Appeal Hearing Decision: Sunday Times vs Zuko Nonxuba

SUNDAY TIMES                                                                                          APPELLANT

VERSUS

[1]     Sunday Times (“appellant”) appeals the Ruling of the Ombud dated 30 March 2016, given in favour of Mr Nonxuba Zuko (“respondent”).  The latter had lodged a complaint against the appellant following a story published by it on 17 January 2016, with the headline “The tragic tale of a penniless SA millionaire”.  The penniless person referred to was a certain Mr Mathimba (“Mathimba”).  The respondent, a practising attorney, had successfully sued the Road Accident Fund on behalf of Mathimba following his involvement in a car accident.  Respondent also successfully sued, on behalf of Mathimba, the Eastern Cape Department of Health for malpractice.  Both the RAF and the Department paid the respective amounts awarded as damages into respondent’s trust account. The payments were made in 2013.  Despite all these monies, the story went on, Mathimba, who was confined to a wheelchair, remained poor.  At one time he confronted respondent about his money (the RAF payment), and in this respect, the story read: “He says that when he grilled his lawyer about the money, attorney Zuko Nonxuba rushed to court with an application to have a curator appointed to manage Mathimba’s affairs”.   The story also reported on other people, in the same area in which Mathimba lived, who also complained that respondent was not paying over their monies.  There was also reference to court papers which had been filed by both the respondent and Mathimba, in respect of the dispute about the appointment of a curator for the latter.  He was disputing the need for such an appointment.

[2]     The respondent had complained i.a that the manner in which the story was reported was in violation of article 1.1 of the Code, in that it was not balanced.  This centred around the allegation that respondent “rushed to court” when confronted by Mathimba for an appointment of a curator for him.  The Ombud held as follows:  “It was unfair to Nonxuba not to balance out Mathuma’s statement about ‘rushing to court’ with Nonxuba’s argument that his actions were determined by a court order – which may have left the impression that he had acted in haste to cover for himself.  If this was true, Sunday Times should have produced evidence to provide reasonable substantiation for such a potentially damaging allegation (which it did not do).  This is in breach of Section 1.1 of the Code of Ethics and Conduct …”. In the end, the appeal really turns on what is said above by the Ombud.

[3]     Mr Mpahlwa argued that what was reported was a so-called hard story, the correctness of which had to be established by the appellant, which was not done.  In other words, he took the Ombud’s view, basically.  On the other hand, Mr de Klerk, for the appellant, argued that the story was a mixed bag: a comment to some extent; and a so-called hard story.  He also argued that it was based on court documents which had been filed by respondent and Mathimba.  There was also some argument about whether or not the story was a so-called human interest one.  Of course, if it was a comment or an opinion by Mathimba, that would be the end of the matter.  There is a lot to be said for this argument though. But as said above, the appeal revolves on the Ombud’s above statement. We therefore need to determine whether this basis of his finding is correct; i.e was the reportage indeed not balanced as he found?  Did the appellant fail “to balance out Mathumba’s statement about ‘rushing to court’ with Nonxuba’s argument that his action were determined by a court order…”?  Two points negate the Ombud’s finding.

3.1    Firstly: In the same paragraph in which the story says respondent “rushed to court” to have a curator appointed, the following sentence immediately follows: “The attorney cited the possibility of brain damage, his client’s ‘tender years’ and ‘limited education’ and fears that his money would be misspent by his family.”  Three different reasons are given not only explaining why respondent would go to court, but also be justified to do so without delay. These reasons are, at least prima facie, sound.  The statement that respondent rushed to court cannot, in light of these three reasons therefore be said to be “potentially damaging allegation” or be seen to be “in haste to cover” respondent. Any responsible attorney would be entitled to act swiftly under the circumstances.

3.2    Secondly, the Ombud says that, as a balancing out act, the story should have mentioned “Nonxuba’s argument that his actions (to keep the money and not pay out) were determined by a court order”. But the problem here is that such an argument by the respondent could not be true.  As at the time he went to court for the appointment of a curator, there was no court order that he should keep the money in his trust account and not pay it over to Mathimba. The only court order in existence then was the one dated 5 June 2013 ordering the RAF to pay Mathimba the money awarded as damages.  There was no additional order for respondent to keep the money in his trust account; that is, it cannot be correct of the respondent to argue that his “actions were determined by a court order” as there was no such order. It therefore seems that the Ombud was put under a wrong impression that there was such an order.

[4]     Whether one sees what was reported as a comment by Mathimba or as human element story or as based on court papers or as a hard story, the appeal must, for the reasons given about, succeed because, in any case, the appellant adequately mentioned respondent’s reasons for going to court, rushing or otherwise.

Dated at Pretoria this 30^th day of June 2016

Judge B M Ngoepe, Chair, Appeals Panel

Ms J Sandison, Press Representative

Mr P van der Merwe, Public Representative