Appeal Hearing Decision: Hosi TLP Nwamitwa AO vs Sunday World
SUMMARY
The article in question, published on 23 July 2023, was headlined, Mkhari and traditional leader at war over ICT hub.
This ruling by the Appeals Panel was based on the Press Code that became effective on 30 September 2022.
The appellants were:
- Hosi TLP Nwamitwa, the head of the tribe on whose land some leased premises were situated;
- Princess Tsakani Nkambule, a board member of Small Enterprise Development Agency (Seda) and a trustee of Valoyi Traditional Authority Trust (VTAT); and
- VTAT, the owner of the premises.
The article was about Tsakani Mkhari, who was the founder of an organization known as Hope Givers Foundation (HGF). The Foundation was awarded R5m by Seda to support small, medium and micro enterprises in the Limpopo Province. It managed to lease premises belonging to VTAT.
A dispute arose between HGF and VTAT about the lease agreement, culminating in HGF terminating it, after which VTAT’s lawyers issued a letter of demand to HGF for damages in the amount of about R2.5m.
The Appeals Panel upheld the appeal. It said:
- It was unfair to state, “After submitting our notice to vacate, we received a letter from the VTAT lawyers demanding an alarming R2.5-million of the Seda funds” (my underlining). Those words appeared to have been added to a letter of demand at some later stage – and the documentation was in the journalist’s possession prior to publication. The article should have at least contrasted what Mkhari had said with the actual contents of the letter and presented both versions to the reader; and
- Sunday World did not give Princess Nkambule a right of reply (as it should have done), as the reportage conveyed the impression that she, having been aware that R5m had been paid to Seda by virtue of her being on its board, had misused her influence and position as a trustee of VTAT.
The publication was ordered to retract the statements in question, and to apologise for them.
THE RULING ITSELF
BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between
HOSI TLP NWAMITWA FIRST APPLICANT
PRINCESS TSAKANI NKAMBULE SECOND APPLICANT
VALOYI TRADITIONAL AUTHORITY TRUST THIRD APPLICANT
and
SUNDAY WORLD RESPONDENT
DECISION
- The appellants in this matter are Hosi TLP Nwamitwa, Princess Tsakani Nkambule and the Valoyi Traditional Authority Trust; respectively, they are first appellant (Hosi), second appellant (Princess) and third appellant ( VTAT). They were granted leave to appeal certain Rulings made by the Deputy Press Ombud in his Ruling dated 31 January 2024. The Ruling was in respect of certain complaints by the appellants against the Sunday World (respondent) following an article published by the respondent on 23 July 2023 with the title: “Mkhari and traditional leader at war over ICT hub”.
- The article was at the instance of one Tsakani Mkhari, who was the founder of an organization known as Hope Givers Foundation (HGF). The Foundation was awarded some money (R5m) by the Small Enterprise Development Agency (Seda) to support Small, Medium and Micro Enterprises (SMME’s) in the Limpopo Province. It managed to lease premises belonging to the third appellant (VTAT). The first appellant was the head of the tribe on whose land the leased premises were situated; i.e. the premises belonged to the third appellant. The second appellant was a board member of Seda, and also a trustee of VTAT.
- In due course, a dispute arose between HGF and VTAT about the lease agreement, culminating in HGF terminating it, after which VTAT’s lawyers issued a letter of demand to HGF for damages in the amount of about R2.5m. It appeared that Ms Tsakani Mkhari then went to the media, in consequence of which the respondent, with one Phumla Mkize as the journalist, published the above article; according to the appellants, this was after other newspapers had declined to report on the matter.
- It would be fair to say that, at least by and large, the reportage was according to the version presented by Ms Mkhari. This is, firstly, clear from the contents of the article as well as its general tenor and, secondly, from the adverse findings made by the Ruling against the respondent as well as the sanction imposed. The respondent had, barring one or two instances, stood by the article and defended it.
- We need not go into all the complaints that were raised and dealt with in the Ruling; suffice it to state that some were upheld, while others were dismissed. The appellants then sought leave to appeal in respect of the dismissed complaints. They were granted leave to appeal in respect of only two complaints. We will herein restrict ourselves to those two, as we cannot go beyond the complaints in respect of which leave was granted. But before doing so, we must deal with the respondent’s application for a postponement of the hearing on 16 April 2024.
Respondent’s application for a postponement to get legal representation
- At the hearing of the appeal, the appellants were legally represented while the respondent was not. Respondent’s editor, Mr Ngoako Malatji, appeared for the respondent. He is not a lawyer. He asked for the matter to be postponed so that the respondent could also get the services of a legal representative. The appellants’ attorney opposed the application for the postponement on the ground, amongst others, that appellants had incurred costs and would therefore be prejudiced. After some deliberation, the panel refused the application, whereupon the hearing continued. In refusing the postponement, the panel took into account the question of costs incurred, as Mr Malatji’s view was not to accede to the costs caused by the postponement. We said we would elaborate in our Decision on why the postponement was refused. We do so in paragraphs 7 and 8 below.
