SPECIAL INTEREST CASE NO.: I 1142/2009

SUMMARY

VEICCOH NGHIWETE

and

VEIKKO NEKUNDI

Manyarara, AJ

24 JUNE 2009

Action for damages for defamation – Defendant failing to enter appearance to defend the action – Plaintiff left to prove only quantum of damages.

Held – After discussing the enormity and wide distribution of the defamatory matter, as well as defendant’s conduct in disregarding the proceedings and failing to apologize to plaintiff, an award of damages in the amount of N$250 000.00 granted.

(Special Interest) CASE NO. I 1142/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

VEICCOH NGHIWETE PLAINTIFF

and

VEIKKO NEKUNDI DEFENDANT

CORAM: MANYARARA, A.J.

Heard on: 15 May 2009

Delivered on: 24 June 2009

JUDGMENT

MANYARARA, A.J.: [1] The plaintiff is a career diplomat and Permanent Secretary of the Ministry of Foreign Affairs of the Government of the Republic of Namibia. He sued the defendant, a political activist and Secretary for Economic Affairs of the SWAPO Party Youth League, for damages for defamation arising from the defendant’s address at a press conference held in Windhoek on 26 March 2009, the text whereof is annexed to the Particulars of Claim. It is alleged in the Particulars of Claim that the defendant’s statement at the press conference was also disseminated by him in its printed form and was intended for further and wider publication by the media in Namibia as well as for further publication on the worldwide web by the media.

[2] The Particulars of Claim continue as follows:

“5. In the course of the defendant’s address and statement the defendant stated the following of and concerning the plaintiff under the heading “Political and economic development”.

“The SWAPO Party Youth League (SPYL) in keeping with the letter and spirit of its Constitution, the SWAPO Party and the Namibian Constitution shall continue and stubbornly patriotic in its articulation of views and positions for the benefit of its members, supporters, sympathizers and indeed the entire army of Namibian youth. Therefore come hell or high water, we shall not be intimidated into abrogating our constitutional mandate of being a militant and revolutionary transmitting belt of the SWAPO Party ideology, policies and programs.

Towards this end, we wish to state our displeasure at the recent meeting between the President of RDP, German Ambassador and officials as well as some senior officials in the SWAPO Party Government inclusive of the Permanent Secretaries of finance and Foreign Affairs and the Director General of the National Planning Commission. We call for a probe into this meeting and its findings to be made public to the Secretariat, Politburo and Central Committee of the SWAPO Party, as we were tipped that their discussion centre on the strategies to cause national destruction and confusion. In the meantime, we have lost confidence in the

officials mentioned. It is clear that this meeting could not have been sanctioned by the Government of the ruling party.”

6. The aforesaid statements of and concerning the plaintiff received wide media coverage in the Republic of Namibia including being prominently featured in news broadcasts of the Namibia Broadcasting Corporations services on both television and in its various language services on radio.

6. The aforesaid statements concerning the plaintiff read in the context of the defendant’s statement as a whole, are wrongful and defamatory of the plaintiff in that they were intended and were reasonably understood by readers of the statement or those who were able to observe and listen to the (defendant) reading such statement on television and radio to mean that:

7. 1. The plaintiff is involved in high treason against the Republic of Namibia;

   2. The plaintiff is involved in treasonous activities;

   3. The plaintiff is prepared to conspire with a representative of a foreign government in order to engage in treasonous activities;

   4. The plaintiff is prepared to conspire with representative of a foreign government with a view to engage in strategies to cause natural destruction and confusion.”

[3] The Particulars of Claim conclude as follows:

“8.. The aforesaid defamatory statements were published by the defendant with the intention to defame the plaintiff and injure him in his good name and reputation and with the further intention to cause wide and further publication of such statements concerning the plaintiff.

9. As a result of the publication of the statements concerning the plaintiff, including its further dissemination and extensive publication intended by the defendant, the plaintiff has been injured in his good name and reputation and in his feelings and dignity.

9. As a further consequence of the aforegoing, the plaintiff has suffered loss in the sum of N$250,000.00

9. In the premises the defendant is liable to the plaintiff in the sum of N$250,000.00 in damages.”

[4] The summons and Particulars of Claim were served on the defendant personally on 8 April 2009. He did not enter appearance to defend the action and, after the expiry of the dies induciae, the plaintiff applied for default judgment. The application was heard on 15 May 2009 and the judgment was granted.

