REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF
NAMIBIA

JUDGMENT

Case no: I 4081/2011

In the matter between

TUHAFENI HANGULA
........................................................................................PLAINTIFF

and

TRUSTCO NEWSPAPERS (PTY) LTD
....................................................1^st
DEFENDANT

THE EDITOR OF THE INFORMANTÉ
NEWS PAPER ............................2^ND
DEFENDANT

Neutral citation: Tuhafeni Hangula
v Trustco Newspapers (Pty) Ltd (I 4081/2011) [2012] NAHCMD 77
(November 2012)

Coram: Smuts, J

Heard on: 8-11 and 16 October 2012

Delivered on: 26 November 2012

Flynote: Defamation action –
defences of truth and public interest and reasonable publication
raised and discussed. Trustco International Ltd v Shikongo 2010(2) NR
377 (SC) applied. Quantum of N$50, 000 awarded.

ORDER

(a) Judgment is granted against the
defendants, jointly and severally, in the amount of N$50, 000.

(b) The defendants must pay interest
on this sum from date of this judgment to date of payment at the rate
of 20% per annum.

(c) The defendants are to pay the
plaintiff’s costs, jointly and severally. Those costs include
the costs of one instructed and one instructing counsel.

JUDGMENT

SMUTS, J

[1] The plaintiff in this defamation
action is the Deputy Commissioner General of the Correctional Service
(the second in charge of the Prisons) within the Ministry of Safety
and Security. He sues the defendants, the publisher and editor of a
weekly newspaper known as the Informanté
for N$500 000 in damages. This claim
arises from a report concerning him published in its issue of 1-7
December 2011.

The report

[2] That issue carried a banner
headline in prominent lettering on its front page to the following
effect: “Prisons Deputy helps bank-fraudster escape.” The
large lettering used in the headline was accompanied by a photograph
of the plaintiff in his uniform. In much smaller font and as part of
the headline, readers are referred to page 3 where the text of the
article is to be found.

[3] On page 3, a further prominent
headline features in capital letters “The great escape”.
Below it appears another headline but in smaller print, stating
“‘Hangula freed card-cloner’ – accomplice”
The text of the article states:

“The
ringleader and first accused in a record N$1.5 million bank card
cloning fraud case, Amirthalingam Pugalnanthy, a Sri Lankan national
(also known as Shiva) was allegedly granted free passage to flee
Namibia in February 2009 after paying a N$150,000 bribe to Prisons
Deputy Commissioner Thuhafeni Hangula.

The
suspect, who was out on bail of N$200,000 at the time was, reportedly
escorted by two police officers in a vehicle with a government
registration number to the Noordoewer border post in the South on 21
February 2009, a day after he last reported to the Katutura police
station.

Anselem
Wisdom Chikezie, a known Nigerian wheeler-dealer currently serving a
three-year jail term at the Windhoek Central Prison for drug
possession, says he had arranged a meeting between Pugalnanthy and
Hangula in December 2008 at the Kalahari Sands Hotel to discuss the
details of the escape plan and the costs involved. Hangula, who is
not new to controversy and still in the employ of the Ministry of
Safety and Security, had then promised the Nigerian N$20, 000
commission if the deal succeeded.

Pugalnanthy
and Chikezie met Hangula again mid February of 2009 in Okuvare Street
behind the Wanaheda police station in the capital. “That’s
when Puglnanthy handed Hangula N$150, 000 wrapped in a Markams
shopping bag,” says Chikezie.

The
Prison’s second in charge would have promised to arrange police
officers and transport to take the Sri Lankan out of the country. A
week later, on 20 February, Pugalnanthy was allegedly transported as
planned to the Noordoewer border post between Namibia and South
Africa to cross over to freedom.

After
three days on the run, the Sri Lankan would have telephoned Chikezie
from South Africa to inform him that he had arrived safely. Another
few days later, the fugitive apparently contacted Chikezie from
London to inquire whether he could organise bail for his three
co-accused Sri Lankans at the Windhoek Central Prison. Chikezie said
he refused to render his services as he was still awaiting his N$20,
000 from the Prison Chief.

“Until
to this day, I still call Hangula begging for my share. Look, here I
have his number,” said a fired up
Chikezie and showed Informanté the cell phone number of the
Deputy Commissioner. The authenticity of the number could be
confirmed by Informanté.

When
Informanté contacted the prison’s chief, Hangula flatly
denied the allegations: “I was never bribed
nor involved in arranging anything for that culprit. I could never
engage in such activities, it’s the same as selling my
country,” said a seemingly Hangula.

Pugalnanthy
was arrested in 2007 along with six others- three Sri Lankans, a
British, a Singaporean and a Namibian national- on charges of fraud
and forgery in connection with the duplication (cloning) of bank and
credit cards to the tune of N$1.467 million. He bailed himself out
for N$200,000 in December 2008.

Informanté
contacted police spokesperson,
Deputy Commissioner Silvanus Nghishidimbwa to inquire the where about
of Pugalnanthy’s passport. “I can confirm that his Sri
Lankan passport is still with the Namibian police in Windhoek”
said Nghshidimbwa.

At
the group’s first appearance in the Windhoek High Court, the
seven suspects were charged with 1032 counts of theft and 474 counts
of forgery. The Sri Lankan nationals remain behind bars after several
attempts of being granted bail failed.

