Mbura v Katjiri (I 4382/2013) [2017] NAHCMD 103 (31 March 2017)

Facts

The plaintiff, a businesswoman, sued her stepfather and her step-sister for damages of N$ 150,000. She alleged that they defamed her, alleging that she was a witch who used witchcraft to kill people. It was further alleged by them that she had killed her step-brother, at whose funeral the alleged offensive words were allegedly uttered by them in the presence of many mourners.

Issue for determination

Whether or not the defendants defamed the plaintiff in her character. 

Discussion

‘[18]There is no doubt whatsoever, in my mind, that to call a person a witch or a witchcraft practitioner, who uses that ‘skill’ to kill people, is per se defamatory and serves to impugn that person’s dignity, and serves to lower him or her in the estimation of right-thinking members of society. I say so very cognisant, and I take judicial notice of this, that in many African traditional societies, even in the 21st century, the belief in witchcraft remains as a fossil that continues to rear its ugly head from time to time, and normally heralds grave consequences for one ‘diagnosed’ or ‘smelt’ out as a witchcraft practitioner. 

[19]To be accused of being a witchcraft practitioner, even without a process of divination must, in my opinion, be regarded as defamatory to a reasonable person of sober tastes and sensibilities, particularly because of the likely reaction by other members of the same community to the person accused of same. It is no wonder that the issue of whether the words allegedly uttered by the defendants were defamatory was not submitted for the court’s determination.

[62]I come to the view that the evidence of the defendants, together with their witnesses, was nothing but a bare denial, and the evidence appears to have been contrived. Some of the witnesses appeared to remember everything else said, particularly the good said about the plaintiff by the 1st defendant, except the ugly he said, as I have held to be the case. Some did not out rightly deny this, but stated that they did not remember the defendants making the said utterances. This nails the true colours of the defendants’ and their witnesses to the mast.

[66]In view of the foregoing, I am of the view that the plaintiff has, on a balance of probabilities, shown that the defendants did, on the occasion alleged, utter words to the effect that she was a witch, and that she kills people using the instrumentality of witchcraft, including the late Adof Katjiri. I accordingly find for the plaintiff in this regard. Both defendants are accordingly held to be jointly and severally liable to the plaintiff for the defamatory statements they uttered. 

[81] Having regard to all the foregoing factors, particularly the import and sting of the allegations of witchcraft, coupled with killing, which are two different allegations, each with a sting of its own, I am of the view that the message must be sent home that wild, hurtful, demeaning and unsubstantiated allegations of this kind cannot be allowed or tolerated at this time and age. As a deterrent, an award with a sting is in my view called for.

[82] In determining the award, I will not, however, close my eyes to the fact that the protagonists are related. There may well be family disputes that motivated this attack, as alluded to in the judgement. It would probably assist, in the circumstances, and one can do no more than hope, to issue an award that might serve to heal and bridge the relations, rather than polarise the protagonists even further. In this regard, an award that has a conciliatory note, without justifying the putrid words uttered, is in my view, called for.

After consideration of the evidence and principles of law, MASUKU J held that:

The evidence of the plaintiff, together with her witnesses, was plausible and generally consistent and believable. Furthermore, the court found and held that the truthfulness of the evidence was borne out by the general probabilities of the case.

The words attributed to the defendants were per se defamatory of the plaintiff, and that the said words served to lower her in the estimation of right-thinking members of the community, particularly the rural community of Okonjama, where the funeral was held.

Held further that on the probabilities, the defendants did utter those words, as they were confirmed by independent witnesses, who were unrelated to either of the parties to the dispute.

Held further that the defendants and their witnesses testified to a bare denial, and that their evidence was contrived and inherently unconvincing.

Held that in determining the damages to be awarded for defamation, the court should consider the character, status and regard for the plaintiff; the nature and extent of the publication; the nature of the imputation; whether there was a retraction and apology, and the form of the defamation i.e., whether oral or in a permanent form. 

After considering all the relevant factors, attendant to the case, the court awarded the plaintiff damages in the amount of N$ 70 000, and costs.

Amukete v Iiyagaya (HC-NLD-CIV-ACT-DEL-2019/00047) [2019] NAHCNLD 103 (30 September 2019)

Facts 

The plaintiff, a school principal, sued the defendant for damages of N$70 000 for defamatory statements made, and various text messages sent by the defendant that the plaintiff is a witch or practices witchcraft. The statements were made at a funeral of a relative, in the presence of the plaintiff, some of his relatives, and other members of the community.

Issue for determination

The court was called upon to consider the appropriate damages’ amount. 

