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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 1181/2012

In the matter between:

ASSER NTINDA .............................................................................................PLAINTIFF

and

HIDIPO HAMUTENYA .....................................................................FIRST DEFENDANT

RALLY FOR DEMOCRACY& PROGRESS ...............................SECOND DEFENDANT

NAMIBIAN SUN ..............................................................................THIRD DEFENDANT

THE NAMIBIAN ..........................................................................FOURTH DEFENDANT

TANGENI AMUPADHI .......................................................................FITH DEFENDANT

Neutral citation: Ntinda v Hamutenya & Others (I 1181/2012) [2013] NAHCMD 150 (6 June 2013).

Coram: UEITELE, J

Heard: 18 MARCH 2013

Delivered: 06 JUNE 2013

Flynote: Defamation - What is and what is not actionable - Whether words complained of defamatory - Test in exception to claim is whether reasonable person of ordinary intelligence might reasonably understand words to convey meaning defamatory of plaintiff - Such reasonable person taken to understand words in their natural and ordinary meaning - Account to be taken not only of what words expressly say, but also of what they imply - Implied meaning to be distinguished from innuendo.

Summary: The plaintiff is the editor of a Newspaper called Namibia Today. He alleges that he has been defamed by an article and a letter which were published in the “The Namibian” and “The Namibian Sun” newspapers respectively by the words: (i) ‘Ntinda (plaintiff) was one of the people who actively participated in the establishment of the RDP’ (ii) ‘Ntinda’s report is thus based on the pain of a guilty conscience.’ (iii) ‘Thus he tries to soothe or calm that pain by raising false and absurd issues with a view to get at me’ (iv) ‘Asser knows full well that there are people in this country who knows that he was one of the people who actively participated in the establishment of the RDP’ and (v) ‘He is, therefore suffering from the pain of guilty consciousness. I suspect that he has not, on his own, revealed this fact to his SWAPO colleagues.’

The plaintiff avers that when considered in context the words were intended and understood to mean that: ‘(a) he is dishonorouble and a traitor; (b) he is a coward and without moral fibre; (c) he is a person of ill repute; (d) he lacks the necessary integrity and is undignified; and (e) he is disloyal to the Swapo Party.’

The fourth and fifth defendants noted an exception to the plaintiff's particulars of claim as disclosing no cause of action, on the grounds that the statements complained of by the plaintiff are not reasonably capable of conveying the meanings attributed to it by the plaintiff and even if they were so capable, they are not defamatory.

Held, that where exception is taken to the plaintiff's declaration, the test of what constitutes a defamatory matter is different from that at the trial stage. At the exception stage all the Court is called on to decide at this stage is whether a reasonable person of ordinary intelligence, having read the defendant's words and having knowledge of the circumstances might reasonably understand these words as defamatory.

Held further, that a defamatory matter was one which injured the person to whom it referred by lowering him in the estimation of reasonable persons of ordinary intelligence or right-thinking members of society generally and whether the statement, proved by plaintiff, is defamatory is determined objectively by the Court by analyzing the statement, its meaning and effect thereof and ultimately assess whether it tends to lower the plaintiff ‘in the estimation of right-thinking members of society generally.

Held further, that when assessing whether the publication is defamatory or not the Constitutional values play a very important role.

Held further, that looking at the words uttered by first defendant and published by the fifth respondent, it is difficult to see how a reasonable, ‘right thinking’ individual of normal intelligence might find the words to injure the plaintiff in his good name and reputation and thus being defamatory of him. No disparaging remarks that go against plaintiff’s character are made and no ridicule is leveled at the plaintiff.

Held further, that the words used did not lower the plaintiff in the estimation of right thinking members of society and that the words used were incapable of a defamatory meaning in the sense alleged by the plaintiff in his particulars of claim.

ORDER

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(a) The exception is upheld;

(b) The plaintiff is ordered to pay the costs of 4^th and 5^th defendants.

JUDGMENT

UEITELE J:

[1] On Friday 18 November 2011 an article was published in the “The Namibian” newspaper entitled ‘Ntinda a founding member of the RDP, says Hamutenya’. In conjunction with the article there were two pictures of Mr Hamutenya and Mr Ntinda. (I will, in this judgment refer to this as the article). The body of the article amongst others read as follows (for convenience of reference I have numbered the paragraphs):

“[a] Hidipo Hamutenya, the president of the Rally for Democracy and Progress (RDP), yesterday said the editor of the Swapo mouthpiece Namibia Today, Asser Ntinda, was a founding member of the RDP. Hamutenya said this while criticizing a recent report in the ruling party paper in which he is blamed for the country’s high unemployment rate.

