Appeal Decision: Dhlomo Mbali vs. Ilanga Langesonto

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 Appeals Panel 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 successfully applied for leave to appeal.

The Panel disagreed with the Ombud that Sunday Times had failed to “to balance out” Mathumba’s statement. The appeal therefore succeeded.

THE RULING ITSELF

DHLOMO MBALI                                                                                         APPLICANT

VERSUS

[2]     The respondent contested the main complaint; that it did not accuse applicant of any fraud, but mere by reported the story in accordance with the information it had received from someone who had resigned as a result of the concerns he had about the financial affairs of the organization.  However, the respondent admitted fault with regard to the misspelling of applicant’s surname, and also conceded that she was no longer with the Genuine Magazine.

[3]     In his Ruling dated 18 April 2016, the Ombudsman dismissed the main complaint.  He said: “The crux of Dhlomo’s complaint is that the story falsely stated she had committed fraud and mishandled funds.  However, the story did not state any such thing.  Of course, the context of the article involved Dlhomo – not in fraud, though, but in allegations thereof.  The story itself did not even state her involvement explicitly; the caption did”.  The new chairman of the Co-operative had suddenly resigned; there were allegations of fraud which the respondent did not have to prove. I agree with him.  I need not add anything further.  I do not believe that there was a duty on the respondent to go about verifying the truth of the allegations, despite applicant repeated argument to the contrary. I can assure the applicant that one would be deeply concerned about damage to her reputation.  But the story was presented in such a way that there was no attack on her.  At worst the report caused the reader simply to ask whether there could have been some misconduct; this had to arise given the sudden resignation of the new chairman.

[4]     As sanction for the two mistakes made by the respondent, the Ombudsman reprimanded it and ordered it to correct them.  I do not think that the applicant has reasonable prospects of success before the Appeals Panel.  The application is therefore dismissed.

Dated at Pretoria this 26th day of May 2016

Judge B M Ngoepe, Chair, Appeals Panel