Remarks that a nurse made in a WhatsApp voice recording about pharmaceutical company owner Shapwa Kanyama and the cost of his wedding celebrations were defamatory, a Windhoek High Court judge has ruled.
Although nurse Mathilde Kadhikwa’s remarks touched on matters of public interest, Kadhikwa could not prove the facts on which her comments or opinion were based were true or substantially true, judge Beatrix de Jager said in a judgement delivered on Monday.
In the judgement, De Jager ordered Kadhikwa to pay N$80 000 to Kanyama and N$50 000 to his wife, Beata Kanyama, who is also known as Betty Davids.
De Jager also ordered Kadhikwa to pay the couple’s legal costs in the defamation claim they instituted against her in July 2022.
The Kanyamas sued Kadhikwa for a total amount of N$400 000.
De Jager found that comments made by Kadhikwa in a WhatsApp voice recording that she shared on a group named ‘2024 Presidential’ on 30 May 2022 referred to Shapwa Kanyama, although his name was not mentioned in the recording.
No factual foundation was provided for Kadhikwa’s remarks, which were defamatory, De Jager also found.
In the recording, in which Kadhikwa spoke in Oshiwambo, she made comments about the state of Namibia’s hospitals, shortages of supplies needed in hospitals, and an ostentatious wedding of “a young child of his age” that supposedly cost some N$10 million.
Kadhikwa also said the person supposed to supply items needed in the country’s hospitals hosted such a wedding and that while he had no knowledge of medicine, he has a tender to deliver medication to the government.
Shapwa Kanyama’s company, Africure Pharmaceuticals Namibia, has won multimillion-dollar tenders to supply goods to the Ministry of Health and Social Services.
The Kanyama couple got married at Oniipa in northern Namibia on 27 May 2022.
They held a glamorous two-day wedding ceremony attended by prominent Namibian figures and celebrities, were escorted by luxury vehicles like Mercedes-Benzes, Range Rovers and Audis, and the event received wide publicity, De Jager noted.
She also recorded that Kanyama claimed Kadhikwa’s remarks suggested “that he is dishonest, a corrupt businessman and that he commits criminal acts in addition to embezzling public funds for his benefit”.
Beata Kanyama claimed the remarks suggested she “is married to a dishonest and corrupt businessman who commits criminal acts in addition to embezzling public funds for his benefit”.
Kadhikwa denied that she referred to Kanyama in the voice recording.
She claimed she made general remarks about the state of Namibia’s health sector and the procurement of medical equipment and pharmaceutical products and her comments were about matters of public interest. She also claimed her remarks constituted fair comment or opinion.
De Jager said Kadhikwa’s remarks included claims that money was being “pocketed smartly by individuals”, or that money was flowing into private pockets in a deceitful manner, that “children” have money for which they did not work, and that it was public money.
“If not defamatory directly per se, the audio recording is defamatory contextually by implication,” De Jager said.
The remarks would lead ordinary and reasonable persons to believe and understand that Kanyama “is a dishonest and corrupt businessman in that he used public funds to finance the wedding, he committed crimes and criminal acts in addition to embezzling public funds for his benefit, and he unlawfully pocketed government money,” she added.
Kadhikwa’s defence that her remarks were in the public interest did not succeed because she could not prove her comments were based on the truth, De Jager concluded.
“Fair comment cannot be made on false facts,” she stated. “The audience must see where fact ends and comment begins to estimate for themselves the comment’s value.
The facts must be justified. It must relate to a matter of public interest.
The comment must be fair in that it does not exceed certain limits. It should embrace honesty and relevance without malice.”
Kadhikwa failed to prove the facts on which her comments were based were true or substantially true, De Jager found.
She said: “Some statements were not comments (opinion), they were stated as facts.
The audience cannot see where fact ends and comment begins to judge the value of [Kadhikwa’s] supposed comment for themselves.
The publication contains no clearly indicated facts or firm foundation followed by comment or opinion,” De Jager remarked.
She also stated: “The statements overstep what would be allowed as they impute dishonesty and criminal acts onto [Shapwa Kanyama] without justification.”
Senior counsel Raymond Heathcote, assisted by Lotta Ambunda-Nashilundo, represented the Kanyama couple on instructions from the law firm Sisa Namandje & Co Inc.
Kadhikwa was represented by Henry Shimutwikeni and Wilbard Kagola.
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