Architects lose libel suit

A DRAWN-OUT libel battle between three Windhoek architects ended in a costly defeat for two of them in the High Court last week.

Remarks that architect Katrin Vaatz made more than five years ago about Government work that was allocated to fellow architects Khodji and Soheil Afshani were indeed defamatory, Judge Gerhard Maritz concluded in his judgement on a defamation suit that the Afshani couple lodged against Vaatz. The judgement, which may underline not only the value that Namibia’s High Court places on the constitutional right to the freedom of speech, but also the risks inherent in hard-headed, drawn-out litigation, was handed down in the High Court in Windhoek on Wednesday last week.What clinched the case in Vaatz’s favour, was a further finding by Judge Maritz that while her remarks may have been defamatory, they were not unlawful, considering the context and setting in which she had made her comments.He dismissed the Afshani couple’s defamation claim against Vaatz, in which they had demanded that she should be ordered to pay each of them N$150 000 for the injury that they claimed she had caused to them through remarks that she made at the annual general meeting of the Namibian Institute of Architects on July 28 2000.Judge Maritz also ordered the Afshani couple to pay Vaatz’s legal costs.The case between the Afshanis and Vaatz was sparked by comments that Vaatz made about the distribution of work by the Department of Works and the transparency with which work was allocated to architectural firms.In what Judge Maritz described as a “forceful and admittedly emotive address”, Vaatz used the Afshanis’ firm as an example of a firm that, she claimed, was receiving a large amount of Government work, including at that stage some work on the project for the construction of a new State House.Vaatz hinted that this pattern of receiving Government work might have been due to ties that they might have had with a senior official in the Department, Judge Maritz found.Vaatz’s remarks were defamatory, the Judge concluded.The remarks suggested to other architects at the meeting that the Afshanis had been awarded a large number of appointments on account of their claimed relationship with a senior official, that they willingly benefited from or participated in the improper conduct of the official by their acceptance of the work, that they acted improperly and unprofessionally by doing so, and that they were “unprincipled and dishonourable persons”, Judge Maritz stated.Considering the occasion at which they were made, he could, however, not conclude that the remarks were unlawful, the Judge found.He noted that the Constitution tries to strike a balance between the right to freedom of speech and the protection that the law of defamation gives to personal dignity.Vaatz, he also noted, denied that she acted unlawfully and tried to justify her remarks through the occasion where they where made.Her defence to the defamation suit is so closely associated with the interests of the public to allow for a free flow of ideas and information between people on matters of common interest or for the common good that it is recognised in many other democratic societies, Judge Maritz pointed out.Vaatz’s offending statement was made as part of a discussion on the allocation of work by the Department of Works to architects in private practice, and the transparency in which this was done, the Judge noted.He added that she was entitled to criticise the fairness and transparency of that system of allocation of work, and to use real examples, such as the State House project, to illustrate her criticism.In the same vein, all the other members of the Institute of Architects at the meeting had an interest in receiving the information that Vaatz distributed through her remarks, he also stated.It could well be questioned whether her inferences on the Afshanis’ relationship with the Department were sufficiently based on facts, the Judge stated.The court could however not conclude that Vaatz did not subjectively and honestly believe what she was saying and did not think she was justified in addressing it in the way that she did, Judge Maritz concluded.”I have the fullest understanding why the plaintiffs, who, by all evidence given in this court, are beyond reproach in the conduct of their profession, feel that they have been deeply injured by the biting words of the defendant,” he stated at the end of his judgement.”As a fellow human, I may even criticise the brusque and insensitive manner in which the defendant chose to raise her concerns and disregarded the sensitivities of others but, as a Judge, I do not sit in moral judgment of her conduct.I must pronounce on this case according to the tenets of justice and therefore, for the reasons given, must conclude that the defendant did not act unlawfully when she made the defamatory statement.”Ultimately, Vaatz’s remarks and the Afshanis’ reaction to it had set off a bruising court battle in which both sides actually emerged as losers, Judge Maritz indicated.As he set the scene for the case in the first paragraph of his judgement: “The unyielding belief in the righteousness of their respective causes propelled plaintiffs’ demand for an apology into protracted litigation against the defendant.Fuelled by principle rather than common sense, the original cause for plaintiffs’ affront snowballed by the accumulation of costs along its litigious course into a runaway suit destined to disintegrate upon its ultimate resolution into financial loss and emotional hardship for the litigants