Top court hears appeal on elephant captivity 'libel' (Namibia)
Werner Menges, The Namibian
June 13, 2022
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
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.