Source:
Namibian Law Reports/CHRONOLOGICAL LISTING OF CASES January 1990 to 2022/1993/Volume 1: 1 ­ 473/MARAIS v HAULYONDJABA 1993 NR 171 (HC)
URL:
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MARAIS v HAULYONDJABA 1993 NR 171 (HC)
1993 NR p171
Citation
1993 NR 171(HC)
Court
High Court
Judge
O'Linn J
Heard
April 23, 1993
Judgment
April 29, 1993
Counsel
D F Smuts for the plaintiff Defendant in default
Annotations
Link to Case Annotations
Flynote : Sleutelwoorde
Practice ­ Judgments and orders ­ Default judgment ­ Application for ­ Fact that action undefended not relieving Court of responsibility whether
facts alleged in particulars of claim establishing alleged cause I of action.
Defamation ­ Defences ­ Privilege ­ When available ­ Senior police officer publishing defamatory letter regarding plaintiff's conduct as police
officer to other high­ranking officers ­ Plaintiff also a senior J
1993 NR p172
police officer ­ Letter not proved to have been published on privileged occasion ­ Privileged occasion only existing where defamatory
statement communicated in discharge of duty or exercise of right or furtherance of legitimate interest or communicated to person with
corresponding right or duty or legitimate interest to receive it ­ If qualified privilege established or apparent from proved facts, B publication
lawful even though it was defamatory and/or injurious ­ No such privilege proved in casu.
A
Defamation ­ Damages ­ Assessment of ­ Defamatory letter published by defendant, a senior police officer, concerning plaintiff's conduct as
police officer ­ Plaintiff a senior police officer with long service ­ Letter must have put plaintiff in bad light with his superiors ­ But letter not
widely published ­ C Defendant's financial position not comparable to that of newspaper ­ Defendant not apologising ­ Plaintiff awarded R5 000 in
damages.
Headnote : Kopnota
The fact that an action (in casu an action for damages for defamation) is undefended does not relieve the Court, D in an application for default
judgment, from its responsibility of considering whether or not the facts alleged in the particulars claim, and which have to be regarded by the
Court as not in dispute, establish the alleged cause of action.
The plaintiff and defendant were both police officers. The defendant had sent a letter regarding plaintiff's conduct to certain high­ranking
officers in the police force and plaintiff alleged that the letter was defamatory. The letter E read as follows: `Instruction Chief Inspector Number
00276 C J Marais 1. I'm hereby requesting you District Commissioner to inform the above mentioned officer, that I as a Regional Inspector of the
region, I declared him as a serious public nuisance in the district, and in the region as a whole. 2. It come to my knowledge on the 23.12.92
that I'm not in command of C/Inspector Marais, instead he want to command me, and I belief he has been given special power to command me.
Which I will never tolerate such monsters gangs to rummaging the region (sic). 3. I now agree fully with district Commissioner's letter of 24.7.92
reference 10/3/1/2/2 that whatever F done by him, wrongdoer, indiscipline etc, is part of instruction from his superior (sic). Now inform him that
he must leave the district and go to his commander immediately.'
Held, that there was no doubt that the letter was defamatory: the only problem was whether or not it had been published on a privileged
occasion.
Held, further, that such privileged occasion would exist if it were either communicated in the discharge of a duty or the exercise of a right or the
furtherance of a legitimate interest and communicated to somebody who had a G corresponding right or duty or legitimate interest to receive the
communication: if such a qualified privilege were established or apparent from the proved facts, then the publication was lawful,
notwithstanding that it was defamatory and/or injurious.
Held, further, that whatever room there might have been on plaintiff's factual allegations for a defence of privileged occasion, such defence was
never raised by defendant: the viva voce evidence of the plaintiff H furthermore made it clear that no circumstances existed which would have
justified the communication of matter such as was contained in the defendant's aforesaid letter; not only were the contents of the letter
defamatory and injurious, but it amounted to a gross abuse of any right or duty or interest that the defendant may have had to communicate a
complaint about the conduct of a junior officer to the plaintiff's superiors in the Namibian Police.
