REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT

CASE NO: I 3967/2009

In the matter between:

LIEUTENANT GENERAL SEBASTIAN HAITOTA NDEITUNGA PLAINTIFF

and

PETER YA PETER KAVAONGELWA DEFENDANT

Neutral citation: Ndeitunga v Kavaongelwa (I 3967/2009) [2016] NAHCMD 99 (11

April 2016)

Coram: DAMASEB, JP

Heard: 20, 22-24 February 2012; 18-20 April 2012; 31 October 2012; 27 November 2012; 05 March 2013, 21 April 2013; 11 June 2013; 16 July 2013; 21 November 2013; 26 November 2013; 05 February 2014; 18 February 2014; 25 February 2014; 25 March 2014, 1 April 2014, 16 April 2014; 3 - 4 June 2014, 6 August 2014.

Delivered: 11 April 2016

Flynote: Law of Defamation – Defamatory remarks made to prominent members

of society and to the media through media statements – Plaintiff is the Inspector-

General of NAMPOL – Statements made accusing the plaintiff of being a liar and

perjurer – Defence that the statements made are true and in the public interest – Test to

REPORTABLE

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be applied by the courts in Defamation cases – Proof of defamatory statements raised

the rebuttable presumption that such statements are wrongful and intentional – The

plaintiff need not allege nor prove the falsity of the defamatory statement and need not

allege anything more than his or her existence in a particular society where it is alleged

that his or her reputation was damaged in the eyes of the community at large – In order

to rebut the presumption of wrongfulness, a defendant may show that the statement

was true and that it was in the public benefit for it to be made; or that the statement

constituted fair comment; or that the statement was made on a privileged occasion –

Defendant failed to prove that such statements privileged or that public policy justifies

the publication – Statements found to be defamatory – Defence not succeeding –

Quantum of damages reduced to be aligned with previous awards.

_____________________________________________________________________________________

ORDER

______________________________________________________________________

1. The plaintiff’s claim against the defendant succeeds;

2. The defendant is ordered to pay the amount of N$ 60 000 to the plaintiff for

defamation of character;

3. There shall be interest on the said amount at a rate of 20% per annum from

date of judgement to date of payment;

4. Costs are granted in favour of the plaintiff on the scale as between attorney and

own client, to include the costs of one instructing and one instructed counsel;

5. The registrar is directed to bring the judgment to the attention of the Minister of

Home Affairs and Immigration;

6. The Registrar is directed to provide a copy this judgment, and a copy of the

record, to the secretary of the Disciplinary Committee of the Law Society and to

the Director of the Law Society of Namibia for the attention of the Council of the

Law Society in regard to Mr Mbaeva's conduct referenced in the judgment.

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________________________________________________________________________________

JUDGMENT

_____________________________________________________________________________________

Damaseb, JP: [1] Early this year I had caused a letter to be written to the parties to

tender an apology for the delay in delivering this judgment. As will soon become

apparent, the defendant’s cause was ill-served by his present legal practitioner of record

who took over from the previous ones. I needed more time than the rules permit to give

greater scrutiny and consideration to the issues – and they were many – which arose

during the course of the trial to ensure that justice is done given the defendant’s

‘ineffective assistance of counsel’1 (to borrow from the Americans). In the intervening

period I had, due to pressures of non-court related but official responsibilities, not had

enough time to attend to the matter earlier. I apologise for the delay.

[2] While on the subject of ineffective legal assistance, I wish to place on record that

I had made clear to the defendant during the course of the trial that not only was his

current counsel of choice seriously conflicted in light of his conduct2, and which I refer to

later in this judgment but that he was not receiving competent legal assistance. He

chose to retain his present counsel regardless.

[3] The chronology table appearing as an annexure to this judgment chronicles the

several occasions on which the trial was interrupted either at the instance of the

defendant or his current legal practitioner, Mr Mbaeva.

Genesis of the dispute

[4] The plaintiff is the Inspector General of the Namibia Police Force (NAMPOL).

The defendant is a former district magistrate who was dismissed by the Magistrates

Commission from that position on 31 March 2007. The dismissal followed a complaint,

1 For an appreciation of the proper place of the doctrine under American jurisprudence, see Strictland v Washington, 466 U.S. 668 (1984), and Padilla v Kentucky, 130 S.Ct. 1473 (2010).2 More fully set out in a ruling I delivered on 27 November 2012.

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and the evidence given, by the plaintiff as a witness at disciplinary proceedings

instituted by the Magistrates Commission.

[5] The gist of the complaint was that the defendant interfered with an ongoing

criminal investigation by the police against an admitted legal practitioner, Mr

Thambapilai. In the wake of his dismissal, the defendant made statements to diverse

persons accusing the plaintiff of committing perjury during the disciplinary proceedings.

[6] The plaintiff alleges that the statements of and concerning him were

communicated to the then Minister of Safety and Security, to the President of Namibia,

and to the Anti-Corruption Commission.

[7] The plaintiff alleges that such statements are wrongful and defamatory and were

intended to discredit him in the eyes of those to whom they were communicated and the

public generally. The plaintiff alleges that the statements were understood by the

addressees to mean that he is a dishonest person who is not fit and proper to be the

Inspector General; and that the Namibian Government, the Namibian Police and the

public should rid themselves of such a dishonest person.

[8] The plaintiff claims N$ 100 000 in damages.

Some preliminary matters

[9] I wish at the outset to deal with two matters which I think are important in order to

properly appreciate the context of the present litigation. The first is the legislative

framework under which the defendant (as magistrate) was charged, convicted and

dismissed. The second issue is what transpired at the disciplinary hearing involving the

defendant.

The role of the Magistrates Commission

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[10] The relevant legislation is the Magistrates Act, No. 3 of 2003 (the Act). The Act

creates a Magistrates Commission (the Commission) whose objects3, amongst others,

are to ensure that:

‘(a) the appointment, promotion, transfer or dismissal of, or disciplinary steps against,

magistrates take place without fear of favour or prejudice, and that the applicable

laws and directives in this regard are applied uniformly and correctly;

(b) no influencing or victimisation of magistrates takes place; ’

[11] Some of the Commission’s functions4 therefore are:

‘(c) to receive and investigate, in the prescribed manner …complaints from members

of the public on alleged improper conduct of magistrates…

(d) …

(e) carry out or cause to be carried out disciplinary investigations into alleged

misconduct of magistrates…’

[12] The Commission consists of a Judge, the Chief: Lower Courts, a magistrate, a

civil servant from the Ministry of Justice designated by the Minister of Justice, a suitable

person designated by the Public Service Commission5, a suitable person designated by

the Attorney-General and a teacher of law nominated by the Vice–Chancellor of the

University of Namibia.6 The Commission is therefore an independent body comprising

professionals.

