Appeal Decision: Tony Yengeni 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 Chair of the Appeals Panel Judge Bernard Ngoepe 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
• repeatedly flew to Port Elizabeth, Cape Town and Limpopo for “baecations” – he called this a ploy to spread lies about him.

He 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 he was satisfied that the newspaper’s sources seemed to be credible and knowledgeable.

Dismissing the complaint, 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 he had no way of knowing whether the dates of pictures provided were authentic.

Yengeni then applied for leave to appeal.

Judge Ngoepe said there were two sets of photographs – both of which could not be correct. He added that he was also concerned that the publication’s substantiation of the allegation of “cold war” between Yengeni and Cashflow, was rather thin, even though it had been attributed to sources.

He granted leave to appeal. Each party had to submit an expert report on the authenticity of the photos on which they relied, regarding both the date and the time they were taken. The judge set certain conditions for the parties to continue with the matter.

THE RULING ITSELF

YENGENI TONY                                                                                          APPLICANT

VERSUS

[1]     In his Ruling dated 6 June 2016, the Ombud dismissed the complaint lodged by Mr Tony Yengeni (“applicant”) against Sunday Sun (“respondent”).  The complaint followed a story published by the respondent on 28 February 2016,   with the headline “HOT BABE & COLD WAR”.  The sub-heading read: “Tony and Cashflow ‘ignore each other’”.

[2]     The story said that applicant had had a relationship with one Makalima Dineo.  He was however allegedly dumped by her as she felt he was cheating on her.  In this respect, some photos alleged to be that of the applicant with some two women were published as supportive of the allegation. The story went further to say that Dineo thereafter got into a relationship with one Cashflow; whom she even visited at his flat.  The upshot of all this was that the relationship between the applicant and Cashflow became so frosty that they did not speak to each other, hence the sub-headline.

It must also be stated that for his part, the applicant also submitted photos to show that contrary to the respondent’s photos showing him in the company of Dineo and Cashflow in Rustenburg on 8 January 2016, he was in Cape Town with friends on that very same day as well as the 9^th.

[3]     The applicant complained that the story was an attack on his integrity and reputation. It was false to say he ever dated Dineo; or that he was embroiled in a “cold war” with one Cashflow.  In fact, he says he did not know either of the two people. On the other hand, the respondent relied on the photos and also said it had relied on three sources.  It argues that, on that basis, it regarded the story as being reasonably true and, as the applicant was also a public figure, published it.

[4]     There are two points which weigh with me in considering this application:

4.1    As there was a competing set of photo’s, the Ombud declared that he could not decide as to which one was authentic, and then proceeded to consider the matter on the basis of other evidence.  As the applicant correctly points out, photo’s constitute real evidence.  The two competing sets cannot both be correct.  The matter reached a certain point where the authenticity of the one set or the other became crucial; because if for example, applicant’s photos are authentic as opposed to those of the respondent, respondent’s story could turn out be a contrived untruth.

4.2    I am also concerned that the respondent’s substantiation, if any, of the allegation of “cold war” between applicant and Cashflow, was rather too thin, even though attributed to sources.

[5]     In a recent application for leave to appeal (Kaiser Chiefs Football Club vs Soccer Leduma Matter No 1576/02/2015), I was persuaded to grant leave to appeal to Kaizer Chiefs Football Club under similar circumstances.  Kaiser Chiefs complained that Soccer Laduma falsely claimed that they had had a recorded interview with one of their players.  The club and the player not only denied that there was such an interview, but also that the voice recorded was that of the player.  They submitted to the Ombud what they say was a genuine recording of the voice of the player.  Soccer Laduma stuck to its story that its recording was that of the player concerned.  After listening to both recordings, the Ombud declared that he was not a voice expert and could therefore not make a determination.  After considering the matter on other basis, the Ombud ruled against Kaiser Chiefs. The latter lodged an application for leave to appeal. Leave was granted on condition that the two parties would each submit an expert report on the authenticity and the identification of the voices, before the appeal could be enrolled for hearing. I am inclined to do the same here because a lot depends on the authenticity of the photos and the dates and time they were taken.  It is simple: Cape Town and Rustenburg are at least 1,400km apart; the applicant can’t have been at both places on the same dates and at the same time! It is impossible.

[6]     For the reasons given above, the following Orders are made:

6.1    Leave is hereby granted to the applicant to appeal to the Appeals Panel against the Ombud’s Ruling dated 6 June 2016.

6.2    Before the appeal is enrolled for hearing, each party must submit an expert report on the authenticity of the photos on which they rely and which were submitted to the Ombud, regarding both the date and the time they were taken.

6.3    The reports referred to in 6.2 above shall be submitted within 14 days of receipt of this Decision, or within such further time as may be granted upon request made before the expiry of the 14 days.

6.4    Should the respondent fail to submit the said report within the stipulated period, the applicant may apply for the enrolment of the appeal for hearing, failing which, the leave granted shall lapse.

6.5    Should the applicant fail to submit the said report within the stipulated period, the leave granted shall lapse, provided that the respondent, if it so chooses, may apply for the enrolment of the appeal for the hearing.

Dated at Pretoria this 5^th day of July 2016.

Judge B M Ngoepe, Chair, Appeals Panel