Held, further, that there could be no doubt that the defendant was actuated by an improper motive and with malice which in turn eliminated the
defence; the plaintiff was therefore entitled to damages for defamation and I injuria.
Held, further, regarding quantum of damages, that it had to be taken into account that the plaintiff was a senior officer and had served in the
police force for 18 years: he had a clean record apart from one incident of negligence.
Held, further, that another factor was that parts of the letter were incomprehensible because the author obviously could not express himself
properly in the English language. J
1993 NR p173
Held, further, that it was also important that the letter had not been circulated to the general public or the press: nevertheless, publication by
a senior police officer to the inspector­general and officers was important and a fairly grave case of defamation and injuria.
A
Held, further, that although the plaintiff must have felt gravely insulted by the letter and his prospects of promotion in the Namibian Police
hampered by the attitude of the defendant and others in the force who may share his sentiments, the plaintiff was not able to demonstrate any
serious negative consequences for him up to the present.
B
Held, further, that it also had to be borne in mind that defendant's financial position was not comparable to that of a newspaper.
Held,
further,
that it (Pty)
had to
to the plaintiff.
© 2018
Juta
and Company
Ltd.be held against defendant that he never apologised
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Held, accordingly, that justice would be done if the plaintiff were awarded R5 000 in damages.
hampered by the attitude of the defendant and others in the force who may share his sentiments, the plaintiff was not able to demonstrate any
serious negative consequences for him up to the present.
B
Held, further, that it also had to be borne in mind that defendant's financial position was not comparable to that of a newspaper.
Held, further, that it had to be held against defendant that he never apologised to the plaintiff.
Held, accordingly, that justice would be done if the plaintiff were awarded R5 000 in damages.
C
Application for default judgment in an action for damages for defamation. The facts appear from the reasons for judgment.
Case Information
D F Smuts for the plaintiff.
Defendant in default.
Cur adv vult.
D
Postea (April 29).
Judgment
O'Linn J: The plaintiff, Charl Johan Marais, applied for judgment by default against E E Haulyondjaba in regard to an action for damages for
defamation and injuria. The relief claimed is set out as follows in the notice of set E down:
1.
Payment of the sum of R60 000.
2.
Interest on the said sum at the rate of 20% per annum from the date of judgment to date of payment.
3.
Costs of suit.
4.
Further and/or alternative relief.
F
At the hearing of the application the applicant, hereinafter referred to as the plaintiff, was represented by Mr Smuts of the Namibian Society of
Advocates. There was no appearance for the respondent, hereinafter referred to as the defendant. The defendant did not at any stage after
the combined summons was served on him G personally respond by entering an appearance to defend or in any other manner.
Mr Smuts took the view that the plaintiff was entitled to judgment by default on the merits but that some evidence on the quantum o f
damages was either necessary or at least desirable, and consequently called the plaintiff to H testify on the question of quantum.
The fact that the action is undefended does not relieve the Court from its responsibility of considering whether or not the facts alleged in the
particulars of claim, and which have to be regarded by the Court as not in dispute, established the alleged cause of action.
It is apposite at this stage to set out the particulars of claim as it appears in the combined summons:
I
`1.
The plaintiff is Charl Johan Marais, an adult male chief inspector in the service of the Namibian Police, Oshakati, Republic of Namibia, and
residing at 298 Tambotie Street, Oshakati, Northern Namibia. J
1993 NR p174
O'LINN J
A
2.
B
3.
The defendant is E E Haulyondjaba, an adult male police officer with the rank of Commissioner, a regional inspector in the Namibian Police
and holding the position as Regional Inspector, Northern Region in the Namibian Police, Grootfontein, Republic of Namibia, and whose full
and further particulars are to the plaintiff unknown.
