CASE NO.: (P) I 467/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

KILUS NGUVAUVA PLAINTIFF

and

MALEAGI NDISIRO DEFENDANT

CORAM: Marcus, AJ

HEARD ON: 10 & 11^th November 2009

DELIVERED ON: 13^th November 2009

JUDGMENT

MARCUS, AJ: [1] The issue that gave rise to the instant dispute was the commemoration of the union of the Red and Green flag at Okombepera, Aminus constituency in the Omaheke region, which took place over the weekend of the 12 to 14 October 2007. As I understand it, the event which had by then be organized for a number of years, amongst others by defendant (Mr. Ndisiro), is a cultural event at which the unification or solidarity of the Ovaherero people and the Ovambanderu people is celebrated. The Red and Green flag is the symbol of the two respective peoples.

[2] Shortly before the event was scheduled to kick off a letter was delivered by the Deputy Sheriff to the organizers of the event on 12 October 2007. It was written by the legal practitioners H. D. Bossau & Co, stating that the Green Flag was the registered trademark of the Mbanderu Royal House and consequently could not be used at the said event without the permission of the Royal House. Who was behind the letter remained the subject of speculation and became the basis for the libel suit instituted by plaintiff (Killus Nguvauva).

[3] On 13 October 2007 defendant was interviewed by the Otjiherero radio station of the Namibian Broadcasting Corporation (NBC). The purpose of the interview was to inquire whether in light of the letter by the lawyers the event was still taking place. What defendant said or did not say during the interview was hotly disputed and became the central issue at the trial. Plaintiff’s success in the action ultimately hinged on proving the words ascribed to defendant and the defamatory nature thereof. Following the interview by defendant plaintiff was interviewed by the same radio station on 15 October 2007 in order to elicit his response to the allegations made by defendant. The interview did however not shed much light on the issue, as plaintiff chose not to be drawn into a discussion of the allegations made by defendant. Plaintiff instead chose to launch a libel action against defendant based on the statements made during the interview on 13 and 15 October 2007.

[4] Plaintiff issued summons in the early months of the following year, for damages in the amount of N$ 100 000.00. His claim was that he had been defamed by the words of defendant and injured in his reputation. The allegations that were alleged to be defamatory were annexed to the summons. Defendant in his plea admitted that he gave an interview on the 13 and 15 October 2007 on NBC radio, but denied that he had used the words ascribed to him in the annexure to the summons. Defendant then requested further elucidation on the words alleged to be defamatory, which requests was however met with a refusal by plaintiff. At the trial it was common cause that the grievance lodged against the words was directed at their primary or natural meaning, as no innuendo or secondary meaning of the words had been pleaded.

[5] When the matter came for trial plaintiff called two witnesses and also testified himself. The first witness was Mr. Shavangulula who is a sworn translator of this Court. He testified that he had listened to the audio recording of the interview of 13 and 15 October 2007 in the Otjiherero language and translated them into the English language. He stated that although he was only a sworn translator of the English and Afrikaans language he was conversant in the Otjiherero language and had performed the translation to the best of his ability. The second witness that testified on behalf of plaintiff was Mr. Tjazerua who is the executive producer at the NBC radio station. He stated that he was the presenter in the studio when the interviews were held on 13 and 15 October 2007. He further stated that he had read the transcripts of the audio recording of the two interviews and was satisfied that they were a true reflection of what was said during the interviews on 13 and 15 October 2007.

[6] After plaintiff gave his testimony counsel appearing for defendant moved an application for absolution from the instance. I reserved my ruling after hearing arguments and indicated that I would make my ruling with reasons at a later stage. What follows are the reasons for the order I intend to make.

[7] Since the words ascribed to defendant in the particulars of claim are disputed it will be first necessary to inquire if plaintiff has proved the publication of the words contained in the particulars of claim. Only if plaintiff has proved the publication of the words ascribed to defendant, will the question arise if the words so uttered are capable of a defamatory meaning. If they are, then the application for absolution must be dismissed and defendant put on his defence. Conversely if they are not, then absolution from the instance should be granted. I will now examine these issues in turn.

