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Ruling (Ombuds' Hearings)

Ndou vs Sunday Times

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Complaint 32126

Ruling by the Deputy Press Ombud, joined in a panel by John Matisonn (public representative) and Heather Robertson (media representative)

Date of publication:

15 December 2024

Headline of publication:

“Lawyer paid R18m has not fully accounted for money – Samwu”

Link: https://www.timeslive.co.za/sunday-times/news/2024-12-15-lawyer-paid-r18m-has-not-fully-accounted-for-the-money–samwu/

Author: Isaac Mahlangu

Particulars

  1. A complaint was lodged on 9 January 2025 by Ndou Attorneys. The complaint included and referred to a “letter of demand” to the writer of the article, dated 17 December 2024, which demanded that the newspaper revise the article, failing which the complainants would “proceed with a notice of motion” to compel the newspaper to do so. The letter of demand also included a copy of the full statement issued by the firm’s chair, Phumudzo Ndou, to the newspaper before publication.
  2. On 30 January 2025, the Sunday Times responded to the complaint, through the office of Robn Wheatley, legal adviser to Arena Holdings, the newspaper’s publisher.
  3. A rejoinder was received from Ndou Attorneys on 5 February 2025.
  4. After studying the documents, I decided to hold a hearing to clarify a few points. John Matisonn, public representative on the adjudication panel, and Heather Robertson, media representative, kindly agreed to form a panel with me.
  5. A hearing was held on Zoom on 7 March. The complainant was represented by Phumudzo Ndou, chair of Ndou Attorneys.  The Sunday Times was represented by Robin Wheatly, with Isaac Mahlangu, the author of the article also present.
  6. We take into account the various submissions filed in this matter. The substance of the complaint is most substantially presented in the letter of demand sent to the newspaper in December.

The article

  1. The article reports on a billing complaint lodged by the SA Municipal Workers’ Union (Samwu) against Ndou Attorneys. The complaint was reportedly lodged with the Legal Practice Council (LPC), claiming, among other things, that the legal firm has not fully accounted for around R18m it was paid.  The complaint is also that the firm did not remove itself from pending matters, as requested, and that it withdrew from the union’s panel of attorneys rather than account for the money it received.
  2. The complaint is also that the attorneys overcharged the union at R3000 an hour. The report refers to documentation supplied that appears to show that the amount was agreed between the parties.
  3. The matter is still pending before the LPC.
  4. The article quotes Ndou as saying the real problem is that the union is in financial trouble, and that it actually owes the firm a further R18m. He is quoted as saying his firm has approached the High Court to recover the amount owing.
  5. On the claim that his firm was not withdrawing from cases, he is quoted as saying notices to withdraw were being filed, but the process was still ongoing due to “the complexity and volume” of cases. The firm had withdrawn from the panel after the union failed to pay an account.
  6. The report quoted the union’s complaint, and their deputy secretary Nkhetheni Muthavhi as declining to comment further. The LPC is quoted as confirming the complaint is being processed.

The complaint

  1. The complaint is that the article infringes several clauses of the Press Code, 1.1, 1.2, 1.3. 1.7, 1.8, 1.10, 1.11, 2.1 and 3.3. It is not always completely clear which alleged breach relates to which section.  The following will deal with the elements of the complaint as they emerge from the various documents, matching them, where possible, to clauses of the Press Code.

Complaint: Material omission

Arguments

  1. The complaint is that the article failed to mention that Samwu offered to settle costs, which would have provided strong evidence that their claim of not owing the firm money is unfounded.
  2. Furthermore, the complaint is that the article omitted to say that Ndou was seeking to have Samwu liquidated, which would illustrate the union’s financial difficulties and also undermine their claim.
  3. Also, the complaint is that the payment arrangement between the two parties was not mentioned, which confirms that Samwu received invoices, and therefore that their claim of a lack of proper accounting was baseless.
  4. This missing information would have indicated the validity of Ndou’s claim for unpaid invoices.
  5. The respondents point to a line in the article in which Ndou is quoted as saying a payment arrangement was agreed at the start of the contract. In other words, the point was not omitted.
  6. In the complainant’s rejoinder, the complaint is restated. No argument is advanced for why the line referenced by the respondent is insufficient, though the complainant says that the newspaper failed to disclose that they had been supplied with a document outlining the payment arrangement. The offer to settle legal costs undermines the union’s claim that R18m have not been accounted for, and its omission was deliberate, aimed at supporting the union’s account, says the complainant.

