Ruling by the Press Ombu
17 September 2018
Particulars
Date of article: 29 July 2018
Headline: Mbuli’s bond battle with bank heats up – Savita in danger of losing mansion over arrears
Page: 3
Online: Yes
Author of article: Aubrey Mothombeni
Respondent: Amos Mananyetso, deputy editor
Complaint
In general, Mbuli complains that:
· several statements in the story (listed below) were untruthful, inaccurate, unfair, unverified, and based on fabrications;
· headline and sub-headline were incorrect and misleading;
· journalist did not:
o verify his facts, and failed to indicate such; and
o take fair account of all material facts.
She concludes that the reportage maliciously portrayed her as a financial delinquent, with no consideration for her and her children’s dignity and reputation.
Mbuli also submits that the reporter is a repeat offender, and requests that this office should take some form of action against him.
The text
The article said the five-year war between deceased SABC’s Morning Live presenter Vuyo Mbuli’s widow Savita and FNB continued unabated with the bank making another effort to grab her Houghton mansion.
Mothombeni reported: “FNB has gone to the South Gauteng High Court for the umpteenth time and told authorities that they would like to repossess her home and auction it off after she failed to keep up with her bond repayments.”
The complaint in more detail
Background
Mbuli says Mothombeni phoned her on Friday 27 July 2018 at 12:15, asking for comment about a Notice of Motion she had received from FNB that, according to him, meant that she was in arrears and FNB was selling her house. (FNB filed the Notice of Motion at the High Court on 23 July 2018.)
She says she explained to him what a Notice of Motion was, and what this one in particular meant.
However, the reporter clearly had already formulated his own understanding of the matter, and was getting impatient with her explanation.
She says the journalist eventually agreed that there was no reference to an amount in arrears and/or the auctioning of the house in that document. She also explained to him the money that FNB was demanding from her (R413 000) was not because she was in arrears, but rather to cancel the bond.
Mbuli says out of frustration with this 43-minute call, she phoned Mananyetso, who referred her to the editor, Mapule Nkosi.
She says they agreed that she would email a reply, which would be included in Mothombeni’s story. However, the editor refused her request that the story be run the following week, which would have given her time and opportunity to file her motion to defend.
Inaccurate, unfair, fabricated, etc. statements
Mbuli complains about the following statements in the article:
· “…the bank making another effort to grab her Houghton mansion” – She says this information was not based on the Notice of Motion, as FNB has not prayed for an execution of the house;
· “FNB has gone to the South Gauteng High Court for the umpteenth time and told authorities that they would like to repossess her home and auction it off after she failed to keep up with her bond repayment” – Instead, she submits, the Notice was about FNB’s intention to apply to the High Court of South Africa, Gauteng Local Division for an order to cancel the bond, and not of repossessing the home;
· “The financial Institution says that Savita, who is the executor of her husband’s estate, has failed to pay them for nine months” – Yet none of the affidavits submitted by FNB says she has not paid the bank in nine months;
· “FNB were demanding that Mbuli make a repayment of more than R410 000 to close her bond account or else they were going to cancel it and sell the palatial house” – She says FNB has no term selling her home;
· “They also revealed that Savita had told them she would not be able to settle the debts as she was waiting for her husband’s estate to be wound up” – She says this fabricated statement portrayed her as a stupid person who did not understand her fiduciary duty;
· “They also revealed that Savita had also promised to sell her property in Port Alfred, Eastern Cape to settle the debt, but said she had not done so” – She says this information does not appear in the bank’s motion;
· “According to an affidavit filed by Amelia du Buisson on behalf of FNB Homeloans, Mbuli was first hauled before court in June last year…” – She says her first appearance in court with regards to the FNB home loan was on 2 March 2016. The affidavit in the Notice of Motion is from Mohau Mokoena and not from du Buisson, unless the journalist’s source was from a different archive file concluded by the court;
· “The papers indicate that the only correspondence she made to the bank was on July 20 when she made a promise to pay R75 000 into the bond account. But the bank says the money never came” – She says she has not had any communication with the bank, as the institution communicates with the administrators of the estate. The bank’s affidavit is dated 17 July 2018; and
· “Bank says Savita Mbuli is battling to keep up with payments” – She asks when and where did the bank make such a statement, as the bond account was not in arrears, and had a positive balance.