[8] In the particulars of claim the following words are alleged to have been stated by defendant during the interview of 13 and 15 October 2007:

“a) Mr Ndisiro alleged that although the letter is supposedly from the Chief of the Ovambanderu, it is his considered opinion that the letter was sent by Killus Nguvauva and think that Killus has had a personal agenda in the Ovambanderu Community since time immemorial (sic).

b) I learned through the Sheriff of the Court that this letter was delivered on the instructions of Killus Nguvauva.

c) It is clear from the tone of the letter that that the letter was formulated on instructions from Killus’ lawyers, and this letter will have no effect or bearing on our planned activities.

d) The delivery of the letter was part of the scare tactics being employed by Killus Nguvauva.

e) That the letter was not authentic and came from the house of an individual (Killus).

f) The letter was delivered to the Sheriff by Killus to hand over to Mr. Ndisiro and others.

g) Admitted that Killus’ name is not reflected in the letter.

h) Threatened that they will use all options available to them to deal with Killus Nguvauva.”

[9] At the trial it became apparent that there was some discrepancy between the words that were ascribed to defendant in the particulars of claim and the words contained in the transcripts of the interviews that were handed in as exhibits. Defendant’s counsel argued that due to this discrepancy plaintiff had failed to prove the words uttered by defendant and the Court should not speculate on what was said. On this basis alone, so counsel argued, absolution from the instance should be granted. I do not agree with this submission.

[10] It must be borne in mind that we are dealing with translation from the Otjiherero language into the English language, one by plaintiff himself after listening to the recordings and the other by the sworn translator. Naturally there will be some discrepancy in the words used in the two translations. It would be formalistic and rigid in the extreme, to compare the two translations word by word and to argue, if the words differ, that plaintiff has failed to prove the words uttered by defendant. The better approach when deciding whether plaintiff has proved the words he ascribes to defendant, is to determine whether the words in the particulars of claim are of substantially the same meaning as the ones appearing in the transcript, since the latter was not disputed by defendant (De Villers v Schutte 2001 (3) SA 834 (C) headnote).

[11] I am satisfied, after comparing the ascribed words (particulars of claim) and the words contained in the transcripts, with regard to their meaning, that plaintiff has on a balance of probability proved that defendant said the following words:

- The letter was sent by Killus Nguvauva (Deputy Minister) who has a (personal) agenda/interest in the Ovambanderu Community;

- The defendant learned through the Sheriff of the Court that the letter was delivered on the instructions of K Nguvauva;

- The letter was formulated on the instructions from Killus’ lawyer. It will have no effect or bearing on their planned activities;

- The letter was intended to scare them;

- The letter was delivered to the Sheriff by Killus to hand over to Mr. Ndisiro and others

- Killus’ name is not reflected in the letter.

[12] At this stage, where defendant applies for absolution from the instance, the question to be decided is whether a reasonable person of ordinary intelligence could or might reasonably understand the words that were broadcasted to convey a meaning that is defamatory of the plaintiff (Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 AD at 20 F).

[13] Whether the statement, proved by plaintiff, is defamatory is determined objectively by the Court by analyzing the statement, its meaning and effect thereof and ultimately assess whether it tends to lower the plaintiff ‘in the estimation of right-thinking members of society generally’. A person that qualifies for this group is the ordinary listener ‘with no legal training or other special discipline, variously described as “reasonable”, “right-thinking” individual of “average education” and “normal intelligence”. The views of a person who is “supercritical”, has a “morbid or suspicious mind”, or is “oversensitive” are necessarily excluded (Afshani and Another v Vaats 2006 (1) NR 35 (HC) at p 45; Suid –Afrikaanse Uitsaaikorporasie v O’ Malley 1977 (3) SA 394 AD at 395 headnote).

