Case Summary and Outcome

The Court of Appeal of Botswana reduced a damages award against a newspaper from P400,000 to P250,000 (approx. 56,000 to 30,000 USD) on the basis that the lower court had not properly balanced the right to dignity with the right to freedom of expression in ordering for an amount of damages that was out of line with previous jurisprudence in Botswana and neighbouring countries. A Botswana newspaper, The Sunday Standard, had been found liable for defamation of a Member of Parliament and was ordered to pay P400 000 in damages by the High Court. The newspaper appealed the order, arguing that the quantum of damages was inappropriately high. The Court of Appeal held that awards of damages should not be punitive, and that excessively high awards may inhibit freedom of expression. The Court of Appeal also held that the permissible limits of criticism of politicians are wider than those for criticism of judges or regular citizens.

Facts

In January 2007, The Sunday Standard published two articles covering a debate in Parliament in which allegations about corruption had been made. The newspaper accused Charles Tibone, a Member of Parliament, of involvement in covering up corruption and theft of public funds in an electrification project . [p. 496] In response to the articles, the Ministry of Minerals, Energy and Water Resources issued a statement clarifying the facts of the project and its funding, and stating that there had been no corruption or theft.

Mr. Tibone sued the newspaper for defamation in the High Court, and claimed P3million in damages. In the High Court, the newspaper denied that the articles related to Mr. Tibone and, in the alternative, argued that the publication was fair comment, was not reckless or negligent, and was in the public interest. [p. 497] The High Court rejected the newspaper’s argument that the articles did not relate to Mr.  Tibone, and said that the only possible defences to defamation were qualified privilege and fair comment. The High Court found that there was a lack of bona fides in the publishing of the article and that this, therefore, defeated the defence of qualified privilege which requires that the statement was “made with an honest purpose”. [p. 497] The High Court also held that the newspaper could not rely on the defence of “fair comment” because it had failed to interview other Members of Parliament involved in the debate and to publish the explanatory statement issued by the Ministry of Minerals, Energy and Water Resources which the Court said pointed to “either deliberate ill-will, arrogance or recklessness”. [p. 497] Consequently, the High Court held the newspaper liable for defamation. The High Court ordered damages of P400 000.

The newspaper initially appealed the judgment on its merits. However, before the Court of Appeal hearing, the newspaper withdrew that appeal and indicated that it accepted that the articles were defamatory. The sole question before the Court of Appeal was whether the quantum of damages awarded by the High Court was appropriate. [p. 496]

Decision Overview

Foxcroft JA delivered the unanimous judgment of a full-bench of the Court of Appeal of Botswana (Court of Appeal).

The Court of Appeal was not required to determine whether the articles were defamatory or whether the newspaper had a defence to their publication as the only issue before the Court was the determination of the quantum of damages.

In the Court of Appeal, the newspaper submitted that it would make an apology and retraction of the articles. The Court of Appeal referred to the South African case of Ward-Jackson v. Cape Times Ltd which had stated that an apology should “contain an unreserved withdrawal of all imputations wrongly made and an expression of regret … [and] should be neither reluctant nor grudging, but should be prompt and prominent”.[p. 498] The Court of Appeal concluded that these criteria had not been met in the present case.

The newspaper argued that the High Court’s award of damages was so “out of kilter” with other awards in previous cases in Botswana that the Court of Appeal was at liberty to substitute it with a lesser award of damages. [p.499]

The newspaper highlighted the position of Mr. Tibone as a Member of Parliament and said that “in very many jurisdictions, holders of political office are regarded as being in a special position, having chosen to enter the hurly-burly of political life with its attendant controversy”. [p. 499] The newspaper referred to the European Court of Human Rights case of Lingens v. Austria (Lingens) where that Court had held that “[t]he limits of acceptable criticism are accordingly wider as regards a politician as such than regards a private individual”. [p.499]

