In the matter between Shapwa, Beata Kanyama and Mathilde Kadhikwa

IN THE HIGH COURT OF  NAMIBIA

MAIN DIVISION, WINDHOEK

WITNESS STATEMENT: BEATA NDAENDELAO KANYAMA

RULE 92

CASE NO: HC-MD-ClV-ACT-OTH-2022/02957

SHAPWA TANGENI KANYAMA	1 ST PLAINTIFF
BEATA NDAENDELAO KANYAMA and	2 ND PLAINTIFF
MATHILDE MUTALENI KATOSHE KADHIKWA	DEFENDANT

BE PLEASED TO TAKE NOTICE that BEATA NDAENDELAO KANYAMA will testify

at the trial of this matter as the 2 ^nd plaintiff and the following is her witness statement which will constitute her oral evidence which the Plaintiffs intend to adduce during the

KINDLY FURTHER TAKE NOTE that the said witness reserves the right to amplify his evidence where necessary and depended upon further preparation and also with reference to possible further discovery on the part of either party.

BEATA NDAENDELAO KANYAMA will testify as follows that:

I am an adult female, with full legal capacity and the 2 ^nd plaintiff in this matter.

• I am a Self-employed businesswoman and a prominent public figure, influencer with over 5000 followers on various social media internet -based platforms such as Facebook, twitter and Instagram. I am the owner and founder of the Nova Financial Solutions.
• Academically, I have been accredited with a Bachelor of Accounting (Honours); a Bachelor of Logistics and Supply Chain Management Honours; an LLM in Commercial Law; a Post Graduate Diploma in Business Administration and lately an MBA Degree.
• The 1 plaintiff is my husband following our marriage ceremony on 27 May 2022 at Oniipa Parish, in the Oshikoto region.
• I do confirm that our wedding ceremony was celebrated over two days, i.e. 27 and 28 May 2022. It is not in doubt that it was a ‘glamourous wedding’ which attracted guests with the most luxurious vehicles in the market such as, amongst others, Mercedes Benzes G-Wagon, Audi and Range Rovers. The wedding was further graced with the most elegant features, in terms of a luxurious receptions with wedding decorations put together by some of the sought after south African designer Precious the Planner.
• The event also attracted prominent local celebrities and prominent personalities and received huge publicity through various media platforms and newspapers.
• The wedding received huge publicity with guests posting about the wedding and creating live streams on various social media networks.
• An article from the Namibian Newspapers which reported the event on 3 June 2022 is attached hereto as STK 1 to the particulars of claim and also forms part of the plaintiffs’ bundle of discovered documents.
• It is trite that the wedding of that magnitude costed us an amount of approximately 10 million.

1 0. As at May/June 2022 therefore, our wedding event was well within the public sphere as wedding of the year.

1 1 . On or about 30 May 2022, the Defendant made an audio recording containing defamatory statements of and concerning the 1 ^st plaintiff. This audio was shared on published and circulated on various WhatsApp groups and social media platforms such as Facebook, Instagram and Twitter.

1 2. I further confirm that the statements made related to the 1 ^st plaintiff by implication or insinuation from the facts that can easily be identified with the 1 ^st plaintiff, most importantly in relation to our glamourous wedding.

1 3. As a consequence of the defamatory statements, the statements, insinuations and suggestions made by the defendant are also defamatory, wrongful and infringes on, alternatively is injurious towards my name, dignity, fame, credit or reputation in the estimation of reasonable persons of ordinary intelligence or right-thinking members of society, particularly the knowledgeables whose mind went to me when they heard or read the utterances. This is because the  statements impute, suggest or indirectly imply that the I am married to a man who is dishonest, a corrupt businessman, and who is committing criminal acts in addition to embezzling public funds for his own benefit.

1 4. I confirm that the defamatory statements were made intentionally and with malice to lower and undermine my good name, fame, dignity, credit or reputation in the estimation of reasonable persons of ordinary intelligence or right-thinking members of society.