Headline, sub-headline
Mbuli complains that the headline and sub-headline were incorrect, misleading and malicious. She says that, nowhere in the Notice of Motion does the bank refer to taking her house, or that it was “gunning” for the property, or that a “battle” was “heating up”.
She provides me with figures that show she was indeed in arrears in 2017, but that was not the situation anymore in July 2018. The same documentation showed that the property was not “executable” then (while it had been a year ago).
She argues that, with more monies having been paid to the bank, no arrears, no pending execution, and with bank moving to the closing the bond, the battle was not “heating up”, but rather “cooling down”.
Dignity, reputation; children
Mbuli says that the reportage has instilled fear and anxiety in her children to such an extent that they are now seeing a psychiatrist, and complains that the newspaper did not exercise care and consideration in writing this article “with the overriding objective seeming to be to embarrass me and my family”.
Repeat offender
Mbuli says Mothombeni has previously been found guilty of committing Tier 2 offences contravening the SA Press Code, with the latest one being on 17 July 2018 (Sandra Linley vs. Sunday World). This asserts this is a clear indication of his disregard for accurate, truthful and fair reporting.
She says if the newspaper continues to give him a slap on the wrist, he will continue to rubbish and tarnish the images of hard-working South Africans “with his destructive negative narrative”.
Sunday World responds
Mananyetso says the story was based on court documents after FNB had filed a Notice of Motion. The story was a follow-up to a legal battle that has been going on between Mbuli and the bank since 2013 – which is why some of the historical timelines were brought into the story to give context to the latest action by the bank.
Besides, he adds, the newspaper has consistently given her a right of reply.
Regarding the following matters, he submits:
· Failure to verify information: The journalist called both Mbuli and the bank as part of his verification process. Unfortunately the applicant did not respond to questions and the first respondent did, which was captured in its entirety in the story;
· Mbuli’s bond battle with bank heats up: The statement is a true summary of developments – FNB has been litigating against Mbuli since 2013, and the latest documents filed by the bank show that they want her to pay more than R400 000 to cancel her bonds held with the bank;
· Bank guns for Mbuli’s house: FNB has at least twice applied for the repossession of her house in order to auction it so that they can recoup its money. The bank has since attached all those documents from their previous actions as supporting documents in their latest action; and
· “… the bank making another effort to grab her Houghton mansion”: This statement is correct in that if Mbuli does not pay the R413 593,29, they will then have to pray for the execution of the property to recoup their money.
However, Mananyetso concedes that the following statements were untruthful:
· That Mbuli was in danger of losing mansion over arrears – the latest documents show that she was not in arrears; and
· That FNB has gone go the South Gauteng high court for the umpteenth time and told authorities that they would like to repossess her home and auction it off after she failed to keep up with her bond repayment – the correct version is that the bank went to court for the umpteenth time after they tried previously to repossess her home.
He also says the statement that the bank said that Mbuli has failed to pay them for nine months, was true – but adds that it was not properly attributed.
He submits that the Sandra Linley vs. Sunday World case is irrelevant “given the merits of both cases”.
In conclusion, he rejects the assertion that the reporting was without due care and consideration, and adds that most of the information in the story was a matter of public record.
“It is also not true that the newspaper has anything personal against the complainant. We have been reporting fairly on this matter, including when Mrs. Mbuli won against the bank in which her debt was reduced after she successfully argued that they had in fact erred in calculating her balance,” he says.
Mbuli replies
Mbuli says if it is true that the newspaper was not able to get a response from FNB, how then did they then make the following quotes:
· “The financial institution says that Savita has failed to pay them for nine months”;
· “Bank says Savita Mbuli is battling to keep up with payments”;
· “Savita had also promised to sell her property in Port Alfred, Eastern Cape, to settle the debt, but she had not done so”; and
· “The bank groups says Savita’s current monthly instalment has increased to R43 653 due to non-payment”.
She says this information attributed to the bank is not in any way part of the court documents, as alleged by Sunday World – the journalist merely presented his deductions, opinions and views as fact, and then attributed them to the bank.
She also contests Mananyetso’s statement that it was a “historical fact” that as at 29 July 2018 the bank said she had failed to pay them for nine months. “There has never been nine months where the bank was not paid, hence this is not in any court document,” she says. She adds it is true that she was in arrears – but never had FNB not been paid for 9 months.
