Kennedy fails in defamation suit against Namibian Sun
A former magistrate facing rape and other charges, Jaco Kennedy, has failed in his defamation claim against Namibian Sun after the High Court on Friday granted the newspaper’s application for absolution and ordered him to pay costs.
Kennedy had sued the newspaper for N$150 000 in damages over an allegedly defamatory article published last year.
The article, titled "Rapist’ fails in case over alleged victims’ testimony” and published in August 2024, featured a headline and opening paragraph that included the words “rapist” and “victims”.
The former magistrate argued that the headline, which contained a punctuation error for which the newspaper apologised in print shortly afterwards, as well as the word ‘victims’ in the first sentence, had defamed him by suggesting he had already been found guilty, despite his trial still being pending.
The newspaper subsequently filed an application for absolution, seeking to have the case dismissed.
Test for absolution
During the hearing for absolution, Kennedy argued that the article’s headline and its opening sentence would lead any reasonable reader to believe he had raped the complainants and was undeserving of the constitutional presumption of innocence.
Namibian Sun, represented by lawyer Norman Tjombe, argued that the article should be read in full and in context.
Tjombe told the court that the report clearly stated Kennedy has a pending criminal matter and has not yet been convicted.
In her ruling, High Court judge Lotta Ambunda reiterated that the test at the absolution stage is not whether Kennedy has proven his case, but whether there is evidence on which a reasonable court might find in his favour.
“A plaintiff must establish a prima facie case on all elements of defamation to survive absolution," the judge explained.
Ambunda further held that inferences relied upon must be reasonable and that defamation is assessed objectively from the standpoint of an ordinary reader, taking into account the full context of the publication.
“The test is objective, it does not concern itself with the sting alleged by the plaintiff or the conclusions the third person may have drawn,” the court explained.
Court’s findings
The court found that Kennedy had failed to demonstrate that the relevant parts of the article were defamatory of his reputation.
"It is inevitable to therefore conclude that the plaintiff's evidence is incurably and inherently so improbable and unsatisfactory and will be rejected out of hand," the judgment reads.
The judge also concluded that no evidence was led on the ridicule from society, the treatment received from fellow inmates or the cutting off from society as alleged.
A reasonable reader, the court noted, would not understand the article to mean that the plaintiff is a convicted rapist, nor that the publication declared the complainants to be legally recognised “victims” in the criminal sense.
"The plaintiff has failed to establish that the statements made were defamatory of his reputation," the ruling stated.
The defendants denied any intention to defame and argued that the content was true or substantially true and published in the public interest.
Alternatively, they contended that the statements amounted to fair comment and constituted a reasonable publication protected under Article 21(1)(a) of the Constitution.
Kennedy was represented by lawyer Bruno Isaacks.
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Kennedy had sued the newspaper for N$150 000 in damages over an allegedly defamatory article published last year.
The article, titled "Rapist’ fails in case over alleged victims’ testimony” and published in August 2024, featured a headline and opening paragraph that included the words “rapist” and “victims”.
The former magistrate argued that the headline, which contained a punctuation error for which the newspaper apologised in print shortly afterwards, as well as the word ‘victims’ in the first sentence, had defamed him by suggesting he had already been found guilty, despite his trial still being pending.
The newspaper subsequently filed an application for absolution, seeking to have the case dismissed.
Test for absolution
During the hearing for absolution, Kennedy argued that the article’s headline and its opening sentence would lead any reasonable reader to believe he had raped the complainants and was undeserving of the constitutional presumption of innocence.
Namibian Sun, represented by lawyer Norman Tjombe, argued that the article should be read in full and in context.
Tjombe told the court that the report clearly stated Kennedy has a pending criminal matter and has not yet been convicted.
In her ruling, High Court judge Lotta Ambunda reiterated that the test at the absolution stage is not whether Kennedy has proven his case, but whether there is evidence on which a reasonable court might find in his favour.
“A plaintiff must establish a prima facie case on all elements of defamation to survive absolution," the judge explained.
Ambunda further held that inferences relied upon must be reasonable and that defamation is assessed objectively from the standpoint of an ordinary reader, taking into account the full context of the publication.
“The test is objective, it does not concern itself with the sting alleged by the plaintiff or the conclusions the third person may have drawn,” the court explained.
Court’s findings
The court found that Kennedy had failed to demonstrate that the relevant parts of the article were defamatory of his reputation.
"It is inevitable to therefore conclude that the plaintiff's evidence is incurably and inherently so improbable and unsatisfactory and will be rejected out of hand," the judgment reads.
The judge also concluded that no evidence was led on the ridicule from society, the treatment received from fellow inmates or the cutting off from society as alleged.
A reasonable reader, the court noted, would not understand the article to mean that the plaintiff is a convicted rapist, nor that the publication declared the complainants to be legally recognised “victims” in the criminal sense.
"The plaintiff has failed to establish that the statements made were defamatory of his reputation," the ruling stated.
The defendants denied any intention to defame and argued that the content was true or substantially true and published in the public interest.
Alternatively, they contended that the statements amounted to fair comment and constituted a reasonable publication protected under Article 21(1)(a) of the Constitution.
Kennedy was represented by lawyer Bruno Isaacks.
[email protected]
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