Discussion 

‘[9] The legal considerations at play when a court is called upon to consider an appropriate damages’ amount as compensation were re-instated in Nuule v Kambwela, where the court stated that the purpose of an award for damages is not to punish the wrongdoer, but rather to afford the victim personal satisfaction for an impairment of his right; and that the extent to which plaintiff’s reputation has been damaged is to be determined in an objective manner.

[10] Furthermore, the court should take into account the following factors, namely the plaintiff’s standing in society; the consequence of the publication; and whether or not there has been an apology made by the defendant. 

[11]Applying the above principles to the facts of the present matter, as mentioned earlier, the plaintiff is a school principal, and thus occupies a prominent position in his community. It is also common cause that the defendant repeated the defamatory statements on various occasions in the presence of persons who knew the plaintiff. It follows, therefore, that publication of the defamatory statements took place.

[13]Having regard to comparable awards on the facts, in the matter of Mbura v Katjiri, appear to be comparable to the facts in the present matter. In that matter, like in the present matter, the defendant uttered defamatory statements regarding the plaintiff to the effect that she was a witch and used witchcraft to murder a relative. The statements were also made at the funeral in the presence of various members of the community, and the family members of the plaintiff. In the claim for defamation, the court awarded a sum of N$ 70,000 to the plaintiff in damages.

[14]Given the striking similarity between the Mbura matter and the present matter, I cannot see any reason why this court should deviate from the quantum awarded in the Mbura matter.

ANGULA DJP thus held that:

Having regard to the fact that, as school principal, the plaintiff held a prominent position in his community, the defendant’s repetition of the defamatory statements on various occasions, and the fact in a comparable matter, the court awarded damages of N$70 000.

Nehoya v Haimbodi (HC-MD-CIV-ACT-OTH-2022-00015) [2023] NAHCMD 393 (7 July 2023)

Facts

The first defendant, a pastor, interviewed the second defendant on several occasions. These interviews were recorded, and then posted on the first defendant’s Facebook platforms on two different dates. During the interview, the second defendant made statements of a defamatory nature about the first and second plaintiffs inter alia that they were practising witchcraft. The two plaintiffs were also referred to as witches on the first defendant’s Facebook page. 

Issue for determination

The court was called to determine the issue of quantum.

Discussion 

‘[13]…in Mbura v Katjiri:

‘A number of general factors may affect the assessment of damages for defamation; the character, status and regard of the plaintiff; the nature and extent of the publication; the nature of the imputation; the probable consequences of the defamation; partial justification (e.g. publication of truth which is not for the public benefit); . . . whether there has been a retraction or apology; and whether the defamation was oral or in permanent form. In addition to these and other relevant factors, the court is entitled to take into account comparable awards in other defamation cases, and the declining value of money’.

The court is in agreement that these are the factors that ought to be considered. 

[16]In Platt v Apols, a medical practitioner was accused in a Facebook post of abusive and aggressive behaviour towards the defendant’s mother and other people. The defendant in that matter refused to remove the post, even after summons. The court, when dealing with the issue of quantum, cites Muller v SA Associated Newspapers Ltd and Others, where the court points out the following factors which ought to be taken into consideration in the quantum of damages:

‘…the character and status of the plaintiff, the nature of the words used, the effect that they are calculated to have upon him, the extent of the publication, the subsequent conduct of the defendant and, in particular, his attempts, and the effectiveness thereof, to rectify the harm done’.

[17]The court in the Platt matter also had the following to say about the use of social media to make defamatory statements:

‘Social media such as Facebook is a powerful tool used by people such as the defendant to defame and ruin the reputation of innocent people, and the only way for those aggrieved by such malicious and defamatory posts and tweets is to approach the courts for appropriate relief, and where it is proven that such posts were defamatory, the relief must be granted.’

The court awarded the amount of N$ 20,000 to the plaintiff in damages.

[21]The two plaintiffs are businesswomen who sell their wares at an open market, and appear to have some standing in the community they live in. The choice of publication is through social media. It was recurrent and widespread. This is an aggravating factor. The first plaintiff’s children are also affected, and this to my mind further aggravates the publication. It does, however, appear that the first defendant tried to avoid the publication of the first and second plaintiffs’ names after receiving the letter of demand, although no formal apology was made. 

[22]There is no reason for the court to distinguish between the two plaintiffs, as the second plaintiff is mentioned in association with the conduct of the first plaintiff.  The same applies to the roles that both the first and second defendant played in making the statements. 

[23] Having regard to the evidene provided to the court and considering awards made by this court, this court is of the view that an appropriate award for each plaintiff would be N$15 000. 

TOMMASI J thus held that:

The defamatory statements were published and, in the absence of evidence to the contrary, the statements were unlawful, and made with the intention to injure the plaintiffs. Damages were awarded in the sum of N$15 000 for each plaintiff, and the defendants are liable jointly for the payment of the damages.

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