

“Broederbond cartel” at all, although this appears in the article together with

the negative connotation attached to it. The only inference to be drawn from

this is that the “Broederbond” connotation was the second respondent’s own

brainchild. Dr Henning also pointed out the allegation in the article that “the

City is expected to lose by at least 4.8 million...” is clearly wrong. He further

pointed out certain omissions in the article, which are contained in P1, create a

misleading impression. He also submitted that the article didn’t refer to any

betterment or endowment fees payable to the City of Windhoek, which would

benefit the latter and are explicitly contained in the minutes. With reference to

the “underhand” dealing, Dr Henning submitted that there was nothing

secretive or deceitful about that transaction – it was transparent, business like,

recorded in writing and available to be checked. Furthermore, he pointed out

that the plaintiff was not the decision-maker and that there was no need for

him to declare his association with Bank Windhoek, which was in fact not what

was originally stated in the article. He also pointed out that there is no

evidence of self-gain or empowerment by the plaintiff, as the article suggests.

 51

The allegations of loss of revenue and that the transaction prohibited the City to

auction the land was pointed to be without any merit. Dr Henning argued that

no loss of revenue was proved and it is logical that the City could not auction

land if Wanderers Sports Club didn’t want to sell it at the 1973 price.

Consequently, the allegation of loss of approximately N$5 million is without

merit and is unsupported by evidence. Finally, the allegation in the article that

the Council has the difficult task of reversing its decision is contrary to the

evidence given by the CEO. Despite all this, Dr Henning pointed out that the

second respondent still maintained that his article substantially contains the

truth.

[70] I have carefully considered the evidence presented in this Court in the

light of the factual situation and the article written by second defendant. It is

obvious that the article written by second defendant in Informanté is not the

truth. The article makes no mention at all of the decision of the City Council,

which was carefully considered upon recommendations from the Management

Committee, which had the reports of the relevant departments available. There

is no ground or justification by way of any bona fide or genuine mistake for

writing what is not the truth. The second defendant based his article on

annexure P1 without establishing whether the content thereof was the truth, or

not. He could easily done so by invoking his rights in terms of the Local

Authorities Act, but did not do so. I fully agree with what Hefer JA said in the

Bogoshi case on p 1212G, quoted herein in paragraph [55].

 52

In respect of reasonableness of the publication, Hefer JA said the following on

the same page next to H:

“In considering the reasonableness of the publication account must obviously be taken of
the nature, extent and tone of the allegations. We know, for instance that greater latitude
is usually allowed in respect of political discussion. (Pienaar and Another v Argus Printing
and Publishing Company Ltd 1956 (4) SA 310 W at 318 C-E), and that the tone in which the
newspaper article is written, or the way in which it is presented, sometimes provides
additional, and perhaps unnecessary, sting. What will also figure prominently is the
nature of the information on which the allegations were based and the reliability of the
source, as well as the steps taken to verify the information. Ultimately there can be no
justification for the publication of untruths, and members of the press should not be left
with the impression that they have a licence to lower the standards of care which must be
observed before defamatory matter is published in a newspaper.”

[71] In Mthembi – Mahanyele v Mail and Guardian Ltd and Another, supra,

Lewis JA confirmed what Hefer JA said in the Bogoshi case on 355 paragraph

[62]:

“[62] This passage was approved by Hefer JA in Bogoshi. The Court there held (contra
Holomisa, above) that the defendant bears the onus of proving reasonableness. In the
enquiry as to the reasonableness of the publication, account must be taken of the tone of
the publication – whether there is an unnecessary sting attached; the nature of the
information published; the reliability of the source; and the steps taken to verify the
information. These questions relate both to unlawfulness (the unnecessary sting or
gravamen of the statement) and to fault – negligence – (steps taken to verify the
information). But the enquiries inevitably overlap.”

[72] I agree that the defendant bear the onus to prove reasonableness. The

tone of the article is undoubtedly directed at putting the plaintiff in a bad light

and is in my opinion unreasonable. I also fully agree that the second

respondent wrote an article with the aim to harm the plaintiff in his good name

and reputation. The second respondent did not do anything to ascertain the

truth and correctness of the allegations contained in this article. He recklessly

 53

continued to rely on P1, without verifying it, and even further linked it to the

Broederbond. I have already indicated that a black man, like the plaintiff,

might even be more defamed than a white man by linking him to the

organisation such as the Broederbond. The tone of the publication throughout

creates the impression of a person in high position, which he abuses for self-

gain to the detriment of the City of Windhoek and the inhabitants of Windhoek.

