Justice Ndaba vs. Sondag
This ruling is based on the written submissions of Mr Deon Lambert (from the attorney firm edward nathan sonnenbergs), for Mr Justice Ndaba, and the Sondag newspaper.
Complaint
Mr Justice Ndaba complains about a story in Sondag, published on 25 September 2011 (page 8) and headlined Justice done! SABC se man uit Londen huis toe gestuur (Justice Done! SABC’s man sent home from London).
Ndaba complains that the following statements in the story are false and/or defamatory, namely that he:
- was thrown out of London;
- spent taxpayer’s money on prostitutes;
- is referred to as a “jagse donner”;
- refused to pay a prostitute;
- was almost arrested as a result of the above;
- had to be “rescued” as an SABC Board member had to intervene to keep him out of jail;
- is referred to as a “katoolse taksgeldvermorser”;
- together with another person, wasted R400 000 of taxpayers’ money;
- was kicked off of the London Business School course;
- had sex with prostitutes at a sex party; and
- picked up two prostitutes from the street and took them to his hotel room.
He also complains that the:
- picture is photo-shopped; and
- newspaper did not ask him for comment prior to publication.
Analysis
The story, written by Virginia Keppler, says that Ndaba (together with another person) was “thrown out of London” and sent home after they have wasted taxpayers’ money on prostitutes. This reportedly came after they refused to pay the sex workers – which nearly led to their arrest. A member of the SABC Board then had to intervene to keep them out of jail. Keppler adds that the two men have wasted R400 000 between them. Both the London and Wits Business Schools then reportedly kicked them out of a course that these institutions jointly presented, upon which they were put on the first flight back to South Africa.
I shall now look at the merits of the complaint:
False, defamatory statements
Ndaba denies the veracity of the story as set out in his complaint above. This is his version of what happened:
- On September 1 he fulfilled all of the academic requirements and graduated from the course;
- As part of the graduation ceremony, Wits arranged for all 46 graduates to have dinner at a steakhouse;
- After the dinner, he and a few fellow graduates went out to celebrate even more (for which they paid themselves);
- They then took a taxi home, which he shared with, amongst others, two ladies;
- Upon arrival, the group parted ways and he went straight to his room on the third floor – alone;
- Much later he woke up from a loud commotion on the second floor, so he went to investigate – many of his fellow graduates have already done the same;
- They then discovered that it was the room of a man who had earlier exited the taxi together with the two ladies;
- The women were nowhere to be seen;
- The group informed him that the two ladies were trying to solicit money from the man who had been accompanied by the women – when he refused to pay them they called the Police;
- The Police interviewed this man, after which they left;
- The group then dispersed and he went back to his room;
- The next day (September 2), he spent the whole day at the BBC on SABC business;
- Later that day, a representative of Wits informed him that the man who was associated with the two ladies was compelled to return to South Africa with immediate effect;
- This representative also queried the events of the night before, knowing that he was one of the graduates who had gone out that night;
- The representative said that his possible involvement will be investigated – which has not materialized as yet; and
- He flew back to South Africa on September 3 to attend to urgent SABC work.
Ndaba concludes that he was “extremely shocked and horrified” at the story in dispute and adds that he has only learnt of the press’ interest in the matter when reading the article.
Sondag responds by pointing me to three subsequent stories in the Sunday Times and The Times that “show that essentially the same allegations were independently sourced by other publications”. In some way this justifies the reasonableness of its initial reporting, the newspaper argues.
The newspaper adds that its journalist:
- spoke on a number of occasions to a senior SABC employee, who provided her with the initial information on condition of anonymity – this source informed her in detail of the nature of the alleged incident (including specific dates and amounts of money), and also at times claimed to quote from an SABC report allegedly in his possession and relating to the incident;
- also interviewed one of the people who attended the course in London, who (also on condition of anonymity) independently confirmed the details of the incident and added further information about the incident, the course and the name of the other man involved;
- then twice called SABC spokesperson Kaizer Kganyago and also sent him an email at 22:16 on the Friday before publication, but says that he failed to respond in time;
- also contacted another confidential source “in a very senior position at the SABC” (who was not prepared to discuss the incident in detail, but did say that the Board was “very upset” about the matter);
- discussed the incident with Ms Shirona Patel from Wits and sent her an email, to which she responded by providing the university’s formal response; and
- repeatedly tried to contact Ndaba for comment and left at least two messages.
Note that my office is not a court of law, which means that it is not my task to establish if Ndaba is guilty or not or, for that matter, if the story is accurate. My sole interest in this matter is whether the newspaper’s reportage was justified, or if it was breaching the Press Code.
