Lindinkosi Ndibongo vs Mail&Guardian

SUMMARY

The headline to the story in dispute read, Staff back ‘moonlighting’ manager (published on 5-11 April 2019).

This ruling by Press Ombud Pippa Green was based on the Press Code that was in effect before 30 September 2022.

 

The first two paragraphs of the article read, “In a bizarre twist of events at the Media Development and Diversity Agency (MDDA), managers have turned against the acting chief executive officer after she suspended a senior manager who is alleged to have embezzled agency funds. One staffer (the complainant), who had been booked off sick, was so intent on fighting the suspension that he arrived at a board meeting with breathing apparatus and an oxygen tank, to plead his case.”

Lindinkosi Ndibongo, an official of the MDDA, complained that the:

• headline was misleading as no staff member of which he was aware of had “formally backed or supported” any “moonlighting” manager;
• photograph used to illustrate the article was “stolen” from his Facebook page without acknowledgment of the source, and it was intended “to destroy and tarnish my reputation, integrity and my career”;
• article contained several paragraphs, including the introduction, that were either “fabrications”, or “malicious”, or both;
• mention of his illness violated his right to privacy; and
• reporter did not afford him a proper right of reply.

Green remarked that the MDDA played an important role in the media landscape by funding smaller community papers and radio stations to allow them to reflect their communities. However, this goal was easily undermined if projects were selected with no clear criteria and, it seemed, at least once, on self-interested grounds. However, the reporter should have asked himself, and his source, if it was possible that a new board, intent on restoring good governance, would have discussed the fate of a staff member in front of other staff.

The Mail&Guardian was directed to:

• apologise to Ndibongo for not allowing him adequate time to respond to the allegations that were published; and
• offer him a right of reply of 200 words to be run within the next three weeks; the newspaper should give him a reasonable deadline.

The rest of the complaint was dismissed.

 

THE RULING ITSELF

Finding: Complaint 4345

Date of article: 5-11 April, 2019

Headline: Staff back ‘moonlighting’ manager

Page: 13

Online: Yes

Author: Thanduxolo Jika

Particulars

This ruling is based on a written complaint by Mr Lindinkosi Ndibongo, an official of the Media Diversity and Development Agency (MDDA), a written response from the deputy editor of the Mail&Guardian, Beauregard Tromp, further engagements with both of them, as well as with the reporter, Thandoxolo Jika, perusal of various documents from the MDDA, and interviews with several past and current board members and managers of the agency.

1. Complaint

Mr Ndibongo complains that the article in question breaches the Press Code on several grounds:

1. The headline is misleading as no staff member of which he is aware has “formally backed or supported” any ‘moonlighting’ manager
2. The photograph used to illustrate the article was “stolen” from his Facebook page without acknowledgment of the source. It was a “selfie taken by myself while stuck and frustrated in Johannesburg traffic on a silly day from work.” It was used without  acknowledgement of the source of the picture and was intended “to destroy and tarnish my reputation, integrity and my career”. It also made him seem like “a willing party to the article.”
3. He complains that several paragraphs in the article, including the introduction, are either “fabrications”: or “malicious” or both.
4. He says the mention of his illness violates his right to privacy
5. He also complains that he was not afforded a proper right of reply, due to the time constraints imposed on him when he was a in a rural area without good network coverage. He believes his views were not adequately sought.
6. He accuses the M&G of breaching the following clauses of the Press Code:
   1. The media shall take care to report news truthfully, accurately and fairly

1.5 The gathering of personal information for the purpose of journalistic expression must only be used for this purpose

1.7 Where there is reason to doubt the accuracy of a report or a source and it is practicable to verify the accuracy thereof, it shall be verified. Where it is practicable…this shall be stated..

3.3.1 The media shall exercise care and consideration in matters involving the private lives and concerns of individuals. The right to privacy may be overridden by the public interest.