[13] Misconduct by a magistrate includes ‘any act which brings or is likely to bring the

administration of justice or the magistracy into disrepute’.7 The Act sets out a very

elaborate process for the investigation of alleged misconduct against a magistrate (ss

25 and 26), culminating in the appointment of a presiding officer whose role is to

‘investigate’ a complaint of misconduct against a magistrate, and after he or she makes

3 Section 3 of the Act.4 Ibid, s 4.5 Created by Art 112 of the Constitution.6 Ibid, s 5.7 Ibid, s 24 (k).

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a determination, one way or the other, to forward to the Commission the complete

record of the proceedings including a written recommendation as to whether the

magistrate found guilty of misconduct should be dismissed or called upon to resign as a

magistrate.

[14] The provisions allow for the making of representations to the Commission by the

magistrate who is dissatisfied with a recommendation of the presiding officer, before

that body takes a final decision on the recommendation of the presiding officer. The Act

makes clear that the Commission has the power to reject the presiding officer’s

recommendation if a good case is made by the convicted magistrate.

[15] In terms of s 21(4) of the Act, a magistrate who is aggrieved by his or her

dismissal has the right to appeal against the dismissal to the High Court. The Minister of

Justice ‘must reinstate’ a magistrate in his or her office if the High Court sets aside the

dismissal appealed against.8 An appeal to the High Court must be noted in writing within

30 days of the date of the dismissal.

Presiding officer’s finding

[16] The defendant was accused of asking the plaintiff in January 2006 to withdraw

pending fraud charges against Mr Thambapilai. The investigation into the defendant’s

alleged misconduct which was triggered by the plaintiff’s complaint was conducted by

Magistrate Sarel Jacobs.

[17] In his ruling, the learned magistrate defined the issue before him to be whether

the defendant’s conduct complained of by the plaintiff amounted to bringing the

magistracy into disrepute. The defendant’s defence was that he did not ask the plaintiff

to withdraw the case against Mr Thambapilai; that he only asked him to have the matter

properly investigated; that the plaintiff promised to look into the matter and to give him

feedback; that contrary to the plaintiff’s denial, the plaintiff called him twice on the 10 th of

January 2006, and that he never introduced himself as a magistrate when he called.

8 Ibid, s 21(4) (d).

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[18] Magistrate Jacobs considered the versions of the plaintiff and the defendant

about the manner in which the defendant was alleged to have approached the plaintiff,

the opposing versions about what was said during the telephonic conversation between

them, and concluded that:

(a) The defendant did indeed make himself out as a magistrate when he

approached the plaintiff;

(b) The defendant during the conversation asked the plaintiff to withdraw the

case against Mr Thambapilai because there was no credible evidence to

support the charges;

(c) The defendant told the plaintiff that Mr Thambapilai intended to sue the

Government for ‘millions of dollars’;

(d) The plaintiff found the entreaty by the defendant improper and reported it

to the Prosecutor General (PG) for that reason; and

(e) The above conduct amounted to bringing the magistracy into disrepute.

[19] It is instructive to repeat some pertinent observations made by the learned

presiding officer. He observed:

‘As I understand your evidence the reason why you phoned the Inspector General is on

a request of Mr Thambapilai your friend who requested you to do so, according to your evidence

you only requested the Inspector General to make sure of the facts as it will be in the interest of

Justice to further investigate the case. Further that when you took up this matter with the

Inspector General, you did not act in your capacity of a magistrate but as a friend of Mr

Thambapilai. I will first deal with this matter, you are appointed as a magistrate and remains a

magistrate up to the time that your services are terminated. It is therefore expected of a person

appointed to act at all times, during working hours and after working hours in such a manner

that he or she does not bring the Administration of Justice or the Magistracy in disrepute.

I’m satisfied that even if you acted on behalf of your friend Mr Thambapilai, you made sure that

the secretary as well as the Inspector General was aware of the fact that they are now dealing

with a magistrate.

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Your own evidence is that because of information you received you phoned the Inspector

General, in order to advise him to investigate the case further, this action of yours together with

the fact that you warned him against a possible civil claim is a clear indication that you at the

time with the information you had was sure or believed that there is not sufficient evidence to

prosecute or charge Mr Thambapilai and taking into consideration the evidence of Inspector

General Ndeitunga, this is in all probability what you said to him.

A magistrate appointed by the Commission is in truth mouthpiece and image of Justice at all

times which includes objectivity and impartiality. You acted on behalf of Mr Thambapilai who

was an accused person against whom the police were investigating a criminal charge, even if

he was your friend, it was unprofessional of you as a magistrate to act on behalf of a person

against whom a charge is being investigated by the police and to try and convince the police not

to proceed with the charge against Mr Thambapilai.

Considering even your own evidence that you only requested him to investigate the case further

together with the warning of a possible civil claim is enough to bring any person under the

impression that you know more about the case than you are supposed to know and what

evidence the State has against Mr Thambapilai which you as a magistrate were not supposed to

know.’

[20] The defendant was dismissed on 31 March 2007. This date is important, in light

of the remedies the defendant had under the Act, to challenge the finding of the

presiding officer and his dismissal, and the timing of his attempts (which I refer to later)

to pursue criminal proceedings against the plaintiff.

Alleged defamatory statements

[21] The plaintiff relies on several statements made on different occasions by the

defendant. I proceed to set out the statements seriatim.

[22] Two years after his dismissal, on 8 February 2009, the defendant laid a charge of

perjury against the plaintiff with the police at Windhoek. In that statement he stated that,

at the disciplinary hearing, the plaintiff ‘lied under oath to implicate me so that I can be

found guilty of misconduct’. He stated that he was laying the charge ‘in order for [the

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plaintiff] to clear my name’. He made a further statement on 6 March 2009 before

another police officer stating that the plaintiff ‘gave false testimony at a disciplinary

hearing upon which I was found guilty of misconduct’. The defendant made another

statement before Police Commissioner Mootseng on 11 March 2009 stating that: ‘On 7

September 2006, [the plaintiff] gave false testimony at a Disciplinary Hearing upon

which I was found guilty of misconduct’.

[23] Then on 16 July 2009, in a letter to the Minister of Safety and Security, the

defendant stated that he had laid a charge of perjury against the plaintiff with the police.

In that letter to the Minister he asked the Minister to have an investigation conducted

against the plaintiff. He sought the plaintiff’s suspension pending the investigation. This

letter is fully set out in paragraph 47 below.

[24] The next series of statements came to light when the defendant came to testify at

the trial and were relied on as constituting defamation by way of an amendment to the

plaintiff’s particulars of claim during the course of the trial.

[25] On 13 February 2009 the defendant issued a media statement repeating the

allegations. In the view that I take of the wrongful conduct of the defendant and his state

of mind, given the plaintiff’s allegation that he acted with malice, I prefer to quote the

statement in full. It demonstrates that the defendant is not a man who is shy or has any

compunction about what he says concerning others:

‘MEDIA STATEMENT 13 February 2009

Ladies and Gentlemen of the Media

This serves to inform you that on 8 February 2009, I Peter L Kavaongelwa laid criminal charges

against three individuals, namely: Inspector-General of the Namibian Police, Sebastian

Ndeitunga for perjury, Mrs Johanna Salionga for perjury and Mr James Hill, the Managing

director of Bank Windhoek for contravening section 29(1) of the Anti-Corruption Commission

Act, which prohibits the provision of false information to the Anti- Corruption Commission.