I take into account that Keppler:
- did not present the story as “the truth”, but rather as sources’ opinions;
- phoned Wits twice and the SABC quite a few times, all of which were in good time prior to publication;
- sent an email to Wits and to the SABC to obtain comment – the latter’s response (“We are not in a position to comment on any of those issues”) came too late for publication and the former’s comment was published; and
- used more than one source.
Based on the above, I am satisfied that Keppler was justified to report the way she did.
Her references to ‘jagse donner’ and ‘katoolse taksgeldvermorser’ are commentary that she based on information that was at her disposal; the nature of tabloid journalism should also be taken into account.
Picture photo-shopped
The story is accompanied by a rather large picture of a man who is in bed with two women. The parts of their bodies that can be seen are naked. The man’s head is that of Ndaba, but clearly it is not his torso. For some reason, one of the women wears a mask.
Ndaba complains that the picture is fabricated and “unlawfully engineered” in that his face has been cut from a previous picture and superimposed over the body of an unknown man. He says that this, as well as the inclusion of two half naked women, is “highly offensive” and a “complete violation” of his rights.
Sondag responds that the picture “was clearly presented as a graphic and not as a real photograph”. The newspaper says that the images on the graphic were “intentionally manipulated in an obvious way, so there can be no confusion about its nature”. It adds that the word “graphics” (in Afrikaans: “grafika”) appears at the bottom right of the picture.
The newspaper argues that Sondag often makes use of graphics for illustration and explains that, in a way, they are used instead of cartoons and are often meant to be humerous. It provided me with some examples to this effect and concludes: “Sondag’s readers could have been under no illusions regarding the nature and meaning of the graphic.”
Sondag also reminds me that I should keep its “tabloid style” in mind. This, amongst other things, boils down to graphically told stories, and being “heavy on pictures”, “highly stereotyped prose” and “melodramatic style”.
Ndaba “strongly rejects” the newspaper’s explanation regarding the “graphic”. He argues: “Unless it is boldly and clearly spelt out that the picture is a fabrication, it is reasonable for readers to assume that same is valid and true” – especially regarding readers who fall outside the paper’s regular audience, such as his family members. He complains that the picture is damaging to his reputation, career and family life.
He concludes that the fact that Sondag may have used graphics in the past does not justify this “unlawful conduct”.
Art. 5.3 of the Press Code states: “Pictures shall not misrepresent or mislead nor be manipulated to do so.”
The picture was manipulated, by the newspaper’s own admission.
The deciding factor here is that it is stated that the picture is a “graphic”. From other examples of “graphics” in the newspaper it is clear that this word is only used when a picture was doctored. This means that the newspaper did communicate to the public that the photograph was manipulated – which implies that it cannot be misrepresenting or misleading.
However, I have to voice some serious concern here. I am namely not sure that every reader understands what “graphic” means. Also, the text announcing “graphic” is really small. Although I cannot prescribe to publications, I need to point out that it would be better if the word “graphics” is used bigger, and maybe also be accompanied with an explanation of what it means. I accept that, in some cases, the manipulation of a picture is so obvious that it would not be necessary to explain it. However, there may be other cases where some kind of explanation would be helpful (as in this instance, I believe).
Not asked for comment
Ndaba complaints that the newspaper did not give him the opportunity to rebut the allegations made against him.
As stated above, the newspaper insists that Keppler did try, on several occasions, to contact him for comment, and that she left him some messages.
Ndaba “vehemently” denies this and argues that the newspaper’s neglect to contact him was unfair and irresponsible.
The newspaper provided me with credible evidence that it had tried to contact the SABC. I can safely assume that Sondag would have furnished me with similar evidences, had it tried to contact Ndaba. However, such proof was never forthcoming.
I therefore do not believe that Keppler did try to get hold of Ndaba and conclude that her assurances to this effect were misleading.
Finding
False, defamatory statements
This part of the complaint is dismissed.
Picture photo-shopped
This part of the complaint is dismissed.
Not asked for comment
The newspaper did not seek Ndaba’s opinion prior to publication and is therefore in breach of Art. 1.5 of the Press Code that states: “A publication should usually seek the views of the subject of serious critical reportage in advance of publication…”
Sanction
The newspaper is directed to:
- apologise to Ndaba for not trying to obtain comment from him prior to publication; and
- publish his side of the story, as stated in his complaint.
This text should be included in a summary of this finding (not the full ruling) and the sanction.
So: After setting the context, the story should start with an appropriate apology, as directed by this office. After that, a summary of Ndaba’s denial that he was involved in the alleged incident should follow. The newspaper may then elaborate on the parts of the complaint that were dismissed, if it wishes to do so. The text should end with the following words: “Visit www.presscouncil.org.za (rulings, 2011) for the full finding.”
The newspaper should furnish our office with the text prior to publication.
Appeal
Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be contacted at [email protected].
Johan Retief
Deputy Press Ombudsman