Appeal Decision: Mawela Nombasa vs News24
SUMMARY
The headline to the story in dispute read, THE ESKOM FILES/Gwede Mantashe’s daughter Nombasa Mawela paid for chickens with dirty Eskom ‘kickback’ cash (published on 22 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 was part of a News24 investigation into alleged criminality at Eskom, under the general title The Eskom Files, and was based on leaked documents which included bank statements, emails, forensic reports and invoices. According to the article, Nombasa Mawela was paid around R1 million by former Eskom executive France Hlakudi. The article reported that the latter had paid Mawela with money he allegedly had received as kickbacks from four Eskom contractors on the Kusile power station.
The Deputy Ombud upheld Mawela’s complaint about the headline (Clause 10.1 of the Press Code), but only in the sense that it gave the impression that she had used “kickback” money to pay for chicken. He also found that the article incorrectly stated Mawela’s period of employment at Eskom. To that, he added that the article omitted some minor pieces of information. The rest of the complaints were dismissed. A sanction was imposed in the form of an apology.
Both parties applied for leave to appeal.
Judge Ngoepe said the fact that the Deputy Ombud found that Section 10.1 of the Code had been breached, albeit only in respect of one instance, “closed the matter”. He added, “Even if a finding were to be made that the section was breached as contended for by the complainant, the sanction would be the same. An appeal would therefore be academic. The complainant’s prolific argument does not take her case any further. The same consideration applies to the complainant’s nit-picking in respect of sections 1.1 and 1.2. As far as the arguments relating to grounds 2 and 3 of her intended appeal are concerned, I am, as already stated, satisfied that the Deputy Ombud properly analysed and dealt with the matter. There are no reasonable prospects that an Appeal Panel would come to a different finding.”
Both applications for leave to appeal were dismissed.
THE RULING ITSELF
In the matter between:
Mawela Nombasa Complainant
and
News24 Respondents
Matter No: 8978
DECISION ON APPLICATION AND COUNTER-APPLICATION FOR LEAVE TO APPEAL
- Ms Nombasa Mawela (complainant) lodged a complaint against News24 (respondent) in respect of a story that was published by the respondent on various media platforms, with the headline: “THE ESKOM FILES/Gwede Mantashe’s daughter Nombasa Mawela paid for chickens with dirty Eskom ‘kickback’ cash”. The story was published on 22 May 2021. The substance of the story was that the complainant was paid by one France Hlakudi, then an employee of Eskom, for some chicken which the complainant was rearing; for their feed as well. The fundamental problem with the money Mr Hlakudi used to pay complainant was that it was allegedly received by him as so-called “kickbacks” from Eskom’s contractors. The money was laundered through some companies, eventually being used to pay the complainant. The complainant mentioned that she did not know the source of Mr Hlakudi’s money to pay her.
- The complainant, in a very prolific documentation, argued that several sections of the Press Code were breached: 10.1, 1.1, 1.2, 1.8 and 3. She also complained that the user-generated content on respondent’s website, Twitter and Facebook pages contained defamatory remarks in contravention of the Press Code and respondent’s own policy on commentary. She demanded retraction and/or correction and an apology on all the platforms where the article was published. In response, the respondent denied the accusation that the headline conveyed that complainant herself paid for chicken with dirty money. The respondent advanced an innocuous interpretation, and referred to some readers’ comments to support its argument. It argued that the headline accurately reflected the content of the article. Regarding the alleged breach of 1.1 and 1.2; respondent justified its reportage but for a few minor inaccuracies, such as regarding complainant’s period of employment at Eskom, and offered to correct. As far as the alleged breach of section 3 was concerned, respondent maintained that the article was in the public interest; it also denied that the user-generated content referred to by the complainant was defamatory of her.
- In his Ruling dated 9 August 2021, the Deputy Ombud went into an almost each by each analysis of the prolific submissions by both parties, and, in the end, made the following findings:
- 1. The complaint in terms of section 10.1 was upheld only in the sense that it gave the impression that complainant used “kickback” money to pay for the chicken.
- 2. Breach of article 1.1 by incorrectly stating complainant’s period of employment at Eskom.
- 3. Breach of section 1.2: an omission in minor respects.
The rest of the complaints were dismissed. A sanction was imposed in the form of an apology.
- Each party has launched an application for leave to appeal. I must now consider their prospects of success.
Respondent’s application
- The respondent challenges the finding that section 10.1 has been breached. It argues that there is a parallel innocuous interpretation. The argument has no merit. The headline is not ambiguous. The plain English reading conveys that complainant paid for the chicken with dirty money. The respondent would like us to read the headline as follows: “… Nombasa Mawela (was) paid for chickens with dirty Eskom ‘kickback’ cash.” That is not what stands there. The plain ordinary meaning is as I pointed above. The word “was” would have cast complainant as the payee; that is, as the person being paid. However, as the sentence stands, she is cast as the actioning person, i.e. the payer. That is plain English. At best for the respondent, the so-called ambiguity arises when one reads the content of the article, which is what the readers retrospectively did; but that does not obliterate the primary meaning. The divergence stands. Moreover, it has repeatedly been stated that many readers do no go beyond the headline. The application has no reasonable prospects of success.
Complainant’s application
- The fact that the Deputy Ombud found that section 10.1 was breached, albeit only in respect of one instance, closes the matter. Even if a finding were to be made that the section was breached as contended for by the complainant, the sanction would be the same. An appeal would therefore be academic. The complainant’s prolific argument does not take her case any further. The same consideration applies to the complainant’s nit-picking in respect of sections 1.1 and 1.2. As far as the arguments relating to grounds 2 and 3 of her intended appeal are concerned, I am, as already stated, satisfied that the Deputy Ombud properly analysed and dealt with the matter. There are no reasonable prospects that an Appeal Panel would come to a different finding.
- Both applications for leave to appeal are dismissed for lack of reasonable prospects of success on appeal.
Dated this 8th day of October 2021
Judge B M Ngoepe, Chair, Appeals Panel