[5] The effect of the default judgment is that the defendant admitted liability for defamation of the plaintiff as alleged. The elements of defamation are trite law and consist of the wrongful and intentional, publication of, a defamatory statement concerning the plaintiff. See Wille’s Principles of South African Law 9^th ed p1167. Accordingly, at this hearing the plaintiff required only to prove the quantum of damages claimed. In proof thereof, Mr. Smuts called the plaintiff to testify and the evidence elicited may be summarized as follows:

(1) The plaintiff is head of the diplomatic service and one of the first persons in Namibia to be appointed as an ambassador. He joined SWAPO at Ongwediva in 1969 and went into exile in 1974 where he received military training and rose to the rank of Senior Commander on the northern front and membership of the SWAPO military council. In 1979 he was injured in a mine attack by the South African forces and was thereafter deployed to the office of Chief Administrator of SWAPO.

6. 1. 2. The plaintiff is also the headman of his village of 100 persons, in which position he mediates in local disputes.

      3. He knows the defendant as a member of the SWAPO Youth League and believes that the defendant is below 35 years of age (which would mean that the defendant had not even been born when the plaintiff joined SWAPO).

(4) It was a journalist on the Republikein newspaper who alerted him to the press conference at which the defendant made the statement complained of and he obtained a copy of the statement which he handed up to the Court. He explained that although the statement does not mention him by name, he is readily identifiable by the position of “Permanent Secretary in the Ministry of Foreign Affairs” published by the statement.

[6] The plaintiff testified that, by virtue of his position, he deals with the international community and the latest example of such work was when he was recently delegated to represent his Minister at a Ministerial Conference held in Havana, Cuba, where he also chaired some sessions of the conference. Therefore, he was shocked and dismayed by the defamatory statement published by the defendant and he finds the statement that he attended a meeting to discuss inter alia strategies for sabotaging the Republic of Namibia to be most damaging to his integrity and reputation which he values greatly and to his status and position of leadership.

[7] The truth about the alleged meeting with the President of RDP etc. so the evidence continued, is that he was invited to a dinner by his German counterpart; he had no control over the guest list; attendance at such dinners is in line with his functions as Permanent Secretary in the Ministry of Foreign Affairs and Prime Minister Nahas Angula and many prominent politicians, including members of the Rally for Democracy and Progress (RDP), were among the guests. Therefore, there was no basis for the allegations of treason made by the defendant’s statement and the plaintiff felt deeply hurt by the malicious references to him and the harm the statement could do to relations between the Namibian and German governments which are excellent.

[8] In the plaintiff’s opinion, the impact of the statement was exacerbated by the fact that it was made at a press conference and published by the television and radio services of the Namibian Broadcasting Corporation (NBC), including the NBC’s Oshiwambo Service. The plaintiff handed up a transcript of one of the programmes, which I quote verbatim as follows:

“NBC TV NEWS – 26 MARCH 2009 – 10h00

The Swapo Party Youth League has claimed that there was a secret anti-government meeting recently between the leaders of the Rally for Democracy and Progress (RDP), the German Ambassador to Namibia and some top government official. Accordingly (sic) to SPYL Secretary for Economics Affairs, Veikko Nekundi, a secret meeting was allegedly held at one popular restaurant in Windhoek where the said people were seen locked in such a clandestine gathering. Nekundi made these allegations at a media conference in the capital today. Colleagues have probed into that meeting:

Reporter: Apart from RDP leader Hidipo Hamutenya the meeting, according to Nekuni, was also attended by the Permanent Secretaries of Finance and Foreign Affairs, Calle Schlettwein and Veiko Nghiwete, as well as the Director-General of the National Planning Commission, Professor Peter Katjavivi

V. Nekundi: We call for a probe into this meeting and its findings to be made public to the Secretariat, Politburo and the Secretary of the Central Committee of the Swapo Party, as we were ‘tipped’ that their discussions centred on the strategy to cause national destruction and confusion. In the meantime we have low confidence in the officials mentioned. It is clear that this meeting could not have been structured by the Government and its ruling party.

Reporter: Approached for comment, an astonished NPC Director-General, Professor Peter Katjavivi, explained that it was in fact not a meeting but a dinner hosted by the German Ambassador to Namibia in honour of visiting officials from Berlin. He said the RDP leader, Hidipo Hamutenya, some opposition MPs and other dignitaries were also invited to the dinner by the German Ambassador and that there was nothing that could be characterised as anti-government at the said dinner. Professor Katjavivi also told NBC that the two Permanent Secretaries attended the dinner on behalf of their respective Ministers who could not make it, and that the issues raised were merely Government-to-Government relations and that there was no conspiracy involved at all.

The spokesperson of the German Embassy, (unclear) Hanssen, said on enquiry that the Ambassador, Egon Kochanke, had no intention to comment on the allegations by the Swapo Party Youth League. Hanssen, who is also the Deputy Head of the German Mission, said his office is continuing to strengthen bilateral relations with Namibia.”