[b] The opposition leader said Ntinda ‘was one of the people who actively participated in the establishment of the RDP’

[c] Ntinda’s report is thus based on the ‘pain of a guilty conscience…’

[d] Thus he tries to soothe or calm that pain by raising false and absurd issues with a view to get at me.’”

[2] On Tuesday 22 November 2011 a letter was published in the ‘The Namibian Sun’ newspaper under the letters column entitled ‘Swapo lies would not wash, however repeated ‘Hidipo Hamutenya writes’. At the bottom of that letter a picture of Mr Hidipo Hamutenya appears. (I will, in this judgment refer to this as the letter). The body of the letter amongst others read as follows (I, have for convenience of reference continued the numbering of the paragraphs):

“[e] But seven years later Asser Ntinda has now a discovery that ‘Hidipo massively contributed to the high rate of unemployment in this country…’ Asser knows full well that there are people in this country who know that he was one of the people who actively participated in the establishment of the RDP.

[f] He is therefore suffering from the pain of a guilty conscience.

[g] I suspect that he has not, on his own, revealed this fact to his Swapo colleagues.

[h] Thus he tries to soothe or calm that pain by raising false and absurd issues with a view to get at me.’”

[3] As a result of the publication of the article and the letter, Mr Asser Ntinda, instituted an action for damages for defamation, citing as defendants Mr Hidipo Hamutenya (first defendant) the political party (RDP) lead by Mr Hamutenya (second defendant), the Namibian Sun newspaper (third defendant), the editor of the ‘The Namibian’ newspaper (fourth defendant) and the ’The Namibian’ newspaper (fifth defendant). In his particulars of claim the plaintiff alleged that portions of the article and the letter were defamatory of the plaintiff and damages in the sum of N$ 500 000 were claimed.

[4] The fourth and fifth defendants noted an exception to the plaintiff's particulars of claim as disclosing no cause of action, on the grounds that the statements complained of by the plaintiff are not reasonably capable of conveying the meanings attributed to it by the plaintiff and even if they were so capable, they are not defamatory.

[5] I will, before I considered whether I can uphold or dismiss the exception, proceed and consider the legal principles which are applicable to exceptions in a defamation claim and thereafter look at the pleadings.

THE APPLICABLE LEGAL PRINCIPLES

[6] Burchell in his book The Law of Defamation in South Africa argues that ‘Where exception is taken to the plaintiff's declaration, the test of what constitutes a defamatory matter is different from that at the trial stage’. The learned author cites as authority the pronouncement by Tindall JA in the matter of Basner v Trigger¹ where the learned judge said:

“In other words all the Court is called on to decide at this stage [i.e. the exception stage] is whether a reasonable person of ordinary intelligence, having heard the defendant's words and having knowledge of the circumstances... might reasonably understand these words as meaning that the plaintiff had been guilty of illegal and criminal conduct...”

[7] This approach has been followed by this Court² where it approved the remarks of Corbett CJ in the matter of Argus Printing and Publishing Co. Ltd and Others v Esselen’s Estate³ where he said:

“… it appears that Hatting J adopted, as the basic criteria for adjudicating the merits of the first ground of exception, the test as to whether a reasonable person of ordinary intelligence might reasonably understand the words of the article to convey a meaning defamatory of the plaintiff. This is unquestionably the correct approach and, as this formulation indicates, the test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural or ordinary meaning the Court must take account not only of what the words expressly say but also of what they imply. As it was put by Lord Reid in Lewis and Another v Daily Telegraph Ltd; Same v Associated Newspapers Ltd [1963] 2 ALL ER 151 (HL) at 154 E – F:

‘What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them and that is also regarded as part of their natural and ordinary meaning.’ ”

[8] In the matter of Sindani v Van der Merwe and Others⁴ it was held that:

“[10] The question whether the article is defamatory in its ordinary meaning, involves a two-stage enquiry. The first is to establish the natural or ordinary meaning of the article. The second is whether that meaning is defamatory.

[11] The ordinary meaning of the words under consideration does not necessarily correspond with their dictionary meaning. The test to be applied is an objective one, namely what meaning the reasonable reader of ordinary intelligence would attribute to the words read in the context of the article as a whole. In applying this test it must be accepted that the reasonable reader will not take account only of what the words expressly say but also what they imply. It must also be borne in mind that the ordinary reader has no legal training or other special discipline and that 'if he reads the article at all would be likely to skim through it casually and not to give it concentrated attention or a second reading. It is no part of his work to read this article, nor does he have to base any practical decision on what he reads there' Consequently, a court that has of necessity subjected a newspaper article under consideration to a close analysis must guard against the danger of considering itself to be 'the ordinary reader' of that article” {My Emphasis} (I omitted references to authorities)”.

