Hoxani Mashele vs. Letaba Herald


Fri, May 25, 2018

Ruling by the Press Ombud

25 May 2018

PARTICULARS

 

Complainant

 

 

Mr Hoxani Mashele

 

 

Date of article

 

 

17 April 2018

 

Headline

 

 

Mathimba turned her life around – A young lady beaten by the bees of life is now licking honey all the way to the bank

 

 

Online also

 

 

Yes

 

Journalist

 

 

Tintswalo Shipalana

 

Respondent

 

 

Helene Eloff

Complaint                                            

Mashele complains about the sentence which read, “Her former lover also coined (sic) her R100 000.” He says that that referred to him, denies that he conned her, and complains that he was not asked for comment on such a defamatory statement.

He complains that the article:

·         labelled him as a conman;

·         has not reported his side of the story

·         showed, by mentioning of hashtags in which he was implicated, that the journalist and Ms Matimba Makaringe have abused the newspaper to further their own personal agendas; and

·         was never about the latter’s business, but instead was intended to tarnish his name in the local community (where he was well-known).

He adds that the journalist did not verify his facts prior to publication, and published an unfounded accusation as fact.

The text

The story says that Makaringe has turned her life around after experiencing a series of tragedies that could have ruined her life completely, but she refused to become a victim of circumstances.

She reportedly had overcome several stumbling blocks, including the non-payment of R100 000 by her former lover, before she obtained two successful brands (her own perfume business called MissCourage Perfume, and a honey enterprise called MissCourage Honey).

The article also mentions her two hashtags (#PayBackTheMoney and #Justice4Matimba).

The arguments

Mashele says he has stopped paying Makaringe as there were disputes about the amount that he owed her – and not because he was conning her. He submits it was no coincidence that the article was published a week before his wedding, and demands a retraction and an official apology.

Eloff argues that, as the story did not mention Mashele’s name:

·         it could not have labelled him in any way, let alone as a “con artist”, and could therefore not qualify as defamation; and

·         the journalist was not obliged to ask him for comment.

She also notes Mashele admits that he owes Makaringe money – it is merely the exact amount which is in dispute.

Eloff argues that the newspaper cannot be held responsible for the comments people make on their social media profiles, and that the publication is not aware of any such comments featuring on its social media platforms.

Mashele replies that:

·         unless if it can be proven otherwise, the intended word is “conned”, and not “coined” – which was defamatory of him;

·         even if there was a dispute about the amount, the story portrayed his debt as R100 000 – an amount that Makaringe still had to prove;

·         any reasonable average reader would be inquisitive as to what the hashtags mentioned in the article were about – and would subsequently search them (and find that both the hashtags were about money, and his name was mentioned in them); and

·         numerous of reasonable readers have already identified him as the “culprit”.

He argues, “The mention of the hashtags [in the article] wherein my name is mentioned serves as an indirect publication of my name by the publication… It is shallow and irresponsible of the publication to publish hashtags, and then to claim not to be responsible for comments on them. Had the publication not mentioned any hashtags fewer people would have knowledge of them but with the aid of the publication the hashtags became viral and my name was further tarnished on unfounded claims.”

Mashele also denies that he has admitted to owing Makaringe money. He says he clearly stated that she had often accused him of owing her money. However, until she can prove through the courts that he owes or conned her, any statement in relation to that amounts to defamation, he asserts.

He says the loans Makaringe is talking about came about because of a trucking contract that she had acquired. He says he also took out loans, but the contract was a “raw deal”. He has agreed to help her pay them back – so the journalist should have consulted him rather than labelling him a conman.   

Analysis

Under normal circumstances, I would have dismissed this complaint out of hand, as the story in question never mentioned the complainant’s name (as I have done previously, on several occasions). However, the matter was more complicated than that.

In a sense, this complaint is unique.

Since the inclusion of online publications in the Press Council’s system of independent co-regulation, this office has dealt with complaints about “old” stories that were linked to new ones.

Section 1.3 of the Complaints Procedures states, “A complaint shall be made as soon as possible, but not later than 20 working days after the date of publication giving rise to the complaint…”

This posed the question if this office has the mandate to adjudicate such “old” stories. 

After consultation, I have decided that, if linked to a new story, the old one became part of the new one – which in turn implied that this office was obliged to adjudicate such complaints.

The complaint at hand has now taken this a step further, as the issue is about the mentioning of hashtags (not an old story, but also documentation outside the story itself) in which the complainant was identified and which therefore could have had a bearing on the story that is in dispute.

Mashele argues that this has indirectly identified him as the “conman” in the story.

The question is if this situation should be seen as materially the same as an old story that was linked to a new one, or not.

After mulling this over for quite some time, I became convinced that there is indeed a material difference between these two situations. Unlike the examples that I have referred to, the present one did not refer to a news publication (which ascribes to the Press Code), but to a personal message (by a person who does not ascribe to the Code).

That makes all the difference, even though such a personal message might have identified Mashele.

That being the case, it follows that I can also not find for the complainant regarding the rest of the complaint, as documented above.

Finding

The complaint is dismissed.

Appeal

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Press Ombud