“Mbuli’s bond battle with bank heats up”: Sunday World admits that this was a “summary of developments” – but it was a subjective summary from its point of view. The newspaper’s summary should not be put as fact, and it should be stated that it was its summary. Her summary is that there was no “heating up” – she has moved from litigation at R10-million to a debt of R400 000, and with no execution at stake this cannot be summarised as heating up, “unless of course if the intention is to sensationalise and embarrass me. Summary should not be reported as fact”.
“Bank guns for Savita Mbuli’s house”. If this is historic as per Sunday World’s response, then the present tense that they used was factually incorrect – this should have been stated in the past tense. On the date of reporting the bank was not gunning for her house and made no request to the court for such.
“…the bank making another effort to grab her Houghton mansion”: Sunday World assumes this, and presents it as fact.
“...if Mrs Mbuli does not pay the R413 593,29 they will then have to pray for the execution of the property to recoup their money”: In its court motion, FNB did not request nor pray for an execution in 2018. If Sunday World is making reference to previous attempts it should have been stated that in the past, and not reported as an immediate. Her Houghton house can currently not be executed by any court, which is why FNB has not requested such.
“…she revealed she would not be able to settle the debts as she was waiting for her husband’s estate to be wound up”: This incorrect, unfair and unsubstantiated statement portrayed her as someone stupid, socially irresponsible, a financial delinquent just waiting for an estate which was her responsibility to just miraculously wind itself up with no understanding of what she was dealing with. “This … is a GROSS violation of the person that I am. I would not have taken on one of the big four banks in South Africa if I did not have an understanding of what my rights and obligations are,” she says.
She also denies she has questioned the intention of the reporter, and that she has ever said that FNB had a vendetta against her.
She adds that Sunday World only reported about the court case once in the past five years – which also brings into question the deputy editor’s assertion that the newspaper has “consistently” given her a right of reply.
In conclusion, she reiterates that Mothombeni is a serial offender. “[The reporter] must be made to understand the basic principles of journalism, so that it is not a matter of ‘we concede’ and move on. The scarring caused by this kind of reporting goes beyond financial, it is emotional and psychological too and the journalist must understand this and practise care when reporting,” she submits.
Analysis
As the Notice of Motion, on which the story was based, did not contain some of the information reported by Mothombeni, I asked Mananyetso the following question:
“I need to know on what documentation the journalist based the following sentences: ‘FNB has gone to the South Gauteng High Court for the umpteenth time and told authorities that they would like to repossess her home and auction it off after she failed to keep up with her bond repayments. The financial institution says that Savita, who is the executor of her husband's estate, has failed to pay them for nine months. Her husband Vuyo died in 2013. FNB were demanding that Mbuli make a payment of more than R410000 to close her bond account or else they were going to cancel it and sell the palatial house.’ In the Notice of Motion this information was not mentioned, so the reporter had to have other documentation to support his statement. I need to peruse that documentation, please.”
The deputy editor responded: “The sentence is based on the notice of motion in which FNB asked for a payment of R413,593.29.”
That is not true – at least, the relevant information did not appear in the Notice of Motion which has been put before me.
It is important to understand why FNB asked for the cancellation of the bond. In previous court documentation, it is stated that Mbuli was in arrears – but after she had paid a significant amount of money into her bond account, and (according to a founding affidavit by Ms Amelia de Buisson, a representative of FNB) undertook to settle the bond in full by October 2017, the possibility of the bank repossessing the property was not an issue anymore – at least, not for the moment.
In the Notice of Motion the court merely ordered the payment of the outstanding amount upon which “the mortgage shall be cancelled” – it said nothing more, and nothing less.
However, in the same affidavit de Buisson said the bank was entitled to enforce the loan agreement against Mbuli “as together with an order declaring the immovable property executable as envisaged in the security documents”.
Of course, there was always the possibility that, if this did not happen, FNB would proceed with the repossession of the house. However, at that particular stage it remained a possibility – as, if Mbuli did settle the outstanding amount, no such action would be taken.
The immediate issue, therefore, was an order to pay the outstanding amount; the rest was still to happen (read: full payment, in which case no action would be taken, or the lack thereof, after which FNB would probably take steps).
