REPUBLIC OF NAMIBIA

CASE NO.: I 1082/08

IN THE HIGH COURT OF COURT OF NAMIBIA

In the matter between:

STEPHANUS UNOOVENE PLAINTIFF

and

LAZARUS NANGOLO DEFENDANT

CORAM: VAN NIEKERK, J

Heard on: 18 July 2008

Delivered on: 10 October 2008

­­­­­­­­­­­­­­­­­­­­­­­­­________________________________________________________________________

JUDGMENT

VAN NIEKERK, J:

1 The plaintiff issued summons against defendant for damages arising from defamatory statements allegedly made by defendant. The summons was served at defendant's place of employment. He did not enter appearance to defend. As a result, plaintiff moved for default judgment after presenting his evidence.

2 Plaintiff testified that he is a well known businessman of Oranjemund, where he owns a liquor depot and a grocery shop. On 16 November 2007 a SWAPO Party public meeting was held at Zacharia Lewale Hall at Oranjemund. Defendant addressed the meeting and stated that plaintiff's business is being funded by money stolen by Hidipo Hamutenya, who is a leader in one of the opposition parties. He further stated that if plaintiff is to be questioned about where he obtained the money for his business, he would not answer.

3 On 10 March 2008 at Swartkop Hostel, Oranjemund at a SWAPO Youth League meeting held there, defendant repeated the same words to the gathering while residents of the Hostel were also in attendance.

4 The summons alleges that these statements were wrongful and defamatory of the plaintiff and were made with the intention to defame the plaintiff and to injure his reputation. It is further alleged that the statements were understood by the persons attending the two meetings and were intended to mean that the plaintiff obtained the money for his business in an unlawful manner; that the plaintiff is a non-law abiding citizen; and that he is not a trustworthy person. It is further alleged that the words carry the additional sting that plaintiff is a thief and that he is dishonest and without moral fibre.

5 Plaintiff essentially confirmed these allegations in evidence, denied the truth of the statements and added that he felt bad about the statements as he is a well-known business man in Oranjemund. He experienced a disappearance of “all trust and respect” from members of the Oranjemund community after these statements were made. There was also a change in attitude by community members towards his wife, because she is married to a “thief”.

[6] Plaintiff claims N$250 000-00 as damages suffered in his reputation as a result of the defamation.

[7] It is trite that the question “whether the defendant’s statement is defamatory falls to be determined objectively: the Court will construe the statement, draw its own inference about the meaning and effect thereof and then assess whether it tends to lower the plaintiff ‘in the estimation of right-thinking members of society generally’ (per Greenberg JA in Conroy v Stewart Printing Co Ltd 1946 AD 1015 at 1018)” (Afshani v Vaatz 2006(1) NR 35 HC 45C).

[8] Applying this approach I agree that the statements made by defendant have the meaning and sting ascribed to them by the plaintiff and that they tend to lower plaintiff’s reputation in the eyes of right-thinking members of society generally. I accordingly find that they are indeed defamatory of the plaintiff. This means that two rebuttable presumptions of law arise against the defendant: that the statements were unlawful and that they were made intentionally with knowledge of their defamatory meaning and their unlawfulness (Afshani’s case at para. [24]). Given the absence of evidence by the defendant, these presumptions become conclusive.

9 The summons further alleges over the years plaintiff has made a substantial profit in his business. It also alleges that as a result of the defamatory statement made by defendant on the two occasions, most of plaintiff's customers started shying away from the plaintiff's business, which resulted in a loss of income, for which plaintiff claimed an amount of N$152 834.05 in damages.

10 When plaintiff testified he made additional allegations not contained in the pleadings, namely that defendant also urged the persons present at the meetings not to support the plaintiff's business and not to support “the criminals”, or words to that effect. I pointed out to Ms van der Westhuizen, who appeared on plaintiff's behalf, that this evidence is not supported by the pleadings and could not be led. An amendment would also not have been appropriate without prior notice to the defendant, as he would be prejudiced thereby. He might have decided to defend the plaintiff's claim if these allegations had been expressly made in the particulars of claim served. Plaintiff did not apply for a postponement to serve a notice of intention to amend and the matter proceeded on the basis that the evidence about the additional utterances by defendant was disallowed.

11 Plaintiff provided evidence of the total daily sales from each of the two businesses during March and April 2008. The total sales from both businesses during March 2008 is N$777 084-35, while the same figure for April 2008 is N$624 250-30. He computed his claim for loss of income as the difference between the two amounts, namely N$152 834.05.