1 5. As a result of the statement, I have also been affected by the indirect intention to injure me as the statements made by the defendant has an indirect and injurious effect on my status, fame and dignity. I am the wife of the 1 ^st plaintiff and as a consequence of this particular relationship with the 1 ^st plaintiff, my personality too has in fact been infringed.

1 7. I deny that the statements made were not wrongful and defamatory. The statements made were definitely not in the public interest as they are untrue

and even though the defendant may have her opinion on public matters, it does not justify the defamatory words used against the 1 ^st plaintiff. The comments were therefore not fair and reasonable in the circumstances. The fact that the comments made by the defendant were her honest and bona fide opinion and in the exercise of her right to freedom of speech, this would not constitute a legal defence against defaming the character of the It plaintiff and consequentially mine as the 1 ^st plaintiff’s wife, as such right is subject to the laws of defamation. ^[1]

1. The defendant therefore made the statements with the indirect intention to lower and undermine my good name, fame, credit or reputation in the estimation of reasonable persons of ordinary intelligence or right-thinking members of society. Since the publication of the defamatory statements during May 2022:

18.1 I have been subjected to Cyberbullying, because of my association to the 1 ^st Plaintiff as my husband. The social media platform has become toxic at an aggravated level with public opinions with reference to any medical short supplies which scenarios are being associated to my husband as the culprit. Because of the level of attacks on social media platforms, I had to close down my accounts on various media platforms to avoid responding to such accusations in the public sphere;

1 8.2 The effect and attacks that I am experiencing now as a result of the defamatory statements by the defendant honestly aggravated since May

2022;

1. I cannot move freely in public because I am afraid of getting verbally or physical attacked from members of the public who think my husband is responsible for the shortcoming of medical supplies in public hospitals. This is a reasonable fear considering the effect and insinuations in the defamatory statements made by the defendant and it has costed us a

large amount of money to secure security for the 1 ^st plaintiff, myself and our family.

1. Our children have since been subjected to negative comments from their fellow classmates because of the negative image painted on me as a parent, a factor which could possibly affect their safety and performance at school;

1 9. I have therefore suffered significant damages as a result of the defamatory statements made by the defendant. In the absence of a legal defence or justification thereof, the defendant’s intention is clear from the statements she made, which is to, although indirectly targeted to me, lower and undermine my good name, fame, credit or reputation in the estimation of reasonable persons of ordinary intelligence or right-thinking members of society.

20. To this, the defendant is liable for the damages that I suffered as claimed in the particulars of claim.

I believe that the facts contained in my statement are true and correct to the best of my knowledge.

DATED AT WINDHOEK ON 14 APRIL 2023.

BEATA NDAENDELAO KANYAMA

[1] See paragraph 8 of the replication.

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DEFENDANT’S WITNESS STATEMENT

IN THE HIGH COURT OF NAMIBIA

(Main Division)

CASE NUMBER: HC-MD-ClV-ACT-OTH-2022/02957

In the matter between:

SHAPWA TANGENI KANYAMA	1 ST PLAINTIFF
BEATA NDAENDELAO SHITEKETA KANYAMA and	2 ND PLAINTIFF
MATHILDE MUTALENI KATOSHE KADHIKWA	DEFENDANT

BE PLEASED TO TAKE NOTICE THAT, the Defendant intends to call the undersigned MATILDA MUTALENI KATOSHE KADHIKWA to testify at the hearing of this matter, A statement of her evidence appears hereunder:

l, the undersigned

MATILDA MUTALENI KATOSHE KADHIKWA

l .         Make the following statement:

         1 . 1 .                    I am an adult female residing at Onamungundo Village, Oshikoto

Region, Republic of Namibia;

1 .2. I am a retired registered nurse with specialisation in Critical Nursing Care. Before my retirement, I was a nurse for more than 30 years — I served as a nurse at the Oshakati State Hospital, Windhoek Central Hospital and the Ministry of Correctional Service as the head of the nursing service.