On 31 December 1992 defendant wrote and published of the plaintiff the following letter:
"Instruction chief inspector number 00276 C J Marais
1.
2.
C
F
I now agree fully with District Commissioner's letter of 24.7.92 reference 10/3/1/2/2 that whatever done by him, wrongdoer,
indiscipline etc, is part of instruction from his superior (sic). Now inform him that he must leave the district and go to his commander
immediately.''
4. The aforesaid letter was sent and published by the defendant to the Inspector­General of the Namibian Police, the Police Commissioner in
charge of Administration and Personnel, the District Commissioner of the Namibian Police, Oshakati and to certain other police officers and
other personnel in the employ of the police. A copy thereof is annexed hereto and marked "A''.
5. The aforesaid letter is wrongful and defamatory of the plaintiff in that it was intended and understood by the readers of the letter to mean
that the plaintiff:
5.1
was a serious public nuisance in the Northern Regional District;
5.2
constituted a nuisance to the public;
5.3
G
did not demean himself as is required of an officer of the Namibian Police in his dealings with the public;
5.4
was a gangster;
5.5
was involved in underhand and/or unlawful activity in the region;
5.6
H
I
It come to my knowledge on the 23.12.92 that I'm not in command of C/Inspector Marais, instead he want to command me, and I
belief he has been given special power to command me. Which I will never tolerate such monsters gangs to rummaging the region
(sic).
3.
D
E
I'm hereby requesting you District Commissioner to inform the above mentioned officer, that I as a Regional Inspector of the region, I
declared him as a serious public nuisance in the district, and in the region as a whole.
was engaged in wrongful and criminal behaviour in the Northern Region of Namibia;
5.7
was an undisciplined member of the Namibian Police;
5.8
engaged in conduct which required him to be prosecuted or disciplined internally by the police;
5.9 was unfit to be a senior police officer.
6. The statements concerning the plaintiff in the aforesaid letter were made with the intention to defame the plaintiff and injure his reputation.
7. As a consequence of the publication of the letter, the plaintiff has been grossly defamed in his good name and reputation and has suffered
injury to his feelings and dignity. J
1993 NR p175
O'LINN J
A
8.
As a consequence of the aforegoing, the plaintiff has suffered damages as follows:
8.1
9.
B
Injury to his feelings and dignity
R10 000
8.2 Injury to his good name and reputation R50 000
In the premises the defendant is liable to the plaintiff in damages in the amount of R60 000.
Wherefore the plaintiff claims:
1.
Payment in the sum of R60 000.
2.
Interest on the said sum at the rate of 20% per annum from the date of judgment to date of payment.
3.
Further and/or alternative relief.
4.
Costs of suit.'
That the letter written by the defendant is defamatory of and injurious to the plaintiff, and that it was published by the plaintiff to the
Inspector­General of the Namibian Police, the Police Commissioner in charge of Administration and Personnel, the District Commissioner of the
Namibian
Police
at Oshakati
is not in
doubt.
The
innuendo
out in the
particulars
of claim
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Juta and
Company
(Pty) Ltd. and to certain other police officers D and personnel,
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(South
Africa Standard
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is also proved in substance.
C
3.
Further and/or alternative relief.
4.
Costs of suit.'
That the letter written by the defendant is defamatory of and injurious to the plaintiff, and that it was published by the plaintiff to the
Inspector­General of the Namibian Police, the Police Commissioner in charge of Administration and Personnel, the District Commissioner of the
Namibian Police at Oshakati and to certain other police officers D and personnel, is not in doubt. The innuendo set out in the particulars of claim
is also proved in substance.
C
The only problem on the merits is whether, on the basis of the facts alleged by the plaintiff, the letter was not published by the defendant on a
privileged occasion, ie either communicated in the discharge of a duty or the E exercise of a right, or the furtherance of a legitimate interest and
communicated to somebody who has a corresponding right or duty or legitimate interest to receive the communication.
