Appeal Decision: Sunday Times vs Zuko Nonxuba

SUMMARY

The headline to the story in dispute read, The tragic tale of a penniless SA millionaire – Paraplegic Avela Mathimba must be the only multimillionaire living off a R1400 monthly state grant (published on 17 January 2016).

This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.

The story said Avela Mathimba (26) had been awarded a total of R9.6-million in two separate damages claims against the Road Accident Fund (RAF) – this money was paid to his lawyer, Zuko Nonxuba, but he reportedly had yet to receive a cent. The article quoted Mathimba as saying that, when he “grilled” Nonxuba about the money, the latter rushed to court with an application to have a curator appointed to manage hiss affairs. “[Nonxuba] cited the possibility of brain damage, his client’s ‘tender years’ and ‘limited education’, and fears that his money would be misspent by his family,” the story said.

Nonxuba complained that the journalist misleadingly and unfairly failed to reflect:

• the contents of existing court reports (which confirmed that his conduct in maintaining the proceeds of a damages award in his trust account was in accordance with a valid court order);
• that delays occurred primarily because of Mathimba’s new attorneys (not because of his own actions); and
• that no expert evidence had been produced to suggest that he had acted wrongfully.

The Ombud said it was unfair to Nonxuba not to balance out Mathimba’s statement about “rushing to court” with his argument that his actions were determined by a court order – which may have left the impression that he had acted in haste to cover for himself. Sunday Times was cautioned for this breach of the Code.

The newspaper then applied for leave to appeal.

Judge Ngoepe differed with the Ombud in that the latter said he did not believe that the text could be described as a human interest article. He opined that this issue might very well have led to a different finding. The application for leave to appeal was upheld on this matter.

The judge agreed with the Ombud’s other findings and accordingly dismissed a counter-application for leave to appeal.

THE RULING ITSELF

SUNDAY TIMES                                                                                          APPLICANT

VERSUS

[1]     Mr Nonxuba Zuko (“respondent”) filed a complaint against the Sunday Times (“applicant”) prompted by a story which appeared in the applicant’s publication of 17 January 2016.  The headline to the story read: “The tragic tale of a penniless SA millionaire”.  The person referred to is one Mr Mathimba.  The gist of the story was that the respondent, a practising attorney, had successfully sued the Road Accident Fund (RAF) and the Eastern Cape Provincial Department of Health for damages on behalf of Mathimba.  The claim against the RAF followed a car accident; the one against the Department was as a result of medical malpractice.  It is common cause that millions were paid by both institutions.  The applicant’s story was that, notwithstanding that, Mathimba lived in poverty as the respondent failed to pay over his monies which, it is again common cause, he had received. At some point, the respondent caused a curator bonis to be appointed for Mathimba, whereas the latter says he saw no need for this.  Indeed, according to the story, he says respondent “rushed” to take that step when he, Mathimba, began to press him for the payment of his monies.  The story also mentioned other people with similar complaints against respondent. It is also mentioned in the story that there were court papers filed in connection with Mathimba’s matter.

[2]     The matter was adjudicated by the Press Ombudsman, who handed down his Ruling dated 30 March 2016.  In his Ruling, he summarizes the respondent’s complaint as follows:

“Nonxuba complains that the story was selective in that it failed to reflect:

·                the contents …

·                ….

·                …

His complaint bails down … reporting”.

[3]     The main defence raised by the applicant was that the article was not a court report, but rather a human interest one, on a person who was living in dire poverty while the respondent was holding back his millions.  Furthermore, applicant contended that the story reflected the content of the court papers, covering  salient points from papers filed by both.  It also pointed out that the money was paid to respondent in 2013. Some of the things said were in any event, Mathumba’s own opinion. Contrary to what respondent says, the applicant did in fact speak to the other two “victims” of the respondent, namely Zukille Tuton and Phumzile Masekwana; in fact, they were quoted in the article.

[4]     The Ombudsman dismissed all the complaints, except the following:

“It was unfair to Nonxuba not to balance out Mathumba’s statement about “rushing to court” with Nonxuba’s argument that his actions were determined by a court order – which may have left the impression that he had acted in haste to cover for himself.  If this was true, Sunday Times should have produced evidence to provide reasonable substantiation for such a potentially damaging allegation (which it did not do). This is in breach of Section 1.1 of the Code of Ethics and Conduct …”

The Ombudsman then proceeded to impose a sanction.  Following that, the applicant filed this application for leave to challenge the above finding.  Some days thereafter, the respondent also filed a counter-application for leave to appeal.

[5]     In order for an application for leave to appeal, an applicant must show reasonable prospects of success before the Appeals Panel.

[6]     As I am inclined to grant leave to the applicant, I do not intend to go into the merits of the case.  However, one of the pillars of the Ombudsman’s finding against the applicant, it must be said, is his following statement:

“I do not believe that the story can rightfully be described as a human interest article, as (applicant) argues”.

The Ombudsman then went on to give reasons for this view.  I have reservations about the correctness of this finding, and the reasons for it.  There is much to be said for an argument that there was a need to alert members of the public about the complaints of a few clients or former clients of the respondent.  Reference to the many cases of fraud relating to similar claims about other practitioners may well serve to underline the need for a warning.  In this respect, the story did, after all, mention 2 other complainants apparently in the same village.  To me, and looking at other aspects of the story, there is a reasonable chance that the Appeals Panel may find that this was indeed “a human interest article”. Such a point of departure may very well lead to a different finding.  But for this point, I agree with the Ombudsman’s other findings; accordingly, the counter – application for leave to appeal fails for lack of reasonable prospects of success.  Accordingly, the following orders are made:

6.1    Sunday Times is granted leave to appeal to the Appeals Panel against the Ombudsman’s finding, in his Ruling of 30 March 2016, that it has acted in breach of Section 1.1 of the code of Ethics and Conduct.

6.2    The application by Zuko Nonxuba for leave to appeal the Ombudsman’s Ruling of 30 March 2016 dismissing his complaints against the Sunday Times, is refused.

Dated at Pretoria this 12^th day of May 2016

Judge B M Ngoepe, Chair, Appeals Panel