Appeal Decision: Tobeka Madiba-Zuma vs Isolezwe

Isolezwe                                                  Applicant

Vs

Tobeka Madiba-Zuma                            Respondent

Matter Number 101/2014

Decision: Application for Leave to Appeal to the Appeals Panel

1. The Isolezwe newspaper, hereinafter referred to as the applicant, applies for leave to appeal against the Ruling and sanction of the Ombudsman, handed down on 14 May 2014.  Ms Tobeka Madiba-Zuma, hereinafter referred to as the respondent, opposes the application.  The Ombudsman had upheld respondent’s complaint against the applicant.  The complaint followed a story which was published by the applicant on 23 March 2014 concerning the respondent.  Two follow-up stories were published on the same issue.
2. The story giving rise to the complaint may briefly be summarized.  In its story of 23 March 2014, the applicant carried a story which said that the respondent had agreed to sell a vehicle to a certain Ms Mbali Khumalo for an amount of R 46 000.  This story was sourced from the said Ms Khumalo.  It went on to say that Ms Khumalo paid R40 000 to the respondent and that, despite promises, respondent failed to deliver the vehicle as agreed.  The allegations effectively accused respondent of fraud, and reported that the complainant was going to open a criminal case with the police against the respondent.  According to the story, the car sold by the respondent belonged to her mother, a certain Ms Dlamini.  As it turned out, and also admitted by the applicant subsequently, the respondent had nothing to do with that transaction nor did her mother have any such car.  In a follow-up story, it was in fact stated that the real owner of the vehicle in question said that he had no connection whatsoever with the respondent.  It also turned out that there were different versions regarding the colour of the vehicle in question.  In brief, it is common cause that all these allegations against respondent were not true.  It is not necessary to go into further details.
3. The crux of respondent’s complaint with Ombudsman’s Office was that, inter alia, the story contained false allegations against her; that she had not been given enough time prior to publication to respond (actually, she was effectively only given about 45 minutes); that the story contained unsubstantiated allegations which caused harm to her reputation and dignity.  The respondent complained that the journalist did not verify the claims independently and objectively but instead published a version from one source without substantiating or verifying it.  This statement must be correct because, for example, whereas the story said that respondent sold a car which belonged to her mother “C A Dlamini” who lived in “Mpendle”, respondent’s mother was not that person; her mother was in fact one “Nomfanelo Mabhiya” who did not even live in Mpendle and who did not even own a car, let alone that particular one.
4. After a careful analysis of the complaint, the Ombudsman found that the applicant breached articles 2.1, 2.4 and 4.2 of the South African Press Code.  The sanction imposed was for the applicant to “unreservedly apologise” and to publish a summary of the Ombudsman’s findings against it.  He directed as to where the sanction should be located in the paper.
5. In support of its application for leave to appeal, the applicant contends that it was not for the Ombudsman to dictate that the apology be under the masthead; it contends that the Ombudsman was wrong in that he interfered with editorial policy.  I do not agree with this argument.  The seriousness of the allegations against the respondent seems to have been lost to the applicant; in fact, the story imputed criminal conduct (fraud) to the respondent.  I also do not think that the follow-up stories provided any meaningful repair to the respondent’s dignity; after all, they did not contain an apology.  As the Ombudsman says, it is one thing to publish a complainant’s version, but a different thing altogether to say you were wrong; something which did not happen.
6. For the reasons given above as also for those given by the Ombudsman, I am of the view that the applicant has no reasonable prospects of success that the Appeals Panel would overturn the Ombudsman’s Ruling, or his sanction.  Accordingly, Isolezwe’s application for leave to appeal against the Ombudsman’s Ruling and sanction, dated 14 May 2014, is dismissed.

Dated: 7 June 2014

Judge B M Ngoepe, Chair, Appeals Panel