FORMER Namibian supreme court judge, Pio Teek, has featured in judicial decisions more than once over the last weeks. Most significantly, the Supreme Court has confirmed the retired judge’s high court acquittal as pronounced at the end of his trial for sexual offences in relation to two young girls (see separate story below). The court strongly criticised the police investigation and other aspects of the way the state presented its case. But judgment in a second matter involving the retired judge has also been recently delivered, with the high court refusing a claim for defamation in which Judge Teek and his daughter wanted N$6-million in damages. The case is an off-shoot of a dispute over fishing rights. Judge Teek challenged a claim that he had suggested shares offered to him by an affirmative action fishing company should be registered in the name of his then under-age daughter; then, years later, he objected to an apparent reference to that issue in a separate plea filed in a different case, claiming defamation.
Read the judgment here on NamibLII
THE fishing fight involving former Judge Pio Teek dates back more than a decade to the establishment of a company called Old Man Fishing CC. This CC was specially set up to ensure that its members would benefit from a new scheme, announced by Namibia’s ministry of fisheries and marine resources, in terms of which fishing rights would be awarded to companies at least partly owned by black Namibians.
In a case launched in 2013, a plea was made on behalf of Namibia’s Ombudsman, John Walters, which Judge Teek later claimed was defamatory and which sparked a defamation claim against Walters and his legal representative.
The plea read as follows: “The second defendant denies that the plaintiff was the true beneficiary of the members’ interest in Old Man Fishing and puts the plaintiff to the proof thereof. In amplification of the aforesaid denial, the second defendant pleads that according to information obtained from the late Benjamin Kheibeb during the investigation of a complaint from the ninth defendant, the true beneficiary of the members’ interest held by the plaintiff was Pio Teek, as the plaintiff was merely holding the members’ interest on his behalf at the time”.
Judge Teek and his daughter claimed that this statement was “made with malice” and was intended to defame the good character and reputation of the pair. They added that the statement also carried an additional sting in that it meant that they were “corrupt and dishonest, crooks, criminals, not law abiding citizens and without moral fibre”. It necessarily also meant that they had “fraudulently conspired and colluded to conceal or hide the real identity of the true … owner of the shareholding in Old Man Fishing CC from the Ministry of Fisheries and Marine Resources”. For all of this the Teeks claimed total damages of N$6-million.
As far as the Ombudsman and his lawyer were concerned, however, they said the plea was not defamatory not made wrongfully or maliciously.
In trying to resolve the dispute, the court said it had no access to the findings and proceedings in the case where the plea had been made and so could not rely on any evidence or findings in the case. However, the evidence of the parties had to be considered to make the dispute intelligible.
In the course of a case dating back to 2003, an attempt had been made to divest Benjamin Kheibeb of his membership interest in Old Man Fishing, and to force him to sell his interest to the applicants. When he resisted the move, Kheibeb made a number of allegations about the shareholding in the CC that Judge Teek strongly denied.
This was followed by newspaper articles reporting as fact that Judge Teek had “hidden” his share membership in the CC by using his daughter’s name, something that the judge strongly denied at the time, calling the articles “an evil figment of the media’s malicious imagination”.
In the later follow-up case during 2013, Judge Teek testified that the Ombudsman had relied on untrue information by Kheibeb and had not properly investigated his allegations.
During the defamation claim trial, Judge Teek said that because the statement pleaded by the Ombudsman was false, it was defamatory. In his view, if the statement is read in conjunction with the newspaper articles, the maliciousness of the defamation became clear. He also conceded, however, that without the newspaper articles, “the statement is not in itself defamatory”, though it was still not true.
Judge Teek’s daughter, Pia, said that while her father represented her as her guardian in Old Man Fishing until she reached her majority, she was the ‘true owner and beneficiary” of the members’ interest and received the benefit of the interest.
The ombudsman in turn told the court that he never saw or read the newspaper articles and that his plea was not based on them – in fact he had not yet been appointed ombudsman at the time they articles were published.
He also said that in his opinion “there was nothing wrong with someone holding shares on behalf of someone else and therefore he did not consider the statement to be defamatory”.
Eileen Rakow, who was the ombudsman’s legal representative in the matter, said she signed and filed the plea after a complaint was made at the ombud’s offices related to a name change from Old Man Fishing CC to Augei-Khas Sea Products CC “without the permission of the members” of the CC.
At a meeting with the parties, it emerged that there was unhappiness about the fact that some of the Old Man Fishing members did not pay for their shares. There was a complaint that Judge Teek had not paid for the shares he received – though he wanted the benefits. The plea she prepared for the ombudsman was based on the information received at this meting plus documents filed in court in a related matter.
Judge Prinslooo who heard the matter, said that during the trial there was no evidence presented proving that any readers of the statement understood the words in the defamatory sense contended for. The judge also said that there was “a lot of speculation and conjecture” by the Teeks that had no substance.
“I am of the considered opinion that there is no link between the plea filed … (in the 2013 case) and the newspaper article published nine tears prior. No reasonable person reading the statement would understand the (Teeks) to be “corrupt and dishonest, crooks, criminal, not law-abiding citizens and without moral fibre” or that they fraudulently conspired and colluded to conceal or hide the real identity of the true beneficiary or owner of the shareholding in Old Man Fishing CC.”
It was also clear that the allegedly defamatory statement was not “communicated to various people, but directly to the parties involved in court proceedings via a plea to the particulars of claim as prescribed by the rules of this court.”
The judge was further concerned that the defamation claim was not brought against the newspapers or the late Kheibeb – in relation to them claims had prescribed – and, the judge continued, it seemed like the present defamation claim was an attempt to have “a second bite at the proverbial cherry”.
But even if the court agreed that the statement was defamatory – which it did not – there was the next problem for the Teeks: that the statement was privileged because it was published in the course of judicial proceedings.
It could not be said that the statement was defamatory, “but an answer to the claim only”. There was also no evidence that the statement caused a violation of the rights of the Teeks.
The defamation claim was thus dismissed, with costs.
Local newspaper reports from 2004 claimed that the 2003 fishery dispute was the "fourth court or police case" that Judge Teek had been involved in during the previous three years.