The defamation judgement against retired nurse Mathilde Kadhikwa (61) in December last year is an injustice.
The Windhoek High Court ordered Kadhikwa to pay N$130 000 in damages to pharmaceutical company owner Shapwa Kanyama and his wife, as well as their legal costs, which could amount to N$643 000 in total.
How do you build trust in the judicial system with ‘sledgehammer judgements’ which alienate the majority of the population?
Courts should not impose judgements that are impractical to enforce just because they have the right to do so.
We need judges who are developmental in nature and not aloof from the society in which they function.
Why impose legal costs on a litigant who is, to all intents and purposes, struggling financially?
What is the message a court in a developmental state wants to send to the public?
FREEDOM OF EXPRESSION
It is important to balance freedom of expression in a developmental state versus freedom of expression in a developed country.
Public interest is an essential element of a defence against a defamation claim.
When a statement is made in the public interest and the defendant reasonably believed it was true, it may be considered a valid defence.
Therefore, it is important that our courts appreciate the circumstances of litigants who appear before them.
Kanyama is an entrepreneur, and public criticism of some sort will always be directed towards him.
It is part of the nature of his “career”: When you are a public figure, you give the public the right to comment on what you do in public.
CONSEQUENCES
Freedom of expression, one of the most important pillars of a constitutional democracy, was alluded to in the South African Constitutional Court judgement of Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another (27 November 2020) as follows:
“It is no exaggeration to characterise the right to freedom of expression as the lifeblood of a genuine constitutional democracy that keeps it fairly vibrant, stable and peaceful.
“When citizens are very angry or frustrated, it serves as the virtual exhaust pipe through which even the most venomous of toxicities within may be let out to help them calm down, heal, focus and move on.
“More importantly, free expression is an indispensable facilitator of a vigorous and necessary exchange of ideas and accountability.
“Expression of thought or belief and own world view or ideology was for many years extensively and severely circumscribed in this country.
“It was visited, institutionally and otherwise, with the worst conceivable punishment or dehumanising consequences […].”
THE FABRIC OF OUR SOCIETY
Namibia is a developmental state and our courts should display judgements consistent with the fabric of our society.
It is not useful to try and kill an ant with a sledgehammer. This is contrary to building a society based on equity and fairness.
I am not sure what the honourable judge was trying to prove with such a judgement in a country in which the judiciary is still in the developmental phase.
With all due respect, judge Beatrix de Jager got it wrong in levying legal costs on the defendant, to say the least.
She overemphasised the plaintiff’s need to be protected from “defamatory statements” against the constitutionally protected principle of freedom of expression.
It was not proven that the so-called “defamatory” statements caused the plaintiffs reputational harm.
Reputational damage, an important element in proving defamation, was alleged but not proven.
We all know that no right is absolute, and this includes the right to be protected against “defamatory statements” which, in this case, were not defamatory.
After all, this is a case one would expect to be adjudicated from the perspective of freedom of expression.
DIFFERENT REALITIES
What was the damage to the plaintiff? Monetary or otherwise?
Except for possibly a bruised ego because no reputational damage was proven.
Such ‘sledgehammer judgements’ in a developmental state like Namibia are unproductive and entrench a perception that, wrongly or rightly, only the rich benefit from the judicial system.
We need to create people-friendly courts so that people should not be afraid of approaching the courts and believe that the courts are also for the poor and the marginalised.
Someone arrogantly told me that Namibia is a country of laws and that the defendant has a right to appeal.
This again demonstrates how removed some politicians are from the reality of the country’s economic situation.
It is the same when politicians arrogantly make decisions knowing that when it ends up in court they will not be the ones to foot the bill but the taxpayers.
Our government institutions should not try to protect one section of society by bringing down the other section.
We should appoint people to crucial government positions who are people-centred and take the needs of the general populace into account.
Sledgehammer decisions are harmful to society.
- – Kapache Victor is a senior legal adviser and acting head of State Law Advisory Services, Northern Cape Provincial Government, South Africa.
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