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On the 7th day of September 2006, Mr Sebastian Ndeitunga and Mrs Johanna Salionga were

the only witnesses at a disciplinary hearing conducted by Windhoek magistrate Sarel Jacobs

into allegations made by the two against me. Despite my protestations, the presiding officer, on

the balance of probabilities, found me guilty of misconduct and recommended that I be

dismissed as a magistrate. Throughout the proceedings and even thereafter I sought to prove

that the two witnesses lied. I informed the Minister of Justice who was never interested in the

truth. I also sought legal aid in order to appeal against the decision but did not get it. Eventually,

I reported the matter to the Anti-Corruption Commission who are also not interested in

investigating this matter. Since lying under oath constitutes a criminal offence known in legal

parlance as perjury, I, now, decided to lay charges against the two witnesses with the police in

order to get an opportunity to clear my name.

This matter has very serious political origins and has therefore been difficult to handle. For

example, from the beginning when Mr Ndeitunga sought to falsely implicate me he was actively

assisted by the Prosecutor General. This raises the question of whether it will be easy to secure

a decision to prosecute him for perjury. The other difficulty is that as head of Nampol Mr

Ndeitunga cannot be expected to investigate himself nor are his subordinates. An extra-ordinary

decision is therefore expected from the executive arm of government.

With regard to the charges laid against Mr James Hill, they stem from a letter he wrote to the

Anti-Corruption Commission on 29 January 2007. This letter is a reply to an inquiry made by the

ACC into the reasons why a loan applied for by my close corporation, LEKA DEVELOPERS CC,

was not granted despite a guarantee of three million Namibia dollars given to cover it. Since the

reasons for declining the loan were political Mr James Hill had to lie to the ACC in an attempt to

evade further investigations into the matter. While doing this, he probably did not know that

section 29(1) of the ACC Act makes it a serious criminal offence to provide false information to

the ACC. Also, the money we wanted to use belongs to the state which was allocated to the

Development Bank of Namibia to help SMEs.

This too is a highly charged political issue; such that even our appeals to the highest political

offices in the land have yielded nothing. Our (my) political detractors are so powerful and

influential that they are almost untouchable, or so they believe. I am certain that attempts are

already underway to block these investigations. However, I hope this time justice will not only be

done but will also be seen to be done.’

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[26] The further statement is contained in a letter the defendant wrote on 13

November 2008 to the Political Bureau of Swapo (Namibia’s Ruling Party). It is a rather

long letter but for the reason previously mentioned, it merits quoting in full.

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[27] The final series of statements relied on by the plaintiff occurred during the trial.

Statements made during court proceedings, which is a privileged forum, will only

amount to defamation if made with malice.9

[28] The first in-court statement was made on 26 October 2012 in an application to

recall the plaintiff, alleging that the latter was ‘generally a liar’ and lied under oath when

he applied for his Namibian birth certificate; that he lied under oath that his parents were

deceased whilst still alive; and that the plaintiff lied under oath that his father was a

Namibian citizen while knowing very well that he is or was an Angolan living in the

southern part of Angola. The reason for these allegations will become apparent in due

course.

[29] In an application for my recusal lodged on 28 February 201310, following a ruling I

made on 27 November 2012, the defendant made the following further allegations

concerning the plaintiff:

29.1 ‘The truth is that I found out that the plaintiff lied under oath to obtain his birth

certificate;

9 Tuch v Myerson 2010 (2) SA 462 (SCA) at 466, para [11]. 10 The judgment on recusal was delivered on 21 November 2013.

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29.2 ‘…I told the Court that plaintiff is a habitual liar and who has no respect for the

truth;

29.3 …plaintiff was forging and uttering his documents in 1993…;11

29.4 ‘It is also embarrassing for the President to have appointed an illegal alien to

head the Namibian Police Force…;

29.5 This shows how unrepentant this liar (Plaintiff) is and he is telling all these lies

whilst heading the police force;

29.6 So far, the plaintiff’s conduct of changing his stories under oath demonstrates

that he does not appreciate or understand the normal duty of telling the truth, as

required by the law;

29.7 It is equally damaging to the government which is arresting people who lie under

oath every time while employing someone who lies or who has the propensity to

lie to arrest the others or to have the others arrested.’

[30] There is common ground that the then Minister of Safety and Security caused an

investigation to be conducted into the allegation of perjury which the defendant reported

to him arising from the plaintiff’s testimony at the disciplinary hearing. A senior police

officer, Commissioner Mootseng, conducted an investigation which was then laid before

the PG who decided not to prosecute the plaintiff.

The plea

[31] The allegations of perjury against the plaintiff published to diverse persons are

admitted. The defendant disputes that the statements were wrongful and defamatory or

were intended to discredit or harm the plaintiff’s standing and reputation. The defendant

avers that the statements he made concerning the plaintiff are 'true and in the public

interest' and that they were ‘made in the exercise of a right to persons who had a duty

or a right to receive such statements'.

11 Apart from the allegations of perjury, the defendant was now accusing the plaintiff also of ‘forgery and uttering’.

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[32] In their pre-trial memorandum, the parties defined the factual and legal issues

falling for determination to be: the number of times the plaintiff and the defendant spoke

on 10 January 2006; whether or not the defendant tried to discredit the plaintiff with

those to whom he made and repeated the allegations of perjury; whether or not the

defendant’s allegations of and concerning the plaintiff were the truth and in the public

interest, alternatively whether the statements were privileged , and whether the plaintiff

suffered damage to his good name and reputation.

The plaintiff’s evidence

[33] The plaintiff testified first. On 9 January 2006 upon returning to this office from an

outside engagement, he was informed by his secretary (whose evidence I will

summarise after his) that a person who introduced himself as magistrate Kavaongelwa

had called and wanted to speak with him. He was acquainted with the defendant but

was not a friend of his. He then received a call on his office line on 10 January 2006

from the defendant who said he was a magistrate.

[34] During that telephone conversation, the defendant sought to intercede on behalf

of a legal practitioner, Mr Thambapilai, then being investigated by NAMPOL in

connection with a Motor Vehicle Accident Fund (MVA) fraud case. The defendant

implored him to drop the charges against Mr. Thambapilai as there was no case against

the latter and that the State runs the risk of a massive law suit running ‘into millions of

dollars’ because Mr Thambapilai was a lawyer.

[35] According to the plaintiff, he remonstrated with the defendant that a magistrate

would have knowledge of the content of a police docket before it came to his attention in

court proceedings. He took umbrage that the defendant listened to one side only and

made up his mind based only on Mr Thambapilai’s version. The defendant replied that

he saw no problem because he would not preside in the matter. He also told the

defendant that the police and the PG were satisfied that there was a prima facie case

against Mr Thambapilai.