Informanté
also has it on good record that the Sri Lankans
formed part of a larger network of operatives spread around the glove
with the aim of channelling funds to the Sri Lankan rebel group Tamil
Tigers through the cloning of automatic teller machine (ATM) cards.

The
Tamil Tigers (LTTE) are a militant secessionist movement of Sri
Lanka’s Tamil group that caused havoc on the island state at
the southern-most tip of India since 1975 but was defeated by the Sri
Lankan army in 2009.”

The pleadings

[4] In the plaintiff’s
particulars of claim, it is contended that the prominent headline on
the front page was published maliciously, negligently, unreasonably
and out of context of the story carried on page 3 quoted above. It
was further contended that the prominent headline was crafted in such
a way as to convey, as a fact, that the plaintiff had assisted a bank
fraudster to escape. Even though the plaintiff’s denial of this
allegation was reported in the body of the article on page 3, it was
contended that the headline reduced that denial to nothing.

[5] It was also contended that the
article contained defamatory matter by alleging that the plaintiff
had assisted a bank fraudster. It was alleged in the particulars of
claim that the defamatory statement concerning the plaintiff was
aggravated because it was false, and because the crafting of the
headline indicated the issue as a fact, and that it followed a series
of defamatory articles by the newspaper concerning the plaintiff and
that no reasonable and sufficient steps were taken to verify the
allegations.

[6] In the defendant’s plea,
publication was admitted. It was further stated in the plea that the
article, read as a whole together with the headline, would convey
that the plaintiff had been accused by a certain Anselem Chikezie of
assisting a prisoner to escape for reward. But it was denied that the
statements concerning the plaintiff were defamatory. That denial was
not persisted with in this trial. Two alternative defences were
raised which essentially constitute the dispute between the parties.
These defences were in the first instance truth and public benefit.
The further defence was that of reasonable publication.

[7] It was admitted that the newspaper
carried reports concerning a charge of rape made against the
plaintiff by a colleague and a report concerning an allegation that
the plaintiff had falsified his qualification and that an
investigation had been initiated into this alleged misconduct. It was
further pleaded that a reporter of the newspaper, Mr Edson Haufiku
had received information that a prisoner, Mr Chikezie, had
information concerning an irregularity relating to the prison and
that Mr Haufiku subsequently interviewed Mr Chikezie at the Windhoek
Central Prison. Mr Chikezie then conveyed the allegations which were
contained in the report. It was further pleaded that the second
defendant, the editor, referred the allegation to the Anti-Corruption
Commission (ACC). The plea further alleged that Mr Haufiku
accompanied Mr Chikezie to the offices of the ACC where the latter
was interviewed. It was further stated that Mr Haufiku had three
further consultations with Mr Chikezie before finalising his report.
At one such consultation, Mr Chikezie provided the plaintiff’s
cell phone number to Mr Haufiku. This subsequently proved to be
correct. It was further pleaded that the ACC investigated the matter
and that Mr Haufiku put the allegations to the plaintiff and his
response was set out in the report. It was alleged that Mr Haufiku
had acted reasonably and without negligence and in good faith in
writing the report and that the second defendant as editor had acted
reasonably in publishing it.

[7] The defendants also denied the
plaintiff’s damages.

Defendants’ concerns about a
fair trial

[8] In course of case management, the
parties were directed to file the evidence in chief of their
witnesses in affidavit form prior to the commencement of the trial.
When the trial commenced, the defendants provided affidavits of Mr
Haufiku and the editor, Mr N. Nangolo. The plaintiff on the other
hand had merely provided what was termed an unsworn witness statement
together with annexures.

[9] At the commencement of the trial
Mr A. Corbett, who represented the defendants, objected that the
plaintiff had not complied with the court order requiring the
exchanging of evidence in chief in affidavit form. He then expressed
“concerns” that the defendants would not have a fair
trial as a consequence.

[10] Mr Denk, who represented the
plaintiff, stated that the plaintiff would not be called at the
outset, in view of the defences raised by the defendants which each
attracted an onus. Mr Denk recorded that the plaintiff would reserve
the right to give evidence in the rebuttal after the defendants’
case. Mr Corbett however persisted in his “concerns” as
to the defendants’ rights to a fair trial being breached in the
circumstances.

[11] The fundamental common law right
of litigants to a fair trial is now firmly entrenched in Article 12
of the Constitution. Upon enquiry, Mr Corbett was not able to
pinpoint quite how his clients’ right to a fair trial would be
breached in these particular circumstances. Upon further enquiry, he
was also not able to propose any steps to remedy his concerns. I made
it clear that if the defendants were to allege that they were not
able to receive a fair trial for any reason which would be apparent
at the outset, then it should be raised and the trial would not
continue until the issue is addressed. Mr Corbett did not object to
the trial proceeding. Not being in a position to appreciate how the
defendants’ rights to a fair trial would be violated in the
circumstances, I directed that the matter proceed.

The evidence

[12] The plaintiff then called only
one witness, Commissioner Hamukwaya, the officer in charge at the
Windhoek Central Prison. He was required to produce prison records
which he did and referred to. The tenor of his evidence, based upon
the prison records, was that Mr Chikezie was in prison in December
2008 (at the time of a meeting in town referred to in the article).
The plaintiff then closed his case.