Discussion

  1. In a case of this kind, the media’s responsibility is to provide fair coverage of a dispute, which it does by providing a fair summary of both sides’ arguments. It is only if a material detail is left out that an article can be said to be unfair and therefore in breach of the Press Code.
  2. The question then is whether the details identified amount to a material omission. These are
    • The alleged offer to settle costs;
    • The payment arrangement; and
    • The intention to seek liquidation.
  3. We will discuss these in reverse order.
  4. It is true that the article does not mention Ndou’s specific intention to seek the union’s liquidation. It quotes Ndou as saying the union is insolvent and technically illiquid, and that his firm is going to court to recover unpaid fees.
  5. Though the intention to seek liquidation would have added a specific detail, its omission is not a fatal flaw. The article makes Ndou’s position very clear, that the union is in financial difficulty, is technically insolvent and owes him money.
  6. Reference to the payment arrangement is in fact in the article.
  7. The respondents treat the offer to settle costs and the payment arrangement as the same matter.
  8. No argument was made for why the offer to settle costs needed specific and separate mention, though it is clear that the complainant sees the two points as important evidence against the union’s claim.
  9. However, it is perfectly possible for a payment dispute to arise despite various kinds of arrangement between two parties, and so it is not clear that the offer to settle costs and the payment arrangements constitute conclusive evidence supporting Ndou’s position.
  10. The article clearly reflected Ndou’s position that the union’s financial difficulties are the real problem, that the case filed against him is without merit and that the union, in fact, is in debt to his firm. This emerges clearly despite some details not being reflected.

Finding

  1. We find that the article did not breach clauses 1, 1.2, 1.3. or 1.7 of the Press Code by omitting the details mentioned.

Complaint: Failure to publish right of reply

Arguments

  1. The complainant says that they were assured their response would be captured accurately, but this was not done.
  2. The respondents say that Ndou’s response was included but that they are not obliged to record it verbatim.
  3. The complainant’s rejoinder does not return to the issue.

Discussion

  1. The article included extensive material from the response sent through by Ndou. His firm’s position is reflected in the headline and introductory paragraph, while more detail is provided from the 6th paragraph onwards.
  2. This does not settle the question of whether material points were left out. However, those were dealt with separately.

Finding

  1. We find that the article did not breach clause 1.8 of the Press Code.

Complaint: Failure to reflect allegations of irregular car rental by the union

Arguments

  1. The complaint is that the newspaper failed to report information that the union spent R80 000 a week on car rental, indicating financial irregularities.
  2. The respondents say the claim was irrelevant to the substance of the article, which dealt with the union’s complaint.
  3. The complainant does not return to the issue in his rejoinder.

Discussion

  1. Again, the failure to include specific information only becomes material if it so important that its omission leaves one side of a dispute unfairly represented.
  2. The question then is whether the claim of a specific irregularity is such a material detail.
  3. The article clearly reflected Ndou’s position that the union’s financial difficulties are the real problem.
  4. Alleged financial irregularities may well be an important aspect of the union’s alleged financial difficulties. But they do not impact on the core focus of the story, which is on a fees dispute between the union and the legal firm. That dispute is common cause.
  5. Ndou’s overall argument on the causes of the dispute was sufficiently covered.
  6. Though the claim could form the basis of a separate report, there was no obligation to include it in this one.

Finding

  1. We find that the article did not breach clauses 1.1, 1.2, 1.3 or 1.7 of the Press Code in leaving out the claim of specific financial irregularities.

Complaint: Failure to investigate the union’s complaint

Arguments

  1. The complaint is that the union’s complaint to the LPC was not subjected to the newspaper’s own scrutiny, and that this indicated a bias in that it accepted the union’s position at face value.
  2. The respondents say that all relevant parties were approached for comment, and that this represented sufficient investigation.
  3. In his rejoinder, the complainant says that a phone call to him does not represent enough investigation and that publication should have been postponed in order to interrogate the union’s evidence properly.

Discussion

  1. As pointed out above, the media’s responsibility is to present both sides of a dispute fairly. Though there are occasions where journalists elect to interrogate claims made against another party, that cannot be a universal requirement. As disputed claims are often made in public, the Press Code requires the media “to seek, if practicable, the views of the subject of critical reportage in advance of publication …” (Clause 1.8)
  2. In court cases and other dispute being handled by a competent authority, the obligation is to reflect both sides’ arguments fairly, not to replicate the investigation carried out by the forum adjudicating the issue.
  3. In this case, the LPC is dealing with the substance of the dispute.
  4. The obligation on the Sunday Times was to seek out the views of the various parties involved, and they did so.

Finding

  1. We find that the article did not breach the Press Code by failing to investigate the union’s claims.

Complaint: Failure to exercise sufficient care with regard to the complainant’s reputation

Arguments

  1. The complaint is that the report overall failed to exercise sufficient care with regard to the complainant’s reputation, by failing to represent the full set of facts available and therefore reporting in a biased way.
  2. The respondents do not directly address the question of reputation but defend the report in all detailed respects.
  3. In his rejoinder, the complainant says the respondents’ failure to address the issues complained of constitute a “tacit concession” that the article is biased.

Discussion

  1. The substantive points of criticism have been addressed above. A payment dispute over legal fees involving an important trade union is clearly a matter of public interest.
  2. In reflecting the complainant’s version as they did, the respondents exercised sufficient care with regard to reputation.

Finding

  1. We find that the article did not breach clause 3.3 of the Press Code.

Ruling

  1. The complaint of a breach of clauses 1.1, 1.2, 1.3, 1.7, 1.8 and 3.3 is dismissed.
  2. No case has been made showing a breach of clauses 1.10, 1.11 or 2.1.

Appeal

  1. The Complaints Procedures lay down that, within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected]

Unanimous ruling, by
Franz Krüger, Deputy Press Ombud
With John Matisonn, public representative, and Heather Robertson, media representative
20 March  2025

 

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