Media the winner as ‘New Era’ loses libel case against Shifeta

THE Deputy Minister of Youth, Pohamba Shifeta, on Friday won a libel case against the State-owned newspaper New Era – but he will have to be satisfied with receiving only a tenth of the N$500 000 he claimed from the publicly funded paper for alleged damage to his reputation.

Claiming that two stories published in New Era on June 8 and 9 2006 defamed him, Shifeta sued the newspaper for N$500 000. In a judgement handed down in the High Court on Friday, Judge Collins Parker ruled that one of the articles was indeed damaging to Shifeta’s reputation, but ordered the newspaper to pay Shifeta only N$50 000 for the defamation he claimed to have suffered. The judgement represents a landmark in the evolution of the law on defamation in a media context in Namibia. Judge Parker’s decision is the first in which a Namibian court has expressly declared that the legal doctrine of strict liability – in which the media was held strictly liable for the publication of any false defamatory allegations – should be discarded in favour of an approach focusing more on the constitutional right to free speech that has been the law in South Africa since 1998. In terms of that approach, the publication of false and defamatory allegations in the media would not be regarded as unlawful if it is found, considering all the circumstances of a matter, that the publication of the claims was reasonable in the particular way it was done and at that particular time. Shifeta sued New Era’s Editor, Rajah Munamava, the newspaper’s Chief Executive Officer, Sylvester Black, the parastatal company owning the newspaper, New Era Corporation, reporter Kuvee Kangueehi, and Kangueehi’s alleged source for the stories, Armas Amukwiyu. Senior counsel Dave Smuts, who represented the newspaper’s owner, Kangueehi, Munamava and Black, argued that the court had to adopt the so-called Bogoshi test – referring to the 1998 South African Supreme Court of Appeal decision of National Media Ltd and others v Bogoshi – in the case before him as well. Judge Parker agreed with that argument of Smuts. The Judge stated that in his opinion the time had come for Namibia’s High Court ‘to jettison the unconstitutional baggage of the doctrine of strict liability of the media in the context of defamation’. In its place, he stated, the court had to embrace the Bogoshi approach, which helps to bring about the development of Namibia’s own constitutionalism, the strengthening of a democratic state, and the deepening of Namibia’s culture of respect for human rights. In the first story that Shifeta sued about, reporter Kangueehi wrote that the National Executive Committee (NEC) of the National Youth Council (NYC) had taken a decision to investigate Shifeta, who was a former Secretary General of the NYC, reportedly after the NEC had discovered a number of financial irregularities that occurred during Shifeta’s term of office. It was also reported that the NEC had discovered that about N$40 000 had gone missing from a project run by the NYC. In the subsequent story, the NEC in essence denied that an investigation would be launched as reported previously. Shifeta sued, claiming the stories depicted him as a thief, corrupt, someone who did not conduct himself like a Member of Parliament should, as incompetent and not fit for public office, and as someone who behaved in a non-transparent way and as if he was above the law. In his judgement, Judge Parker came to the conclusion that the first story was defamatory. The right to freedom of speech and expression did not give protection to this sort of defamation, he found. The Judge also found that when Kangueehi wrote the story, he did not have the full details on the issue he was reporting on, that he did not have ‘any credible source on which a reasonable, careful journalist – investigative or otherwise – would rely in order to write what I consider to be an explosive story about a deputy member of Government’, and that he had not conducted ‘any genuine and bona fide investigation about the reliability’ of the claims that had been relayed to him. Kangueehi ‘did not make any genuine and credible effort to really get the other side of the story,’ Judge Parker found. He stated that he had no doubt that Kangueehi ‘worked at break-neck speed’ to complete and file the story. ‘In that case, in my opinion, he threw caution to the wind,’ the Judge stated. The resulting story, the Judge found, was ‘anything but reasonable and careful’. He found that the newspaper was negligent when it ‘rushed to publish’ the story. ‘That cannot by any standard, including the Bogoshi standard, be lawful and, therefore justified,’ he stated. The trial on Shifeta’s claim against the newspaper was already in its last stages when Smuts had Shifeta recalled to the witness stand to question him about wrong information about his educational qualifications that Shifeta had supplied to the author of the ‘Guide to Namibian Politics’, Graham Hopwood. Shifeta admitted that he had stated that he had obtained a BA degree in Political Science, while this was not true. He later corrected this error by sending the correct information to the publishers of the book, he claimed. Shifeta also claimed that he did not intend to mislead when he wrongly claimed he had obtained the degree. Judge Parker accepted his explanation as ‘plausible and reasonable’, and decided that the evidence about his false claim to having such a degree would not diminish Shifeta’s reputation ‘in the eyes of right-thinking members of society generally’. By claiming N$500 000, Shifeta ‘has set his eyes too high, without taking into account the economic reality of Namibia, as a developing country’, Judge Parker stated when he decided to award Shifeta N$50 000 instead. Dirk Conradie represented Shifeta.

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