Appeal Decision: Kambule Majota vs. Sunday Times

KAMBULE MAJOTA                                                                                APPLICANT

VERSUS

[1]     Mr Majota Khambule (“applicant”) lodged a complaint against the Sunday Times (“respondent”) in connection with a story that appeared in the respondent’s edition of 6 March 2016, with the headline “Trouble comes in Three’s, as Phat Joe Woes Show.”  It is common cause that “Phat Joes” refers to the applicant.

[2]     The applicant complained that some of the things said about him were not true. These were summarized in the Ombudsman’s Ruling of 1 April 2016, which included the following:

2.1    that things “are going from bad to worse for radio personality Phat Joe.”

2.2    “Then he was suspended from Metro FM for an on-air rant …”

2.3    That he was being sued for the money he had borrowed “for a failed mobile radio project;” which money (R150,000.00) he had solicited from the borrower with his business partner; repayment for which he had asked for extension but still failed to pay back.

2.4    That he was served with summons by the sheriff on 22 February 2016.

2.5    He was to appear before the CCMA for dismissing unfairly his domestic worker.

The applicant argued that all the above allegations were incorrect, and that was why he was complaining against them. The applicant asked for an apology and a sanction on the front page in order to have his name cleared.

[3]     The respondent contended that everything it had written was correct.  The headline was a “… straightforward description of the story”; the three woes were listed as they unfolded; the allegation of unfair dismissal was based on documents before the CCMA and the interview with the domestic worker’s union.  With regard to the summons for the recovery of the R150,000.000, respondent said it relied on the court documents and what was also got the information from the plaintiff’s attorney.  The respondent conceded that it was wrong of it to say that applicant had been suspended at his work and that it was willing to correct the mistake.

[4]     The Ombudsman dismissed all the complaints, but upheld the one relating to the suspension that never was; he found that the respondent was in breach of “Section 1.1 of the Code of Ethics and Conduct which states: “The media shall take care to report news … accurately”.  As a sanction, the respondent cautioned and directed to correct the mistake.  The applicant was not happy with the Ruling; hence this application.

[5]     For the application to succeed, the applicant must show reasonable prospects of success before the Appeals Panel.  In his application, the applicant sets out four points which he contends were not considered by the Ombudsman.  I will accordingly consider them individually for the benefit of the applicant.

5.1    “The tardy response by the Sunday Times”.  This apparently refers to the fact that the response to the complaint was not in time.  The respondent says it was only 1 day late.  This was reasonable.  It would be over-technical to dismiss the matter on this point.  Secondly, the applicant would have to show what real prejudice he would suffer as a result of a delayed response. Thirdly, the whole machinery of dealing with complaints is meant to be expeditious and not to be burdened with technicalities; the process should allow for genuine issues to be fully ventilated.

5.2    That he did not owe the R150,000.00, he did not solicit the loan etc.  Two points:  The papers cites applicant as a third defendant; he is implicated and the papers extensively; the letter of demand too.  Secondly, that was what plaintiff’s attorney allegedly told the journalist. Thirdly, as the respondent says, an average reader would have understood that the allegations were still to be proven in court. I suppose the difficult was that no response was received from the applicant to the journalist’s questions.

5.3    That the project MTN’s commercial venture for which money was loaned was a failure, when it was not.  In support of its case, the respondent says “The MTN radio project failed because they could not get a royalty licence clearance and the project could not be commercialised.”  I looked at the article itself.  All it says is that the applicant was being sued “after he borrowed money … for a failed mobile radio project”.  Does failure to obtain a licence justify the emphatic statement that the project has failed?  Could it not just have been delayed?   The other difficulty is that the same article says MTN is still exploring the feasibility of the product. It (MTN) did not say the project has failed; and of course the applicant vehemently denies that the project has failed. Financial problems, if any, may not necessarily be indicative of a failure; they may be the result of a delay in obtaining the licence which, once obtained, the project unfolds.  Moreover, from MTN’s statement, the agreement about the venture still holds; and they expressly disconnect the issue of the loan from it.

5.4    “The published claim that I was served with a summons, it is clear from the evidence that this was unsuccessfully served ...”.  The applicant says the sheriff did not find him.  The reality is that the summons was brought.  I do not think we should engage in some semantics.  In fact, this is illustrated in applicant’s own statement quoted above:  he says he challenges the claim that he was “served” with a summons, but, in the very same sentence, says that the summons “was unsuccessfully served”! (Own emphasis). What does “unsuccessfully served” mean? Nothing really turns on this supposed distinction for the purpose of this matter.

[6]     Having considered the application for leave to appeal, I am of the view that there are reasonable prospects of appeal in respect of only the complaint dealt with in paragraph 5.3 above, for the reason therein stated. I am therefore minded to grant leave to appeal in respect of it only. It is up to the applicant to decide whether he wants to pursue this particular complaint to the Appeals Panel.  The following orders are therefore made:

(a)     The applicant is granted leave to appeal to the Appeals Panel against the respondent’s statement, in its edition of 6 March 2016, that the applicant’s mobile radio project with MTN was a failure or that it failed.

(b)     Leave to appeal is refused in respect of all other complaints.

Dated at Pretoria this 1^st day of May 2016

Judge B M Ngoepe, Chair, Appeals Panel