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[36] According to the plaintiff, he told the defendant that if he withdrew the case as

requested by the defendant that would constitute an attempt to defeat the course of

justice as it would amount to interfering with a police investigation.

[37] The plaintiff added that he considered it unusual that a magistrate would contact

him directly regarding an active police investigation and decided that the proper course

was to report the matter to the PG. He proceeded to call the PG and warned her to keep

an eye on the Thambapilai matter and to ensure that it did not come before the

defendant as he might be biased in favour of the accused.

[38] On 25 January 2006, the plaintiff followed up the call to the PG with a letter

placing on record the approach made to him by the defendant. This is what he stated in

his letter of 25 January 2006:

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[39] The plaintiff then laid a complaint against the defendant and proceeded to testify

at the disciplinary hearing where the defendant was tried, convicted and dismissed from

the magistracy.

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[40] The next witness was the plaintiff’s secretary, Ms Vicky Ndjuluwa. She confirmed

under oath that, on a date she could not remember, she took an incoming call from a

person who introduced himself as magistrate Peter Kavaongelwa who wanted to speak

with the plaintiff. The plaintiff was not in the office at the time. She passed on the

message to the plaintiff upon his return.

[41] She testified that in early January 2006, she received another call on telephone

number 2093202 from the defendant and put him through to the plaintiff.

[42] The next witness for the plaintiff was another member of NAMPOL,

Commissioner Wilbard Nany Nahole, who is in charge of communications at NAMPOL.

He confirmed under oath that at the request of Commissioner Mootseng, he conducted

an investigation and confirmed to the latter that:

(a) Telephone numbers 061 257065 and 061 257046 belonged to NAMPOL

(b) The NAMPOL headquarters (HQ) switchboard no is 061 2093111;

(c) All calls to and from the HQ come via the switchboard number;

(d) There are 34 lines for both incoming and outgoing calls

(e) There are 100 extensions to these lines, including the office of the plaintiff.

[43] According to Commissioner Nahole, on 30 March 2009 he obtained a printout

from Telecom Namibia in respect of telephone numbers 061 257065 and 061 257046

on the one hand and the cell phone number of the defendant 0812767464, on the other.

The idea was to determine the contact made between these numbers at the material

time. The witness testified that he was able to establish that two calls were made from

the NAMPOL HQ on 10 January 2006 to the defendant’s cell phone number. The

printout could not establish the extension number from which the calls to the

defendant’s cell phone number were made and, as a result, could have been made by

any police officer or civilian staff member stationed and working at the NAMPOL HQ.

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[44] The then Minister of Safety and Security (Hon. Dr Nickey Iyambo) also testified.

He confirmed that the defendant had indeed accused the plaintiff of perjury and asked

of him to suspend the plaintiff pending an investigation against him for the alleged

perjury.

[45] The Minister also testified that the defendant circulated documents to a number

of prominent Namibians claiming that there was an attempt to assassinate him.

[46] The Minister, as a result, called for an investigation against the plaintiff which

was conducted by Commissioner Mootseng. That investigation cleared the plaintiff and

the PG refused to prosecute the plaintiff.

[47] The defendant would have none of that and in a letter to the Minister dated 16

July 2009, he vented his dissatisfaction. Again, the letter is rather long but merits

quoting in full given its hostile tone and the insistence on processes which are not in

keeping with the Act:

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[48] In a subsequent letter to the Minister (exhibit ‘M’) the defendant addressed the

Minister inter alia as follows:

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‘The impression I get …is that you do not want to expose General Ndeitunga to a proper

and credible investigation. It looks like a cover up. I do not agree with you that you have done

your level best. Your level best will be done when you have accessed the restricted police

telephone records’.

[49] For completeness, in a statement that the defendant made to the Police dated 11

March 2009, he stated the following in regard to his conversation with the plaintiff:

‘The first time I informed him of what Mr Thambapilai wanted investigated and then he

(Ndeitunga) promised to investigate and report back to me’. (my underlining)

[50] And in the letter to the Minister dated 16 July 2009, the defendant had described

himself in the following terms:

‘As an experienced magistrate I am supposed to know what evidence is required to

prove a case beyond reasonable doubt.’

These two statements are important in the light of what I say later in this judgment.

[51] The plaintiff also called a character witnesses, the then Deputy Inspector

General, General Marthinus Albertus Pool. The retired General testified that he worked

with the plaintiff from around 1995 to 2002. He described the plaintiff as an honest and

reliable person who was not shy to intervene to deal with dishonesty and corruption. He

opined that based on his knowledge of the plaintiff, the latter was unlikely to be involved

in dishonesty or perjury as alleged by the defendant.

Defendant’s Evidence

Defendant’s background

[52] The defendant qualified as a magistrate in Zambia in 1986. He proceeded to

study for an LLB degree in the UK but did not complete it. After independence he held

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various positions within the Ruling Party, SWAPO. He also worked as a civil servant at

the Ministry of Local Government and Housing and the National Council. He served on

the National Executive Committee of the SWAPO Party Youth League.

Mr Thambapilai

[53] The defendant testified that he was friends with lawyer Mr Thambapilai since

1984. They socialize together and have discussions of mutual interest. One such

discussion in 2005 and 2006 concerned the police investigation against Mr Thambapilai

involving fraud against the MVA Fund. Initially, Mr Thambapilai requested him to

intercede on his behalf with the managing director of the MVA Fund. He did so and was

advised that the matter had been reported to the Law Society.

[54] He was later asked by Mr Thambapilai to request the plaintiff to investigate the

matter properly as there was no substance to the fraud charge and that should the case

proceed, Mr Thambapilai said he would bring a claim for damages against the

Government. It was for that reason that he contacted the plaintiff’s office on 9 th January

2006 but only spoke to the secretary.

The calls

[55] According to the defendant, the plaintiff returned his call on 10 January 2006.

During the conversation he impressed upon the plaintiff to see to it that the investigation

against Mr Thambapilai was done properly lest the State be sued. The plaintiff allegedly

undertook to investigate and to revert to him. The defendant stated that he received a

further phone call from the plaintiff on the same day the plaintiff informed him that he

had spoken to the officers conducting the investigation and that there was sufficient

evidence to charge Mr Thambapilai.

[56] The defendant stated that the tone of the conversation with the plaintiff was at all

times ‘cordial and amicable’ and that it came to him as a surprise that a complaint was

made to the Commission.

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[57] The defendant testified that he contacted and conversed with the plaintiff in his

personal capacity and not in his capacity as a magistrate.

[58] According to the defendant, he had no further communication with the plaintiff

until he received a letter on 8 March 2006 from the Commission informing him of the

complaint received from the plaintiff alleging that he had improperly sought to stop the

criminal investigation against Mr Thambapilai. He was surprised by the turn of events as

he never asked that the charges be withdrawn but only requested that the plaintiff

ensure a proper investigation. His real request was misunderstood by the plaintiff as, in

any event, the plaintiff does not have the power to withdraw criminal charges.