[13] The defendants called five
witnesses. These were the second defendant, Mr Nangolo, Mr Haufiku,
the reporter and author of the article, Mr Chikezie, the primary
source of the article, Mr Plaatje of MTC and Mr C.M. Nyambe,
Director: National Examinations and Assessment in the Ministry of
Education.

[14] The plaintiff however gave
evidence in rebuttal and called another prison officer, Mr Kamati
from the Windhoek Central Prison.

[15] Mr Nangolo gave evidence that, as
editor of the newspaper, he had been involved in the finalisation of
the article in question. He had referred the allegations to the ACC
and testified that the ACC was still looking into the matter. He had
also attended a meeting with Mr Chikezie (together with Mr Haufiku)
and had discussed the report with Mr Haufiku. He expressed the view
that the newspaper had been reasonable in publishing the report. When
cross-examined, he stated that he considered it sufficient that the
plaintiff had been given the opportunity to respond to the
allegations and to then report his denial of the allegations, even if
the publication of the allegations themselves would be defamatory.
All that was required, according to him, was to afford a person in
the position of the plaintiff the opportunity to respond and to
publish that response. It would appear from his approach that if a
denial or other response was provided, the publishing of the
allegations themselves even if lightly defamatory, would not be
actionable.

[16] When this was raised with Mr
Corbett in argument, he correctly conceded that such an approach is
plainly unsound. As I point out below, inclusion of a denial in
respect of a defamatory allegation would not of its own amount to
reasonable publication and a defence to a defamation action.

[17] When Mr Nangolo was confronted
with the date contained in the article for the meeting between Mr
Chikezie and the plaintiff at the Kalahari Sands Hotel, which
according to Mr Hamukwaya’s evidence would have been at a time
when Mr Chikezie was in prison, Mr Nangolo acknowledged that the date
was wrong. He said that he had established that the year stated in
respect of this meeting was incorrect and should have been 2009
instead of 2008. He had concluded this after the evidence of Mr
Hamukwaya had been given.

[18] Mr Haufiku gave evidence along
the lines of the defendants’ plea. He testified that he had met
Mr Chikezie on four occasions and had lengthy interviews with him, he
also acknowledged that the date of the meeting between the plaintiff
and Chikezie contained in the report was incorrect. The report should
have stated December 2009 instead of December 2008. He confirmed that
the cell phone number for the plaintiff given to him by Mr Chikezie
in fact turned out to be the plaintiff’s number. He also
testified that he had called the plaintiff concerning the allegations
and had reflected his denial in the report. Mr Haufiku conceded that
the prominent headline on the front page was not a fair reflection of
the report, given the impression created by it that the plaintiff
had, as a fact, assisted the escape of the fugitive from justice
rather than representing this as an allegation.

[19] Mr Chikezie said that he had met
the plaintiff in the centre of town outside the main branch of First
National Bank. He recognised him from the period he had spent in
prison awaiting trial and before being released on bail. He
approached the plaintiff, stating that he wanted to discuss a
business deal with him in private. He said that he gave the plaintiff
his cell number. The plaintiff took his number but did not supply Mr
Chikezie with his own number. Mr Chikezie testified that the
plaintiff subsequently contacted him and that he then had a meeting
with him in the vicinity of the Kalahari Sands Hotel where he told
the plaintiff that a friend needed help to escape from Namibia. He
said the plaintiff enquired if his friend had money. When this was
confirmed, said he would revert. Mr Chikezie said that the plaintiff
called him on his cell phone and they agreed to meet at Wanaheda,
Katutura. They proceeded to meet there with a certain Pugalnanthy who
was awaiting trial for a large scale credit card or bank fraud
involving an amount well in excess of N$1 million. In the course of
the meeting, Mr Chikezie said that it was agreed that the plaintiff
received N$150 000 to secure Pugalnanthy’s escape from Namibia
and that the plaintiff agreed to pay N$20 000 of the sum to Mr
Chikezie as a form of commission, although this term was not used by
him in his evidence.

[20] Mr Chikezie testified that
Pugalnanthy subsequently fled the country (although he said it was in
2010 and not 2009 as set out in the report) and that the latter had
telephoned him afterwards from South Africa to inform him that the
plaintiff had arranged the escape by means of a government vehicle
being driven by two police officers to the South African border.
Under cross-examination, Mr Chikezie contradicted his version in some
respects. He had stated that he had called the plaintiff several
times demanding his money (N$20 000) but to no avail and that he had
also sent him text messages which had resulted in the plaintiff
calling him. This was contradicted by Mr Plaatje from MTC, called by
the defendants, who gave evidence with reference to the MTC call
records of both cell numbers. These records showed that Mr Chikezie
had sent a single text to the plaintiff’s number on 21 July
2010 and that the plaintiff had made a single brief cellular call to
Mr Chikezie’s number a few minutes later. There were no further
records of calls or text messages between the numbers, despite Mr
Chikezie’s claim of several calls and text messages (and at
least two calls, crucial to his version in respect of the two
meetings, to hatch the plans for the alleged scheme).

[21] Mr Chikezie also contradicted
himself in cross-examination concerning the location of the alleged
meeting between plaintiff, Pugalnanthy and himself where the money
was allegedly handed over. He also did not impress me as a witness.
Apart from these contradictions, he proceeded to embroider upon his
version at times with matter which would not appear to have been
disclosed to Mr Haufiku or Mr Nangolo. He also demonstrated scant
regard for the law. He gratuitously admitted committing further
crimes of illicit drug dealing while out on bail awaiting his trial.
He also testified as to his own unreliability by stating that the
reason why the plaintiff would need to pay him a commission as
opposed to Pugalnanthy was that if the latter had done so he would
have not seen him again (and perform his side of the “bargain”).

