June 13, 2022
Werner Menges, The Namibian
See link for photo.
The Supreme Court is due to decide if a game dealer was defamed by a newspaper article about the conditions in which captured elephants were kept at a farm in the Mariental area about five years ago.
This is after the court on Friday heard oral arguments on an appeal against a High Court judgement in which game dealer Johan Lombaard and his close corporation Golden Game CC won a defamation case against the newspaper group Namibia Media Holdings (NMH) and a former editor of the newspaper Namibia Sun, Festus Nakatana, in March 2020.
The court reserved its judgement after deputy chief justice Petrus Damaseb and appeal judges Dave Smuts and Elton Hoff heard arguments on the appeal.
Lombard and Golden Game CC sued NMH and Nakatana for a combined amount of N$200 000, after an article about conditions in which three young elephants were being kept at Lombaard's farm in the Mariental district was published in Namibian Sun in October 2017.
In the article, environment minister Pohamba Shifeta and the then top official in the environment ministry, Malan Lindeque, were quoted as having described the conditions in which the elephants were being kept at the farm as “horrific” and “deplorable”.
In the article, it was stated that the elephants were being kept “in containers”. It was also reported that Lombaard did not have a permit that was required to transport the elephants, which had been captured at a farm in the Grootfontein area, and that his farm had not been approved by the environment ministry for elephants to be kept there.
Lombard told High Court judge Hannelie Prinsloo during the hearing of his and Golden Game's defamation claim that the elephants were in fact kept in a temporary enclosure that was 324 square metres in size and made up of shipping containers, while a boma to keep the animals in was being strengthened.
He said his reputation and business as a game dealer had been damaged by the article, and as a result of the report in the newspaper and on the internet, he had lost a contract to sell elephants to a zoo in Dubai and also to supply animals to a game park in Libya.
Also during the hearing of the case before Prinsloo, Lindeque told the court the article correctly reflected what had been said at a media briefing of the environment ministry.
Prinsloo found that Lombaard had not been given an effective opportunity to respond to the allegations made against him, and that the publication of the article was not reasonable or responsible journalism.
She awarded N$70 000 to Lombaard and N$50 000 to Golden Game.
During the appeal hearing, legal counsel Natasha Bassingthwaighte argued on behalf of NMH that the elephants were indeed transported illegally to Lombaard's farm, and that Golden Game was not registered as a game dealer that could trade in elephants.
She also argued that the enclosure in which the elephants were kept had not been approved by the ministry of environment, and that the animals had not been kept in acceptable conditions.
Lombaard and Golden Game did not prove that the article was defamatory, or that its publication was not reasonable, she argued as well.
On behalf of Lombaard and Golden Game, Phillip Barnard argued that the article did not merely report what had been said by Shifeta and Lindeque, but “put a spin” on their remarks.
The actual situation was a far cry from the image portrayed of elephants that were being kept in containers, Barnard said. He also argued that the reporter who wrote the article made only minimal efforts to contact Lombaard for comment by trying twice to make a call to his cellphone.
There was no urgent need to publish the article and the reporter should not have simply accepted the correctness of the remarks made by Shifeta and Lindeque, but should have investigated the matter further before writing her report for the newspaper, Barnard added.