[59] The defendant denied that he ever intended to improperly influence the plaintiff in

any manner and stated that if his intention was to have the criminal charges against Mr

Thambapilai withdrawn, he would have approached the correct authority, ie the

Prosecutor-General, rather than the plaintiff.

[60] The defendant testified that he was dismissed as a magistrate on a charge of

bringing the magistracy into disrepute based on the false evidence of the plaintiff. He

maintained that he was obliged to bring the plaintiff’s criminal conduct to the attention of

the police, the Minister responsible for police, and the President of the Republic. He

denied that he did so out of malice or with an ulterior motive.

[61] During cross-examination it was put to the defendant that it was unethical for him

as a judicial officer to approach the police about an ongoing investigation in the way he

did. He replied that he did nothing unethical and that it was perfectly proper for him to

intercede as he did on behalf of a friend. He was only helping out someone who needed

assistance from him because of the connections that he had with various people,

including the plaintiff. The defendant maintained that he was not well enough

acquainted with the plaintiff to influence him.

Application to recall the plaintiff

27

[62] Sometime during the course of the trial, the defendant obtained access to

Ministry of Home Affairs documents containing an application made by the plaintiff for

Namibian citizenship after his return from exile. The documents apparently showed that

the plaintiff alleged, in support of his application, that his parents were deceased when,

to the defendant’s knowledge, they were not.

[63] The defendant therefore launched an application for the recall of the plaintiff to

be confronted with this information. As I understood the defendant’s case, the purpose

was to show that the plaintiff was a person who was given to telling lies.

[64] Mr Mbaeva withdrew shortly before an application to recall the plaintiff could be

argued on 5 February 2014, leaving the defendant unrepresented. The trial was thus

postponed until 16 April 2014, when the application to recall the plaintiff for cross-

examination was heard.

[65] Subsequently I granted that application after argument and the plaintiff was

recalled.

[66] Mr Mbaeva once again came on record on 3 June 2014 to re- cross examine the

plaintiff.

Summary of plaintiff’s evidence on recall

[67] Upon his recall the plaintiff testified that he was born in Angola. At the young age

of 6 years he came to live with his uncle in northern Namibia. As a young boy, he did

not know where his parents were born. He even had no recollection of his mother who

died when he was very young. He went into exile in 1974 at the age of 12. He

participated in the SWAPO-led liberation struggle from Angola from 1974-1978. He

fought alongside other Namibians and always considered himself to be a Namibian

citizen. Whilst in exile he was sent by SWAPO to Cuba for studies where he obtained a

law degree in 1993. During the time in exile he had not had contact with any of his

family.

28

[68] He returned to Namibia in 1989 for the independence elections. It was then that

he learnt for the first time that his father and siblings had been abducted and murdered

by the terror organisation UNITA.

[69] In 1993 he applied for a Namibian passport as he considered himself a

Namibian. He had to apply first for late registration of birth and honestly believed that

both his parents were Namibians. He believed at the time that the information he gave

regarding his birth and his parents in the application was true. The belief sprang from

the fact that his uncle and other family members with whom he grew up were

Namibians. He testified that the border between Namibia and Angola is a colonial

boundary and many Namibians had family on both sides of the border.

[70] It was only in 1994 when he returned from the United Kingdom that he

discovered, for the first time, that his father was in fact alive.

[71] He conceded under cross-examination that he did nothing to correct the

inaccurate information provided in support of the application for a passport upon

becoming aware of the true position concerning his parents.

The law applicable

Burden of proof

[72] The burden of proof in a civil case has been stated as follows:

‘[I]n general, in finding facts and making inferences in a civil case, the Court may go

upon a mere preponderance of probability, even although its so doing does not exclude every

reasonable doubt . . . for, in finding facts or making inferences in a civil case, it seems to me

that one may . . .by balancing probabilities select a conclusion which seems to be the more

natural, or plausible, conclusion from amongst several conceivable ones, even though that

conclusion be not the only reasonable one.’ 12

Cause of action based on defamation12 Govan v Skidmore 1952 (1) SA 732 (N) at 734A - D: Cited with approval in M Pupkewitz & Sons (Pty) Ltd t/a Pupkewitz Mega-Built v Kurz 2008 (2) NR 775 (SC) at 790A-C.

29

[73] To succeed in a defamation action a plaintiff must establish that the defendant

published a defamatory statement concerning him or her. A rebuttable presumption then

arises that the publication of the statement was both wrongful and intentional.13 The

plaintiff need not allege nor prove the falsity of the defamatory statement and need not

allege anything more than his or her existence in a particular society where it is alleged

that his or her reputation was damaged in the eyes of the community at large. 14 In order

to rebut the presumption of wrongfulness, a defendant may show that the statement

was true and that it was in the public benefit for it to be made; or that the statement

constituted fair comment; or that the statement was made on a privileged occasion.15

Qualified privilege

[74] An authoritative statement of qualified privilege was stated as follows in Borgin v

De Villiers and Another16 at 577D-G:

‘This particular category of privilege which . . . would apply in this case would be that

which arises when a statement is published by one person in discharge of a duty or the

protection of a legitimate interest to another person who has a similar duty or interest to receive

it.. The test is an objective one. The Court must judge the situation by the standard of the

reasonable man, having regard to the relationship of the parties and the surrounding

circumstances. The question is did the circumstances in the eyes of a reasonable man create a

duty or interest which entitled the party to speak in the way in which he did? And in answering

the question the court is guided by the criterion as to whether the public policy justifies the

publication and requires that it be found to be a lawful one.’ (The underlining is mine for

emphasis)

[75] And in Basner v Trigger17, it was stated:

13 See further Afshani and Another v Vaatz 2006 (1) NR 35 (HC).14 Daniels, H, 2007, Becks Theory and Principles of Pleading in Civil Action, (7th edt) Durban: LexisNexis, p 280.15 Trusco Group International v Shikongo 2010 (2) NR 377 at 387B-D.16 1980 (3) SA 556 (A).17 1946 AD 83 at 95.

30

‘Privileged occasions are recognised in order to enable persons to achieve certain

purposes and when they use the occasion for other purposes they are actuated by improper or

indirect motives, that is, by ‘malice’.’

[76] An evidential burden rests on the defendant to establish that the statements

made of and concerning the plaintiff are privileged. I must be satisfied as part of that

inquiry that public policy justified the publication of the allegations.

[77] Would a reasonable person expect that a magistrate (a man of the law), instead

of first exhausting the remedies allowed under the Act for clearing his name, to embark

on a campaign of accusing another of perjury for statements made in the course of

disciplinary proceedings brought against the magistrate under the Act?

Analysis

[78] The defendant's version is that he called the plaintiff to request him to have the

matter properly investigated to avoid the State being sued if the prosecution failed at the

end of the day. He says he did so as a friend of Mr Thambapilai, and that he never

asked the plaintiff to withdraw the case against Mr Thambapilai and that, in any event,

the plaintiff had no authority to withdraw the case.