I have already dealt with the reliability of the second defendant’s sources. What

he was given, it was clearly wrong, but he did not make any effort to check

those sources and to verify the information provided to him, which he could

easily have done. He just wrote the story. Although it deals more with the

aspect of negligence, the second defendant, in my opinion, did not do enough to

contact the plaintiff and to verify his information. With information so

detrimental, I believe he should have made a serious effort to obtain the

plaintiff’s version before writing the article. There was nothing that indicated

that the article had to be written urgently. Although Dr von Finkenstein did not

claim, I also believe that more should have been done to contact him at a stage

when second respondent had the opportunity to verify situation, before writing

the article.

Negligence

[73] In the case of Hassen v Post News Papers (Pty) Ltd and Others, supra,

Coleman J dealt with the requirement of animus injuriandi for liability in our

law of defamation. After referring to certain other cases, he stated the following

on 569E:

“In all of these cases (as in many earlier ones) stress was laid on the fact that in our law of
defamation the foundation of liability is animus injuriandi. The existence of that animus is
 54

presumed from the publication of defamatory matter, but the defendant can nevertheless
escape liability by alleging and proving that the circumstances in which the publication was
made were such that it is, as matter of law, deprived of its prima facie actionable character.
It is clear from the recent cases which I have mentioned that in order to achieve this result
the defendant is not required, necessarily, to bring the case within one of the rigid grounds
of defence recognised by the common law of England, or within one of the grounds
mentioned in Voet, 47.10.20. The defences open to him under our law fall within a wider
ambit, the nature and limitations whereof I shall have to consider.”

After discussing several other cases and in particular the decision of Maisel v

van Naeren 1960 (4) SA 836 (C), the learned judge came to the conclusion that

the test of liability is not purely subjective in all defamation cases. In respect of

a defamatory statement published by mistake, Coleman J said the following on

570 B-C:

“...a person injured by a defamatory statement will be without remedy... if the defendant is
able to show that the publication was made by him in the belief (albeit in a mistaken belief)
that circumstances existed which justified or excused the damaging in publication. If that
is indeed our law, it would seem unfortunate. Considerations of equity would seem to
require that any loss which arises from such an error should be borne by the person who
made the error, rather than by its victim, at any rate if the error was an unreasonable one,
or was imputable to the recklessness or negligence of the person who made it.”

On 575 B Coleman continued:

“So much for recklessness. The word is capable of more than one meaning, as appears
from S v Grobler 1964 (2) SA 776 (T) and the authorities there examined. It can relate to the
conduct of one who is advertent to a risk, and decides to run it. Or it can relate to
negligence of a high order in failing to envisage and avoid a danger.”

Coleman J also approved of the following citation of Wessels JA in the case of

Nasionale Pers Bpk v Long 1930 AD 87 at 100:

“But should the surrounding circumstances show that the right that he never intended to
injure the plaintiff, that he was in no way reckless and could not have known that what he
wrote might per infortunium applied to the plaintiff, then according to our law there is a
good defence. It must, however, be quite clear that the libel is a result of accident, because
 55

it would be a dangerous principle to absolve a defamer from liability simply because he

swears that he did not have the plaintiff in his mind when he wrote the libel. If the writer
has an animus injurandi, so that what he does is a wrong (non jure fit), and he intends to
libel some persons, and it happens that the libel inter eos hits the complainant, then he
cannot be heard to say that he had no intention of libelling the plaintiff or that he had
excluded him in his own mind. It was reckless on the part of the writer of the article
complained of not have considered the possibility of an error on the part of the reporter, and
not to have specifically excluded the editor if he had no intention to include him. It was
quite a gratuitous assumption on the part of the writer that the reporter could not have
made a mistake.”

After approving this quotation, Coleman J stated the following on 575 F:

“Here it is required of the defendant that, to establish his defence, he should show not
merely that he was not reckless, but that could not have known that what he wrote might
apply to the plaintiff; and that means that if he was negligent, although bona fide, he has
no defence.”

