Ex-magistrate accused of rape loses in libel lawsuit

A Former magistrate facing charges of rape in the Windhoek High Court has lost a defamation case in which he sued a daily newspaper.

An article about which former magistrate Jaco Kennedy sued the newspaper, Namibian Sun, its owner, Network Media Hub, its editor, Toivo Ndjebela, and a reporter, Kristien Kruger, was not defamatory, judge Lotta Ambunda concluded in a judgement delivered in the Windhoek High Court on Friday.

Ambunda absolved the defendants from Kennedy’s claim against them, after finding that Kennedy failed to establish that words used in the article about which he sued the four defendants were defamatory.

Kennedy sued the Namibian Sun and the other defendants for N$150 000 about an article with the headline ‘Rapist’ fails in case over alleged victims’ testimony’ that was published in the newspaper in August last year.

Kennedy claimed the word “rapist” in the headline and the word “victims”, instead of “alleged victims”, in the first paragraph of the article were defamatory.

He alleged those words portrayed him as “a rapist criminal” to reasonable members of the public and sent a message that he had no right to be presumed innocent until a competent court of law convicts him.

Kennedy also alleged the words he complained about were published with the intention to publicly ridicule him and to recklessly disregard or undermine his right to be presumed innocent, Ambunda recounted in her judgement.

During Kennedy’s testimony on his defamation claim, it was put to him that there was a punctuation error in the headline, with the first word, “Rapist”, supposed to have been in inverted commas, of which the first was erroneously left out, Ambunda said.

Kennedy testified the intention with the use of that word and the term “victims” was to make readers assume guilt on his part, humiliate him and put him in a bad light, Ambunda noted.

When determining whether an article is defamatory, piecemeal interpretation should be avoided, Ambunda said.
“A reasonable reader would read the whole article to understand the context within which the statements were made and not just excerpts,” she remarked.

From a reading of the article, any reasonable person would understand it to be a report on a constitutional challenge by Kennedy on a part of the Criminal Procedure Act that allows a complainant in a rape case to testify from a different room than a courtroom in which an accused is present, Ambunda said.

She found that no reasonable reader reading the full article in context would understand it to mean that Kennedy was being framed as a rapist, a person who was convicted, “and definitely not a person who is unworthy of the presumption of innocence as guaranteed by the Constitution”.

Ambunda stated: “A reasonable person reading the full text and context of the article will, therefore, not come to a conclusion or will not understand the word rapist to mean that the plaintiff [Kennedy] is already convicted while the rest of the article clearly sets out that the plaintiff is trial-awaiting or is going through a criminal trial, but not yet convicted.”

She also stated: “The last inference that any reasonable person reading the article would conclude is that [Kennedy] is undeserving of the right to be presumed innocent.

This is not a reasonable conclusion reached by the plaintiff, it is unbelievable and should be rejected.”

Ambunda absolved the defendants from Kennedy’s claim, and ordered him to pay their legal costs.

Kennedy was represented by Braam Cupido of the law firm Isaacks and Associates.

Norman Tjombe represented the defendants.

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