12 I have great difficulty with the manner in which plaintiff sought to prove his damages on the loss of income claim. It is trite that there must be a causal link between the injury and the damages suffered. Even if it could be accepted that the defamatory statements caused some drop in sales, can it be said that the statements caused the total drop in sales, i.e. that it was the sole cause for the drop in sales, as alleged by plaintiff? Whilst I am mindful that this matter is undefended, the evidence must be satisfactory. The Court is not required to merely accept without scrutiny the mere say so of the plaintiff. Plaintiff testified that the defamation is the only reason he could think of, but I cannot ignore the fact that there probably were other causes for the drop in sales rather than only the statements alleged in the particulars of claim. The fact that the figures of only two months were used also gives a restricted view of the sales normally generated and therefore has limited comparative usefulness. I mentioned my difficulties to counsel for plaintiff, but was informed that no further evidence would be presented. In the circumstances I am willing to accept that the defamatory statements affected his business to some extent in that some customers did not support him any longer. However, I do not intend to make two awards, but to rather bear this fact in mind when making a single award in respect of the damages suffered to his reputation.

[13] In considering the amount to be awarded I bear in mind the following statement in Muller v South African Associated Newspapers Ltd and others 1972 (2) SA 589 (C) 595A, quoted with approval by this Court in Afrika v Metzler and another 1997 (4) SA 531 (Nm) 536B and in Shidute and another v DDJ Investment Holdings CC and another (unreported judgment delivered on 11 March 2008 in Case No (P) I 2275/2006 at [31]):

“In estimating the amount of damages to be awarded the Court must have regard to the character and status of the plaintiff, the nature of the words used, the effect that they are calculated to have upon him, the extent of the publication, the subsequent conduct of the defendant and, in particular, his attempts, and the effectiveness thereof, to rectify the harm done.”

[14] Counsel submitted that it is aggravating that defendant made the statements about plaintiff on two occasions and at public meetings where a large number of persons attended. I agree. The statements, viewed objectively, are likely to be particularly damaging to a well known businessman in a relatively small town like Oranjemund. The fact that they were made at meetings of a political nature indicate that they were intended to influence the attendees negatively against the plaintiff for some reason. In my view the award should also reflect to some extent the need for persons to use public platforms with the necessary discretion and circumspection when making statements which may be unlawful and which may have harmful consequences to others. While the evidence that plaintiff lost “all” trust and respect is probably exaggerated, I accept that probably many people believed what was said about plaintiff and that they were likely to view plaintiff, his wife and his business with suspicion and less respect than before.

[15] Plaintiff testified that there was no retraction or apology by defendant at any stage, but there was also no evidence that the true position had been brought to defendant’s attention and/or that he was asked to refrain from making such statements or to apologize or rectify.

[16] Counsel referred me to the award of N$100 000-00 made in the Shidute case. In that case the plaintiff, who was an assistant controller in the department dealing with credit control in the Municipality of Walvis Bay. A newspaper article made allegations that she, whilst handling overdue accounts of members of the public every day, paid certain municipal accounts a month late on two occasions. In spite thereof that the plaintiff through her lawyer informed the defendant that the allegation were incorrect and that she in fact paid her accounts in advance, attaching proof thereof, defendant did not retract or apologize, but only belatedly published the lawyer’s letter and actually republished the untruth. In respect of the second plaintiff, the lawyer, the Court made an award of N$30 000 as claimed for defamatory statements which inter alia conveyed that he does not adhere to his moral duties as a legal practitioner; that he does not conclude cases in an expedient and cost effective manner; and that he is incompetent, unethical and guilty of conduct unworthy of a legal practitioner. The Court indicated that the amount claimed was “quite modest”, clearly implying that it would have awarded a higher amount had it been claimed. The aggravating circumstances in this case are more serious than the case before me, although I view the contents of the statements made by defendant to be more defamatory than the contents of the defamatory statement against first plaintiff in the Shidute case.

[17] For comparison purposes I bear in mind the various cases researched by the Court in the Afrika case (at 538I-39E), as well as the award of exemplary damages made in that case, which could be considered to have been quite high at the time. I also had regard to the more recent case of Du Plessis v Katjimune 2006 (1) NR 259 HC a well known business woman in a small town was defamed when the defendant, in the presence of several other customers uttered words to the effect that she was selling rotten food in her take-away and restaurant business. The words were uttered together with some very derogatory insults. In that case the plaintiff moved for an award of N$10 000 for injury to her dignity and N$5 000 for the defamation. The Court awarded a single amount of N$10 000.

[18] In the exercise of the wide discretion the Court has to effect the undoubtedly difficult task of assessing the quantum of damages, I have decided on an award which takes into consideration all the circumstances of this case.

[19] The result is:

1. Judgment is given for the plaintiff for:

   1. Payment of N$60 000-00.

   2. Interest thereon at the rate of 20% per annum from date of judgment to date of payment.

   3. Costs of suit.

__________________________

VAN NIEKERK, J

Appearance for plaintiff: Ms van der Westhuizen

Instructed by Metcalfe Legal Practitioners