With reference to the South African case of Mogale v. Seima (Mogale), the Court of Appeal stated that an appellate court would only interfere with the quantum of damages awarded by a high court “where there was a palpable or manifest discrepancy between the amount the Court of Appeal would have awarded and the amount awarded by the trial court”. [p. 498] It commented that, in the Mogale case, the South African Court had identified that the balance that had to be struck between the rights to dignity and to freedom of expression was relevant to the question of the quantum of damages in defamation cases when it had held that “too high an award of damages may act as an unjustifiable deterrent to exercise the freedom of expression and may inappropriately inhibit the exercise of that right”. [p. 498] The Court of Appeal also referred to another South African case, Van Der Berg v. Coopers & Lybrand, which had cautioned that “care must be taken not to award large sums of damages too readily lest doing so inhibits freedom of speech or encourages intolerance to it and thereby fosters litigation”. [p. 499]

The Court of Appeal noted that the lower court had misdirected itself in two respects in relation to the quantum of damages. Firstly, the award was reached by taking the damages award of a previous case and adding P100,000 to account for the eight years’ inflation since the judgment was reached. Secondly, the lower court treated the minister in a comparable position to a judge. In doing so, the lower court did not properly balance the competing claims of freedom of expression and personal dignity. In addition, the Court of Appeal agreed with the newspaper that as the award was so “out of kilter” with previous awards, the Court of Appeal was able to determine an appropriate award of damages.[p.499]

The Court of Appeal explained that determining the quantum of an award of damages “must always depend upon the facts of each case, against the background of prevailing attitudes in the community which the court serves” and that “comparisons with previous awards in damages cases serve a very limited purpose”. [p. 499]

The Court of Appeal also acknowledged the jurisprudence referred to by the newspaper on the limits of permissible criticism being wider for political figures than for ordinary citizens. He confirmed that similar considerations apply to quantum. [p. 500] With reference to the Lingens case, he said that the High Court had not weighed the interests of the reputation of a Member of Parliament with the “interests of open discussion of political issues”. [p.500]

The Court of Appeal explicitly confirmed that a politician must be treated differently in cases of defamation: “[p]oliticians are undoubtedly required to display a greater degree of tolerance to criticism than private individuals. Freedom of expression is an important tool in holding governments to account. What is more, a Cabinet Minister has ready access to many public opportunities to defend himself or herself when criticised”. [p. 500] The High Court had made its decision on damages based on a previous case involving defamation of a judge, and the Court of Appeal noted that “[a] judge is in a very different position [to a politician]. He or she must remain distant from public controversy and not participate in any way in politics. He is therefore particularly vulnerable to personal attacks upon him or her to which, traditionally, he or she may offer no response. A judge is conditioned by long experience in the law, as a practitioner, to accept that one cannot descend into the arena of political conflict either on a personal or professional level. No government department will issue any defending statement on his behalf.” [p. 500]

The Court of Appeal went on to reiterate the purpose of an award of damages, and highlighted that “[d]amages for solatium of wounded feelings must always be focused on the victim, not on the wrongdoer” . [p. 501] It quoted the South African case of Mogale, where the Supreme Court of Appeal criticised the punitive use of damages and said that “punishment and deterrence are functions of the criminal law and should not form part of the law of delict”. [p. 501] The Court of Appeal also referred to South African jurisprudence (Esselen v. Argus Printing and Lynch v. Agnew) which had stipulated that when determining an award of damages, the judicial officer should not anticipate future transgressions nor seek to protect the plaintiff from any future defamation. [p. 501]

The Court of Appeal concluded that “[t]he recent South African cases … demonstrate that modern South African law is certainly on the path of compensation rather than ‘making an example of the defamer’”. [p.502] He added that jurisprudence in Botswana (in Sebele v. Dikgang Publishing Company (Pty) Ltd, Kgafela v. Maoto and Mzwinila v. CBET (Pty) Ltd t/a Midweek Sun) and in Namibia (in Trustco Group International Ltd v Shikongo) was following a similar path. Consequently, the Court of Appeal concluded than an appropriate award of damages was P250 000 (approx. $35,000USD).