• I am personally acquainted with the facts set out hereunder and the facts contained herein are true and correct, unless the context indicates otherwise, or it is otherwise stated.
• I am advised that I am required to provide a statement of my evidence in chief for the hearing of this matter. I deliver this statement to this Honourable Court on my own behalf as the Defendant, being duly competent to do so.
• I reserve my rights to clarify, supplement and/or vary the statements herein, and to tender such further evidence as may be necessary or required at trial, and I hereby state the following:
• During or about May 2022, on a WhatsApp group named, “2024 Presidential” I, recorded and sent an audio message in Oshiwambo in response to an audio message sent by one of the other group members. Both, the audio messages, the one that I was responding to and the one that I recorded were in respect to a certain wedding ceremony with was held in the “North”. I have been informed that the audio message has been translated to English by a Sworn Translator, and a copy of the sworn translation has been annexed hereto as “MKKI”.
• The statements I made in the audio message in question were in no way malicious, nor were they made with the intention to defame or injure the reputation and good name of any individual. My audio message was simply recorded and sent for me to add my fair public comment on the topic and to contribute to the discussion that was being had on the said WhatsApp group at that time.
• It is important to note, that in the said audio message l, at no point mentioned any individual’s name, more specifically l, did not mention either one of the Plaintiffs’ names. Further, I did not record the audio message to portray the Plaintiffs as unscrupulous persons, with low morals or to injure their reputations.
• Therefore, I deny the allegations put forth by the Plaintiffs in their Particulars of Claim that I made the audio message:
  • . with the intention to defame, injure and/or tarnish the 1 ^st Plaintiffs reputation and dignity;
  • to imply that the 1 ^st Plaintiff is a corrupt businessman, that he commits criminal acts and that he embezzled public funds for his own benefit;
  • with intent and malice to lower and undermine the 1 ^st Plaintiff’s good name, fame, credit or reputation in the estimation of reasonable persons of ordinary intelligence or right-thinking members of society.
• l, further, deny that the audio message that I made is defamatory, wrongful and injurious towards the 2 ^nd Plaintiffs name, dignity, fame, credit or reputation in the eyes of reasonable persons of ordinary intelligence or right-thinking members of society.

1 0. l, specifically deny, that knowledgeable persons would have heard the audio message and thought of the 2 ^nd Plaintiff and interpreted the audio message to mean that I was implying that the 2 ^nd Plaintiff is married to a man who is dishonest, a corrupt businessman, a man who commits criminal acts and embezzles public funds for his own benefit.

1 1 . I am, of the belief that if the ‘1 ^st Plaintiff’s good name and dignity were defamed, his reputation injured in the minds of reasonable persons of ordinary intelligence or right-thinking members of society, then the 1 ^st Plaintiff would not have been in line to be awarded tenders for the supply and delivery of goods and services by the Central Procurement Board of Namibia (CPBN) to State hospitals. As reasonable persons of ordinary intelligence or right-thinking members of society including members of the CPBN would be of the view that the 1 ^st Plaintiff has lower dignity and a bad reputation and would, therefore, not want to be associated with him.

1 2. I am, further of the belief that if the 1 ^st Plaintiff’s was considered as a dishonest man, if his good name, fame, credit, reputation was undermined in the minds of reasonable persons of ordinary intelligence or right-thinking members of society, then the 1 ^st Plaintiff would not have been in line to be awarded tenders for the supply and delivery of goods and services by the Central Procurement Board of Namibia (CPBN) to State hospitals. As reasonable persons of ordinary intelligence or right-thinking members of society including members of the CPBN would be of the view that the 1 ^st Plaintiff is a dishonest man, is a corrupt businessman, commits criminal acts, embezzles public funds for his own benefit, is infamous, has no credibility and has a low reputation and would have disqualified him from being awarded the tenders.