If such a qualified privilege is established or apparent from the proved facts, then the publication is lawful, notwithstanding that it is defamatory
and/or injurious.
Whatever room there might have been on the plaintiff's factual allegations for a defence of privileged occasion, such defence was never raised
by the defendant. The viva voce evidence of the plaintiff furthermore made it clear that no circumstances existed which would have justified
the communication of matter such as contained in the G defendant's aforesaid letter. Not only was the contents of the letter defamatory and
injurious, but it amounted to a gross abuse of any right or duty or interest that the defendant may have had to communicate a complaint about
the conduct of a junior officer to the plaintiff's superiors in the Namibian Police.
F
H
There can be no doubt that the defendant was actuated by an improper motive and malice, which in turn eliminates the defence.
The plaintiff is therefore entitled to damages for defamation and injuria. What remains is the question of quantum.
The plaintiff is a chief inspector in the Namibian Police and was at the time of the incident the crime officer for the Oshakati district and is
presently the Commanding Officer of the Commercial Branch of the Namibian Police. The plaintiff has served the Namibian Police and its
forerunner, the SWA Police, for 18 years. He has been an officer since 1985. He has a clean record except for the fact that on one occasion he
was convicted of negligence at an internal police disciplinary hearing in J
I
1993 NR p176
O'LINN J
A
connection with the escape of a prisoner. He holds a BA Honours degree in police science from the University of South Africa.
The defendant is a Commissioner in the Police. At the time of the incident he was regional inspector of police in northern Namibia and still holds
that position. The defendant apparently joined the new Namibian Police after independence but was in due course appointed as a police officer
senior to the plaintiff.
The only apparent reason for the defendant's action, is that the plaintiff at one stage before the incident had to investigate a case of theft of
certain building material where the defendant was a suspect and the plaintiff had issued a search warrant for the search of the defendant's
premises. The action of the plaintiff was based on C information in affidavits and authorised by senior officers of police headquarters in
Windhoek. However at a later stage, after discussions with the Inspector­General of the Namibian Police, it was decided not to proceed with
the search.
B
There is no doubt that the said investigation by the plaintiff was authorised, regular and legal. The plaintiff was only doing his duty as a
policeman. The aforesaid action by the plaintiff was no excuse and did not mitigate the conduct of the defendant in compiling and publishing the
letter aforesaid.
D
The only mitigation for the defendant's conduct is that parts of the letter are incomprehensible because the author obviously could not
express himself properly in the English language.
E
It is, of course, also important that the letter was not circulated to the general public or the press. Nevertheless, publication by a senior police
officer to the Inspector­General and officers was important and a fairly grave case of defamation and injuria.
Although the plaintiff must have felt gravely insulted by the letter and his prospects of promotion in the Namibian Police hampered by the
attitude of the defendant and others in the force who may share his sentiments, the plaintiff was not able to demonstrate any serious negative
consequences for him up to the present.
F
G
I will assume in favour of the defendant that his financial means are not comparable to that of flourishing newspapers.
It must be held against the defendant that he never apologised to the plaintiff. He also made no effort to explain his conduct to the Court.
I have taken note of the review of recent cases on quantum by my learned Brother Hannah AJ, as he then was, in the case of Smit v
Windhoek Observer (Pty) Ltd and Another 1991 NR 327 (HC). See also Smith v Die Republikein (Edms) Bpk en 'n Ander 1989 (3) SA 872 (SWA).
H
Mr Smuts suggested that the Court need not allocate damages separately to defamation and to injuria. In all the circumstances, it appears to
me to be in accordance with justice to award damages in the amount of R5 000.
I
In the result, I make the following order against the defendant. He is ordered to pay:
1.
The amount of R5 000.
2.
Interest on the said sum at the rate of 20% per annum with effect from 29 April 1993 to date of payment.
J
1993 NR p177
A
3.
Costs of suit.
Plaintiff's Attorneys: Kock & Van der Westhuizen.
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