[79] Should I accept the plaintiff's version that the defendant called him and sought

improperly to persuade him to discontinue a criminal investigation against Mr

Thambapilai, the defences of truth and public interest in accusing the plaintiff of perjury

are academic; for that defence is predicated on the acceptance that the plaintiff made

false allegations against the defendant at the disciplinary hearing.

[80] The defendant’s rear-guard position is that if the plaintiff is shown to have lied

about the number of times they spoke on 10 January 2006, then he also lied about the

nature of their conversations and, by implication, his testimony at the disciplinary

31

hearing. That seems to explain why the number of times the protagonists spoke on 10

January 2006 was identified as an important factual dispute requiring resolution.

The disputed calls: My findings

[81] The plaintiff’s version about the disputed calls is that he spoke to the defendant

only once. The defendant says they spoke twice. What is crucial in this regard is the

evidence of Commissioner Nahole. The Telecom transcript demonstrates that the

defendant received two calls on his cell phone from NAMPOL HQ on 10 January 2006.

Is it a coincidence only that on the same day that the plaintiff says he was called by the

defendant, another person called the defendant twice from NAMPOL HQ?

[82] The defendant is adamant that the plaintiff called him twice. The telephone

records make that version credible but it must be considered in the light of other

uncontested evidence, including that of Commissioner Nahole. In the latter context, the

evidence of the plaintiff’s secretary that on 10 January 2006 she received a call from the

defendant and transferred it to the plaintiff supports the plaintiff’s version. It was not

suggested to her that she was mistaken or was being untruthful. In addition,

Commissioner Nahole said that the calls could have been made by anyone from the

NAMPOL HQ.

[83] The probabilities are therefore evenly balanced on the issue of the number of

times the protagonists spoke on 10 January 2006 and who initiated which call.

[84] It is important that the real inquiry is not side-tracked. The essence of the

complaint made by the plaintiff is that the defendant sought to improperly influence an

ongoing police investigation.

[85] Even if I were to accept that the defendant called the plaintiff twice, I am not

persuaded it follows (a) that the plaintiff is necessarily a liar generally, or (b) that he lied

about the purpose for which the defendant called him in regard to Mr Thambapilai. The

matter is best approached by considering the probabilities with regard to (a) what

32

possibly could have been a legitimate reason for the defendant ( a magistrate) calling

the plaintiff at all about a pending criminal investigation, (b) the motive the plaintiff or his

secretary could have for falsely accusing the defendant.

[86] Since there is common ground that the plaintiff established that the defendant

had initiated a call to him whilst the two of them were respectively head of police and

district magistrate, the question arises what was discussed between them which does

not accord with the version of the plaintiff. The plaintiff bears the onus.

Was plaintiff defamed?

[87] Perjury is an offence committed in the course of judicial proceedings.18 A

disciplinary hearing is a judicial proceeding.19

[88] The defendant admits labelling the plaintiff as a liar and a perjurer. Allegations of

criminal conduct are per se defamatory.20

[89] The plaintiff is the most senior police officer. His duty is to uphold and to enforce

the law and to act impartially and fairly in doing so. Public trust in him is therefore a

conditio sine qua non. The public do not expect of the nation's most senior law

enforcement officer to be a perjurer and one who goes about perverting the course of

justice. That the allegations made by the defendant against the plaintiff would be

understood by ordinary members of the public in the way alleged in the plaintiff's

particulars of claim therefore admits of no doubt; and I accordingly find as such in his

favour.

[90] It being common cause that the defendant accused the plaintiff of perjury and

published that allegation to diverse persons, including to the media, I find in plaintiff’s

favour that the defendant had defamed him.

18 Butchell et al, 1997, Principles of Criminal Law (2nd Ed), Juta, p 704.19 Ibid, p 708.20 Tuch v Myerson 2010 (2) SA 462 (SCA), at 466, para 9.

33

Are the allegations defamatory?

[91] The defendant’s defence, in the first place, is one of justification. He says that the

plaintiff indeed perjured himself during the disciplinary proceedings. I am satisfied that

there is no truth in that allegation, nor was it made in the public interest.

[92] The following circumstances and facts point to it being more probable than not

that the plaintiff's allegation against the defendant for improperly interfering with a police

investigation, is true:

a) The plaintiff and the defendant were no more than mere acquaintances before

the fateful telephonic conversation(s) in January 2006;

b) There is no plausible explanation (and none was suggested) why the plaintiff or

his secretary would lie that the defendant introduced himself as a magistrate

when he spoke to them. In that regard, it is telling how the defendant

characterises what passed between him and the plaintiff on the date that they

spoke (see para 49 above). In the letter to the Minister already quoted, he

states that the plaintiff had undertaken to look into the matter and to ‘report’

back to him; implying that the defendant spoke from a position of authority.

Would the Inspector General of Police be expected to ‘report’ to a member of

the public on a criminal investigation in respect of which the member of public

was not an interested party? I think not!);

c) I was not pointed to any animosity between the plaintiff and the defendant of

the nature that would have induced the plaintiff to falsely implicate the

defendant;

d) Both the plaintiff, and his secretary who took the call from the defendant, state

that when the defendant called he introduced himself as a magistrate. There is

no plausible explanation why the defendant referred to his official title if all he

sought to do was to act in a private capacity as a friend of Mr Thambapilai;

e) The defendant was not forthcoming at all as to what gave him reason to

apprehend that the investigation against Mr Thambapilai was not being properly

34

handled. It will be recalled that prior to speaking on the matter with the plaintiff,

the defendant had tried to discuss the case against Mr Thambapilai with the

MVA Fund – a criminal complainant. In other words, a magistrate sought to

discuss a criminal complaint directly with the complainant on behalf of an

accused person;

f) Why was it necessary for the defendant to speak to the Inspector General and

not the investigating officer?

g) The suggestion that considerations of judicial ethics did not militate against a

judicial officer getting involved in making representations of the kind he did is

out of kilter with all known norms of judicial ethics. The Bangalore Principles on

Judicial Ethics state as follows under value 3: ‘A judge shall ensure that his or

her conduct is above reproach in the view of a reasonable observer’. Although

reference is made to ‘judge’, the same principle applies to all judicial officers;

h) The entirely gratuitous threat of a law suit in regard to a matter which was

actively being investigated. Why was reference made to a law suit if the

purpose was not to discourage further investigation?

[93] In my view, the probabilities support the plaintiff’s version that when the duo

spoke in January 2006, the defendant asked the plaintiff to withdraw the case against

Mr Thambapilai as there was no evidence to sustain the charge against the lawyer and

that if that were not done Mr Thambapilai was going to sue the Government for ‘millions

of dollars’. Such conduct by a judicial officer is in conflict with the judicial role and

merited investigation.