on all sides: a cynical reward for their earlier intransigence.”Anna-Marie Engelbrecht, instructed by Basil Bloch, represented the Afshani couple in the case.Vaatz was represented by Raymond Heathcote and Wolf-Dieter Wohlers.The judgement, which may underline not only the value that Namibia’s High Court places on the constitutional right to the freedom of speech, but also the risks inherent in hard-headed, drawn-out litigation, was handed down in the High Court in Windhoek on Wednesday last week.What clinched the case in Vaatz’s favour, was a further finding by Judge Maritz that while her remarks may have been defamatory, they were not unlawful, considering the context and setting in which she had made her comments. He dismissed the Afshani couple’s defamation claim against Vaatz, in which they had demanded that she should be ordered to pay each of them N$150 000 for the injury that they claimed she had caused to them through remarks that she made at the annual general meeting of the Namibian Institute of Architects on July 28 2000.Judge Maritz also ordered the Afshani couple to pay Vaatz’s legal costs.The case between the Afshanis and Vaatz was sparked by comments that Vaatz made about the distribution of work by the Department of Works and the transparency with which work was allocated to architectural firms.In what Judge Maritz described as a “forceful and admittedly emotive address”, Vaatz used the Afshanis’ firm as an example of a firm that, she claimed, was receiving a large amount of Government work, including at that stage some work on the project for the construction of a new State House.Vaatz hinted that this pattern of receiving Government work might have been due to ties that they might have had with a senior official in the Department, Judge Maritz found.Vaatz’s remarks were defamatory, the Judge concluded.The remarks suggested to other architects at the meeting that the Afshanis had been awarded a large number of appointments on account of their claimed relationship with a senior official, that they willingly benefited from or participated in the improper conduct of the official by their acceptance of the work, that they acted improperly and unprofessionally by doing so, and that they were “unprincipled and dishonourable persons”, Judge Maritz stated.Considering the occasion at which they were made, he could, however, not conclude that the remarks were unlawful, the Judge found.He noted that the Constitution tries to strike a balance between the right to freedom of speech and the protection that the law of defamation gives to personal dignity.Vaatz, he also noted, denied that she acted unlawfully and tried to justify her remarks through the occasion where they where made.Her defence to the defamation suit is so closely associated with the interests of the public to allow for a free flow of ideas and information between people on matters of common interest or for the common good that it is recognised in many other democratic societies, Judge Maritz pointed out.Vaatz’s offending statement was made as part of a discussion on the allocation of work by the Department of Works to architects in private practice, and the transparency in which this was done, the Judge noted.He added that she was entitled to criticise the fairness and transparency of that system of allocation of work, and to use real examples, such as the State House project, to illustrate her criticism.In the same vein, all the other members of the Institute of Architects at the meeting had an interest in receiving the information that Vaatz distributed through her remarks, he also stated.It could well be questioned whether her inferences on the Afshanis’ relationship with the Department were sufficiently based on facts, the Judge stated.The court could however not conclude that Vaatz did not subjectively and honestly believe what she was saying and did not think she was justified in addressing it in the way that she did, Judge Maritz concluded.”I have the fullest understanding why the plaintiffs, who, by all evidence given in this court, are beyond reproach in the conduct of their profession, feel that they have been deeply injured by the biting words of the defendant,” he stated at the end of his judgement.”As a fellow human, I may even criticise the brusque and insensitive manner in which the defendant chose to raise her concerns and disregarded the sensitivities of others but, as a Judge, I do not sit in moral judgment of her conduct.I must pronounce on this case according to the tenets of justice and therefore, for the reasons given, must conclude that the defendant did not act unlawfully when she made the defamatory statement.”Ultimately, Vaatz’s remarks and the Afshanis’ reaction to it had set off a bruising court battle in which both sides actually emerged as losers, Judge Maritz indicated.As he set the scene for the case in the first paragraph of his judgement: “The unyielding belief in the righteousness of their respective causes propelled plaintiffs’ demand for an apology into protracted litigation against the defendant.Fuelled by principle rather than common sense, the original cause for plaintiffs’ affront snowballed by the accumulation of costs along its litigious course into a runaway suit destined to disintegrate upon its ultimate resolution into financial loss and emotional hardship for the litigants on all sides: a cynical reward for their earlier intransigence.”Anna-Marie Engelbrecht, instructed by Basil Bloch, represented the Afshani couple in the case.Vaatz was represented by Raymond Heathcote and Wolf-Dieter Wohlers.