New Era Publication Corporation has lodged an appeal in the Supreme Court against the judgment of Windhoek High Court Judge Orben Sibeya in favour of Namibian Police commissioner Andreas Nelumbu for an article it published in September 2022.
The judge ordered that New Era pay Nelumbu N$50 000, and publish a retraction and apology within 10 days of the judgment.
Nelumbu sued the publication, saying the article, titled ‘Top cops plot thickens’, was defamatory, as it painted him as a thief, corrupt, untrustworthy and a person who conducts fraudulent activities.
The article covered alleged missing police firearms, electricity generator and use of a police vehicle.
In its grounds of appeal, the publication claims that Judge Sibeya did not adjudicate and determine its defence that the article in question was reasonable and for public benefit.
“By doing so, the court firstly failed to assess the evidence before it through the prism of the appellant’s defence and secondly, failed to apply the test as set out in the case of Namibia Media Holdings v Lombaard and Another, to the appellant’s defence on the evidence before it. In that judgment, the Supreme Court stated: Defamation defences previously available under the common law were inadequate to protect the right to freedom of expression and the media protected under Art 21 of the Constitution.
The common law thus needed to be developed, as had happened in other jurisdictions, “to provide greater protection to the media to assure that their important democratic role of providing information to the public is not imperilled by the risk of defamation claims.”
New Era claims the court misdirected itself when it failed to engage its defence and applying the wrong test. The publication further states that its defence of reasonable publication in the public interest which finds abode and resonance in the Namibian Police warning statements and search warrants in respect of Nelumbu, received into evidence and criminal charges proffered against him was not taken into consideration by the court.
On the evidence before it, particularly the warning statement and warrants, the court, on the conspectus of the information contained in the publication, ought to have found that the appellants were not liable for defaming the respondent, if at all, because the publication was in the public interest, and the publication, in the circumstances, was reasonable. -rrouth@nepc.com.na