[94] I come to the conclusion that it is not the truth that the plaintiff perjured himself at

the hearing presided over by magistrate Jacobs which found the defendant guilty. That

finding disposes of the defendant’s plea of truth and public interest.

35

Can the allegations be saved by qualified privilege?

[95] At the heart of the defendant’s case in justification of what are admittedly

defamatory allegations is the assertion that the plaintiff perjured himself at the

disciplinary hearing. As Mr Corbett correctly pointed out in the written heads of

argument, that same allegation was made before magistrate Jacobs who presided at

the disciplinary hearing. Mr Jacobs rejected the allegations and found the defendant

guilty.

[96] As things stand, there is an undisturbed factual finding by a tribunal instituted

under the Act that the plaintiff sought improperly to secure the withdrawal of charges

against Mr Thambapilai. Yet it is expected that I find that, irrespective of the tribunal’s

finding, the plaintiff in fact lied before the tribunal and that it is in the public interest that

his conduct must be investigated by all those to whom they were communicated. But

what is the explanation for involving the Ruling Party in the matter? None has been

provided and none is obvious if the matter is objectively considered. In my view, the

involvement of a political party is clear proof that the defendant had an ulterior motive.

[97] This is not a case where someone wakes up one morning and discovers that he

had been dismissed from the magistracy on the strength of what another said about him

to his employer. In the case before me there was an elaborate due process.

[98] I demonstrated the avenues that were open to the defendant to challenge the

conclusion of guilt and, by extension, the complaint made by the plaintiff to the

Commission.

[99] In my view, public policy militates against a finding of privilege in a situation such

as the present where a person is afforded sufficient safeguards to ventilate his

grievance through a statutorily ordained process, either to reverse a finding adverse to

him, or to expose the impropriety of the conduct of the person whose complaint led to

his being found guilty and dismissed from the magistracy. If that were not so, it would

give licence to railroad due process and to take the law into one’s own hand in the

name of clearing one’s name.

36

[100] The rule of law requires that respect be given to the processes and decisions of

bodies created by law for due process and for the ventilation of disputes.

[101] In my view, whether or not the allegations of perjury were made under

circumstances of qualified privilege must not be seen in isolation of this critical factor. It

is a consideration which, taken together with the others which I next consider, denudes

the publication of any privilege.

[102] Even if I were wrong in that conclusion, the following factors and circumstances

militate against a finding of qualified privilege.

[103] The claim of absence of malice or ulterior motive in making the communications

rings hollow when the following is considered:

a) The criminal complaint of perjury was made 2 years after the event which led to

the defendant’s dismissal; and the reason offered for the delay is implausible;

b) The solicitations to the high offices of State on a matter the defendant reported to

law enforcement who first had to establish the facts, is inconsistent with a desire

not to tarnish the plaintiff’s reputation;

c) The inexplicable involvement of a political party in a matter of State as if the

plaintiff was subject to political control and direction of a political party ;

d) The vitriol with which the allegations were made and pursued;

e) Issuing a media statement in regard to a matter he had purportedly reported to

the authorities to investigate;

f) The inexplicable failure to take advantage of the processes allowed under the

Act, in preference for a campaign of vitriol using predominantly political rather

than legal means.

[104] I am therefore satisfied that privilege does not attach to the allegations of perjury

made by the defendant against the plaintiff to the President, the Anti-Corruption

Commission, the media and the Police.

37

[105] I am similarly satisfied that in regard to the statements made during court

proceedings, the defendant acted with malice and with the intent to defame the plaintiff

as those allegations were not relevant to the proceedings before me.21

Quantum

[106] The plaintiff claims N$100 000 in damages. The court has a wide discretion when

it comes to quantum, to be exercised judicially guided by comparable awards in

previous cases. The highest award approved by the Supreme Court is that in Trusco

Group International Ltd and Others v Shikongo22 where an award of N$175 000 by the

High Court for defamation was reduced to N$ 100 000 on appeal.

[107] In Trusco Group International Ltd and Others v Shikongo, O’Regan AJA pointed

out the difficulty in quantifying harm to reputation in monetary terms. The learned Judge

argued that reputation cannot be restored to what it was by a higher award and less

restored by a lower one. Rather, it is the judicial finding in favour of the integrity of the

plaintiff that vindicates his or her reputation and not necessarily the amount that he or

she receives as damages.23

[108] In the present case, there was no publication in the press although the statement

was distributed to the media. That distinguishes the present case from Trustco. Yet, the

allegations were repeated to the media (although not published) before the full facts

could be established by the authorities who the defendant says needed to know of the

allegations against the plaintiff so they could properly investigate them.

[109] In a civilised society, character and a good name do matter. Often, it is the only

thing one has counting for them. It should be protected by every means the law allows.

The current state of the law is that unless you can demonstrate that it is true, or that

public interest justifies it, you cannot go around sullying the name of another person. If

you do you must pay; so says the law.

21 Tuch v Myerson supra, at 466, para 10.22 2010 (2) NR 377 (SC).23 At 403C-E. See further cases of Nuule v Kambwela (I 629-2009) [2014] NAHCMD 219 (21 July 2014 and University of Namibia v Kaaronda (I 1838/2010) [2012] NAHCMD 221 (23 July 2014).

38

[110] No satisfactory reason was ever advanced why the defendant chose to repeat

the allegations to a partisan political forum regarding a matter which concerned the

plaintiff’s official responsibilities as Inspector General of the national police force. The

office that the plaintiff occupies relies for its effectiveness on the utmost public trust and

confidence. Accusing him of criminal conduct does not conduce to such trust and

confidence. The repetitive and vitriolic nature of the allegations aggravates the

defendant’s conduct.

[111] The substantial reason for the delay in the finalisation of the case was that

sometime during the course of the trial the defendant dug up some ‘dirt’ on the plaintiff.

He brought an application to recall the plaintiff in order to confront him with that ‘dirt’.

[112] The evidence relied on by the defendant is irrelevant in so far as it relates to the

reason why he made the defamatory statements. The gist of it is the manner in which

the plaintiff became a Namibian citizen. It is now common cause that the plaintiff made

a declaration under oath with the Ministry of Home Affairs for late registration of birth

stating his father was dead. The defendant had established that was not the case as the

plaintiff's father only died much later after that declaration was made.

[113] On defendant’s own version, he only became aware of it after the fact. Its only

relevance therefore must be to buttress his version that the plaintiff is a habitual liar

whose word I must not believe and, probably, not worthy of protection of a reputation. I

do not find as unreasonable the plaintiff’s explanation that at the time he submitted the

application for a passport the true facts were not known to him. I must adjudge his state

of mind at the time that he made the declarations and not in hindsight.

[114] Can it be said that since the plaintiff had, albeit  under bona fide but mistaken

belief, acquired Namibian citizenship, the way in which it happened is no longer of any

moment? The fact that the plaintiff by his own admission did nothing to address the

matter in whatever way he may be advised is a matter that concerns me and compels

me to place the quantum of damages on a level lower than I would otherwise have

considered appropriate.

