From tweets made on X (formerly Twitter) to statements made in the media, the term
defamation can easily be resorted to when posts and publications made on these platforms
threaten one’s reputation. The Constitution of the Republic of Namibia preserves the right to
freedom of expression under Article 21. However, to what extent should this be permitted
and what does defamation really encompass in the Namibian legal climate? This article,
written by Aisha-Deva Harris, an Associate Attorney at Koep, the LEX Africa member for
Namibia, will briefly discuss the legal principles of defamation in Namibia and the various
approaches adopted by the Namibian courts.
Definition, Grounds and Test for Defamation
Definition
The law of Defamation forms part of the law of delict and can be defined as follows:
“The intentional infringement of another’s right to his good name. To elaborate, defamation
is the wrongful, intentional publication of words or behaviour concerning another which has
the tendency to undermine his status, good name or reputation.”1
Defamation can also be defined as: “defamatory statement is one which injures the person to whom it refers by lowering him in the estimation of the ordinary intelligent or right thinking members of society”.2
Grounds
Based on the common law, to succeed in proving that defamation has been suffered by a
party, four elements need to be present namely; publication, wrongfulness, intention and the
defamatory word or conduct about the party. 3 Should a party succeed in proving that a
person published a defamatory statement about him or her, the courts will infer that the
publication is wrongful and that there was an intention to injure. 4 Establishing the element of
publication will be satisfied once the defamatory statement is made know to at least one
other person, including it being made on various platforms or forms including new groups,
bulletin boards and speech.5
Test
The test for defamation is whether, in the opinion of a reasonable person with ordinary
intelligence, the words have the tendency to undermine, subvert, or impair a person’s good
name, reputation or esteem in the community. 6 A two staged enquiry is adopted in this
regard: 7 The first is to establish the natural or ordinary meaning of the statement by
employing an objective test of the reasonable observer. The second is whether the
statement is defamatory, based on the statement’s natural or ordinary meaning, would it
tend to lower or injure a party’s good esteem in which the party is held by the reasonable or
average person to whom it had been published.
Defences for Defamation
Defamatory statements are permitted by way of three fundamental defences. Firstly,
whether it can be proved, on a balance of probabilities that the statement is true and in the
public interest. Secondly, whether the statement amounts to fair comment or freedom of
expression. Lastly, whether the statement is made under privileged circumstances, meaning
that under circumstances where the party who made the statement believed that it was their
moral or legal duty to make a certain statement, they will be protected. 8 This list of defences
are, however, not exhaustive and if any of these elements can be proven then the
defamation claim will fail.
Summary of Defamation Decisions in Namibia
Trustco Group International Ltd and Others v Shikongo,9
In the Supreme Court matter of Trustco Group International Ltd and Others v Shikongo, the
appellants who were the proprietors/owners of the Informante newspaper appealed against
the judgment made in the High Court, in terms whereof the mayor of Windhoek was
awarded damages in the amount of N$175 000. In the High Court, the former Mayor of
Windhoek sued the appellants for a publication made in the Informante newspaper on 21
September 2006, which article alleged that the former Mayor was connected to a “boerdery
cartel”, involved in irregular land deals and that the mayor was responsible for causing the
City of Windhoek to lose money. The Supreme Court had to consider the following: how the
law of defamation should give effect to both the right to freedom of speech under Article
21(1) of the Namibian Constitution and the constitutional precept of dignity; 10 and whether
the media may avoid liability for defamation by showing that the defamatory statement was
not made with the intention to injure. 11
The court importantly followed the principle that the media will be liable for the publication of
defamatory statements unless they can establish that they were not negligent and that as an
elementary principle of fairness, an individual should be provided with an opportunity to
respond to the article about them. 12 The court found that the statements made about the
former mayor were not reasonable and did not constitute reasonable journalism. The
decision of the High Court was upheld in part, in respect of the finding that the statements
made about the mayor were defamatory. The court overturned the quantum of damages of
N$175,000.00 to N$100,000.00 as it was of the considered view that the award made by the
High Court was considerably high in the circumstances13
Geingos v Hishoono14
In this matter, slanderous averments were made against the First Lady of the Republic of
Namibia, Mrs Monica Geingos, on social media. Here, the court importantly considered the
constitutional right of dignity to assess whether the statements were defamatory and noted
the following:
“Reputation and dignity are two distinct concepts. Reputation, as stated before, constitutes
the perception and good name of a person in the eyes of the community. Dignity which is
inviolable, as per the Constitution, is a given. Everyone has it for inherently being human
and cannot be taken away. The right to life, would mean less, without respect for human
dignity. That is the magnitude of dignity. Respect for reputation and dignity of others is a
requirement of law with consequences for defaulters.” 15
The court consequently found that the statements made about the First Lady were barbaric
and defamatory and awarded damages in the amount of N$250,000.00.
Angula v Tjirdonda16
In this matter, Koep and Partners successfully represented a legal practitioner (the plaintiff)
against Mr. Tommy Tjaronda (the defendant) for statements made about the plaintiff on
Twitter. Particularly, that the plaintiff is a “liar” and a “lying practicing attorney”. 17 The
defendant relied on the defence of truth and that the statements were made in the public
interest. The court importantly noted the following:
“In my view, it is clear, on the evidence adduced that the statements tweeted by the
defendant were totally false and untrue. Assessed within the context in which they were
made, the statements were made with actual malice and total indifference to the plaintiff’s
right to dignity and reputation. The defence of “public interest” applies only if the impugned
statements are factually true.”
After considering the facts of the matter, the court found that the statements made about the
plaintiff were false, awarded the plaintiff damages in the amount of N$100,000.00, and
ordered the defendant to publish a retraction and an apology.
Conclusion
A rising popularity of defamation cases exist in Namibia, and our courts have developed the
law of defamation by following a strict two staged enquiry in order to establish the elements
of defamation, as well as considering defamation against the backdrop of the rights
enshrined in the Namibian Constitution. Our courts have shown a reluctance to tolerate
defamatory remarks, whether these remarks are made through the media or on social media
platforms.
1.Neethling, Potgieter and Visser The Law of Delict 7eds (2015) 352.
2.Hix Networking Technologies v System Publishers (Pty) Ltd and Another (222/95) [1996] ZASCA
107; 1997 (1) SA 391 (SCA) ; [1996] 4 All SA 675 (A) (25 September 1996).
3.Platt v Apols [2021] NAHCMD 143 (26 March 2021).
4.Platt v Apols [2021] NAHCMD 143 (26 March 2021) para 49.
5.Desan Iyer “An Analytical Look into the Concept of Online Defamation in South Africa” 5 Speculum
Juris at 126.
6.South African Associated Newspapers Ltd and another v Yutar 1969 (2) SA 442 (A), para 451.
7.Le Roux v Dey (Freedom of Expression Instute and Restorative Justice Centre as amici 7 curiae)
2011 (3) SA 274 (CC) para 89.
8.Borgin v De Villiers 1980 3 SA 556 (A).
9.Trustco Group International Ltd and Others v Shikongo SA 2009.
10.Supra, para 1.
11.Supra, para 25.
12.Supra, para 85.
13.Supra, para 86.
14.Geingos v Hishoono [2022] NAHCMD 48 (11 February 2022).
15.Supra, para 47.
16.[2022] NAHCMD 364.
17.Supra, para 33.
