A WINDHOEK-BASED lawyer who sued in a defamation lawsuit has won his case, with a High Court judge ordering the newspaper yesterday to publish a retraction and apology to the plaintiff, and to pay him an amount of N$100 000.
Although “is respected as a substantive newspaper with substantive reporting”, the editorial comment published in the newspaper on 15 July 2016 contained contextually wrong facts and constituted a defamatory opinion about the lawyer Vincent du Toit, judge Herman Oosthuizen found in the judgement in which he ruled in Du Toit’s favour in his libel claim against the newspaper.
The editor of , Tangeni Amupadhi, commented yesterday: “We are surprised and disappointed with the judgement. The judgement appears to be at variance with rulings in similar democracies as Namibia. It appears to expect that comment and opinion should be based on further reporting and re-verifying of published facts or information, with those mentioned. The judgement also seems to go against the established test of robust commentary in open democracies.
“We are studying the judgement to decide whether to appeal.”
Du Toit sued Amupadhi, The Free Press of Namibia (Pty) Ltd, which is the company owning and publishing The Namibian, and the newspaper’s printers, WordPress Namibia, for N$250 000, claiming this was the monetary extent of the damages he suffered as a result of the editorial column, authored by Amupadhi, that appeared in the newspaper’s edition of 15 July 2016.
The editorial, published under the heading ‘Shylock Justice for the Greedy’, referred to an article, published in the newspaper in the same week, about a donation of a house in Katutura that a domestic worker employed by Du Toit made to him, and Du Toit’s eviction of the previous owner of the house after the property had been sold over municipal debts of N$33 000, and in general made comments about indebted poor people who lose their homes, often to professional people taking advantage of their plight.
During the hearing of the case, Du Toit testified that he had helped a domestic worker then employed by him to buy a house, but after the previous owner of the house refused to move out, his domestic worker never moved into the house.
His domestic worker later told him that he should take the house back, since she was not in a position to repay the money he had spent on it, and he then took ownership of the house through a donation from the domestic worker to himself, he said.
In the judgement delivered yesterday, judge Oosthuizen noted that fair comment requires the underlying facts on which comment is based to be true or substantially true. He also noted that the right to freedom of speech and expression, which is fundamental to a democratic society, “is not a paramount value, and must be construed in context with other constitutional values”, in particular the values of human dignity, freedom and equality.
Judge Oosthuizen found that the editorial comment in question would have left the reasonable reader with the deduction that Du Toit’s former domestic worker was forced to donate the house to him, and that he was greedy, selfish, money-grubbing and profiteering from the poor and vulnerable.
The editorial, in its context as a whole, was defamatory of Du Toit, the judge found.
He stated: “[A]lthough the court appreciates the evidence and concerns of [Amupadhi] about the issues addressed by him, it was wrong and unfair to piggyback it on [Du Toit’s] transactions and dealings with his erstwhile employee. Plaintiff just did not fit between the other examples referred to by [Amupadhi].”
He also reasoned that fairness would have required of Amupadhi to approach Du Toit for his comment on the editorial before it was published.
In further comments, judge Oosthuizen said of The Namibian: “It built its reputation as an independent torch bearer for the oppressed masses of our pre-independence era, and continues post-independence to badger-like engage political, human rights and graft issues. […] It is true that the bold and the fearless in life sometimes get engaged in battles, and do not always win.”
Judge Oosthuizen ordered only Amupadhi and The Free Press of Namibia, and not the printing company as well, to pay N$100 000 to Du Toit, and publish an apology and retraction of the editorial comment.
Du Toit was represented by lawyers Andries van Vuuren and Sean McCulloch. Norman Tjombe represented the three defendants.