[22] Mr Nyambe gave evidence that an
investigation concerning the authenticity of the plaintiff’s
senior secondary school certificate had reached an advanced stage. He
said that the certificate was not authentic when compared with the
records of the examinations for which the plaintiff had sat. He
stated that the records of those examinations would not have resulted
in the issuing of the certificate in question by reason of the fact
that the typing exam was not written at the higher lever reflected in
the certificate. If the correct level were to have been reflected,
thus would not result in the plaintiff qualifying for the
“certificate”. According to the records of the Ministry,
the plaintiff did not qualify for the certificate. He stated that the
matter was in the hands of the police.

[23] After the defendants closed their
case, the plaintiff gave evidence in rebuttal. He acknowledged that
he had met Mr Chikezie in the centre of town but at a different
location to that stated by Mr Chikezie. He could not recall the date.
He stated that Chikezie had approached him about being paid an
informer’s fee when he had assisted with the combating of
smuggling contraband into the Windhoek Central Prison by informing on
other inmates. He said that he would look into the matter and they
exchanged cell numbers. He confirmed that he had made a single call
to Mr Chikezie’s cell phone after receiving a text from him. In
this call, he had stated that he was busy and could not meet up with
him to follow up the enquiry. He subsequently met him at prison when
Mr Chikezie wanted to meet with him to discuss grievances. He said
that he could not do so and informed Mr Chikezie to direct his
grievances to the officer in charge of the prison.

[24] The plaintiff emphatically denied
the allegations made by Mr Chikezie and said he would never have
involved himself in such unlawful activities.

[25] The plaintiff stated that he
received his senior secondary certificate from the Ministry of
Education. He did not however give evidence as to which subjects he
had written and at what level and did not contradict Mr Nyambe’s
evidence on that score. Nor was he cross-examined on those issues.

[26] The plaintiff also called Mr
Kamati of the Windhoek Central Prison concerning a note which Mr
Chikezie had written. He confirmed that Mr Chikezie had been an
informer on contraband smuggled into the Windhoek Prison but said
that informers did not receive money for providing such information.

The parties’ submissions

[27] Although Mr Corbett correctly
conceded that the publication of the article is per se defamatory of
the plaintiff’s character, there was a difference between his
approach and that of Mr Denk, on behalf of the plaintiff, in respect
of the effect of the headline. Mr Corbett conceded that the initial
impression created by the headline was that the plaintiff had as a
fact assisted the bank fraudster to escape. But he submitted that
this would be dispelled by reading the headline on page 3 together
with the article itself. He submitted that there would be no merit in
the plaintiff’s approach in merely relying upon the front page
and that the headline conveyed false information.

[28] Although the plaintiff did in
both his pleadings and the submissions advanced on his behalf, make
much of the headline, the plaintiff also claimed that the article
itself was defamatory and that the reporting of allegations of that
nature concerning the plaintiff, even though there were denials,
constituted a defamation. Both parties referred me to a recent
judgment of the Supreme Court of Appeal in South Africa were Nugent,
JA with reference to applicable English authority, lucidly summarised
the position as follows¹:

“[13]
In deciding whether the statements I have outlined are defamatory the
first step is to establish what they impute to the respondents. The
question to be asked in that enquiry is how they would be understood
in their context by an ordinary reader.⁸
Observations
that have been made by our courts as to the assumptions that ought to
be made when answering that question are conveniently replicated in
the following extract from a judgment of an English court:⁹

‘The
court should give the article the natural and ordinary meaning which
it would have conveyed to the ordinary reasonable reader reading the
article once. Hypothetical reasonable readers should not be treated
as either naïve or unduly suspicious. They should be treated as
capable of reading between the lines and engaging in some
loose-thinking, but not as being avid for scandal. The court should
avoid an over-elaborate analysis of the article, because an ordinary
reader would not analyse the article as a lawyer or an accountant
would analyse documents or accounts. Judges should have regard to the
impression the article has made upon them themselves in considering
what impact it would have made upon the hypothetical reasonable
reader. The court should certainly not take a too literal approach to
its task.’

[14]
Much has been made of the unqualified statement in the headline that
the respondents ‘spied’, which conveys in its ordinary
meaning that the respondents ‘kept watch [on their comrades] in
a secret or stealthy manner’, that they ‘kept watch [on
them] with hostile intent’, that they ‘made stealthy
observations with hostile motives’.¹⁰
But
words that are used in a newspaper article must not be read in
isolation – the ordinary reader must be taken to have read the
article as a whole albeit without careful analysis. A clear
expression of the reason underlying that rule is to be found in
Charleston
v News Group Newspapers Ltd,¹¹
in
which the question whether a defamatory headline, isolated from the
text of the article, is capable of founding an action for defamation,
was confronted directly by the House of Lords. It held that the
adoption by the law of a single standard for determining the meaning
of the words – the standard of the ordinary reader –
necessarily leads to the conclusion that it could not found an
action. Lord Nicholls of Birkenhead expressed it as follows:¹²

‘I
do not see how, consistently with this single standard, it is
possible to carve the readership of one article into different
groups: those who will have read only the headlines, and those who
will have read further. The question, defamatory or no, must always
be answered by reference to the response of the ordinary reader to
the publication.’

