A WIN which a Windhoek-based lawyer scored against The Namibian and its editor in a defamation case in the High Court two years ago has turned into defeat in the Supreme Court.
Editorial commentary by The Namibian's editor, Tangeni Amupadhi, about a house transaction involving a lawyer, his former domestic worker, a property donation and an eviction, which was published in the newspaper on 15 July 2016, was fair comment, the Supreme Court ruled yesterday in a split decision in which it upheld an appeal against the High Court judgement that ended with Amupadhi and the company owning The Namibian being held liable for defamation.
The Supreme Court set aside the High Court's order, replacing it with an order that lawyer Vincent du Toit's legal action against Amupadhi and The Free Press of Namibia is dismissed with costs.
The court also ordered that Du Toit should pay the legal costs of Amupadhi and the newspaper in the appeal.
In the court's majority judgement, acting judge of appeal Jeremiah Shongwe said the comments which Amupadhi made in his editorial column were based on facts which were true or substantially true and were honest, reasonable and made in good faith.
He said Amupadhi's comments dealt with matters of public interest, namely poor people's access to housing, and professionals and wealthier members of society profiteering from having access to housing traditionally earmarked for poor people.
The High Court should have found that Amupadhi's remarks in the editorial constituted fair comment, Shongwe stated.
Appeal judge Elton Hoff agreed with Shongwe's judgement, but appeal judge Sylvester Mainga did not. In a minority judgement, Mainga concluded that he would have upheld the appeal of Amupadhi and The Free Press of Namibia only partially, by lowering the amount awarded to Du Toit in the High Court from N$100 000 to N$60 000.
Amupadhi commented on the outcome of the appeal yesterday: "The judgement is a victory for anyone who values freedom of expression for individuals and the media alike. The majority judgement confirms the importance of robust commentary, criticism and debate, which are the oxygen of any democratic society."
He added: "However, the minority decision is concerning because it does not seem to appreciate fair comment, even if such criticism was harsh, as long as the opinion is substantially based on facts. In the minority judgement it appears too much weight was given to the rights of an individual at the expense of the greater public interest.
"We trust the judgement establishes a precedent that promotes civil and robust exchanges of different opinions instead of making people afraid to criticise."
Du Toit sued Amupadhi and the newspaper over an editorial in which Amupadhi referred to an article about a donation of a house in Katutura that a domestic worker employed by Du Toit made to him and Du Toit's eviction of the previous owner of the house, after the property had been sold to him at an auction over municipal debts of N$33 000 which the initial owner had.
He also made general comments about indebted poor people who lose their homes as a result of relatively small debts, often to professional people taking advantage of their plight.
In the High Court, judge Herman Oosthuizen concluded that the editorial comment contained contextually wrong facts and constituted a defamatory opinion about Du Toit.
Mainga said in his judgement that freedom of expression, while being an important right in a democracy, is not absolute and needs to be balanced against an individual's right to dignity. He concluded that the editorial comment did not meet the test to be regarded as fair comment.
Shongwe noted it was not in dispute that the comments made by Amupadhi were in the public interest. However, Du Toit disputed the fairness of those comments.
Shongwe remarked that in his view, Du Toit profited unfairly from the supposed donation of the house to him, as his former domestic worker did not receive any benefit from the increase of the value of the house over the six years the property had been registered in her name, while the initial owner refused to vacate the property.
He stated that in his view "all the facts relied on by [Amupadhi] are true or substantially true, fair and without malice", and that Amupadhi did not twist or fabricate the facts on which his comments were based.
Amupadhi "was perfectly entitled to ventilate his view of what he perceived to be an uncaring society", Shongwe added.
It was open to Amupadhi, as it was to any citizen in Namibia, to be critical of a system, from which Du Toit benefited, in which people were evicted from their houses because of relatively insignificant debts, and he was also perfectly entitled to have an opinion that the circumstances surrounding the donation of the house to Du Toit by his former domestic worker had been dubious, Shongwe stated.
Senior counsel Gilbert Marcus, assisted by Ramon Maasdorp, represented the newspaper and Amupadhi on instructions from the law firm AngulaCo Inc.
Andries van Vuuren, instructed by Sean McCulloch, represented Du Toit.