[9] The plaintiff said that nonetheless the allegations became “the topic of the day”; they were raised at his work place and on the internet and newspapers like The Southern Times; there were enquiries about the allegations by members of the public and even by his own school going child. He added that he would have expected the defendant to contact him about the dinner before publishing the statement as the defendant knew the plaintiff and where he could be found. But even after summons was served, the defendant made no contact with him or offered an apology.

[10] At the commencement of his address, Mr. Smuts handed up written notes on quantum whose introduction proceeds as follows:

“When considering the amount of damages to award in an action for defamation, Namibian Courts have considered a wide range of factors that arise from the particular circumstances and facts of the case. Specific factors which our Courts have taken into account include:

1. 1. The nature of the defendant’s statements;

   2. The nature and extent of the publication;

   3. The reputation, character and conduct of the plaintiff; and

   4. The motives and conduct of the defendant.”

[11] Mr Smuts submitted that in casu the nature of the defendant’s statements establishes a very serious defamation of the plaintiff, in that the ordinary meaning to be attributed to the statements alleges involvement by the plaintiff in treasonable activities against the Republic of Namibia. The seriousness of the defamation is compounded when taken in relation to the plaintiff’s position as “the face of Namibia”, the Public Service Head of the Diplomatic Service of the Government- and his record, which Mr. Smuts described as a record of “loyal public service to the Government and people of Namibia since the days of the liberation struggle to date.” Accordingly, the statements were plainly intended to lower the plaintiff in the estimation of right thinking persons generally, containing as the statements contained, imputations against the plaintiff’s integrity and reputation.

[12] As for the nature and extent of publication, so the submission continued, the inference to be drawn from the making of the statement at a press conference is that the intention was to achieve the widest possible publication to the widest possible public consumption, which caused deep hurt to the plaintiff as his reputation, character and conduct are undoubtedly impeccable in the country and from being the headman of the village from where he hails.

[13] On the motive and conduct of the defendant in acting as he did, Mr. Smuts submitted that adverse inferences should be drawn from the defendant’s failure to contact the plaintiff or apologize to him after personal service of the summons.

[14] Mr Smuts cited recent cases in Namibia and elsewhere concerning the award of damages for damages. In my view, MK Shikongo v Trustco Group International and Two Others Case No: (P) I 3625/2006 delivered on 29 January 2009 is directly in point. The brief facts are that the plaintiff, a longstanding Mayor of the City of Windhoek, was alleged by an article published by the first defendant to have been part of an underhand and dishonest deal and abused his position to further his own interests. The article further implied that the plaintiff was connected with a notorious white Afrikaner supremacist organization called the “Broerderbond.” The plaintiff did not testify nor was any direct evidence of the injury to his feelings led. Damages in the amount of N$175 000.00 were awarded.

[15] In arriving at the award, Muller, J opined as follows:

“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.”

Counsel for the plaintiff had submitted the guantum of damages to be awarded should be N$500 000.00, citing a South African case in which the equivalent of N$350 000.00 has been awarded. However, Muller, J decided as follows:

“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 damages suffered by the plaintiff as a result of the defamatory article written by the second defendant.”

[16] In my view, the present matter is even more serious than Shikongo for the following reasons:

1. The defendant has demonstrated total disregard of the magnitude or seriousness of the plaintiff’s claim by disregarding the proceedings altogether and the costs implications in the event of the action against him succeeding. It is aggravating that the defendant made no effort whatsoever to contact the plaintiff about the veracity of the statement prior to publication in the light of its serious implications, for the plaintiff personally and Namibia’s hard earned political integrity.

2. The present matter bears a close resemblance to the Shikongo case in falsely alleging plaintiff’s association with activities inimical to the country’s stability but more serious in its implications for the country’s governance and high international status. An additional factor to be considered is that, whereas in Shikongo the plaintiff did not testify and there was no direct evidence of the injury to his feelings, in casu the plaintiff has described in great detail the serious injury caused to him personally and to his reputation and the high political office he holds as well as the harm the statement could cause to Namibia’s high international standing.

[17] Accordingly, I have not found any ground for interfering with the quantum of damages claimed or for not awarding costs on the higher scale. Therefore, the following order is made:

Judgment is entered for the plaintiff in the amount of N$250 000.00 with interest at the rate of 20% per annum until the date of payment plus costs of suit to be paid on the attorney and client scale, including the costs of one instructed counsel.

__________________

MANYARARA, AJ

ON BEHALF OF THE PLAINTIFF Adv. Smuts

Instructed by: LorentzAngula Inc.