Namibia’s apex court confirms new trend in media freedom cases

In a new judgment of extraordinary importance for freedom of expression and media freedom in Namibia, that country’s highest court has confirmed the development of the common law to give greater protection to the Namibian media so that, as the court put it, its ‘important democratic role of providing information to the public is not imperilled by the risk of defamation claims.’

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This new judgment illustrates how Namibia’s highest court is determined to protect media freedom, given its constitutional importance in that country. But behind the theoretical questions lie contested facts concerning the fate of three elephants, and a defamation case against the Namibian Sun, arising out of this dispute.

In the high court, the media company was ordered to pay a total of N$120 000 in damages after that court imposed an extremely high standard on the journalist who wrote the disputed story. Would the Supreme Court agree that this virtually impossible standard applied, or would it find that a more reasonable standard was required of a journalist?

The original story opened with focus on an urgent court application said to have been filed by Namibia’s environment ministry, aimed at forcing a game-capturing company to return three elephants illegally transported to Mariental.

Horrific

The story also said that the elephants were being kept ‘in what the ministry describes as horrific conditions’.

Johan Lombaard, who had possession of the elephants at the time, was a co-owner of Golden Game CC, and Lombaard and Golden Game were the two applicants in the high court action, suing for defamation against the media company.

In response to the defamation claim, the newspaper said that the statements complained about by Lombaard and his company had been made at a public press conference by the Minister of Environment and Tourism, and by the ministry’s permanent secretary.

Plight

Among other defences, the newspaper claimed truth and public interest, fair comment and reasonable publication. Senior journalist for the media company, Ellanie Smit, who wrote the disputed article, said that she had attended a press conference addressed by the minister and another ministerial official. They were asked about the plight of the elephants, and their answers were accurately reflected in the subsequent article she had written.

She said that after the press conference, but before publication, she made two attempts to reach Lombaard by phone but that his phone was off on both occasions.

Lombaard stressed that Smit had not contacted him before publication, and that the published report contained ‘untrue and incorrect matter concerning him and Golden Game’. At no stage had the ministry sought an interdict against him and his company. Further, he denied that the elephants were illegally transported or that they were kept in horrific or deplorable conditions.

Defamatory

The high court found the article was indeed defamatory in that it attributed illegal activities to Lombaard and his company, and the fact that the story referred to the animals as being kept in horrific conditions was also defamatory.

It found that the information presented at the press conference was not accurate and that Smit ‘did nothing’ to investigate the truthfulness of the allegations made at the press conference.

The treatment of elephants was indeed a matter of public interest, the high court found, but the media company did not establish the defences of truth and public interest, nor fair comment.

Public interest

In its judgment, the appeal court has now found that reporting on allegations of ill treatment of elephants, made by the political and executive heads of the ministry constitutionally mandated to enforce provisions of law aimed at the prevention of ill treatment of this protected species, was ‘inherently a matter in the public interest.’

The media company argued that the reporting of factual statements made at an official public press conference ‘was reasonable’ on its part and it was reasonable to accept the correctness of the factual matter disclosed by these officials as they were ‘reliable sources’.

Lombaard’s legal team took issue with the failure of Smit to ‘test the accuracy of the statements’ made at the press conference.

Accuracy

Two calls to Lombaard, made in quick succession before publication, were ‘hopelessly inadequate’ as an opportunity to respond to the allegations made against him and his company. And there had been ‘no effort at all made to test the accuracy of the information given at the press conference.

It was ‘insufficient’ that Smit regarded the courses as credible and reliable. According to Lombaard’s counsel, Smit ‘could and should have travelled to Lombaard’s farm near Mariental to see the conditions for herself.’

But was this really necessary to establish the defence of ‘reasonable publication in the public interest’? Trustco v Shikongo, a ground-breaking Supreme Court decision on defamation, had made it clear that defamation defences previously available under the common law were ‘inadequate to protect the right to freedom of expression and the media protected under … the constitution.’

Protection

The court in Trustco had found that the common law therefore 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.’

In Trustco, the court said that the development of a defence of reasonable or responsible publication of facts that are in the public interest, would provide ‘greater protection to the right of freedom of speech and the media protected [in the constitution] without placing the constitutional precept of human dignity at risk.’

The Supreme Court trawled recent trends in international jurisprudence to satisfy itself about the increasing acceptability of this defence.

Perfection

In order to establish the defence of reasonable or responsible reporting, said the court, a journalist would need to satisfy herself that her belief in the truthfulness of the allegations is the result of a reasonable investigation and must be a reasonable belief to hold.

The list of guidelines in the Trustco decision was not to be applied rigidly, but rather to provide helpful guidance to courts. Further, the Trustco judges found, courts ‘should not hold journalists to a standard of perfection.’ Account must be taken of the pressure under which journalists work and ‘not expect more than is reasonable of them.’

But courts should also not be too willing to forgive manifest breaches of good journalist practice.

Compelling

Applying these principles to the appeal before it, the Supreme Court found that reporting on allegations of ill treatment of elephants was a matter of compelling public interest.

At no stage did Lombaard take issue with the accuracy of Smit’s report on the statements attributed to the minister and other officials. In the view of the court, it was ‘unequivocally true’ that the appellants had established Smit’s conduct in publishing the report to be the actions of a ‘reasonable or responsible journalist’.

The ministry had an investigative, enforcement and supervisory role in relation to granting wildlife permits and ensuring compliance with them. Smit was ‘plainly entitled’ to accept the accuracy of what both officials said at the press conference without independently verifying the correctness of what they said. There was ‘no indication of a casual, slipshod or careless approach’ by Smit or her editor. ‘The indications are quite to the contrary.’

Reasonably

What about approaching Lombaard before publishing? The fundamental question was whether the journalist acted reasonably in publishing, the Supreme Court said. And her accurate reporting on the statements of the minister and officials at the press conference clearly satisfied the test of a responsible journalist.

In conclusion, the Supreme Court held that Smit’s defence should have succeeded in the high court, and the court should have dismissed the defamation action with costs.  

  • ‘A matter of justice’, Legalbriefs, 12 July 2022
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