Windhoek Mayor wins libel case

FOR the fourth time in less than a year one of Namibia’s newspapers ended up on the losing side in a defamation case in the High Court last week.

An experience that the coastal newspaper Namib Times and the State-owned publications New Era and The Southern Times had to stomach last year, when they were ordered to pay tens of thousands of Namibia dollars to people and a church that were found to have been defamed in articles published in those papers, has now also become the fate of the free weekly tabloid.
In a judgement given in the High Court on Thursday, Informanté’s owner, Trustco Group International, the paper’s editor, Max Hamata, and the company printing the paper, Free Press Printers, were ordered to pay Windhoek Mayor Matheus Shikongo N$175 000 and also his legal costs as a result of a front-page article that was published in the newspaper in September 2006.
In a statement issued after the judgement had been handed down, Hamata and Trustco Managing Director Quinton van Rooyen stated that while they respected the judgement, they did not agree with the findings reached by Judge Louis Muller, and that they have decided to lodge an appeal in the Supreme Court against the judgement.
The article that prompted Shikongo to sue was published in the September 21 2006 edition of Informanté under the headline ‘Fincky aids Broederbond’s land cause’.The article started off with a statement that a ‘Broederbond cartel’ was said to have made ‘a killing’ after buying municipal land in Olympia for one cent a square metre and then ‘cashing in on millions’ by selling the land.
The story dealt with a land sale in which the City of Windhoek sold land in Pionierspark – and not Olympia – to the Wanderers Sports Club for N$1 172. The land has since been resold to a property developer that was putting up a N$40 million housing development on the land, with this development financed by Bank Windhoek, it was stated in the story. It was added that the City potentially lost out on millions of Namibia dollars because the City did not exercise its right to have the land first offered to it for sale, as was required under the initial sale agreement with Wanderers.
Not mentioned, though, was that the initial transaction in which the City sold the land to Wanderers Sports Club took place back in 1973 already.
The Mayor’s name cropped up by the fifth paragraph of the story, with ‘inside sources’ reported to have said that Shikongo, as ‘a Bank Windhoek board member’, should have declared his association with the bank – presumably to the City Council – ‘instead of letting the underhanded land deal go through without scrutiny’.
In fact, Shikongo was not a member of Bank Windhoek’s Board of Directors at the time. He was a member of the bank’s holding company, Capricorn Investment Holdings (CIH), though.
In his judgement, Judge Muller stated: ‘In my opinion, the normal reasonable reader will come to no other conclusion, after reading the article, than that (Shikongo) was part of an underhand and dishonest deal and in this regard abused his position as Mayor of (the) City of Windhoek to further his own interest for which he used his association with Bank Windhoek, which he failed to declare to the City Council when the decision was taken.’
He also stated: ‘The tone of the article is undoubtedly directed at putting (Shikongo) in a bad light and is in my opinion unreasonable. I also fully agree that (Hamata) wrote an article with the aim to harm (Shikongo) in his good name and reputation. (Hamata) did not do anything to ascertain the truth and correctness of the allegations contained in this article.’
Judge Muller found that in writing the article Hamata recklessly relied on a document, emanating from the City of Windhoek administration, that a source provided to him. In this document, a clause in the 1973 sales agreement between the City and Wanderers Sports Club, in which the club was obliged to offer the land for sale to the City first if it ever decided to sell it again, was emphasised. It was also claimed that the Windhoek City Council was not advised of this clause before it approved Wanderers’ sale of the land for the property development project.
What Hamata was given was clearly wrong, though, the Judge found. City Council meeting minutes showed that the land sale was in fact properly considered by the Council and the City’s Management Committee, and that the clause giving the City the right of first refusal if Wanderers wanted to sell the land was clearly indicated in documentation placed before the City Council, the court also found.
Hamata however ‘did not make any effort to check those sources and to verify the information provided to him, which he could easily have done,’ Judge Muller commented. ‘He just wrote the story.’
He stated that in his opinion, Hamata did not do enough to contact Shikongo and to verify his information: ‘With information so detrimental, I believe he should have made a serious effort to obtain (Shikongo’s) version before writing the article.’
Like the previous two Judges that ruled against media defendants in judgements on defamation claims that were handed down in the High Court in December, Judge Muller also decided that the legal principle of strict liability that used to apply to the media in defamation matters should no longer survive in an era in which the Constitution guarantees the right to freedom of speech and expression for the media as well.
Under the strict liability principle, the media were held liable for the publication of any defamatory material, even when there was no intention to defame someone or if the media institution genuinely believed the defamatory statement to be true. Even with strict liability out of the equation, though, the court still ruled that the Informanté article was defamatory as it intentionally injured Shikongo in his reputation.
Hamata, Trustco and the printing company were represented by Raymond Heathcote, on instructions from the firm Dr Weder, Kauta & Hoveka Inc, in the last stages of the libel trial before Judge Muller. Shikongo was represented by senior counsel Pieter Henning and Esi Schimming-Chase, on instructions from Engling, Stritter & Partners.
– werner@namibian.com.na