But
he warned against the idea that a poisonous headline may be published
with impunity provided only that an antidote is administered in the
text when he went on as follows:¹³

‘This
is not to say that words in the text of an article will always be
efficacious to cure a defamatory headline. It all depends on the
context, one element of which is the layout of the article. Those who
print defamatory headlines are playing with fire. The ordinary reader
might not be expected to notice curative words tucked away further
down in the article. The more so, if the words are on a continuation
page to which a reader is directed. The standard of the ordinary
reader gives a jury adequate scope to return a verdict meeting the
justice of the case.’

[15]
Even if the article was read only fleetingly I think that the
imputation in the headline that the respondents had spied (in the
ordinary sense of the word) would soon have been dispelled when the
reader commenced reading the text and any lingering doubts would have
been put to rest once the article had been read to the end. The
ordinary reader would have been struck immediately by the
qualification in the first paragraph that the so-called spies had
been ‘unwitting’. Naturally that was a contradiction in
terms – spying, by its nature, cannot be unwitting – but
we are not concerned with the quality of the writing. We are
concerned with the impression that the words would have left on the
mind of the reader. In my view the ordinary reader would have known
from the first paragraph alone, and it would have been confirmed by
the facts related thereafter, that the respondents had not acted with
the state of mind that I have mentioned”.

[29] Adopting this approach, it would
seem to me that the defamatory allegations contained in the report
are compounded by the poisonous headline.

[30] Mr Corbett correctly accepted
that once publication of defamatory matter had been established, then
the defendants would have the onus to establish their defences of
truth and public interest and reasonable publication, given the
presumptions which arise upon publication. This has been put beyond
doubt by the Supreme Court in Trustco
Group International Limited and Others v Shikongo².
I turn to the defences raised.

Truth and public benefit

[31] Mr Corbett contended that the
defendants had discharge the onus upon them and established the truth
of the article and that its publication was for the public benefit.
At to the latter component of the enquiry, there was understandably
little debate. That is because, if the defendants could establish the
truth of the article, then it would plainly have been in the public
interest to have published the article. The plaintiff occupies a very
senior position in Correctional Services and the exposure of an act
of such alleged corruption on his part to assist someone to escape
justice against payment of a large sum would clearly be in the public
interest.

[32] The question thus was whether the
defendants have established the truth of the article. In their bid to
do so, the defendants relied heavily – and virtually solely –
upon the testimony of Mr Chikezie. But as I have already said, he was
a singularly unreliable witness. His version as published was, on the
face of it, somewhat improbable. It would be unlikely that the second
in command of the prison services would engage an awaiting trial
suspect charged with a serious crime – for which he was
subsequently convicted – and agree to a scheme with him and
another suspect in a public place, receive the sum of N$150 000
there, and agree to provide the means for the suspect to flee his
trial. A further unlikely component to the story as conveyed to Mr
Haufiku was that the plaintiff would secure two police officers (and
not prison officers) in a government vehicle as the means whereby the
bank fraud suspect would be assisted to flee the country.

[33] During cross-examination,
contradictions emerged in Mr Chikezie’s unlikely story, as I
have pointed out.

[34] In the course of the
cross-examination, he also freely and gratuitously admitted
committing the further crime of dealing in drugs whilst on bail
awaiting trial. It was quite clear from his evidence that he had
little regard for the law. His testimony was unreliable and he did
not impress me at all as a witness.

[35] I found it surprising that at the
close of the case, Mr Corbett submitted that the defendants had
established the truth of the allegations contained in the report
concerning the plaintiff. In support of this contention, he referred
to the plaintiff merely making a bald denial of the allegation and
with not much of his version put in cross-examination to Mr Chikezie.
I fail to see how this can affect matters at all. It is difficult to
understand what more than his unequivocal denial needed to be put to
Mr Chikezie. There were after all no specific dates referred to in
respect of the meetings for the plaintiff to have stated that he was
elsewhere at that time.

[36] Mr Corbett also criticised the
plaintiff’s testimony concerning his meeting with Mr Chikezie
in that he could not remember precise date of the meeting but
suggested in his statement at the time that it had been in 2011.
After Mr Plaatje’s evidence that there was a text message from
Chikezie to the plaintiff on 21 July 2010, the plaintiff then in his
testimony indicated that the meeting must have been in 2010. I do not
consider that this single aspect is material. It is but one factor.
(If anything, the defendants had greater difficulties with the dates
given for events in the report.)The evidence of Mr Plaatje certainly
tends to support the version of the plaintiff rather than that of Mr
Chikezie. The plaintiff’s version is also supported by the fact
that Mr Chikezie was an informer at the prison and had sought to be
paid for providing information which had led to a substantial
reduction in the flow of contraband into the prison, a fact
acknowledged by Mr Chikezie. It is far more probable that he would
have contacted the plaintiff to secure payment as an informant than
as he precursor to the uncorroborated unlawful and corrupt activity
attributed to the plaintiff by Mr Chikezie.