10.1 Headlines and captions to pictures shall give a reasonable reflection of the report or picture in question

10.3 Pictures and video/audio content shall not misrepresent or mislead, nor be manipulated to do so.

2. The text
3. The Mail&Guardian published an article on 5 April 2019 under the headline “Staff back ‘moonlighting’ manager”.
4. The story’s introduction reads: “In a bizarre twist of events at the Media Development and Diversity Agency (MDDA), managers have turned against the acting chief executive officer after she suspended a senior manager who is alleged to have embezzled agency funds.”
5. Its second paragraph reads: “One staffer, who had been booked off sick, was so intent on fighting the suspension that he arrived at a board meeting with breathing apparatus and an oxygen tank, to plead his case.”
6. It then goes on to explain the context: Vuyelwa Mdazana, the “senior manager” was suspended in February after allegations that she had been ‘moonlighting ‘ at Forte, a campus community radio station. Forte was one of 10 community radio stations funded by the MDDA and Mdazana was acting projects manager at the MDDA responsible for identifying stations to receive funding. Under her watch, R1.4 million in funding had been approved for this station. Mdazana has subsequently resigned from the MDDA but other managers had “revolted” against the acting CEO, Zukiswa Potye after her suspension, and have formed themselves into a group called the  “MDDA Compatriots”. This group is allegedly led by the projects manager, Lindinkosi Ndibongo who has “been on sick leave for more than a year”. He is the “staffer” referred to in the second paragraph.
7. Quoting “insiders”, the reporter writes that Ndibongo arrived at a board meeting on February 28 carrying an oxygen tank connected to tubes in his nose, to protest against Mdazana’s suspension.
8. “He also objected to the board’s decision to have managers present their project-funding proposals to the chief executive officer and the chief financial officer.”
9. According to “an insider”. Ndibongo “exploded” during the board meeting and “shouted and threatened board members.” He had to be restrained by his colleagues.
10. The article also reports that the “MDDA Compatriots” had written a letter of complaint to the minister of communications.
11. It then focuses more sharply on the Mdazana issue, reporting that the MDDA’s legal and compliance division has found she had a conflict of interests, and that it recommended fraud charges be pursued against her.
12. The article said she had resigned as the station manager of Forte when she joined the MDDA but remained as director and sole signatory for the “struggling community radio station’s two bank accounts.”
13. “Disgruntled” workers at the radio station had “blown the whistle on her”, as they had not received stipends since October 2018.
14. The article quotes from Mdazana’s letter (presumably to the Board although this is not stipulated), defending herself.
15. The article notes that neither she nor Mr Ndibongo had responded to requests for comment at the time of going to press.

3. The arguments

The complainant

3.1 Mr Ndibongo argues that the headline of the article is “false and misleading”, as well as “sensational, fabricated and nonsensical.” No staff member, he says “has formally backed or supported any ‘moonlighting manager’ at MDDA.

3.2 He also complains that the picture of him used in the article was “stolen” from his Facebook page and was used without crediting its source. It had in fact been a selfie “taken by myself while stuck and frustrated in Johannesburg traffic on a silly day from work”.  He argues it was used to “destroy and tarnish” his “reputation, integrity and ..career.” Moreover, it made him seem like a “willing party” to the article and was a “violation” of his privacy.

3.3 He complains that the intro to the article is a “fabrication”. Staff had never been “formally appraised” of Ms Mdazana’s suspension and although it was mentioned once (informally) in a management meeting, it was not challenged. He further says he has no direct knowledge of the Mdazana case and had the journalist contacted him in sufficient time before publication, he would have explained this.

3.4 The second paragraph, which describes Mr Ndibongo as being so intent on fighting the suspension that he “arrived at the meeting with breathing apparatus and an oxygen tank”, he says is “not only malicious, but fabricated, nonsensical and devoid from the truth.” The MDDA had provided him with a loan to purchase a portable oxygen concentrator “which is part of my mobility and rehabilitation due to the nature of my sickness”. He had been discharged from a rehabilitation centre in June 2018, and this was part of his support “just like any disabled person using a wheelchair.”

3.5 He says if he had received the questions in time he would have explained his condition to the journalist “even though the publication of my sickness is a violation of my privacy’. But it is worse, he argues, that the newspaper made “no effort ..to find out what my condition is, and whether my employer was supportive in my road to recovery.”