[9] This court has furthermore accepted the principle that whether the statement, proved by plaintiff, is defamatory is determined objectively by the Court by analyzing the statement, its meaning and effect thereof and ultimately assess whether it tends to lower the plaintiff ‘in the estimation of right-thinking members of society generally.’⁵ Maritz, J (as he then was) further went on and said that ‘the standard from which the enquiry should depart, 'is the ordinary reader with no legal training or other special discipline, variously described as a "reasonable", "right-thinking" individual of "average education" and "normal intelligence".

[10] Mr Coleman who appeared for the fourth and fifth defendants furthermore referred me to the South African Constitutional Court case of Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae)⁶ where it was held that:

“[31] Defamation is aimed at compensating the victim for any publication that injures the plaintiff in his good name and reputation. Its focus is the protection of the constitutional rights to dignity and privacy of any person. The High Court was correct in concluding that, in assessing whether the publication is defamatory a reasonable observer would look at it through the prism of the Constitution and in relation to its values. This means that a Court too must do the same. A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution. When a Court assesses whether a publication is defamatory through the prism of the Constitution, it is concerned with the interpretation, protection and enforcement of the Constitution. In this case the process involves the balancing of the rights to dignity and privacy on the one hand, with freedom of expression, and the rights of children on the other.”

I agree with the statement by the Constitutional Court and I am of the view that when assessing whether the publication is defamatory or not the Constitutional values play a very important role.

THE PLEADINGS

[11] Having outlined the legal principles I will now proceed to consider the pleadings. In his particulars of claim the plaintiff claimed that the words I quoted above in paragraph 1, which I numbered as (a)-(d) of the article and paragraph 2 which I numbered as (e)- (h) of the letter were wrongful and defamatory of the plaintiff in that they were intended and were understood by the readers of the newspapers to mean the plaintiff is dishonest in the following respects:

“15.1 he is dishonorouble and a traitor;

15.2 he is a coward and without moral fibre;

15.3 he is a person of ill repute;

15.4 he lacks the necessary integrity and is undignified; and

15.5 he is disloyal to the Swapo Party.”

[12] The fourth and fifth defendants requested further particulars. They requested the plaintiff to indicate where in the article the allegation or suggestion is made that the plaintiff is dishonourable and a traitor, or is a coward and without moral fibre or is a person of ill repute, lacks the necessary integrity and is undignified or is disloyal to Swapo.

[13] The plaintiff replied to the request for further particulars as follows:

“1.1 The sentence ‘Ntinda (plaintiff) was one of the people who actively participated in the establishment of the RDP’ alleges /and or suggests that the Plaintiff is dishonourable, a traitor as the plaintiff is an active member of the Swapo political party.

1.2 The sentence ‘Ntinda’s report is thus based on the pain of a guilty conscience.’ alleges /and or suggests that the plaintiff is a coward and without moral fibre.

1.3 The sentence ‘Thus he tries to soothe or calm that pain by raising false and absurd issues with a view to get at me’ alleges /and or suggests that the plaintiff is a person of ill-repute.

1.4 The sentence ‘Asser knows full well that there are people in this country who knows that he was one of the people who actively participated in the establishment of the RDP’ alleges/and or suggests that the plaintiff is dishonourable, a traitor and disloyal to the SWAPO party, as the plaintiff is an active member of the SWAPO party of Namibia.

1.5 The sentence ‘He is, therefore suffering from the pain of guilty consciousness. I suspect that he has not, on his own, revealed this fact to his SWAPO colleagues.’ alleges/and or suggests that the plaintiff is dishonourable, a traitor and disloyal to the SWAPO party, as the plaintiff is a coward and without moral fibre.

[14] After the delivery of those further particulars the fourth and fifth defendants as I indicated above noted an exception to the plaintiff's particulars of claim as disclosing no cause of action, the fourth and fifth defendants set out the grounds of exception as follows:

“Exception

5

In order to be defamatory the words published must:

5.1 In their ordinary sense be reasonably capable of conveying to the average reader of the newspaper the meaning(s) attributed to it by the plaintiff.

5.2 Have the effect to diminish the esteem in which the plaintiff is held by others.

This is a legal question to be determined by the Court.

