Appeal Decision: Daily Maverick vs Nokulinda Mkhize
SUMMARY
The headline to the story in dispute read, Exposed: DoH’s R150m Digital Vibes scandal – Zweli Mkhize associates charged millions for Covid-19 media briefings (published on 23 May 2021). A complaint was also lodged against a cartoon (it was headlined Doctored Contract and published on 26 May 2021).
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 article said close associates of Health Minister Zweli Mkhize and other third parties pocketed roughly R90-million in suspicious payments emanating from a R150-million Covid-19 and National Health Insurance communications contract.
The cartoon depicted Mkhize holding a bag full of money (with the words “Covid Funds R150 mill” on it). He threw out bundles of money, uttering the words “Mkhize Family! .. Mitha Family!.. Mather Family!… Offspring!.. Siblings!.. In-laws!.. Cronies!…). Nokulinda Mkhize, Zweli Mkhize’s daughter,was sketched with both arms in the air, hands clutching, in an obvious attempt to catch some of the money.
The crux of Nokulinda Mkhize’s complaint was that the reportage falsely and without any verification suggested that she was involved in a corrupt relationship between her family and the Mather family, and that she had somehow benefitted from that relationship.
The ruling dismissed the complaint in relation to the article itself but upheld the complaint in relation to the cartoon – hence this application for leave to appeal.
Judge Ngoepe agreed with the Ombud’s finding. He said the cartoon could indeed not be considered in isolation of the article. “It portrayed the very essence of the story. In fact, it specifically mentions, amongst other beneficiaries in the queue, ‘family’ and indeed Mkhize’s name.”
The judge noted the Acting Ombud pointed out that he had no problem with the cartoon per se, but against the inclusion of the complainant, depicted her as eagerly trying to catch money dished out by her father, thereby implying that she was complicit in fraud and corruption without any evidence.
The application for leave to appeal was dismissed.
THE RULING ITSELF
In the matter between:
Daily Maverick Applicant
and
Nokulinda Mkhize Respondents
Matter No: 8955/05/2021
DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
- Together with its story of 28 May 2021, Daily Maverick (applicant) published a cartoon in which Ms Nokulinda Mkhize (respondent) was one of the people depicted. The essence of the story was that friends and family of the then Minister of Health, Dr Z L Mkhize, benefitted from contracts relating to the Covid 19 pandemic. The story suggested that the people benefited as a result of Dr Mkhize’s influence, as a result of which they scored some lucrative contracts. Respondent is the daughter of Dr Mkhize.
- It is notoriously difficult to describe a cartoon. Suffice to state the following: a person caricaturised as Dr Mkhize was shown as distributing an amount of R150m to a number of people, one of them being the respondent; in fact, she is put right at the forefront ahead of other supposed recipients.
- The respondent lodged a complaint against the article itself as well as against the cartoon. Regarding the article, her complaint was summed up by the Acting Press Ombud in his Ruling of 19 August 2021 as follows:
“The crux of Mkhize’s complaint is that the article falsely and without any verification suggested that she was involved in a corrupt relationship between her family … and that she had somehow benefited from that relationship. She adds that she was merely ‘used as evidence’ of friendship between the Mather family and her father”. She added that the article was, amongst others, degrading or insulting to her as an adult.
- As for the cartoon, respondent complained that it falsely suggested that she was involved in a corrupt relationship between her family and the Mather family from which she had benefitted; that it was defamatory of her; that it has discredited her and thus, amongst others, compromised her safety and jeopardized her 13 year old reputation as a practising sangoma and also opened her to cyber-bullying and stalking.
- The Ruling dismissed the complaint in relation to the article itself but upheld the complaint in relation to the cartoon, hence this application.
- The applicant’s notice of appeal was filed out of time. True, the explanation is not one of the best in the world as it lacks some details; but it was filed very shortly after the lapse of the prescribed period. Secondly, it shows that there was throughout a desire to apply for leave to appeal. Finally, there seems to be no real prejudice to the respondent given that the application was filed shortly after the lapse of time. The late filing of the application is accordingly condoned. I must therefore now consider whether there are any prospects of success for the applicant on appeal.
- The Acting Ombud dismissed the complaint against the article itself, because as the applicant pointed out, respondent was not implicated in the article. But applicant’s argument opened its flank. Once it argued that the story did not implicate respondent or did not associate her with corruption, a question rises why she was depicted in the cartoon as one of the recipients of the R150m, standing right in front of the line for that matter. To this, the applicant argued that the cartoon was a satire. But as the Ruling correctly indicated, the cartoon could not be considered in isolation of the article. It portrayed the very essence of the story. In fact it specifically mentions, amongst other beneficiaries in the queue, “family” and indeed respondent’s name. The Acting Ombud pointed out that he had no problem with the cartoon per se, but against the inclusion of respondent, depicted as eagerly trying to catch money dished out by her father, thereby implying that she was complicit in fraud and corruption without any evidence as conceded by the applicant. To demonstrate the harm to the respondent, the Acting Ombud referred to a number of negative comments against her on social media.
- In the circumstances, I find that the applicant has no reasonable prospects of success on appeal. The following Order is therefore made: The application for leave to appeal is dismissed.
Dated this 30th day of September 2021
Judge B M Ngoepe, Chair, Appeals Panel