3.6 The article had given the impression that he had “walked out of hospital and straight into the boardroom to fight a suspension of…a corrupt colleague.”

As well as being a violation of privacy, the article also violated his “dignity and reputation.”

3.7 There is no internal grouping at the agency of which he is aware known as the “MDDA compatriots”, and “neither have I been recruited to participate in such an organisation.”

3.8 Ms Mdazana was not acting projects manager while he was on sick leave, as the article reports– it was Mr Jimmy Ngwenya. He  (Mr Ndibongo) had returned to work in January 2019. The paragraph describing him as the “leader” of the “MDDA Compatriots” and arriving from sick-leave “carrying an oxygen tank connected to tubes in his nose” to protest against Ms Mdazana’s suspension, was “pure lies, false and nonsensical” The newspaper had failed to verify this information with him.

3.9  In the board meeting referred to – on 28th February – “there was not a single mention of Ms Mdazana’s name in the meeting whilst I was present.”

3.10 He argues  the paragraph attributed to an “insider” that read “..the managers were livid and Ndibongo exploded during the board meeting and shouted and threatened board member saying: “I survived 10 boards, 10 ministers and several CEOs and you will not survive this.” is also a “fabrication”.

3.11 He says although he did “challenge” the Board and Executive it was over their “lack of understanding the Grant Funding Cycle which…guides quality assurance process of project presentations before they are tabled to the board for adjudication.” 3.12 This he said “led me to refer to my institutional memory that dates back to 2008…The MDDA policy on delegation of authority is clear and was never part of the discussion but instead I used the opportunity to educate a member who had lack of knowledge on corporate governance.”

3.13 He had “insisted” that the team was “more than ready to table projects for adjudication of which one of the board members, who was tasked to do quality assurance…felt to the contrary and whole team was not happy about that stance as it suggested incompetence.” He argues he was not given an opportunity to comment on the version of the meeting in the newspaper which may have been given by a source [ who was hostile to him] who was part of the meeting.

3.14 It is also “a blatant lie” that, as the newspaper reported, he had to be “restrained several times by his colleagues” and that the “MDDA Compatriots have already written a complaint to the minister of communications, Stella Ndabeni-Abrahams.” Mr Ndibongo said he experienced shortness of breath in the meeting because he “talked a lot” and the Chairman had “excused me at my request and my colleagues assisted me as usual.”

3.15 He says had he been given a proper right of reply “I would not be feeling this violated.” He says the journalist had called him on 4 April, 2019 (the day before publication) while he was leave. However on that day he had been assisting colleagues “near my hometown” (in the Eastern Cape) who had a vehicle breakdown. He had told the reporter he would call him back “given the intensity of the day I was having.”

 3.16 The reporter had not indicated the deadline for the story, nor did he mention what the article was about. Moreover, there were network problems in the area (I established later Mr Ndibongo was near Port St Johns at the time). He then received a “very generic” SMS from the reporter, “who did not identify himself, asking about the MDDA compatriots and ..hinting ..what had happened at the board meeting.” He responded saying the information was wrong and called him the following day, April 5^th,  at 6am, as he had come home late from the breakdown, “only to find out that he had already published the story.”

3.17 He says he was “shocked” because the article was not timebound – the board meeting had already happened in February. “I therefore think that it was deliberate to contact me a day before publication, so that lies and fake news could be spread using my name.”

Mail&Guardian

Beauregard Tromp, the paper’s deputy editor responded on the following points:

3.18 The picture was “in the public domain on a public platform and did not require his permission.

3.19 On Mr Ndibongo’s behaviour in the board meeting: Mr Tromp argued that he was alleged to have behaved “violently” towards board members. A case of intimidation was opened at the Hillbrow police station and the newspaper has the case number. In addition, internal disciplinary processes have been instituted against him.

3.20 On his illness: Mr Tromp argues the article “truthfully reflected the state  [he] was in when he attended the meeting. Furthermore, no mention was made of his specific illness.”