1 3. I am of the view that the 2 ^nd Plaintiff’s name, dignity, fame, credit or reputation was not defamed nor injured by myself. This is, because reasonable persons of ordinary intelligence or right-thinking members of society would not think that the 2 ^nd Plaintiff is married to a man who is dishonest, a corrupt businessman, a man who commits criminal acts and embezzles public funds for his own benefit.

1. I am further of the view that, reasonable persons of ordinary intelligence or rightthinking members of society know that the 1 ^st Plaintiff is an honest, incorruptible business, he does not commit criminal acts and does not embezzle public funds for his own benefit. As the 1 ^st Plaintiff is in the lead to be awarded tenders for the supply and delivery of goods and services to the Ministry of Health and Social Services. This is an indication that the 1 ^st Plaintiff is an honest, trustworthy businessman with an impeccable business track record.
2. The statements that I made in the audio pertain to a public discussion about the states and its procurement processes. As a former civil servant employed in the health sector, I was disappointed by how the Ministry of Health and Social Services procured medical equipment and pharmaceutical products as it had a direct impact on how I did my job. There were times when the medical equipment that were procured were not enough to cater to the needs of the patients and were not effective.
3. The government through the Ministry of Health and Social Services spent a lot of money procuring medical equipment and pharmaceutical products, and in my opinion, the services rendered by the procuring agents is not satisfactory.
4. The facts contained in this statement are true and correct to the best of my knowledge and recollection of events relating to this matter,

1 8. I reserve the right to refer to and prove other documents as discovered or made available by the Parties.

DATED and SIGNED at WINDHOEK on this   day of AUGUST 2023.

MATHILDE MUTALENI KATOSHE KADHIKWA

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DEFENDANT’S SUPPLEMENTARY WITNESS STATEMENT

IN THE HIGH COURT OF NAMIBIA

(Main Division)

CASE NUMBER: HC-MD-ClV-ACT-OTH-2022/02957

In the matter between:

SHAPWA TANGENI KANYAMA	1 ST PLAINTIFF
BEATA NDAENDELAO SHITEKETA KANYAMA and	2 ND PLAINTIFF
MATHILDE MUTALENI KATOSHE KADHIKWA	DEFENDANT

BE PLEASED TO TAKE NOTICE THAT, the Defendant intends to call the undersigned MATILDA MUTALENI KATOSHE KADHIKWA to testify at the hearing of this matter. A statement of her evidence appears hereunder:

l, the undersigned

MATILDA MUTALENI KATOSHE KADHIKWA

1 .         Make the following statement:

1 .1 . I am an adult female residing at Onamungundo Village, Oshikoto Region, Republic of Namibia;

1 .2 I am a retired registered nurse with specialisation in Critical Nursing Care. Before my retirement, I was a nurse for more than 30 years — I served as a nurse at the Oshakati State Hospital, Windhoek Central Hospital and the Ministry of Correctional Service as the head of the nursing service.

