City Mayor’s libel award reduced

THE record defamation judgement of N$175 000 that Windhoek Mayor Matheus Shikongo won against the Informanté weekly tabloid, its editor and its printer in the High Court early last year was reduced to N$100 000 by the Supreme Court yesterday.

The judgement given by the Supreme Court is a landmark court decision for Namibia and its media. It is the first time since Independence that the country’s highest court has pronounced itself on the law of defamation, the right to freedom of speech and the constitutional protection of dignity in a case in which the media was being sued for alleged libel.In the High Court on January 29 last year, Judge Louis Muller ordered Informanté’s owner, Trustco Group International, its editor, Max Hamata, and the publication’s then printer, Free Press Printers, to pay damages of N$175 000 to Shikongo over a front-page article that appeared in Informanté on September 21 2006. Judge Muller also ordered the three defendants to pay Shikongo’s legal costs in the case and to pay 20 per cent interest per year on the N$175 000 awarded to the Mayor.That was the largest amount of money yet awarded against a newspaper in a libel case in Namibia.In the judgement handed down yesterday, Supreme Court Acting Judges of Appeal Kate O’Regan, Pius Langa and Fred Chomba agreed that the article Shikongo complained about had been defamatory. They also agreed that Hamata had failed to give Shikongo a proper opportunity to respond to the allegations that were about to be published about him, and that many of the key facts in the article then published in Informanté turned out to be false.They however lowered the amount awarded to Shikongo to N$100 000, but still ordered that Trustco, Hamata and the printing company should bear Shikongo’s legal costs both in the High Court and in the Supreme Court, and should pay interest of 20 per cent a year on the N$100 000 from the date that the judgement was given in the High Court.The court’s decision was written by Acting Judge of Appeal O’Regan, who is a former judge of South Africa’s Constitutional Court.The article over which Shikongo sued was published under the headline ‘Fincky aids Broederbond’s land cause’.The story was about a Windhoek City Council decision that approved the sale of land by the Wanderers Sports Club. In the story, it was stated that a ‘Broederbond cartel’ was ‘said to have made a killing’ after buying the land, which the sports club had bought from the city at a subsidised price back in 1973. Unnamed ‘inside sources’ were also quoted as saying that Shikongo, stated to be a Bank Windhoek board member, should have declared his association with the bank that financed the deal instead of letting ‘the underhanded deal’ go through.Nowhere in the article was comment from Shikongo, who in fact was a board member of the Bank Windhoek holding company and not of the bank itself, included.Except for making several unanswered calls to Shikongo’s cellphone, Hamata did not make other efforts to obtain comment from him, Judge O’Regan noted. Hamata did not make a diligent attempt to give Shikongo an opportunity to respond, she found.Other steps that he took to check the correctness of his story, of which several parts turned out to be wrong, also did ‘not accord with good journalistic practice which requires journalists to exercise care to avoid inaccuracy’, Judge O’Regan found.’The story itself constituted a significant defamation of the Mayor,’ she stated. ‘The slipshod manner in which Mr Hamata sought to give the Mayor an opportunity to respond to the story is particularly unacceptable. It is an elementary principle of fairness that a person should be given an opportunity to respond. Failure to do so will often increase the risk of inaccuracy (as indeed it did in this case).’The ordinary reader would have understood the story to mean that Shikongo ‘was in league with a clandestine, racist and exclusive group of people pursuing their own financial advantage,’ Judge O’Regan stated. ‘Such a statement is defamatory. It is especially defamatory of a public figure who plays a leading role in a political party that was committed to the overthrow of apartheid and the eradication of racist policies as it suggests that the Mayor, in his role as Mayor, is betraying the principles for which he and his political party stand.’Judge O’Regan also remarked: ‘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.’In an important development for the law of defamation in Namibia the court decided that the former legal position according to which the media was held strictly liable for defamatory material that it had published does not pass the test of the Constitution. In its place, a defence of ‘reasonable publication’, according to which the media would be liable for publication of defamatory statements unless they establish that they were not negligent, should be adopted, the court decided.