[37] Mr Corbett also submitted that
the plaintiff’s credibility was undermined in respect of his
evidence which he tendered concerning Mr Nyambe’s testimony on
the plaintiff’s senior certificate not being authentic. Whilst
it emerged that the certificate would not appear to be authentic and
that it was unsatisfactory for him not to have dealt with aspects
raised by Mr Nyambe’s evidence concerning one of the subjects
he had written at a level not reflected in his certificate, I accept
that the plaintiff did not emerge well on this specific issue. But it
was entirely secondary in the context of his claim concerning the
defamatory contents of the article published about him relating to
his allegedly corrupt part in assisting an awaiting trial accused to
escape the reach of the courts.

[38] Taking into account the evidence
of Mr Chikezie and that of the plaintiff, it is clear to me that the
defendants have dismally fallen short in establishing the truth of
the allegations in the report. To suggest, as Mr Corbett does in his
written and oral submissions, that the gist of the article is
objecting the true in as much as the report published allegations
which were made by Mr Chikezie and that these were conveyed to Mr
Haufiku. But this would not however establish that the gist of the
allegations themselves was in fact true - the enquiry raised by this
defence. Nor does that affect the matter at all as I indicate below
with reference to the repetition rule. Indeed, the defendants fell
markedly short of establishing on a balance of probabilities the
truth of the allegations concerning the plaintiff.

Reasonable publication

[39] This defence, which has developed
in other jurisdictions was authoritatively accepted as part of the
law of Namibia by the Supreme Court in Trustco Group International
Limited and Others v Shikongo³
in following terms:

“[53]
On the other hand, the development of a defence of reasonable or
responsible publication of facts that are in the public interest as
proposed by the respondent (and as accepted by the High Court) will
provide greater protection to the right of freedom of speech and the
media protected in art 21 without placing the constitutional precept
of human dignity at risk. The effect of the defence is to require
publishers of statements to be able to establish not that a
particular fact is true, but that it is important and in the public
interest that it be published, and that in all the circumstances it
was reasonable and responsible to publish it.

[54]
It is clear that this defence goes to unlawfulness so that a
defendant who successfully establishes that publication was
reasonable and in the public interest, will not have published a
defamatory statement wrongfully or unlawfully. A further question
arises, however, given the conclusion reached earlier that the
principle of strict liability established in Pakendorf was repugnant
to the Constitution. That question is what the fault requirement is
in defamation actions against the mass media. The original principle
of the common-law is that the fault requirement in the actio
injuriarum is intentional harm not negligence, although there are
exceptions to this rule. Distributors of defamatory material are
liable if it is shown that they acted negligently.

[55]
In Bogoshi, the South African Supreme Court of Appeal held that the
media will be liable for the publication of defamatory statements
unless they establish that they are not negligent. This approach is
consistent with the establishment of a defence of reasonable
publication and should be adopted”.

[40] This defence was further
explained by the Supreme Court in the following way:

“[56]
The defence of reasonable publication holds those publishing
defamatory statements accountable while not preventing them from
publishing statements that are in the public interest. It will result
in responsible journalistic practices that avoid reckless and
careless damage to the reputations of individuals. In so doing, the
defence creates a balance between the important constitutional rights
of freedom of speech and the media and the constitutional precept of
dignity. It is not necessary in this case to decide whether this
defence is available only to media defendants. It should be observed
that in some jurisdictions, such as South Africa, the defence has so
far been limited to media defendants, while in other jurisdictions,
such as Canada, the defence is not limited to media defendants”.

[41] The issue of public interest as a
component of this defence would likewise not be in issue for the same
reasons stated in respect of the defence of truth and public benefit.
It would clearly have been in the public interest for the media to
expose corrupt dealings of the kind alleged in the report on the part
of the plaintiff.

[42] The question which then arises is
whether the publication of the article was reasonable on the part of
the defendants. The Supreme Court in the Trustco matter
explained the nature of the enquiry in the following terms:

“[75]
In considering whether the publication of an article is reasonable,
one of the important considerations will be whether the journalist
concerned acted in the main in accordance with generally accepted
good journalistic practice. During the trial, the appellants tendered
three codes of conduct relating to journalistic practice in evidence
in the High Court: the Code of Ethics of the Society of Professional
Journalists; The Star (a Johannesburg daily) newspaper Code of
Ethics; and the Mail & Guardian (a South African weekly) Code of
Ethics. Codes such as these provide helpful guidance to courts when
considering whether a journalist has acted reasonably or not in
publishing a particular article.

[76]
The Code of Ethics of the Society of Professional Journalists states
that:

'Journalists
should be honest, fair and courageous in gathering, reporting and
interpreting information. Journalists should:

— test
the accuracy of information from all sources and exercise care to
avoid inadvertent error. Deliberate distortion is never permissible.

— diligently
seek out subjects of news stories to give them the opportunity to
respond to allegations of wrongdoing.

— identify
sources wherever feasible. The public is entitled to as much
information as possible on sources' reliability.

— always
question sources' motives before promising anonymity. Clarify
conditions attached to any promise made in exchange for information.
Keep promises.

— make
certain that headlines, news teases and promotional material, photos
. . . and quotations do not misrepresent. They should not
oversimplify or highlight incidents out of context.

.
. .

— avoid
undercover or other surreptitious methods of gathering information
except when traditional open methods will not yield information vital
to the public. Use of such methods should be explained as part of the
story.

.
. .

— avoid
stereotyping by race, gender, age, religion, ethnicity, geography,
sexual orientation, disability, physical appearance or social status.
. . .'