[74] In his commentary on the Hassen case, supra, in respect of the

requirement of negligence, Jonathan Burchell points out some confusion that

exists in respect of unlawfulness and negligence and that criteria for the one is

often used for the other. He said the following after referring to judgments in

the Holomisa v Argus Newspapers, McNally v M & G Media (Pty) Ltd and the

Bogoshi cases32:

“An understandable difficulty arises in drawing a clear distinction between objectively

assessed unlawfulness and objectively assessed negligence, since both enquiries rely on
the formulation of reasonableness. Some of this confusion between the unlawfulness and
negligence enquiries even arises in the most recent pronouncement of Supreme Court of
Appeal in National Media Ltd v Bogoshi, where the Court regards the enquiry into the
unlawfulness/unreasonableness criterion as the nub of a defamation action and considers
the negligence/unreasonableness one as a determinant of the unlawfulness of the
publication. This conclusion, while beguilingly pragmatic, leads to conceptual confusion.
Although the unreasonableness test of unlawfulness is an ex post facto policy- based
enquiry, and the unreasonableness test for negligence is essentially a factual enquiry of
what the defendant ought to have foreseen, in the specific circumstances, and ought to

32
Jonathan Burchell, supra, Chapter 24, p 321.
 56

have done, there is no harm in locating some of the enquiry into a reasonable care under
unlawfulness.”

Jonathan Burchell further elaborates on this comment33:

“Of course, a ‘high degree of circumspection’ is expected of editors and the editorial staff,
as Hefer JA acknowledged in Bogoshi. In determining the realistic standard of
reasonableness by which to judge the liability of the mass media Hefer JA, expressing the
unanimous view of the Supreme Court of Appeal, referred to the following factors, which, he
specifically mentioned, do not constitute a closed list: the particular manner and time of
publication, the urgency of the publication and whether the person concerned had been
given an opportunity to respond. These factors and the emphasis on the high degree of
care required of an editor and editorial staff reflect factual and policy circumstances which
could equally find a home in the unlawfulness enquiry or the negligence enquiry.”

[75] It is common cause that a journalist has to ensure that his resources are

reliable. It is clear from what has been stated earlier herein that the source(s)

of the second respondent were unreliable. I agree with the criticism of Dr

Henning of P1, referred to herein earlier. A careful editor would have checked

these sources, otherwise he runs the risk of publishing material which is not

only untruthful, but also that he may act negligently. In this matter there is no

possibility of any mistake that could excuse the second respondent.

From the facts of this case it is clear that:

(a) the second defendant had animus injuriandi when he wrote the

article;

(b) both first and third defendants endorsed the defamation

subsequent to the publication. The third defendant did not

dispute any knowledge of the publication.

33
Jonathan Burhell, supra, Chapter 24, p 322.
 57

[76] In the result the plaintiff succeeds with his action for defamation and

only the issue of quantum has to be determined.

Quantum of Damages

[77] The purpose of awards for damages is not to punish the wrongdoer, but

to rather afford the victim personal satisfaction for an impairment of a

personality right. In his dissenting judgment in Dikoko v Mokhatla34, Sachs J

succinctly explained the difficulty in placing a monetary value on a persons

reputation:

“[109] There is a further and deeper problem with damages awards in defamation cases.
They measure something intrinsic to human dignity as a person’s reputation and honour as
if these were markertplace commodities. Unlike businesses, honour is not quoted on the
Stock Exchange. The true and lasting solace for the person wrongly injured is the
vindication by the Court of his or her reputation in the community. The greatest prize is to
walk away with head high, knowing that even the traducer has acknowledged the injustice
of the slur.
[110] There is something conceptually incongruous in attempting to establish a
proportionate relationship between vindication of a reputation, on the one hand, and
determining a sum of money as compensation, on the other. The damaged reputation is
either restored to what it was, or it is not. It cannot be more restored by a higher award,
and less restored by a lower one. It is the judicial finding in favour of the integrity of the
complaint what vindicates his or her reputation, not the amount of money he or she ends up
being able to deposit in the bank.”

[78] In the same case reference was also made to an old remedy that existed

in Roman Dutch times, namely amende honorable , which is in essence an

apology35. The judges referred to the decision of Wilis J in Mineworkers

34
Dikoko v Mokhatla 2006(6) SA 235 (CC) at 271I to 272B. The
other judges did not differ from this link of reasoning.
35
Dikoko v Mokhatla, supra, p 258G to 296C, [63].
 58

Investment Co (Pty) Ltd v Modibane36, where he held that although this specific

remedy had fallen into disuse, it remains a part of our law. The learned judge

criticised the appropriateness of awarding damages and said that an

appropriate balance cannot be struck between the protection of reputation on

the one hand and freedom of expression on the other, if the only remedy

available for defamation is damages. The respects in which an award of

damages fails, according to Willis J, are that it does not afford adequate

protection to reputation and can impose restrictions on freedom of speech,

whereas an apology and retraction is far less costly, can set the record straight

and restore the damaged reputation by giving the necessary satisfaction.

