The Namibian loses Supreme Court appeal


Roland Routh

Windhoek-Three judges of the Supreme Court yesterday dismissed an appeal by The Namibian newspaper against a judgement granted against it by former High Court Judge Kato van Niekerk.

Judge of Appeal Sylvester Mainga, with judges of appeal Elton Hoff and acting judge of appeal Fred Chomba concurring, upheld the trial court’s award of damages in the amount of N$80,000 to presidential pilot Alois Nyandoro for an article that appeared in the paper in 2010 written by journalist Jana-Mari Smith.
Judge Van Niekerk had ordered The Namibian, its former editor Gwen Lister and journalist Jana-Mari Smith, to pay Nyandoro N$80,000 jointly and severally.

She said the defendants should pay interest on the sum at the rate of 20 percent per annum from date of judgement until the date of the final settlement.

The judge had ordered the defendants to pay the costs of the lawsuit. The lawsuit is the result of an article Smith wrote in which she claimed Nyandoro had used his position as the head of training and standards at Air Namibia to “falsify information for a South African to get a local flying licence”.

The report also alleged Nyandoro tried to get a flight trainer and examiner, Ralph Brammer, to transfer information contained on a form used by the airline onto a form used by the Directorate of Civil Aviation (DCA), allegedly to create the impression that a South African pilot had completed the required practical test flights as required by the DCA.

Apparently this was after the DCA withdrew the South African pilot, Cebile Mndawe. According to Judge Mainga, the article was inundated with inaccuracies and therefore, substantially, bordered on being wholly untrue. He said that Smith did not “in all circumstances do what is reasonable to verify certain information to avoid errors in the article”.

Further, he said Smith “triggered the investigation” because she received a report about issues with Mndawe’s flying skills, but she failed to approach Mndawe to elicit information from her, particularly whether she had a pilot’s licence.

Judge Mainga said that on the totality of the evidence it cannot be said that the publication of the article was under the circumstances reasonable. Worst still, the judge said, after the publication when the correct information was placed before Smith by Nyandoro and Air Namibia, the paper declined to print a retraction or to apologise for the article.

“The public, they so much wished to inform, was left with untrue allegations seven years later,” Judge Mainga said and continued: “The trial judge was correct when she remarked, ‘I have the impression that by the time she (Smith) contacted the plaintiff (Nyandoro) she had already made up her mind that he was guilty of serious wrongdoing.’” According to Judge Mainga there is no doubt that Smith acted unreasonably, and he found no reason to disturb the finding of the trial court. “Clearly she fell short of the principles governing The Namibian newspaper and generally the code of ethics.”

Khadila Amoomo, instructed by Sisa Namandje, appeared for Nyandoro and Advocate Andrew Corbett appeared for the newspaper.


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