[14] As stated earlier on plaintiff has not pleaded any innuendo or secondary meaning. “The reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply” (Argus Printing & Publishing Co Ltd supra at 20 G). This does however not mean that the Court will have regard to extrinsic facts. It must be a meaning that is capable of being detected in the language used (Argus Printing & Publishing Co Ltd at 20 I-J). As the test is objective, evidence of how anyone or the claimant understood the words is inadmissible (Demmer v Wyllie & Others 1978 (4) 619 at 624 A).

[15] Lastly, when dealing with radio broadcasts it must be borne in mind that the ordinary intelligent listener, unlike a reader of a written article who can re-read the article if there is an ambiguity, often only has one opportunity to listen to the broadcast and the impression formed cannot be re-assessed by replaying the announcement again. Thus the immediate impression that an ordinary intelligent listener obtains after listening to the broadcast is crucial (O’Malley v SA Broadcasting Corporation 1976 (3) SA 125 (W) at 128 E-F).

[16] Looking at the words uttered by defendant, it is difficult to see how a reasonable, right thinking individual of normal intelligence might find the words to be defamatory. No disparaging remarks that go against plaintiff’s character are made. It simply states that the letter was sent by plaintiff’s lawyers and delivered by the sheriff on the instructions of the plaintiff. It goes on to say that, the letter was intended to scare defendant and his co-organizers, but would have no effect on the planned activities. In other words the activities would proceed as planned. To say of a person that he has had a (personal) agenda (the words used in the transcript are ‘big issue’ which probably means big interest) or for that matter interest in a community is, in the absence of an innuendo, in my view not defamatory.

[17] Any doubts one might have entertained as to the defamatory nature of the published words, dissipates like dew touched by the rays of the early morning sun, when viewed in the context of the entire interview given by defendant (Demmers v Wyllie and Others supra at 624 D-E). What meaning then would the ordinary reasonable and intelligent listener to the broadcast have attached to what was said by defendant? He or she would wonder why plaintiff, who is also a deputy minister, and alleged to have had a personal interest or agenda in the affairs of his community was behind efforts to stop an important cultural event, which the organizers said would nevertheless go ahead. The reasonable listener would, given plaintiff’s position in society in general and in that community, wonder where the equities lie, possibly give plaintiff the benefit of the doubt and wait for plaintiff to respond to the allegations. He or she would not jump to conclusions, draw adverse inferences against plaintiff’s character before the allegations are confirmed or refuted. Only listeners with suspicious minds would reach conclusions before listening to the other side. As stated earlier on, the impression on the suspicious or hypersensitive minds are not taken into account in deciding whether words are capable of a defamatory meaning.

[18] I am not satisfied that a reasonable person might understand the words used by defendant to convey a meaning defamatory of the plaintiff and that they would tend to lower the plaintiff ‘in the estimation of right-thinking members of society generally’. I am also unable to find an implied meaning that would have the aforesaid effect. The question whether plaintiff’s reputation might be lowered within the particular community he hails from does not arise as such cause of action was not pleaded and proved by plaintiff (Mohamed and Another v Jassiem 1996 (1) SA 673 (A). Since plaintiff at the close of his case has failed to establish that the words are prima facie defamatory, I find that there is no prospect that this Court could or might find in favor of the plaintiff (Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H).

[19] In the result I make the following order:

a) Absolution from the instance is granted;

b) The plaintiff is ordered to pay the costs of defendant.

_____________________

MARCUS, AJ

COUNSEL ON BEHALF OF THE PLAINTIFF: MS KANGUEEHI

INSTRUCTED BY: SHIKONGO LAW CHAMBERS

COUNSEL ON BEHALF OF THE DEFENDANT: MR KAUTA

INSTRUCTED BY: DR WEDER, KAUTA & HOVEKA INC