- In terms of the Code, legal representation is allowed by the Chairperson of the Appeals Panel if both parties agree, or if the chairperson, after taking into account certain factors such as the nature of questions of law, the complexity of the dispute, public interest and the comparative ability of the opposing parties to deal with the dispute, concludes that it would be unreasonable to expect the party to deal with the dispute. The following happened in this particular case:
7.1 From the lodging of the complaints until the hearing of the appeal, the appellants were using attorneys, but the respondent did not;
7.2 on 14 March 2024, appellants’ attorney, Mr Maimele, asked for permission to represent the appellants at the hearing; the email was sent to Ms Mdaweni, the case manager at the Office of the Ombud, and also to the respondent;
7.3 by her email of 15 March 2024, Ms Mdaweni herself informed Mr Ngoako Malatji of the above request and also told him that he too could use a legal representation;
7.4 on 15 March 2024, Mr Malatji sent an email to Ms Mdaweni saying he was rejecting the appellants’ request;
7.5 under her email of 15 March 2024 to the Chairperson of the Appeals Panel, Ms Mdaweni forwarded both Mr Maimele’s request and Mr Malatji’s rejection of the request for the Chair’s ruling;
7.6 on 19 March 2024, the Chair sent an email to Ms Mdaweni to inform the parties as follows: “I rule that, regarding being had to the issues involved, the parties may be legally represented if they so wish”. This was a month before the hearing. No response was heard from the respondent thereafter.
- At the hearing and in asking for a postponement to get a legal representative, Mr Malatji said he was not aware that permission had been given to use the services of a lawyer. He was referred to the Chair’s Ruling allowing legal representation to both parties as per the email referred to in paragraph 7.6 above. He then said he did not see the Ruling; but this is highly unlikely. The email informed the parties of three points: firstly, it confirmed the date of the hearing of the appeal; secondly, it gave the parties the timeframe for the filing of heads of argument; thirdly, it informed them of the Chairperson’s permission to use legal representatives. Mr Malatji reacted to the first two points, but not to the third. For a month before the hearing, Mr Malatji sat with this email until the day of the hearing. As his explanation that he did not see the email could not stand scrutiny, there was simply no reasonable explanation why he did not, a month since the permission, secure the services of a legal representative if he had so wished. There was therefore no legal basis to grant the postponement. The other consideration was appellants’ legal costs occasioned by the postponement, bearing in mind that permission had been granted to them to use lawyers. Mr Malatji’s response to this point was that if the appellants chose to use lawyers, they must carry the costs caused by the postponement themselves, a postponement which would have been caused by his inexcusable failure to act in accordance with the email granting him leave to use a lawyer. In other words, Mr Malatji wanted a postponement – at a cost to the appellants – to go and do exactly what he was told he was free to do, a month prior to the hearing, without giving an acceptable reason why he did not do so. In a court of law, the situation could be remedied by ordering the respondent to pay the costs caused by the postponement; but it is uncertain if the Appeals Panel can make such an order where, for that matter, the respondent says it is not prepared to pay such costs. Finally and importantly, one must guard against confusing the issues: the issue at the hearing was not the correctness or otherwise of the Chair’s ruling on the issue of legal representation; that was not debated. The issue was whether or not a postponement was justified in the circumstances. For the reasons stated above, we found that it was not.
Having disposed of the issue of a postponement, we now proceed to deal with the two complaints in respect of which leave to appeal was granted.
The complaint that the VTAT’s lawyers demanded R2.5m “of the Seda funds”
- The above complaint was based on the following, which was said to be Ms Mkhari’s own words:
“After submitting our notice to vacate, we received a letter from the VTAT lawyers demanding an alarming R2.5-millino of the Seda funds.”
The appellants argued that the article contravened clause 1.1 and/or 1.2 of the Code; that is, that it was an unfair and/or not balanced reporting because in the letter of demand, the words “of the Seda funds” were not there; the letter only demanded payment of R2.5m as damages resulting from the breach of the lease. In its defence, the respondent said that the above were Ms Mkhari’s own words, which were understood – to use respondent’s own words – as her emphasising that “the amount being demanded in relation to the total amount of the funding awarded to HGF by Seda.” Apparently, this is meant to convey that Ms Mkhari was making the point that HGF was receiving money from Seda; hence reference to “the Seda funds.”
- It appears that the Deputy Ombud, in dismissing this complaint, had misunderstood it. It was never the second appellant’s case that she had no knowledge that GHF received money from Seda, as the Deputy Ombud appeared to think. The second appellant could hardly have convincingly denied that knowledge as she was on the board of Seda. The complaint was never on the basis that the second appellant did not know or was not aware that HGF got money from Seda. As said earlier, like the other two appellants, all the second appellant said was that she knew nothing of a demand specifically for “the Seda funds.” That is, yes, the lawyer’s letter demanded R2.5m, but did not add the words “of the Seda funds;” as to where the money to pay damages would come from, was none of the appellants’ business.