3.21 On the right of reply: Mr Tromp says the journalist “made numerous attempts” to get hold of Mr Ndibongo but his phone was off for a lengthy period. He responded to the text message sent and promised to provide the M&G with answers “which he never did.”

3.22 He says the reporter, Thanduxolo Jika attempted to call Mr Ndibongo a number of times from both his cellphone and landline without success. He sent a text message on 4 April, to which Mr Ndibongo responded at around 1pm on the same day. Mr Jika then identified himself and explained in brief the nature of his inquiry. Mr Ndibongo promised to call him back but failed to do so on that day, and only responded the next day after publication.

3.23 On whether Mr Ndibongo was part of a grouping known as the “MDDA Compatriots”, the newspaper said it had been confirmed by “a number of board members and executives” that he did.

3.24 On Mr Ndibongo’s contention that the discussion at the board meeting concerned the Grant Funding Cycle and not Ms Mdazana, and that he was “assisted by” rather than restrained by his colleagues, as the newspaper reported, Mr Tromp writes: the newspaper “contends otherwise when it comes to what was under discussion at the meetings. Other aspects do not require a response.”

Mr Tromp says there was no “malice” in the article, as alleged by Mr Ndibongo.

4. Further arguments

4.1 In a telephone discussion with Mr Ndibongo, he emphasized that the suspension of Ms Mdazana had never been the subject of the board meeting.

4.2 On his illness, he said he has been admitted to hospital with pulmonary fibrosis in November 2017, had been discharged in June 2018 after which he was in rehab. 4.3 He returned to work in January 2019, so the board meeting he attended with other managers was a “normal” meeting that was part of his duties. He had not, as inferred, hauled himself out of his sickbed to come and defend the suspended manager. He had been categorized as disabled and as a result of the scarring on his lungs had to carry a portable oxygen tank with him. “I’m just like anybody in a wheelchair; [the tank] is in a bag the size of a laptop bag; it helps me breathe.”

4.4 He said it was not true that Ms Mdazana had been acting for him while he was on sick leave – it was Jimmy Ngwenya. He also said he had never heard the term “MDDA compatriots” to describe any group at the agency.

4.5 He admitted he had been at “loggerheads” with some of the board members present. There were four board members at the meeting as well as the acting CEO, Ms Zukiswa Potye. The board members (who did not form a quorum as there needed to be five) were the chair, Mr Ndivhoho Norman Munzhelele, Mr Moshoeshoe Monare, Ms Martina della Togna, and Ms Tasneem Carrim.

4.6 The dispute between him and some of the board members was over the adjudication process for projects. “I was emphasizing the importance of institutional memory in quality assurance in the Grant Funding Cycle.”

4.7 He said he had told them that “as new board members they have a lot to learn from us.”

4.8 He told me MDDA managers work in all nine provinces, and as such are “leaders in their own right.”

4.9 On the right of reply, Mr Ndibongo explained he had been on leave in his home area of the Eastern Cape when the reporter had called, and moreover was dealing with a vehicle breakdown of his colleagues near Port St Johns at the time, where the network coverage was bad. He could not hear the reporter clearly and promised to call him back.

4.10 But because he had arrived home late, he had forgotten. When he saw the text message, he called him at 6am the following morning, and was told that he was “too late; it has already been published.”

4.11 He stressed his disagreement with board members, had been about the “quality assurance” process.

4.12 In a conversation with the M&G deputy editor, Mr Tromp and the reporter, Mr Jika, they explained the steps they had taken to afford Mr Ndibongo a right of reply.

4.13 Mr Jika had tried to call him on the Wednesday night the 3^rd April, but the call did not go through “so there may have been network issues”. He then sent a message on the morning of the 4^th April and tried to call again. When he did not get through, he asked a contact in the Eastern Cape whether he had an alternate number for him.

He also sent a text.

4.14 At about 1.15pm on that day, he got hold of Mr Ndibongo who asked him who he was and who had given him the information. He (Mr Ndibongo) said he could not respond at that moment but promised to call back.

4.15 Mr Jika sent him a text message which put to him the claim that he was “leading” a group called the MDDA compatriots, that he had written to the Minister to ask for the removal of the acting CEO after the suspension of Ms Mdazana, that he had attended a board meeting on the 28 February after being off sick for a year, and that he had to be restrained by his colleagues as he “hurled insults at board members.”