• I am personally acquainted with the facts set out hereunder and the facts contained herein are true and correct, unless the context indicates otherwise, or it is otherwise stated.
• I am advised that I am required to provide a statement of my evidence in chief for the hearing of this matter. I deliver this statement to this Honourable Court on my own behalf as the Defendant, being duly competent to do so.
• I reserve my rights to clarify, supplement and/or vary the statements herein, and to tender such further evidence as may be necessary or required at trial, and I hereby state the following:
• I am a qualified nurse with an Advanced Diploma in Nursing Science from the University of Namibia. I was registered as a nurse in 1986 by the South African nursing Council, Copies of the Diploma and certificate of registration are attached hereto.
• As a nurse in the public service, I closely monitored and experienced how the procurement of medical equipment and pharmaceuticals affects my job and the patients that I treated.
• During or about May 2022, on a WhatsApp group named, “2024 Presidential” l, recorded and sent an audio message in Oshiwambo in response to an audio message sent by one of the other group members. I have been informed that the audio message has been translated to English by a Sworn Translator, and a copy of the sworn translation is attached hereto.
• The WhatsApp group’s main discussions are public interest and topics that are usually discussed range from politics, health and finance.
• On or about May 2022, I raised my concerns, as health professional, towards the government’s procurement of medical equipment and pharmaceutical products. I also raised concerns on how the Namibian government spends a lot money to procure medical equipment and pharmaceutical products.
• From my experience as a nurse, the government does not get the value of its money because even though the Namibian government has persons through which it procure medical equipment and pharmaceutical products, there were a lot of occasions were hospitals would not have the required medical equipment and pharmaceutical products which is to the detriment of the patients.
• Where medical equipment is supplied, it sometimes does not come in the required quantities and it malfunctions. As a former taxpayer and former nurse, it was a big disappointment because public funds are being spent on procurement contracts, but it does not translate to the medical equipment that we as nurses in the public service are being supplied with. I have witnessed this numerous times.
• In my informed opinion as a former nurse who has an interest in the proper administration of the health sector, the procurement agents who procure medical equipment and pharmaceutical products on behalf of the Namibian government are generously compensated for the services but the services are not worth the taxpayers’ money.
• The state of the Namibian health sector is not a satisfactory one, partly due to key players involved in the procurement of medical equipment and pharmaceutical products. The inefficiency of public procurement of medicine and clinical supply is not a view that I hold alone, there is a report that was published by the Ministry of

Finance in conjunction with the Ministry of Health and Social services tilted Str engthening Health Procurement For Impact. On page 28 of the report, the government expressed similar sentiments that I expressed in the WhatsApp audio as follows:

“There have been challenges with timely communication and engagement between the key players involved in pharmaceutical and clinical supplies procurements. Given the potential negative impact that inefficiencies in health procurements can have on Namibia’s development goals, there is need for ongoing communication and consensus building between MOF, MoHSS and CPBN,”

1. The report also acknowledged that large sums of public funds were dedicated towards the procurement of pharmaceutical products they have failed to reach objective. A copy of the report is attached hereto.
2. The statements I made in the audio message in question were in no way malicious, nor were they made with the intention to defame or injure the reputation and good name of any individual. My audio message was simply recorded and sent for me to add my fair public comment on the topic and to contribute to the discussion that was being had on the said WhatsApp group at that time.
3. It is important to note, that in the said audio message l, at no point mentioned any individual’s name, more specifically l, did not mention either one of the Plaintiffs’ names. Further, I did not record the audio message to portray the Plaintiffs as unscrupulous persons, with low morals or to injure their reputations.
4. Any reasonable person listening to the audio will not conclude that the statements made in the audio were directed towards the First and Second Plaintiffs. The First and Second Plaintiff projected their personal circumstances to the audio. I personally do not know the First and Second Plaintiffs, I have never met them, and I do not know anything about their personal lives apart from what was alleged by the First and Second Plaintiff’s in the particulars of claim.

18, I further state that I do not know the First and Second Plaintiff educational background or their business dealings beyond what is stated in the media. I further do not know about the tertiary education institution that is being alleged by the Second Plaintiff and what her status in the society is.

1. The statements I made in the audio constitute fair comment and are in the public’s interest. The statements I made in the audio represent the fair exercise of my freedom of speech and are crucial in a democratic dispensation such as

Namibia.

