Oshakati magistrate, Helen Ekandjo, has more than 20 years’ experience on the bench. She might even have thought that she had seen it all – but when David David appeared before her in October 2021, it sparked a novel situation, one that has ended up in the high court with a successful defamation action.
According to Ekandjo, David appeared before her, in a bail application. She turned down the bail application after she found there was a likelihood that he would interfere with investigations if he were allowed out.
At David’s next appearance, on 19 October 2021, the case was called. But before the prosecutor could address the court, David raised his hand. Ekandjo told him to wait until the prosecutor had completed the address. Once the prosecutor was done, she gave David a chance to address the court.
It turned out that what he wanted to say was that Ekandjo should recuse herself from hearing the case. He justified his application by saying he had heard that she is a friend of ‘the complainant’ in the case where he was standing trial.
Ekandjo told the high court that because there were two complainants in the case, she wasn’t clear which of the two complainants David had in mind.
At that point, David handed the prosecutor a document addressed to her (Ekandjo). The prosecutor read it and made some comments on it to the court before he handed it to the magistrate to form part of the record.
She told the high court that the statement was handwritten and that it made a number of allegations against her. It said he didn’t want her to hear the case because she was ‘dishonest’ and ‘full of corruption’. She was a ‘friend’ of the complainant’s, he said, and she had been paid by the complainant’s family.
All these allegations were made in the presence of five other court officials.
Ekandjo said the statement was defamatory: David’s allegations weren’t true and she didn’t even know the complainants in the matter.
According to the magistrate, David’s statement insinuated that she was dishonest, had ‘loose morals’, engages in criminal conduct and did not uphold the law. She didn’t think it was appropriate to have him committed for contempt of court since that would only have dealt with the dignity of the court and the administration of justice – without restoring her personal dignity.
She therefore asked for damages of N$70 000 plus a public apology in a national newspaper. That combination, she said, would restore her reputation and the confidence of the public in the administration of justice.
David Munsu, the high court judge who heard Ekandjo’s defamation claim, said she had established that the contentious statement was made during court proceedings and in the presence of other court officials. In other words, she had established that there was ‘publication’.
David, the defendant, had not opposed Ekandjo’s action, so the presumptions that the publication was unlawful and made with intention to injure, both remained intact.
The judge said the allegations made against the magistrate – being dishonest, corrupt and being paid by litigants – were defamatory. The innuendo was that she lacked integrity and behaved contrary to her judicial oath. The claimed behaviour ‘is not only inconsistent with [her] office but also implies criminal conduct on her part’, something that would tend to lower her in the eyes of the public.
Yet ‘no iota of evidence was presented to support the allegations’. The judge added that he was thus satisfied that she had made out a case of defamation against David, who had no lawful defence in respect of the allegations he had made.
What about the scale of damages that should be awarded?
Among the relevant factors to consider would be the circumstances in which the defamation occurred, David’s behaviour, Ekandjo’s standing in society, the extent of her humiliation or distress and whether there had been an apology.
Counsel for Ekandjo said the court should consider that she was a sitting magistrate and that most of her more than 20 years on the bench had been in that same court. It was also relevant that the statement was in writing (and thus was ‘permanent’) and had been published in the presence of other officers of the court whilst the court was in session. It had been attached to the record, a public document that was open to any member of the public. Moreover, David had not made any apology. There was also no justification for the defamatory statement and there had been no iota of evidence.
The judge, said counsel, should consider that the ‘defamatory attack’ took place in open court, and should show its displeasure at such conduct by making it clear that ‘an attack on a judicial officer will not be tolerated without clear proof of such allegations’.
In the judge’s view, while the failure to apologise made matters worse, the fact that the statement was not circulated, and that publication was once-off and thus limited, also had to be borne in mind.
Since there had been no publication (of the statement) in any media, there was no need to order that David publish an apology in a newspaper.
The judge therefore set the damages award at N$20 000, with interest at 20%, along with legal costs.
But there was a further sting in the tail: the judge ordered David to apologise, in writing, within 10 days. If he didn’t do so, the damages award would increase to N$30 000.
* 'A matter of justice', Legalbrief, 28 February 2023