4.16 Mr Ndibongo replied (in a series of messages I have seen): “Who are you and who gave you this wrong information?”

4.17 It was only the next morning, when he had presumably seen the article, that he responded: “OK, Thanduxolo, I saw your article. Whoever gave you that information is twisted and must be examined in a mental institution. It’s not your fault mfanomdala, but you will learn along the way.”

4.18 At any rate, it was then too late to record this, or any, response from Mr Ndibongo.

5. Analysis

5.1 I spoke to several former and current board members and former and current executives and obtained important documentation that gives some idea of what happened both at the board meeting and in the weeks preceding and following it.

5.2 First, some context about the MDDA: The MDDA is a development agency funded by the Department of Communications and broadcasters to the tune of about R78 million in the 2017/18 financial year. Its aim is to promote media diversity around the country, and it focuses on funding small community newspapers and radio stations.[1]

5.3 The MDDA has experienced considerable challenges over the past few years. Its 2017/18 Annual Report details a 33% vacancy rate at executive level; it reports it met only 45% of its key performance targets. This year the Board has only five members out of nine and is often inquorate when it meets as one member regularly does not attend. (a quorum is five).

5.4 Among the challenges the new Board members have had to deal with is an established senior management whom, some board members told me, make decisions about which projects to finance without uniform and transparent criteria. Senior managers, according to a report by the Acting CEO to the Board argue that projects are granted funding on a “first come, first served basis”.[2]

However, when the acting CEO asked for a list of the projects that had applied for funding, some that had applied in 2012/2013 were still on a waiting list while others, which had applied much later, were given funding.

5.5 This lack of clear criteria and oversight resulted in an egregious breach of governance, which the M&G reported, whereby the senior MDDA manager in charge of approving funding for community radio stations, was at the same time a station manager at one of the community stations which received funding. The official in question was Ms Vuyelwa Mdazana.

In spite of apparently resigning from Forte, the campus radio station based at Fort Hare, in 2016, she was still a signatory to its bank account. Moreover, she was responsible for paying its staff.

An investigation also found payments to her from Forte for R230 000. This was at a time when “the project was unable to meet its other business obligations.”

5.6 Ms Mdazana was placed on precautionary suspension in January 2019. Since then investigations have continued and charges have been added to a disciplinary inquiry. These include not declaring her conflict of interests with the radio station – a recipient of MDDA funds over which she had authority.

She also, according to an internal report, told the Board that Forte was “fully compliant” to receive funding. However, a report from ICASA “tells us the contrary.” It does not have a valid SARS tax certificate, nor has it had an AGM since 2009.

Ms Mdazana, according to the report, personally applied for funding from the MDDA (for which she worked) on behalf of the station.

5.7 As late as February 2019, she is still listed as one of the directors of the station.

The report says Forte has reported the matter to the police and the Special Crimes Unit. (The MDDA, in a media statement released on the same day as the M&G published its story, confirms that a “senior manager” had been

“suspended … following the receipt of a whistle blowing email sent both to the MDDA hotline and the Acting CEO by employees of Forte Community Radio in the Eastern Cape. The senior manager has subsequently resigned.”)

5.8 Forte Radio Station was presented to the Projects Committee in November 2018 and “has been recommended for funding because the Board relied on misleading

information by the Project team, particularly the Broadcast Manager who now is

known for having vested interests in the project, even though undeclared.”

“The risk of losing money to non-compliant projects not only lies with Forte’s approval but all projects before the Board for final approval. For this reason, ICASA has been requested to provide compliance reports on all projects submitted by Ms Mdazana.”[3]

5.9 The same concern, notes the report, applies to print projects: “Mr Ngwenya [who acted in Mr Ndibongo’s position] had informed the acting CEO during 2018, that the Print Project Manager, Mr Ndibongo was deciding on his behalf which projects to select, despite being on sick leave for more than a year. The question on how the Board knows and verifies the legitimacy of projects presented to it for funding support has become key.”