• Therefore, I deny the allegations put forth by the Plaintiffs in their Particulars of Claim that I made the audio message:
  • with the intention to defame, injure and/or tarnish the 1 ^st Plaintiff’s reputation and dignity;
  • to imply that the 1 ^st Plaintiff is a corrupt businessman, that he commits criminal acts and that he embezzled public funds for his own benefit;
  • with intent and malice to lower and undermine the 1 ^st Plaintiff’s good name, fame, credit or reputation in the estimation of reasonable persons of ordinary intelligence or right-thinking members of society.
• Although the comments that I made are not defamatory and they were in no manner directed towards any of the Plaintiff’s, the First Plaintiff has been the subject of many controversial procurement contracts awarded by the Namibian government which have been published in local newspapers and have drawn criticism from members of the public. It shows that the issue of public procurement in general is of public interest. Copies of newspaper publications are attached hereto.
• Namibia’s poor procurement process is not a secret as there are even reports by international organisations that highlight lack oversight as one of the causes of the health sector’s poor standard. According to Deutsche Gesellschaft fur Internationale Zuusammenarbeit (GIZ) report on the Namibian health sector (page 3), there are several challenges associated with pharmaceuticals storage and procurement, such as the lack of an overview for clinical supply. A copy of the report is attached hereto.
• It is through protests on social media platforms, such as my WhatsApp, that we as citizens can influence public policy and hold our government accountable especially when it comes to public expenditure.

l, further, deny that the audio message that I made is defamatory, wrongful and injurious towards the 2 ^nd Plaintiff’s name, dignity, fame, credit or reputation in the eyes of reasonable persons of ordinary intelligence or right-thinking members of society.

• l, specifically deny, that knowledgeable persons would have heard the audio message and thought of the 2 ^nd Plaintiff and interpreted the audio message to mean that I was implying that the 2 ^nd Plaintiff is married to a man who is dishonest, a corrupt businessman, a man who commits criminal acts and embezzles public funds for his own benefit.
• I am, of the belief that if the 1 ^st Plaintiff’s good name and dignity were defamed, his reputation injured in the minds of reasonable persons of ordinary intelligence or right-thinking members of society, then the 1 ^st Plaintiff would not have been in line to be awarded tenders for the supply and delivery of goods and services by the Central Procurement Board of Namibia (CPBN) to State hospitals. As reasonable persons of ordinary intelligence or right-thinking members of society including members of the CPBN would be of the view that the 1 ^st Plaintiff has lower dignity and a bad reputation and would, therefore, not want to be associated with him.
• I am, further of the belief that if the 1 ^st Plaintiff’s was considered as a dishonest man, if his good name, fame, credit, reputation was undermined in the minds of reasonable persons of ordinary intelligence or right-thinking members of society, then the 1 ^st Plaintiff would not have been in line to be awarded tenders for the supply and delivery of goods and services by the Central Procurement Board of Namibia (CPBN) to State hospitals. As reasonable persons of ordinary intelligence or right-thinking members of society including members of the CPBN would be of the view that the 1 ^st Plaintiff is a dishonest man, is a corrupt businessman, commits criminal acts, embezzles public funds for his own benefit, is infamous, has no credibility and has a low reputation and would have disqualified him from being awarded the tenders.
• I am of the view that the 2 ^nd Plaintiffs name, dignity, fame, credit or reputation was not defamed nor injured by myself. This is, because reasonable persons of ordinary intelligence or right-thinking members of society would not think that the 2 ^nd Plaintiff is married to a man who is dishonest, a corrupt businessman, a man who commits criminal acts and embezzles public funds for his own benefit.
• I am further of the view that, reasonable persons of ordinary intelligence or right-thinking members of society know that the 1 ^st Plaintiff is an honest, incorruptible business, he does not commit criminal acts and does not embezzle public funds for his own benefit. As the 1 ^st Plaintiff is in the lead to be awarded tenders for the supply and delivery of goods and services to the Ministry of Health and Social Services. This is an indication that the 1 ^st Plaintiff is an honest, trustworthy businessman with an impeccable business track record.
• The statements that I made in the audio pertain to a public discussion about the states and its procurement processes. As a former civil servant employed in the health sector, I was disappointed by how the Ministry of Health and Social Services procured medical equipment and pharmaceutical products as it had a direct impact on how I did my job.
• The facts contained in this statement are true and correct to the best of my knowledge and recollection of events relating to this matter.
• I reserve the right to refer to and prove other documents as discovered or made available by the Parties.

DATED and SIGNED at WINDHOEK on this 00 day of OCTOBER 2023

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