Tshepo Nzimande vs. Sunday Sun

This ruling is based on the written submissions of Mr Tshepo Nzimande, founder and MD of Zuz’muzi, and Mr Andrew Boerner, on behalf of the Sunday Sun newspaper.

Complaint

Nzimande complains about a story headlined Zuz’muzi all mixed up – He gets into a nasty fight over Fikile’s hitch-hiking! published in Sunday Sun on 8 September 2013.

He says that the story erroneously/misleadingly said that:

·         he had bullied the newspaper (intimidation, threatening, defamation); and

·         one of his artists turned up late for a gig and then hitch-hiked back home.

Prior to adjudication

Sunday Sun objected to the “malicious” nature of the complaint and asked this office to dismiss it for that reason.

This is the email that I subsequently wrote to Boerner:

Dear Andrew

Mr Tshepo Nzimande’s complaint against the Sunday Sun refers.

You have requested me to dismiss this complaint on the basis of malice.

His complaint is twofold:

·         His “bullying” tactics regarding the newspaper (intimidation, threatening, defamation); and

·         The alleged incorrect statement that one of his artists turned up late for a gig and then hitch-hiked back home.

Firstly, the journalist said that she had many witnesses as to Nzimande’s alleged behaviour at the newspaper. I asked for corroboration, and got it from numerous sources. Mindful of the fact that my office is not a court of law, I still believe that I have enough evidence to dismiss that part of his complaint as it has little or no chance of success. I shall therefore not deal with any statement regarding Nzimande’s alleged behaviour at the newspaper.

However, I am entertaining the second part of the complaint. If you want to defend the reportage on this point please do so asap. (Your initial response was in limine, which is normal practice in instances such as this one.) I shall then send your response to the complainant for his reply.

Kind regards

Johan

This leaves me with the second part of the complaint, namely that one of Nzimande’s artists turned up late for a gig and then hitch-hiked back home.

Analysis

The story, written by Kgomotso Moganedi, said that the singer Fikile Mlomo had turned up late for a gig at Njilo Foundation in Pietermaritzburg, and then had to hitch-hike back to Durban. Nzimande was her manager at the time. Nzimande reportedly first denied the allegation, saying that Mlomo had travelled with them and their crew. He also said: “Fikile never set foot there. She was in Ulundi where she had a gig.”

Hitch-hiking home

Nzimande

In his complaint, Nzimande says that neither he nor his company had been involved in the event, which explained why he had not been aware of Mlomo’s booking or performance. “Whenever any of my artists are booked for an event I make sure that the artist/s is/are accompanied by a delegate from my office…to avoid incidents such as what is being reported in the article.”

Sunday Sun

The newspaper provides me with a concert flyer, confirming that Mlomo was to perform at the venue as stated in the story. The reporter also contacted Ukhozi FM’s head of marketing Mu Ngcolosi, who allegedly confirmed that she sang at the event. In addition, a friend of Mlomo as well as a fellow artist verified this information.

“Therefore…it is reasonable to deduct that Ms Mlomo attended the Njilo Foundation event and was not in Ulundi as later claimed by the Complainant.”

Boerner also argues that the story did not either state or allege that Nzimande or his company had been involved in the event. However, Nzimand was widely known to represent Mlomo and therefore as her manager, whose duty it was to look after the artist, was contacted for comment.

“As the agent for Ms Mlomo he ought to have been aware that she was performing. He admitted that he was aware of her performance at the event in his initial statement to the reporter.”

He adds that a close friend to Mlomo confirmed that:

• the latter had to catch a taxi from Durban while her fans were waiting;
• she (and others) dropped her off at Scotsville on her way back to Durban. “It was late and we were worried because she is a woman.”

Another singer said that it was a disgrace what had happened to Mlomo. “I don’t know why she doesn’t change her record label.”

The reporter states that:

• a gospel artist told her that Mlomo arrived late and that she was stranded after the event;
• a gospel duo confirmed the above, who gave her a lift back to Durban and dropped her off next to the N3 off-ramp; and
• Ngcolosi confirmed that Mlomo arrived late at the event.

Boerner concludes that:

• Nzimande’s initial denial that Mlomo performed at the event was incorrect;
• four sources confirmed that she had participated and that she had arrived late;
• the event’s facebook page (as well as a pamphlet) confirmed that she performed;
• three sources confirmed that she hitch-hiked back home.

Nzimande’s response

Nzimande says that he would never allow his artists to hitch-hike to a gig.