[77]
Of course, courts should not hold journalists to a standard of
perfection. Judges must take account of the pressured circumstances
in which journalists work and not expect more than is reasonable of
them. At the same time, courts must not be too willing to forgive
manifest breaches of good journalistic practice. Good practice
enhances the quality and accuracy of reporting, as well as protecting
the legitimate interests of those who are the subject matter of
reporting. There is no constitutional interest in poor quality or
inaccurate reporting so codes of ethics that promote accuracy affirm
the right to freedom of speech and freedom of the media. They also
serve to protect the legitimate interests of those who are the
subject of reports”.

[43] I turn to the conduct of Mr
Haufiku in writing the story and the decision on the part of the
editor to publish it in determining whether the publication was
reasonable in the circumstances.

[44] Mr Haufiku’s evidence was
that his interviews with Mr Chikezie were in essence the sole source
for the allegations against the plaintiff. But he and Mr Nangolo made
much of the fact that the issue was reported to the ACC and that the
ACC would appear to have investigated those allegations. Mr Haufiku
also referred to the fact that the cellular number for the plaintiff
provided by Mr Chikezie turned out to be correct. He also pointed out
that Mr Chikezie had consistently stuck to his version on all four
occasions when he canvassed the allegations with him. Both he and Mr
Nangolo also referred to the inclusion in the report of the
plaintiff’s denial of the allegations and the ephatic terms of
that denial. Mr Nangolo however went further and would appear to have
testified that publication of defamatory matter concerning a person
would no longer be defamatory if an opportunity was given to the
person to deny the allegations and the denial was published. This is
of course entirely incorrect. It serves to show that Mr Nangolo as
editor applied a manifestly incorrect approach to the important
judgment he is to bring to bear on the matter as to whether to
publish allegations which are defamatory.

[45] It is well settled that what is
known in English law as the repetition rule is clearly part of our
common law. As was spelt out by Nugent, JA in the Tsedu –
matter⁴:

“A
newspaper that publishes a defamatory statement that was made by
another is as much the publisher of the defamation as the originator
is. Moreover, it will be no defence for the newspaper to say that
what was published was merely repetition....⁵

That court further explained the
repetition rule with reference to English authority to mean:

“If
you repeat a rumour you cannot say it is true by proving that the
rumour existed, you have to prove that the subject matter of the
rumour is true.”

[46] It was clear from the evidence of
Mr Haufiku that there was no attempt to obtain any objective
verification of the other aspects of Mr Chikezie’s version.
Even the date of the actual escape of the bank fraud suspect, which
was not in dispute and was wrongly stated, was not checked. There was
no attempt to investigate how he was transported and successfully
left the country on a specified date at a specified border post.
Whilst enquiries at the border post may have proven difficult, they
were not even attempted. Nor was any enquiry attempted with the
police as to the identity of officers who had allegedly accompanied
him and concerning the use of government vehicle. The need to make
such enquiries may also indicate a further reason why it would have
been prudent and responsible for the reporter and editor to await the
investigation of the issue by the ACC, given the powers of
investigation vested in that body.

[47] Not only should there have been
some further investigation on the part of the reporter but it would
seem to me that he should have been alerted to the need for further
verification before publication especially because of the inherent
improbability of the plaintiff, as deputy head of prisons, engaging
two police officers who would not fall under his direct command –
to transport a suspect awaiting trial for the purpose of escaping
justice. A further improbable part of Mr Chikezie’s account was
with reference to the means of transport itself being a government
vehicle (the term GRN being used) and not a police vehicle (or even
prisons vehicle for that matter). It was put to Mr Chikezie in that
context, and conceded by him, that government and police vehicles had
different registrations. He stuck to his version of the vehicle being
government registered (GRN) as opposed to having a police
registration. The editor and reporter should thus have been alerted
to the improbability of the plaintiff, being deputy head of prisons,
making use of police officers in a government registered motor
vehicle – as opposed to a police motor vehicle - for the
purpose of conveying the bank fraud suspect to a border post in order
to escape the justice system. Given command structures, these details
disclosed to the reporter should have alerted him to the need for
verification of Mr Chikezie’s allegations.

[48] The reporter and editor should
have approached the inherently improbable version of a person
convicted for a serious crime with more caution. The need for
objective and independent verification of key elements of his
allegations thus became more imperative. The only verification of an
element of his version was the plaintiff’s cell number. But
this is an entirely peripheral aspect and does not go to the crucial
components of the allegations of corrupt conduct on the part of the
plaintiff.

[49] The mere fact that the ACC
investigated the allegations would also not of itself provide any
corroboration. It is after all the statutory duty of the ACC to
investigate allegations of corruption and especially those of such
serious proportions levelled against plaintiff when such allegations
are reported to it. There was no evidence by either the reporter or
the editor that the investigation had borne any fruit or had yielded
anything further. On the contrary there was the evidence of a
fruitless search for a mobile phone which was supposed to have had
some form incriminating evidence of the plaintiff’s involvement
at the alleged meeting with Mr Chikezie and the suspect. When this
search proved to be fruitless, the need for corroboration of Mr
Chikezie’s version became more compelling in the circumstances.