Recently the South African Court of Appeal reduced a reward of damages from

R70 000.00 to R12 000.00, using the same reasoning37.

[79] The defamatory article was published on the front page of Informanté. It

is common cause that the second defendant, who is the editor of Informanté,

wrote the article. Dr Henning submitted that the article constituted a vicious

piece of character assassination, which was admitted by the author in his

evidence. This was in fact put by Dr Henning to the second defendant in so

many words and his response was asked. His answer was: “Yes. I agree with

you”. (record page 336). The article was clearly calculated to injure the plaintiff

and accusing him of dishonesty and dishonourable conduct, i.e. corruption. In

the case of South African Associate Newspapers Ltd and Another v Yutar, supra,

at 458B, Steyn CJ said the following about the defamation in that case:

36
Mineworkers Investment Co (Pty) Ltd v Modibane36, 2002 (6) SA
512 (WLD)at 524I to 525C, [24].
37
Mogale and Others v Selma 2008(5) SA 639 (SCA)
 59

“Taken together, there are highly persuasive indications of a purposeful attempt to inflict
injury, if not indeed to undo altogether; and that, I consider, goes heavily into the scale
against the appellants.”

[80] It is common cause that Informanté is a weekly newspaper that is widely

distributed. Mr van Rooyen, the owner of Informanté confirmed that it is

attempted to make it as widely available as possible across the country.

Although the newspaper is free it is available in shops, at accommodation

establishments, etc. It is also available on the Internet.

[81] Except for the correction regarding the plaintiff’s directorship of Bank

Windhoek, the defendants refused to apologise and even in Court maintained

that the article was truthful. In the case of Buthelezi v Poorter and Others38,

Williamson AJ said the following:

“I would have expected that anyone with any sense of decency who on discovering that he
had wrongly cast so grave and hurtful a slur would haste to apologise or at the very least
to explain that he acted in good faith. No such attempt (to apologise or explain that they
acted in good faith) was made by anyone of the defendants and they maintained an
unrepentant attitude throughout. I regard their attitude as scandalous and deserving of the
gravest censure.”

I have already referred to the issue of an apology earlier ([78]). In determining

the quantum of the damages to be awarded to the plaintiff, I regard the lack of

an apology as an indication of the attitude of the first and second defendants.

[82] The nature of the allegations and the gravity thereof would require any

responsible and careful person to check the accuracy and reliability of his

sources before publication. The article also contained references to the

38
Buthelezi v Poorter and Others, supra, at 615H to 616A
 60

“Broederbond”, which was not contained in the document P1, which second

respondent received from his source. In respect of the plaintiff and Dr von

Finkenstein, no serious attempt was made to verify the allegations that the

second respondent intended to make in his article. Similarly, no persons in the

City of Windhoek, e.g. the CEO, public relations department or legal advisors

department were approached for verification and no attempt was made by

second defendant to check the contents of the minutes of the relevant meetings.

Informante is a weekly publication and the second defendant had adequate time

for verification.

[83] With regard to the plaintiff himself, I have already indicated that the

article as a whole, read in context, is defamatory of the plaintiff. Dr Henning

submitted that the plaintiff who is the Mayor of Windhoek, a city with some 350

000 inhabitants, and elected in that position since 1993 until today, has been

defamed. His background indicates that he rose from a consultant to sales

manager, and regional manager and eventually a board member of Metropolitan

Life. He is also a director of companies. Defamatory allegations, such as those

contained in the article would seriously harm and injure such person’s

reputation.

[84] Taking all these considerations into account, it is obvious that the

quantum of defamation to rectify the injury and harm as has been done to the

reputation of the plaintiff has to be of a high degree.