He explains that his company had secured two gigs for Saturday August 31 for Mlomo – the first one was during the day in Ladysmith and the other was at night in Ulundi. (The Njilo event was held on September 1.)

“I personally travelled with these artists and our band to both the gigs. On our way back to Johannesburg…she…received a telephone call advising her of the…passing of her uncle. She requested to be dropped off at Ulundi as there was already transport on the way to fetch her to go back to Durban. I wanted to make sure that she was safe hence I dropped her off at the Holiday Inn in Ulundi where I spoke to the receptionist advising her of the situation. While still at reception Ukhozi FM crew appeared and Fikile joined them [and] as I’m well acquainted with the majority of the Ukhozi FM employees I was convinced that she was in good hands and made my way to Johannesburg with the rest of the artists and band members. I fail to see how all of that can constitute ill-treatment against Ms Mlomo.”

He says: “I was not aware that Fikile was in fact booked and performed at the Njilo Foundation event when the journalist initially questioned me about it hence I was defensive about it in spite of the fact that I manage her career.”

Nzimande adds that Mlomo assured him in front of his band and other artists (who can corroborate this) that she was not booked to perform at the Pietermaritzburg (he asked her about this after he had heard about the event on the radio). “I found out about her performance subsequent to being questioned by the journalist.”

He says that he does not want to comment on the events of September 1 “except to say that all this never would have happened had my company been involved in managing Ms Mlomo for the event. It was wrong of the publication to link me and my company to an event that we were not part of.”

Nzimande adds that his artists are allowed to secure gigs on their own to support themselves, in which case the full responsibility to appear and perform to similar standards lies with the artist.

He concludes that the story did him and his company a serious injustice by placing them in a bad light over an incident that they did not play a part in. He says that “…the artist took a decision all on her own to hitch-hike to the show and me and my company had absolutely nothing to do with it and cannot be blamed for the results of Ms Mlomo’s actions”.

My considerations

Even though Nzimande probably initially did deny that Mlomo performed at Pietermaritzburg, I have no reason to disbelieve him as to his reasons for his denial at the time of the first call.

Be that as it may, there now seems to be no dispute over the fact that the artist did perform at the Njilo event.

Nzimande’s explanation of why he did not know about it, as well as his argument that he cannot be held responsible for what may have happened to and from Pietermaritzburg, are reasonable and plausible.

On the other hand, Sunday Sun’s sources also seem impeccable, which means that it is reasonable for me to accept that she indeed hitch-hiked back to Durban.

This leaves me with a simple question: Would a reasonable reader have concluded from the story that Nzimande was responsible for what happened in Pietermaritzburg? (The article said that the reporter had asked Nzimande about the Njilo matter.)

Here are some observations:

• Surely, Sunday Sun was entitled to approach Nzimande as it was commonly known that he was Mlomo’s manager. At the time, the reporter had no way of knowing that the artist had probably acted on her own, nor was it reasonable for her to suspect that that may have been the case; and
• The story did not state that Nzimande was responsible, though the implication was certainly there.

Because of both arguments mentioned above, I cannot find that the newspaper was in breach of the Press Code.

However, as I also accept Nzimande’s version of what had transpired, the mere link between him and Mlomo – while understandable and justifiable – resulted in the unfortunate implication that the manager was responsible.

Therefore: While the newspaper was justified in its reportage at the time of publication, it would also only be fair to further report that Mlomo in all probability had acted on her own and that Nzimande was not to be blamed for what had transpired (based on information that was received after the story was published).

Finding

The complaint is dismissed.

Sanction

Because of the finding above, there can be no sanction (no apology, no reprimand, etc.).

However, I am asking (not “directing”) the newspaper to publish the text below. For clarity’s sake: Sunday Sun is under no obligation to publish this text – I am relying on its own sense of fairness and co-operation, though.

Beginning of text

Sunday Sun reported on 8 September 2013 that gospel queen Fikile Mlomo had to hitch-hike back from Pietermaritzburg to Durban after performing at a gig. We want to state that her manager, Tshapo Nzimande, probably did not know about this event, that Mlomo had acted on her own, and that the former was therefore not responsible for what had transpired before, during or after that event.

Nzimande lodged a complaint with the Press Ombudsman, who found that we were justified in our reporting (we merely asked him, as her manager, for comment).

Ombudsman Johan Retief said: “While the newspaper was justified in its reportage at the time of publication, it would also only be fair to further report that Mlomo in all probability had acted on her own and that Nzimande was not to be blamed for what hadtranspired (based on information that was received after the story was published).”

Visit www.presscouncil.org.za for the full finding.

End of text

Appeal

Our 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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman