In a divided decision, two judges of the Supreme Court upheld an appeal that a local daily newspaper had lodged against a judgment of the High Court that awarded lawyer Ferdinand Vincent du Toit N$100 000 in damages and an apology.
Judge of Appeal Elton Hoff and acting judge of appeal Jerry Shongwe upheld the appeal, while judge of appeal Sylvester Mainga dismissed the appeal, resulting in a majority decision to uphold the appeal and order Du Toit to pay the costs of the appeal to include the cost of one instructing and two instructed counsel.
The saga emanated from an editorial the editor of The Namibian wrote, titled ‘Shylock Justice for the Greedy’, during July 2016, dragging the “familiar but morally indefensible practice of professionals who end up owning houses that belonged to some of the most vulnerable citizens”.
Du Toit said the editorial depicted him as a greedy, morally corrupt person who profiteers from the vulnerable in society.
Aggrieved by the article, he filed a lawsuit for defamation of character and High Court judge Herman Oosthuizen found in favour of Du Toit and ordered the newspaper publish a retraction and apology to the plaintiff, and to pay him an amount of N$100 000.
In his reasoning, Oosthuizen found that the article in question contained contextually wrong facts and constituted a defamatory opinion. The newspaper then filed an appeal with the Supreme Court, claiming that the article was protected and lawful because it was an expression opinion or comments on matter of public interest. In essence, they argued, the question is whether the statements are protected by the fair comment defence.
In their ruling, judges Hoff and Shongwe found that the requirements for defence of fair comment were met and that criticism is protected – even if they are extreme, unjust, unbalanced, exaggerated and prejudiced – as long as it expresses an honest-held opinion without malice on a matter of public interest on facts that are true.
In fact, the judges reasoned, fair comment refers to statement of fact, which must be true and in the interest of the public at large.
They found that the high court misdirected itself in specifically considering the nature and ambit of the defence of fair comment and wrongly rejected Amupadhi’s reliance on the underlying facts to justify his opinion.
“The appellants were exercising their right of freedom of speech and expression, including the freedom of the media, protected by Article 21(1)(a) of the Constitution,” the two judges stated.
On the contrary, judge Mainga found that the newspaper failed to meet the threshold for the defence of fair comment, as some facts relied on were untrue – and even if they were regarded as comments, such comments were unfair.
According to Mainga, the unsubstantiated assumptions of the author of the article to say that Du Toit was greedy, of questionable morals, profiting from the poor and a shylock, who was gunning for a pound of flesh from Ms Afrikaner, was unreasonable and unfair.
According to the judge, while freedom of expression and freedom of the press are cornerstones of our democracy, it cannot trump the pillar of human dignity.
“It is not a pre-eminent freedom ranking above all others. It cannot be said to automatically trump the right to human dignity and it does not enjoy superior status in our law,” Mainga stated, and continued: “This is also true of human dignity and equality. The right to freedom of expression must be balanced against the individual’s right to human dignity.”
In the end, the judge said, it is his considered view that the comments aimed at Du Toit infringed on his dignity and he is entitled to an apology and monetary compensation in the amount of N$60 000. However, since two other judges upheld the appeal, Mainga was outvoted.
Du Toit was represented by Andries van Vuuren, instructed by Fisher, Quarmby and Pfeifer, and The Namibian by Gilbert Marcus SC, assisted by Ramon Maasdorp, instructed by AngulaCo Inc.