Appeal Hearing Decision: Yengeni Tony vs. Sunday Sun

SUMMARY

The headline to the story in dispute read, Hot babe & cold war! – Tony and Cashflow ‘ignore each other’ (published on 28 February 2016).

This ruling by the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

The story said that ANC veteran Tony Yengeni was allegedly embroiled in a nasty cold war with businessman Jabulani “Cashflow” Ngcobo over a woman, Dineo Makalima. The article quoted three unnamed sources, and Yengeni reportedly denied knowing any of them.

Yengeni inter alia complained the article falsely stated that he had been dating Makalima and that he had been embroiled in a war with Ngcobo – both of whom had been unknown to him and concluded that the story was an attack on his integrity and reputation and added that his privacy and dignity had been violated.

The Ombud said the newspaper had supplied him with the names and contact numbers of its sources. He said he was satisfied that those sources seemed to be credible and knowledgeable. He also considered that none of the statements in dispute was stated as fact in the article – all of them were attributed to sources; and that he had no way of knowing whether the dates of pictures provided by Yengeni were authentic.

The complaint was dismissed.

Judge Ngoepe granted Yengeni leave to appeal, with the directive that each party could submit a report by an expert on the authenticity of the photos in question.

The Appeals Panel could not establish the authenticity of the photos. However, at the hearing, the newspaper said it did not know whether the journalist did put the relevant allegations to Yengeni for comment. The Panel then decided that the journalist did not put the allegations to Yengeni – which was in breach of the Press Code.

Sunday Sun was directed to apologise to Yengeni for publishing critical allegations against him without first giving him an opportunity to comment.

THE RULING ITSELF

YENGENI TONY                                                                                          APPLICANT

VERSUS

[1]     This is an appeal by Mr Tony Yengeni (“appellant”) against the Ruling of the Press Ombud dated 6 June 2016 in which the appellant’s complaint against Sunday Sun (“respondent”) was dismissed.  The complaint arose from an article by the respondent published on 28 February 2016 with the headline “HOT BABE AND COLD WAR”. The sub-heading read “Tony and Cashflow ‘ignore each other’”.

[2]     Amongst other things the story said that appellant had a relationship with one Dineo Makalima, who had allegedly dumped him for Cashflow; she dumped him because he allegedly cheated on him with two other women.   Photos were published, depicting appellant with the other women on 8 January 2016 in a cafe at Rustenburg, where it was alleged the appellant was attending a conference of the African National Congress.  It was alleged that the appellant and Cashflow could not even talk to each other over Dineo.

[3]     The appellant complained that the story was an attack on his dignity and reputation.  He denied ever dating Dineo.  He also denied that he was in Rustenburg on that day; he said he was in Cape Town instead.  On the other hand, the respondent denied that the story constituted an attack on the appellant’s dignity and reputation, and insisted that the appellant was in Rustenburg on the day in question.  The respondent said it relied on three credible sources.

[4]     Each side submitted photos in support of its case. Respondent relied on the photos it had published, and appellant submitted photos of himself which he said had been taken in Cape Town on the very same day in question.  The Ombud found he could not rule on the authenticity of any of the photos.  In the end, he held that he could not find against the respondent as it had relied on three sources; this was after he was given the details of the sources, apparently their contact details as well.  It is not clear whether the Ombud actually interviewed them, but he was satisfied as to their reliability.

[5]     Leave to appeal was granted to the appellant, with the directive that each party could submit a report by an expert on the authenticity of the photos in question.  The reports did not take the matter any further as the authenticity of the photos continued to be in dispute.  A report by respondent’s expert on the appellant’s photos said that there was an apparent manipulation of the photos with regard to the date stamp and the co-ordinates. Another problem for the appellant is that one of the photos submitted by the respondent depicted him apparently with his arm around a woman described as Dineo, whom appellant says he does not know but who the respondent alleged she was also in Rustenburg on 8 January 2016 with the appellant.  Whether one locates appellant in Cape Town or Rustenburg on the day in question, be it through the photos or affidavit, does not address the complaint of damage to dignity or reputation.  As counsel for the appellant correctly argued, whether or not the appellant was in Rustenburg on 8 January 2016, is a red herring.  This is because, irrespective of where he was on that day, his complaint about damage to his dignity and reputation is based on allegations about his alleged affair with Dineo and the other two women.  The focus of this Decision must therefore be on these allegations.  The allegation that he was not on speaking terms with Cashflow cannot per se be defamatory, unless it is tied up to the alleged affair with Dineo.

[6]     Referring to the article itself, counsel for the appellant complained about the very opening sentence which reads: “ANC veteran Tony Yengeni is at it again”.  The sentence cannot necessarily be construed as being defamatory; it would depend on what it is that the appellant is said to be up to; in other words, while it was certainly not complementary, much more was needed because a mere criticism of a person would not necessarily amount to defamation. But, being non-complimentary, it sets the tone and is therefore not irrelevant; it is connected to the allegations referred to in the previous paragraph, and which could be defamatory, namely, appellant’s alleged affair with the three women.  But the problem for the appellant is that what is reported is being described as being mere allegations.  A reader would therefore understand that what was said were mere allegations, emanating from certain sources; they would not be understood as facts.

[7]     The Ombud says that he was given the names of respondent’s three sources, “their relevance to the case, and their contact numbers.  I am satisfied that these sources seem to be credible and knowledgeable”.  Apparently he interacted with them, and we have no reason to question his judgment of them.  He also made the point we make above, namely, that “none of the statements in dispute was stated as fact in the article – all of them attributed to sources.”   The sources cannot, of course, be identified. The complaint about defamation cannot therefore stand. That, however, is not the end of the matter. During the hearing of the appeal, Mr Vos said he did not know whether the journalist did put all the above allegations to the appellant for comment. He conceded that that would be sloppy reporting. The allegations constituted critical reportage on the appellant which should therefore have been put to him for comment; accordingly, article 1.8 of the Code was breached. Of course, if the allegations were put to the appellant and he had elected not to answer thereto, the respondent would have reported so.

8. For the reasons given above, the following Order is made, which the Director of the Press Council is hereby specifically authorised to implement:

8.1 Sunday Sun has acted in breach of article 1.8 of the Press Code in that it did not give Mr Tony Yengeni the opportunity to respond to specific allegations before publishing same;

8.2 Sunday Sun must apologise to Mr Tony Yengeni for publishing critical allegations against him without first giving him the opportunity to comment;

8.3 Mr Yengeni should, if he so wishes, submit his response to the allegations within 5 days of the receipt of this Decision to the Director of the Press Council;

8.4 Within 5 days of receipt of Mr Yengeni’s proposed response, Sunday Sun must submit to the Director for his prior approval, a draft of its apology and/or a version of Mr Yengeni’s response sought to be published, for publication within the period stipulated by the Director;

8.5 The apology and/or Mr Yengeni’s version to enjoy the same prominence as the allegations.

Dated this 9th day of October 2016

Judge B M Ngoepe, Chair, Appeals Panel

Mr M Sanglay, Member, Press Representative

Mr N Woudberg, Member, Public Representative