Given this background, and the content of the documentation at my disposal, I do not believe that the newspaper was justified in making the following statements (as I have not been provided with evidence to substantiate those):
· “…the bank making another effort to grab her Houghton mansion” – The effort was not to “grab” her property, but to receive the outstanding bond account so that it could be cancelled;
· “FNB … told authorities that they would like to repossess her home and auction it off after she failed to keep up with her bond repayment” – On the contrary, at the time of publication Mbuli was not in arrears anymore;
· “The financial Institution says that Savita, who is the executor of her husband’s estate, has failed to pay them for nine months” – Instead, she was in arrears for about half that period – and she was not in arrears anymore;
· “FNB were demanding that Mbuli make a repayment of more than R410 000 to close her bond account or else they were going to cancel it and sell the palatial house”;
· “They also revealed that Savita had told them she would not be able to settle the debts as she was waiting for her husband’s estate to be wound up”;
· “The bank says Savita Mbuli is battling to keep up with payments” – Her bond account was not in arrears at the time of publication – in fact, it had a positive balance at that stage.
I have deliberately omitted some of the other statements that Mbuli complains about, as some of those are not material to the matter, while others might have been true (based on background-information, such as selling her house in Port Alfred in order to pay off her Houghton bond).
It follows that I also believe that the headline was misleading, untrue and unfair. If Mbuli was to fail to pay the outstanding amount, then – and only then – it could justifiably be said that the “bond battle” was “heating up”. In the meantime, it was premature to make such a statement at a time when Mbuli still had the opportunity to settle the outstanding amount, thereby avoiding any further steps taken against her.
Regarding the headline, it was probably true that Mbuli was still in danger of losing her property – but that would have been for not settling the outstanding amount (if indeed she failed to do so), and not for being in “arrears” with her payment.
Given all of the above, I believe that the newspaper did not exercise the care and consideration with regard to Mbuli’s dignity and reputation, as well as the dignity of her children, that the Press Code requires.
Finally, it is true I have found a few months ago that Mothombeni has made a mistake in the ruling mentioned by Mbuli – but that is the only time this year A second similar mistake certainly cannot make him a serial offender.
If this happens again in the near future, though, perhaps the eyebrows will then start to raise. But for now, that is too soon.
Finding
The following statements were in breach of Section 1.1 of the Press Code that says: “The media shall take care to report news truthfully, accurately and fairly:
· “…the bank making another effort to grab her Houghton mansion”;
· “FNB … told authorities that they would like to repossess her home and auction it off after she failed to keep up with her bond repayment”;
· “The financial Institution says that Savita, who is the executor of her husband’s estate, has failed to pay them for nine months”;
· “FNB were demanding that Mbuli make a repayment of more than R410 000 to close her bond account or else they were going to cancel it and sell the palatial house”;
· “They also revealed that Savita had told them she would not be able to settle the debts as she was waiting for her husband’s estate to be wound up”; and
· “The bank says Savita Mbuli is battling to keep up with payments”.
The same goes for the headline and the sub-headline.
The newspaper was also in breach of Section 3.3 of the Press Code that says: “The media shall exercise care and consideration in matters involving dignity and reputation.”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The breaches of the Press Code as indicated above are all Tier 2 offences.
Sanction
Sunday World is directed to apologise to Mbuli for untruthfully, inaccurately, misleadingly and unfairly making the following statements in the article:
· “…the bank making another effort to grab her Houghton mansion”;
· “FNB … told authorities that they would like to repossess her home and auction it off after she failed to keep up with her bond repayment”;
· “The financial Institution says that Savita, who is the executor of her husband’s estate, has failed to pay them for nine months”;
· “FNB were demanding that Mbuli make a repayment of more than R410 000 to close her bond account or else they were going to cancel it and sell the palatial house”;
· “They also revealed that Savita had told them she would not be able to settle the debts as she was waiting for her husband’s estate to be wound up”; and
· “The bank says Savita Mbuli is battling to keep up with payments”.
The newspaper is also directed to apologise to her for:
· untruthfully, inaccurately, misleadingly and unfairly stating in the headline that her “bond battle” with the bank was “heating up”, and that she was in danger of losing her property “over arrears”; and
· not exercising care and consideration with regards to her reputation and dignity, and also not to the dignity of her children.
The newspaper is directed to publish:
· the apology:
o at the top of page 3, with a headline containing the words “apology” or “apologises”, and “Mbuli”; and
o online (at the top of the page that carries the article).
The text should:
· be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
· refer to the complaint that was lodged with this office;
· end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
· be published with the logo of the Press Council (attached); and
· be prepared by the publication and be approved by me.
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