- In answer to the respondent’s defence that it was merely using Mkhari’s words, the appellants argued that at the time the article was written and Ms Mkhari’s above words used, the journalist was in possession of the letter from the appellants’ attorneys which did not contain the words “of the Seda funds”; it only demanded payment of the amount. The appellants argued that a fair and/or balanced reportage would have seen that the words were not contained in the letter, but added by Ms Mkhari herself.
- Mr Malatji argued that the lawyers’ letter was received only after the publication of the article. We were, in the course of the hearing, sent an email from the appellant’s attorneys which showed beyond doubt that the letter had been sent to the journalist before the publication and was therefore in the journalist’s possession at the time the article was being written. Therefore, at best for Mr Malatji, he had either forgotten or was not made aware that that was the case. The bottom line though is that the journalist was in possession of the letter before publication; that being the case, the article should have at least contrasted what Ms Mkhari said, with the actual contents of the letter and presented both versions to the reader; this is what fair and/or balanced reporting is about. You cannot put the other person’s version under the table. In the circumstances, it is our finding that the respondent acted in breach of article 1.1 of the Code, which stipulates that the “media shall take care to report news accurately, and fairly”. The respondent can also be found to have breached article 1.2 (balanced reporting), but there is no need to make two findings in respect of one and the same conduct.
The complaint about the allegation that the second appellant abused her position at Seda and royal standing to frustrate the HGF’s project.
- The actual statement in the article complained of is the following: “The construction was completed in November last year, but Mkhari alleges Nkambule (second appellant) is using her powerful position as a Seda board member and a member of the Valoyi royal family to frustrate the implementation of the project”.
- The second appellant denies the above accusation, and contends that it was never put to her for comment before publication; she says something different was put to her. The Deputy Ombud’s Ruling dismissed the complaint on the ground that the accusation was not put as a fact, but as an allegation.
- In answer to the appellants’ argument, the respondent asked the following rhetorical question in its heads of argument: “Is this not a demonstration of the complexities that exist when a board member is also a landlord to a beneficiary of the organization that funds the tenant?” Whatever answer is given, it does not avail the respondent with regard to a possible contravention of clause 1.8. To someone who is a member of a board and also a trustee, the allegation was serious and should have been put to her for comment before publication; more so because it was apparent that the person who levelled the accusation of corruption, was clearly at loggerheads with the second appellant. A journalist cannot be seen to be taking sides in a heated conflict like that. In any event the appellants point out that it was lawful and permissible for the second appellant to occupy both positions and, importantly, that she disclosed her position to Seda.
- The Deputy Ombud dismissed the complaint that article 3.3 of the Code was breached resulting in damage to the second appellant’s dignity. As already mentioned, the Deputy Ombud dismissed this complaint on the ground that the statement complained of was merely an allegation. In our view though, for the reasons stated above, the least the respondent should have done was to give the second appellant the opportunity to comment prior to publication. In the circumstances, it is our finding that respondent acted in breach of clause 1.8 of the Code by failing to give the second appellant the opportunity to do so.
- The two allegations which are the subject of this appeal are related and are serious for someone who is a board member and also a trustee. Put together, they convey the following impression to the reader: The second appellant, being aware that R5m had been paid to Seda by virtue of her being on its board, used her influence and position as a trustee of VTAT to cause a demand for the payment of “the Seda funds” to VTAT.
Order
- For all the reasons given above, the following Order is made:
18.1 The appeal succeeds;
18.2 To the extent that the Ruling of the Deputy Ombud dismissed the above two complaints, the Ruling is hereby set aside and replaced by the following:
18.2.1 By publishing the allegation that the appellants demanded “the Seda funds” the respondent breached clauses 1.1 of the Code, and
18.2.2 by not giving the second appellant the opportunity to comment on the allegations of her abusing her powerful position to frustrate the Hope Givers Foundation’s project, the respondent breached clause 1.8 of the Code;
18.2.3 All other findings, including sanctions, by the Deputy Ombud, stand;
18.2.4 The respondent must apologize for publishing that the appellants’ lawyers demanded “the Seda funds”;
18.2.5 The respondent must retract and also apologize to Princess Tsakani Nkambule for publishing the allegation that she used “her powerful position as a Seda board member and a member of the Valoyi royal family to frustrate the implementation of the project” started by Hope Givers Foundation;
18.2.6 The apologies referred to in paragraphs 18.4 and 18.5, AND the retraction referred to in paragraph 18.5, must be approved for publication by the Executive Director of the Press Council in the event the parties do not agree on the wording thereof;
18.2.7 The apologies and the withdrawal referred to above must be published together with the sanctions imposed, and directed by, the Deputy Ombud in his Ruling of 31 January 2024.
Dated this 6th day of May 2024.
Judge B M Ngoepe, (Retired Judge President): Chair, Appeals Panel
Ms Janet Smith, Public Representative
Ms Heather Robertson, Press Representative
For the Appellants For the Respondent
Attorney D J Maimele Mr Ngoako Malatji, Editor.