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[85] On the other hand the fact that the plaintiff did not testify also needs

consideration. Although I am alive to the applicable test, namely an objective

test, Dr Henning strenuously relied on the impairment of the dignity of the

plaintiff and submitted that our Constitution ranks the fundamental right to

dignity higher than the right of freedom of speech. I do not fully agree. Where

the right to reputation (fama) is infringed, these rights need to be balanced, as

indicated. Although dignity has been used, as mentioned before, to include

fama or reputation, the dignity aspect itself concerns the self-esteem of the

claimant, namely what he thinks of himself and how that was injured. That

entails a subjective element and can only be considered by the Court if the

evidence by the plaintiff is put before it. The Court is unable to determine how

his self-esteem in that regard was harmed or injured. The plaintiff’s failure to

testify prevented the Court to evaluate that aspect.

[86] Dr Henning submitted that the quantum of the damages to be awarded

should be N$500 000. He referred to the amount awarded in the Buthelezi

case39. In that case the award was R 13500.00, which in today’s terms as

testified by Mr Slabbert at the hand of Dr Koch’s Quantum Yearbook, would be

approximately N$350 000. In Afrika, supra, an amount of N$30 000 was

awarded for defamation in 1994. In Shidute the first plaintiff was awarded

N$100 000 and the second plaintiff N$30 000 in 2008. In the Pohamba Shifeta

case the plaintiff claimed N$500 000, but was awarded N$50 000. Also in 2008

the Court awarded in the Universal Church case an amount of N$60 000 for

damages.

39
Buthelezi v Poorter and Others, supra, at 621A.
 62

[87] Having regard to all the relevant factors and the case law, in particular

the Namibian cases, I consider that in all the circumstances an amount of

N$175 000 is a reasonable and justifiable amount for the damages suffered by

the plaintiff as a result of the defamatory article written by the second

defendant. I further consider both the first and third defendants are equally

responsible and equally liable for the injury caused to the plaintiff and for the

damages awarded in this matter.

Costs

[88] Dr Henning submitted that in the light of the defendant’s attitude

throughout, the costs to be awarded should be on an attorney and own client

scale. It is trite that such an award will not be easily made, but it is in the

discretion of the Court. It is in essence a matter of fairness to both sides (Nel v

Waterberg Landbouwers Ko-operatiewe Vereiniging 1946 AD 597 at 607 and

Ward v Sulzer 1973(3) SA 701 (A) at 706H-707A). Williamson AJ in Buthelezi v

Poorter40 awarded damages on an attorney and client scale against one of the

defendants. Although he expressed the following warning, he determined that

the nature of the defamation and other factors warranted an exercise of his

discretion in favour the plaintiff’s request:

“It was agued that there are good grounds why the Court should mark its disapproval of
the conduct of the defendants in the actual litigation by an order for attorney and client
costs. One must be careful in this situation to avoid double punishment in the sense of
loading the award for damages because of disapproval of the defendants’ conduct in the
actual litigation, and at the same time punishing the defendants for the same conduct by
means of an award of attorney and client costs.”

40
Buthelezi v Poorter, supra, p 619B.
 63

[89] I consider the defamation of the plaintiff to be serious and aggravating.

Although I am also mindful of the caution expressed by Williamson AJ as

quoted above, I intend to exercise my discretion in favour of the plaintiff in

respect of the first and second defendants, but not in respect of the third

defendant. Costs on an attorney and client scale will consequently be awarded

against the first and second defendants and costs on a party and party scale

against the third defendant. The effect of such a cost order is that the first and

second defendants are to pay all costs on an attorney and own client scale,

jointly and severally, and the third defendant is limited to a party and party

basis. I intend to follow the relevant order of Williamson AJ in the Buthelezi v

Poorter case41.

[90] The plaintiff did not pray that the defendants should pay jointly and

severally, the one paying the other to be absolved. It is logical that this should

be ordered.

[91] In the result the following order is made:

1. Judgment is granted against the defendants, jointly and severally, in the

amount of N$175 000.00;

2. The defendants has to pay the interest of N$175 000.00, jointly and

severally, at the rate of 20% per annum, calculated from date of

judgment to date of payment;

41
Buthelezi v Poorter, supra, p 621B-C.
 64

3. The defendants are to pay the costs of the action, jointly and severally,

on the basis that the first and second defendants has to pay on an

attorney and own client scale and the third defendant on a party and

party scale.

4. The costs payable by the defendants include the costs of two instructed

and one instructing counsel.

MULLER, J.
 65

ON BEHALF OF PLAINTIFF: Adv Henning, SC

Assisted by Adv E. Schimming-Chase

Instructed by: Dr Weder, Kauta & Hoveka Inc

ON BEHALF OF DEFENDANTS: Adv. R Heathcote

Instructed by: Engling, Stritter & Partners