5.10 Mr Ndibongo reported the Acting CEO to the Minister and deputy minister for suspending Ms Mdazana. He also raised the “concern” that the Board should be the only structure to give final approval for funding of projects. This, though is mandated by the MDDA Act.[4]

5.11 I have heard part of a recording of the Board meeting in question. The argument that ensues is about the process of approving and tracking projects.

At one point the chair is speaking about the importance of uniform and transparent criteria, such as a tax certificates, BEE compliance, and ICASA licenses for broadcasters etc.  Mr Ndibongo interrupts the chair fairly loudly and abruptly and tells him (and others) they do not have the “institutional memory” about how projects are selected.

Another board member admonished him for interrupting the chair at which point he seems to be even more angered (and from the sounds on the recording struggles to breathe).

5.12 So it is correct that there was conflict involving Mr Ndibongo at the board meeting. However, there is no evidence that it was over Ms Mdazana’s suspension. Every board member I spoke to confirmed they would not have discussed the suspension in front of staff, and in fact this is in line with good corporate governance practices.

5.13 It appears the reporter has conflated two separate but interlinked themes in his story: Ms Mdazana was indeed suspended. But the argument between Mr Ndibongo and the Board was over selection criteria for projects. He is correct that in this context he criticized them for having no regard for “institutional memory.”

5.14 Headline

In this sense, the headline was not accurate. More accurate would have been a headline reflecting the conflict at the agency between the new board and long-standing managers over issues of governance and alleged corruption, including Ms Mdazana’s suspension.

A former senior manager I consulted with said there had been systematic evaluation and online monitoring of funded projects in the past. But in the past five years, this had broken down. Decisions were made without “due diligence” and this opened the system to corruption.

He confirmed that there was a distinct group – he described it as “problematic” – who resisted due diligence under a new board. They may not have called themselves the “MDDA compatriots”, as they are referred to in the M&G article but there was a distinct grouping.

It has only been with the advent of the new Board that there has been an attempt to “clean up” the agency.

5.15 Ilness

Was it an invasion of privacy to mention Mr Ndibongo’s chronic and serious illness in the detail that the M&G did?

The reporter and deputy editor argue they reported that he carried an oxygen tank “to demonstrate the urgency at which he arrived at the meeting.” But this was premised on the story that it was to protest about Ms Mdazana’s suspension, and this was not the case. It is relevant though that Mr Ndibongo had been on sick leave for a year. He returned in January. All the evidence, including his own, shows that he was intent on defending the system of project selection.

It is also clear (from the recording) that he showed little respect for the chair of the Board, in the manner in which he interrupted him and shouted over him. He then apparently struggled to breathe.

6. Finding

6.1 This is a complex story.

The M&G should be commended for drawing attention to possible corruption and dubious governance practices at a public, taxpayer-funded agency.

The MDDA plays an important role in the media landscape by funding smaller community papers and radio stations to allow them to reflect their communities. However, this goal is easily undermined if projects are selected with no clear criteria and, it seems, at least once, on self-interested grounds.

6.2 But the reporter should have asked himself, and his source, if it was really possible that a new board, intent on restoring good governance, would have discussed the fate of a staff member in front of other staff

6.3 The headline “Staff back ‘moonlighting’ manager” is not a true reflection of the facts.

6.4 The introduction to the story, “In a bizarre twist of events at the MDDA, managers have turned against acting chief executive officer after she suspended a senior manager who is alleged to have embezzled agency funds”, misses the mark. The conflict preceded the suspension and was wider: at issue was how projects are selected for funding.

However, it is reasonably possible that the suspension of Ms Mdazana was one of the issues at stake.

6.5 However, the second paragraph that reports Mr Ndibongo, “who had been booked off sick” arrived at the meeting “with breathing apparatus and an oxygen tank to plead his case” is problematic. From all of my inquiries, I cannot verify this: Mr Ndibongo had returned to work in January; his “breathing apparatus”, was, as he puts it, a permanent aid for his disability. The sentence gives the impression that he had hauled himself from his hospital bed to fight the suspension. This is not true. Ms Mdazana’s case was not a subject of the meeting with staff. This paragraph seems to have rendered the headline.