6

Plaintiffs claim does not disclose a cause of action because the statements complained of are not reasonably capable of conveying the meanings attributed to it by plaintiff…and even if they do are not defamatory of him especially when allowance is made for the political context thereof. For example:

6.1 In a democracy with an entrenched freedom of association a reasonable reader looking through the prism of the Constitution would not necessarily attribute to the member of a political party who involves himself in founding another party the characteristics of being dishonourable and being a traitor. He may be viewed a true democrat; and

6.2 Stating a person makes a report because he has a guilty conscious does not necessarily mean he is a coward and has no moral fibre. In fact it may mean exactly the opposite.”

APPLICATION OF THE LEGAL PRINCIPLES TO THE FACTS

[15] I have indicated above that where the plaintiff does not plead an innuendo the test is whether a reasonable reader of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. It has been held⁷ that excipient bears the onus of proof.

[16] Mr Coleman who appeared for the fourth and fifth defendants argued that the statements are not per se defamatory of the plaintiff nor are they reasonably capable of being intended or understood to be defamatory in the sense alleged by the plaintiff in his particulars of claim. He argued that for the words to be defamatory they must:

(a) be reasonably capable of conveying to the average reader of the newspaper the meaning(s) attributed to it by the plaintiff.

(b) have the effect to diminish the esteem in which the plaintiff is held by others;

(c) amount to an misuse of the freedom of the press enshrined in Article 21(1)(a) of the Namibian Constitution to justify limiting it;

(d) have to be looked at through the ‘prism of the Constitution’;

(e) allowance must be made for the fact that the subject is a political one and the publication relates to a political spat and the assertions were made in that context. It involves politicians.

[17] I find it appropriate to emphasize that, Article 1(1) of the Namibian Constitution, unequivocally states that the Republic of Namibia is founded upon the principles of democracy, the rule of law and justice for all⁸; Article 5 of the Namibian Constitution enjoins the Executive, Legislature and Judiciary and all organs of the Government and its agencies and, where applicable to them, all natural and legal persons to respect and uphold the fundamental rights and freedoms enshrined in Chapter 3 of the Namibian Constitution⁹. Amongst the fundamental rights and freedoms guaranteed in the Namibian Constitution are the rights to, dignity¹⁰, form and join political parties¹¹. It is against those constitutional values that the statement must evaluated.

[18] Bearing in mind that a defamatory statement is one which tends to diminish the esteem in which the person to whom it refers is held by others, the question which I must now answer is whether the words complained of by the plaintiff could or might be regarded as defamatory by a reasonable person of normal intelligence who has knowledge of the circumstances?

[19] In answering that question it is necessary to look at the words complained about. In summary, the plaintiff alleges that the letter and the articles are defamatory of him and impaired his dignity in that it is stated: (i) that he is was one of the people who actively participated in the establishment of the RDP (ii) that his report is based on the pain of a guilty conscience; (iii) that he tries to soothe or calm that pain by raising false and absurd issues with a view to get at the first defendant; (iv) that there are people in this country who knows that he was one of the people who actively participated in the establishment of the RDP and (v) that the first defendant suspects that plaintiff has not, on his own, revealed this fact [i.e. that he was involved in the formation of the RDP] to his SWAPO colleagues.

[20] Looking at the words uttered by first defendant and published by the fifth respondent, it is difficult to see how a reasonable, ‘right thinking’ individual of normal intelligence might find the words to injure the plaintiff in his good name and reputation and thus being defamatory of him. No disparaging remarks that go against plaintiff’s character are made and no ridicule is leveled at the plaintiff. I agree with Mr Coleman’s submission that ‘In a democracy with an entrenched freedom of association [and I add the right to form and join a political party] a reasonable reader looking through the prism of the Constitution would not necessarily attribute to a member of a political party who involves himself in founding of another political party the characteristics of being dishonourable, a coward and without moral fibre, a, person of no integrity and dignity, and being a traitor.

[21] I am of the view that it is neither necessary nor possible to speculate on behalf of the "right-thinking" reader precisely what, as a general rule, he may and may not attribute to such a person. It suffices to say that, as I view the case and all its circumstances, I answer the question I posed in paragraph 18 in the negative, objectively viewed, both the ordinary and natural meaning or implead meaning of the words do not disparaged the plaintiff and his dignity and his reputation could also not have been diminished by the mere charge that he was involved in the formation of another political party.

[22] In the result I make the following order:

(a) The exception is upheld;

(b) The plaintiff is ordered to pay the costs of 4^th and 5^th defendants.

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SFI Ueitele

Judge

APPEARANCES

PLAINTIFF G NARIB

Instructed by Conradie & Damaseb, Windhoek

FIRST DEFENDANT No Appearance

SECOND DEFENDANT No Appearance

THIRD DEFENDANT No Appearance

FOURTH & FIFTH DEFENDANTS G COLEMAN

Instructed by AngulaColeman, Windhoek

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