39

[115] In weighing up the factors I have referred to, together with the approach taken by

the Supreme Court in Trustco and the recent awards24 in this court, it would seem to me

that an award of N$ 60 000 is fair and reasonable in the circumstances.

Referral to Minister of Home Affairs

[116] That the plaintiff owes an explanation to the authorities for not correcting the

wrong impression created by his explanations in the process of acquiring citizenship is

not in doubt.

[117] It will be remiss if I do not bring the matter to the attention of the relevant

authorities for their further action as deemed appropriate. I can do no more than that.

Costs

Reprehensible conduct by the defendant and his legal practitioner

[118] The defendant has throughout these proceedings demonstrated that he has

scant regard for the hurt his use of language may cause others. He displayed a

character that rules don't matter.

[119] Mr Mbaeva's handling of this matter evinced a weakness of character which is

the antithesis of what an officer of the court must be. He showed no independence and

quite literally became the mouthpiece for the defendant's vitriol and contempt. He would

be cowed into being a passive bystander when it suited the defendant and to be re-

engaged when it suited the defendant.

[120] Mr Mbaeva filed documents on behalf of the defendant in which serious and

scandalous allegations are made against the presiding officer.25 Mr Mbaeva became

complicit in the presiding judge being called ‘insane’ and suffering from an ‘inferiority

complex’.

24 Nuule v Kambwela (I 629-2009) [2014] NAHCMD 219 (21 July 2014 and University of Namibia v Kaaronda (I 1838/2010) [2012] NAHCMD 221 (23 July 2014).25 Affidavit filed on 4 March 2013 and Affidavit filed on 04 July 2014.

40

[121] Mr Mbaeva was present in court when the matter was set down for argument on

05 February 2014. In fact the dates were agreed between the court and counsel. There

is no explanation why Mr Mbaeva was not at court on the date of set down. The only

reasonable inference is that he was instructed by the defendant not to come. If that is

not the case, his conduct is even more worrisome because it means that he showed

contempt for the court. If indeed it was because he was so instructed, it shows his lack

of independence and lack of appreciation that as an officer of the court he has a higher

duty of courtesy to the court and to appear and explain why the order made by the court

was not complied with.

[122] Mr Mbaeva engaged in the most contemptuous and disrespectful conduct at the

behest of the defendant. It was so apparent that the defendant was the driving force

behind that conduct. To the extent that it calls for censure, the defendant must take full

responsibility for it. Mr Mbaeva, not once, but twice violated the most elementary

prohibition against a lawyer communicating with an opponent’s client without the latter’s

knowledge or consent. Not only that, he sought to bring pressure to bear on the plaintiff

to settle the matter on terms most propitious to his client – with the threat to be

subjected to humiliation if he did not settle.

[123] What is remarkable about Mr Mbaeva’s conduct is that he repeated that conduct

after the court had in unequivocal terms marked its disapproval of it and referred his

conduct to the Law Society. Mr Mbaeva went to the plaintiff’s residence (yes, to his

residence) to demand of the plaintiff to settle. The plaintiff’s legal practitioners were not

aware of the approach.

[124] Mr Mbaeva’s conduct is separate and independent of the defendant’s equally

reprehensible conduct. At some point, the defendant came to court to place on record

that he was terminating the services of Mr Mbaeva – with hindsight in order to secure a

postponement. Once he secured a postponement, he returned and reported that Mr

Mbaeva was still his lawyer and he needed a postponement for Mr Mbaeva to come

back on record. The case was postponed altogether six times either because the

defendant just stayed away or Mr Mbaeva did not show up.

41

[125] Once Mr Mbaeva came back on record, the defendant demanded that he be

allowed to dispense with Mr Mbaeva’s services so that he could conduct cross-

examination himself as he was convinced Mr Mbaeva would not be able to discharge

that task to his satisfaction. It went on and on; and much to one’s chagrin, Mr Mbaeva

played along. I need say no more: the record speaks for itself.

[126] The defendant’s conduct and that of his counsel are deserving of censure by way

of a special costs order on the scale as between attorney and own client.

Order

1. The plaintiff’s claim against the defendant succeeds;

2. The defendant is ordered to pay the amount of N$ 60 000 to the plaintiff for

defamation of character;

3. There shall be interest on the said amount at a rate of 20% per annum from

date of judgement to date of payment;

4. Costs are granted in favour of the plaintiff on the scale as between attorney and

own client, to include the costs of one instructing and one instructed counsel;

5. The registrar is directed to bring the judgment to the attention of the Minister of

Home Affairs and Immigration;

6. The registrar is directed to provide a copy this judgment, and a copy of the

record, to the secretary of the disciplinary committee of the Law Society and to

the Director of the Law Society of Namibia for the attention of the Council of the

Law Society in regard to Mr Mbaeva's conduct referenced in the judgment.

__________________

PT Damaseb

Judge-President

42

Chronology table

Date Court session Reason for postponement

20 February 2012 Amendment noted by the

defendant

Continuation of trial

22-24 February 2012 Trial commences Continuation of trial

18-20 April 2012 Trail continues Continuation of trial

31 October 2012 Issue of Mr Mbaeva’s

unethical conduct brought

on record by plaintiff

For ruling on conduct by Mr

Mbaeva

27 November 2012 Ruling delivered (defendant

and counsel absent with no

explanation)

Continuation of trial.

05 March 2013 Affidavits filed but not

brought to the attention of

plaintiff’s counsel

For counsel to consider the

affidavits in re: recusal

application

21 April 2013 Dates set for the hearing of

the recusal application

For the hearing of the

recusal application

11 June 2013

Parties not ready For the hearing of the

recusal application

16 July 2013

Recusal application argued For ruling

21 November 2013 Judgment on recusal

delivered

Postponed for the

application to recall the

plaintiff

26 November 2013 Dates set for the filing of

pleadings in re: re-calling

application

For hearing of application to

call

5 February 2014 Application to recall not

heard: Mr Mbaeva withdrew

Pp on request of defendant

43

as LP to obtain LP

18 February 2014 Defendant not having LP Pp on request of defendant

to obtain LP

25 February 2014 Defendant not present in

court

Pp for the hearing of

application to recall

25 March 2014 Defendant not having LP Pp on request of Defendant

to obtain LP

1 April 2014 Defendant not present in

court

Pp for the hearing of

application to recall

16 April 2014 Defendant not having LP;

Further postponement

denied; application to recall

argued

Ruling on application to

recall delivered; pp for

recalling of plaintiff

3-4 June 2014 Mbaeva back on record for

the defendant; plaintiff

recalled; calling of further

witnesses denied;

defendant closed his case

Pp for submissions

6 August 2014 No appearance by

defendant /LP

Counsel for plaintiff

submitted and judgment

reserved.

44

APPEARANCE

Plaintiff A Corbett

On instructions of Grobbler & Co, Windhoek

Defendant T Mbaeva

Of Mbaeva & Associates, Windhoek

45