6.6 The later paragraph that Mr Ndibongo “exploded” during the board meeting “and shouted and threatened board members” is reasonably true – I heard the recording. But the clash was over his insistence that his “institutional memory” was more important than the guidelines the Chair was laying down for project selection.

6.6 On the question on whether there is a group called the “MDDA compatriots”, which has written to the Minister about the new Board: there is evidence of a group of managers hostile to the new board and who appear to try to use political connections to undermine them. There is no evidence that they are called the “MDDA compatriots” but no evidence to the contrary. So this is reasonably true.

6.7 On the use of the picture: Mr Ndibongo said it was from his Facebook page. There is in fact a perfectly clear picture of Mr Ndibongo on the MDDA website. It is surprising the newspaper did not use this one. It is true that Facebook is a platform largely in the public domain but the newspaper should have credited the source of the picture.

6.8 On the right to reply: the reporter first tried to contact Mr Ndibongo on the night of the 3^rd  April, about 30 hours or less before the newspaper was due to go to print. Mr Ndibongo was in a rural area with poor network coverage.

The board meeting had happened nearly six weeks before; it did not seem to be so pressing an issue that the story could not have been held over for a week.

In fact, had the reporter interviewed him properly, he would have probably got enough information that would have prevented him making the mistakes that he did in assuming that the case of Ms Mdazana was discussed at a board meeting in front of staff; also he would have avoided creating the impression that Mr Ndibongo had risen off his sick bed to attend the meeting.

6.9 On the right to privacy: It must have been distressing for Mr Ndibongo that details of his chronic illness were revealed in the newspaper. But section 3.1 of the Press Code stipulates that the right to privacy may be overridden by the public interest. In this case (even though the newspaper got details of the meeting wrong), it is relevant that Mr Ndibongo, as ill as he was, came to the meeting to defend certain practices that had been questioned by the Board, which go to the heart of fairness and transparency in funding projects by a public, taxpayer-funded agency.

6.10 I find the newspaper is in breach of section 10.1 of the Press Code: “Headlines and captions to pictures shall give a reasonable reflection of the content of the report or picture in question.” The headline was misleading: there is no evidence that the conflict at the board meeting was over Ms Mdazana’s suspension. The caption to the picture should have made clear its source, and better still should have been taken from the MDDA website, a more public source.

6.11 It is also in breach of section 1.8: “The media shall seek the view of the subject of critical reportage in advance of publication…Reasonable time should be afforded the subject for a response.” The timing and the location of Mr Ndibongo at the time the reporter contacted him, made it difficult for him to give a considered response to what were serious allegations. This story was not timebound as the meeting had happened some time before; it also seemed as though the M&G had exclusive access to the story.

1. Seriousness of breaches

Although the headline was misleading, and reflected a lack of knowledge about the board meeting, it did not seriously change the thrust of the story which was about both the suspension of Ms Mdazana for alleged conflict of interests, and about conflict between some of the staff and relatively new board and executive. The reporter could have asked himself whether it was likely that the suspension of a senior manager would be discussed at a board meeting in front of staff. However, it was not reckless or malicious in its erroneousness. Likewise, the use of the picture: it should have carried an acknowledgment. This is a Tier 1 offence and no remedy is required.

More serious though is the inadequate time given to Mr Ndibongo, a seriously ill man, to reply to the allegations. If he was in a rural area at the time, his delay in responding was understandable. Had the newspaper spoken to him, it may not have made the mistakes it did. This is a Tier 2 offence

7. Sanction

The Mail&Guardian is directed to:

• Apologize to Mr Ndibongo for not allowing him adequate time to respond to the allegations that were published.
• To publish this apology on the same page as the original article and online at the earliest opportunity after the time for an application for leave to appeal. The apology must be submitted to the Ombudsman for approval.
• To offer him a right of reply of 200 words to be run within the next three weeks. Mr Ndibongo is to be given a reasonable deadline that he must be obliged to meet.

The rest of the complaint is dismissed.