[50] In short, the reporter and editor
were confronted with allegations by a convicted prisoner against the
Deputy Commissioner-General of Prison which were inherently
improbable. Not only were they improbable but there were potential
internal inconsistencies to them such as the deputy head of prison
making use of police officers who transported Pugalnanthy in a
government registered vehicle to the South African border – as
opposed to a police or prisons registered vehicle. Yet the
allegations were published without any corroboration of any component
of the allegations of the scheme and without any attempt to make any
enquiry about the police officers or the transport or await the
outcome of investigation by the ACC for corroboration of any element
of Mr Chikezie’s account. The cell number confirmation did not
verify any component of the “escape” and corruption
allegations but rather that he had come into possession of that
number. That was in my view plainly insufficient confirmation to
render the publication of the report as reasonable

[51] The failure to even attempt any
enquiry (let alone diligent enquiry) about the policemen and
transport together with the failure to await the outcome of the ACC
enquiry or at least some corroboration of the allegations in that
enquiry in my view each flies in the face of sound journalistic
practice. The cumulative effect of these failures in the context of
an inherently improbable story with potential internal contradictions
in my view renders the publication of it as unreasonable, and plainly
in conflict with responsible journalism.

[52] It further follows that the
plaintiff has then established that the defendants acted wrongfully
in publishing the report concerning him. The question which follows
is the quantum of the plaintiff’s damages.

Quantum

[53] The plaintiff’s claim is
for damages in the sum of N$500, 000. In his closing submissions, Mr
Denk on his behalf, however submitted that an award of N$100, 000
would be appropriate. He referred in this regard to an award of that
size being the outcome in the Trustco Group International Ltd v
Shikongo⁶.

[54] In support of this claim, Mr Denk
referred to the prominence and wording of the headline in bold colour
lettering with a photograph of the plaintiff in uniform displayed
with it. Mr Denk referred to the admitted fact that Informante has a
wide circulation and readership in Namibia. The plaintiff’s
elevated position (as second in command of prisons) was also referred
to. Mr Denk also pointed out that there had been no apology. What he
did not point out is that there had instead been an unsuccessful
reliance upon the defence of truth and public interest. The plaintiff
however did not give evidence as to his damages as his evidence was
in rebuttal. There was thus little evidence as to injured feelings
and the impact of the report upon him in his chosen career. On the
contrary there was a brief reference in his cross-examination to the
prison authorities not taking Mr Chikezie’s allegations
seriously, as was emphasised by Mr Corbett.

[55] Mr Corbett’s heads of
argument did not deal with quantum, but rather focussed on the two
defences raised. In his oral submissions, he correctly pointed out
with reference to authority that defamation actions should not be
viewed as “a road to riches”. He also argued that the
plaintiff’s claim was disproportionately high and referred to
the approach of the Supreme Court in the Trustco matter. He also
correctly pointed out that the plaintiff had not pleaded aggravation
by the publication of a subsequent article not referred to in the
pleadings. The particulars of claim contended that there had been
aggravation because of prior articles – with specific reference
to the claim of falsifying his senior certificate. The evidence
presented on that issue however tended to show that the certificate
had been falsified because it was not authentic. If anything, that
evidence would have had the opposite impact on the claim by
tarnishing the plaintiff’s reputation. Mr Corbett did not
however rely upon this evidence in this context and I shall not take
it into account as far as reputation is concerned. Certainly
aggravation with reference to prior articles was not established.

[56] In assessing what damages are
appropriate, there are several factors to be taken into account and
then to weigh these in the context of other awards of damages
recently made by the courts. Factors which are relevant include the
seriousness of the defamation involving the imputation of palpably
illegal and corrupt conduct on the part of the deputy head of
prisons. Then there is the prominence of the report with its
acknowledged unfair banner headline splashed across the front page of
the newspaper with the plaintiff’s photograph. But I also take
into account the unequivocal denial in the report by the plaintiff,
the fact that the allegations were hardly taken seriously by his
superiors and that nothing further occurred after the explanation
which he provided straight afterwards. There was also no evidence of
subjective injury felt by the publication of the article. Nonetheless
the defamation was serious.

[57] I also take into account the
awards recently made by courts in Namibia. In Trustco, the Supreme
Court reduced the trial court’s award of N$175, 000 to N$100,
000 in respect for what was characterised as a very serious
defamation of the then Mayor of Windhoek. The Supreme Court did so by
stressing the difficulty in establishing a proportionate relationship
between the vindication of reputation on the one hand and determining
a sum of money as compensation on the other with reference to
apposite authority.⁷
The court proceeded to reduce the
award after a survey of recent awards made by this court in three
other matters. In taking the awards in each of those matters into
account as well as the reduced award in Trustco, it would seem to me
that an award in the sum of N$50, 000 is appropriate in all the
circumstances of this case.

[55] Both sides accepted that a costs
order should include the costs of one instructing and one instructed
counsel.

[56] I accordingly make the following
order:

(a) Judgment is granted against the
defendants, jointly and severally, in the amount of N$50, 000.

(b) The defendants must pay interest
on this sum from date of this judgment to date of payment at the rate
of 20% per annum.

(c) The defendants are to pay the
plaintiff’s costs, jointly and severally. Those costs include
the costs of one instructed and one instructing counsel.

______________

DF SMUTS

Judge

APPEARANCE

PLAINTIFF:
A Denk

Instructed
by Sisa Namandje & Co. Inc.

DEFENDANT:
A Corbett

Instructed
by Engling, Stritter & Partners