Appeal Decision: Hosi TLP Nwamitwa and Others 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 chairperson of the Appeals Panel, Judge Bernard Ngoepe, was based on the Press Code that became effective on 30 September 2022
The applicants for leave to appeal were:
- Hosi TLP Nwamitwa, the head of the tribe on whose land 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, which owned the premises.
The article, written at the instance of one Mkhari, stated that Nwamitwa and VTAT had entered into an agreement lease in terms of which a non-profit organization of which Mkhari was part. Nwamitwa had leased premises belonging to VTAT that was situated in the tribal area of which she was the chief. Nkambule was her daughter; she also was a trustee of VTAT, as well as a board member of Seda, from which Mkhari’s organisation, known as the Hope Givers Foundation (HGF), was apparently to receive some funding from Seda and others. A dispute arose between VTAT and the HGF which resulted in the latter terminating the lease. VTAT then demanded damages amounting to R2.5m.
The gist of their complaint was that the article wrongly/unfairly/unbalanced said that the:
- princess abused her influence as a member of the board of Seda and as a member of the royal family to frustrate a project which had been initiated by HGF;
- applicants’ attorneys demanded from HGF payment of R2.5m Seda money to VTAT;
- headline put Nwamitwa in a bad light;
- newspaper did not consider the contents of documentation that contradicted the information given by Mkhari to the respondent; and
- applicants had not been approached for comment prior to the publication.
Upon considering all the documentation, Judge Ngoepe said he was satisfied that the applicants had reasonable prospects of success. He therefore granted them leave to appeal. He did not motivate his ruling, as that might have prejudiced members of the Panel of Appeals.
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 ON AN APLLICATION FOR LEAVE TO APPEAL
- The appellants in this matter are Hosi TLP Nwamitwa, Princess Tsakani Nkambule and the Valoyi Traditional Authority Trust; respectively first applicant (Hosi), second applicant (Princess) and third applicant (The VTAT). The applicants apply for 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 applicants against the Sunday World (respondent) following an article published by the latter on 23 July 2023 with the title: “Mkhari and traditional leader at war over ICT hub”.
- The gist of the report and its context was that the article, written at the instance of one Mkhari, stated that the first and in particular third applicant had entered into an agreement lease in terms of which a non-profit organization of which Mkhari was part, had leased premises belonging to the third applicant, situated in the tribal area of which first applicant was the Chief; second applicant was her daughter. Second applicant was a Trustee of the third applicant, as well as a board member of Seda, from which Mkhari’s organisation, known as the Hope Givers Foundation (HGF) was apparently to receive some founding, from Seda and others. In due course, a dispute arose between the third applicant and the HGF which resulted in the latter terminating the lease, as a result of which the third applicant demanded damages amounting to R2.5m. According to the applicants; Mkhari took to the media, some of whom declined to publish the story; the respondent did, hence the article in issue.
- A few complaints were that the article was wrong in certain respects which were the bases of some of the complaints: that the article said that the Princess abused her influence as a member of the board of SEDA and as a member of the Royal Family to frustrate a project which had been initiated by HGF; that the applicants’ attorneys demanded from HGF payment of R2.5m Seda money to the third applicant; that the headline referenced the first applicant wrongly and putting her in a bad light; that the article was inaccurate, not truthful or fair; that it was not balanced in that amongst others, the respondent did not consider the contents of documentation contradicting the information given by Mkhari to the respondent. It was also complained that the applicants had not been approached for comment prior to the publication.
- Certain complaints were upheld by the Deputy Ombud and sanctions imposed, while others were dismissed. Before me are only the latter. For the applicants to succeed, they need to show reasonable prospects before the Appeals Panel. It should be added that in respect of the complaints before me, the applicants had asked for an apology. I deal with the applicants collectively.
- Upon considering the complaints, respondent’s response and the Ruling, I am satisfied that in respect of the complaints mentioned below, the applicants have reasonable prospects of success to persuade the Appeals Panel:
5.1 Firstly, regarding the statement that the VTAT’s lawyers demanded R2.5m of the Seda funds: The complaint might have been misunderstood. In my view, it is not the applicants’ contention that they were not aware that HGF received money from Seda; they were quite aware, especially the Princess given her position. In fact to them as to where the money claimed came from was irrelevant and none of their business; all that their lawyers demanded was certain damages amounting to R2.5m resulting from the cancellation of the lease, irrespective of where HGF would get the money from. The applicants argued that there was a breach of articles 1.1 and 1.2.
5.2 Secondly, regarding the allegation that the Princess abused her positions at Seda and her royal standing to frustrate the ICT project: The applicants filed this complaint as a breach of article 3.3; that is, they complained that this defamed the Princess. The Deputy Ombud dismissed the complaint on the ground that the accusation was not put as a fact, but as an allegation. This raises the demands of article 1.8 of the Code. In this respect, it is noteworthy that the applicants contend that something different was put to the Princess for comment, and not this particular allegation. On the face of it, and on the basis of his own Ruling, the Deputy Ombud should have considered a possible breach of article 1.8.
6. The applicants have reasonable prospects of success in respect of the complaints mentioned in paragraphs 5.1 and 5.2; they are therefore given leave to appeal in respect of these complaints.
Dated this 11th day of March 2024
Judge B M Ngoepe: Chairperson
