By Nomfundo Manyathi-Jele 

The Press Ombudsman, Johan Retief, has found the Sunday Times in breach of s 1.1 of the Code of ethics and conduct for South African print and online media (the Code) which states: ‘The media shall take care to report news truthfully, accurately and fairly.’

This finding comes after Eastern Cape attorney, Zuko Nonxuba complained about a story in the Sunday Times (Sabelo Skiti and Monica Laganparsad ‘The tragic tale of a penniless SA millionaire’ Sunday Times 17 January 2016 at 1 (www.timeslive.co.za, accessed 12-4-2016)).

The article reported that a young man, Avela Mathimba (26) was awarded a total of R 9,6-million in two separate damages claims against the Road Accident Fund (RAF) and the Eastern Cape Department of Health, which was paid to his lawyer in 2013. According to the article Mr Mathimba apparently never received a cent.

The article quoted Mr Mathimba as saying that, when he ‘grilled’ his lawyer about the money, Mr Nonxuba rushed to court with an application to have a curator appointed to manage Mr Mathimba’s affairs. ‘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,’ the story said.

According to Mr Mathimba, Mr Nonxuba raised the issue of his mental state to prevent him from getting his money. He said he had seen a court order that clearly said the RAF would pay Mr Nonxuba (his legal fees) directly. ‘When I confronted him [Nonxuba] he said we could maybe get R 20 000, but I later found out he claimed for R 13-million,’ the article quoted Mr Mathimba.

The article also stated that a former client of Mr Nonxuba, Phumzile Masekwana, told them she had received just over R 850 000 out of a R 1, 8 million payout, meaning that just under R 1 million of the RAF payout went to fees. Another client, Zukile Tutsu, said he had been paid R 700 000 out of a total payout of R 5,6 million by the RAF and the provincial department of health. He said the payout was made in 2013 and that Mr Nonxuba had promised to pay the balance the ‘next Wednesday’.

Mr Nonxuba complained that –

• the story was selective in that it failed to reflect the contents of existing court reports (which confirmed that his conduct in maintaining the proceeds of a damages award in his trust account was in accordance with a valid court order);
• delays occurred primarily because of Mr Mathimba’s new attorneys (not because of his own actions); and
• no expert evidence had been produced to suggest that he had acted wrongfully.

According to the Press Ombud, his complaint boils down to misleading and unfair (and not to inaccurate) reporting.

According to the ruling, the legal editor of the newspaper, responded by saying that the article was not a court report, but rather a human interest story about a young man who was surviving on a pittance when he, at least on paper, was a millionaire.

She submitted that the court cases were important aspects of the story because they arose from an accident which left Mr Mathimba a paraplegic, and they resulted in him being awarded pay-outs that should to some extent compensate for his suffering.

She argued that nothing in the Code prevents the newspaper from using court documents to write human interest stories, nor does anything in the Code compel the publication to tell such stories only through court documents. She added that Mr Nonxuba has not pointed out any alleged breach of the Code. He was given ample opportunity to respond to queries and his responses were fulsomely covered in the newspaper.

The legal editor denied that the story failed to reflect the contents of the court records and the facts therein. ‘In fact, we submit, we did cover the main points made by both parties insofar as they were relevant to the story.’

‘She adds the accusation that Sunday Times failed to reflect that the delays appear to be on account of steps taken by [Mr] Mathimba is without merit. “At best, that contention is Mr Nonxuba’s opinion. While the story makes it clear that Mr Mathimba has instituted court action, this has been to defend his interests, as he i[s] entitled to do. It is not very convincing to imply that these efforts to gain control of his payout is the reason for the delay in receiving it. He was, after all, injured in 2004 and the payout was made to Mr Nonxuba in 2013. Mr Mathimba’s court action was also instituted only after a curator was appointed as a result of action by Mr Nonxuba”’, the ruling states.

‘She describes as “frivolous” the accusation that the article failed to reflect the absence of evidence showing that the orders regarding the curator bonis were erroneous or unreasonable – saying, “The story makes it clear that these were orders of court,”’ the ruling states.

She also denied allegations that the Sunday Times did not speak to Mr Tutsu and Ms Masekwana. She went on to supply translated transcripts of the interview which was originally conducted in isiXhosa.

According to the ruling, in his response, Mr Nonxuba argued that ‘had the reporter correctly reported the contents of the court papers, the following would have been disclosed:

• He did not “rush to court” for ulterior and unethical purposes (to have a curator appointed to investigate the need to appoint a curator bonis to manage these funds in Mathimba’s interests) – he went to court for the purposes expressed in court papers (an order was obtained in terms of an agreement between himself and Mathimba’s legal representative at court to protect the funds realized for his ultimate benefit);
• This court documentation included a number of medico-legal reports which substantiated Mathimba’s claims for damages, and the settlement of these claims for damages was favorable to him;
• The report of the curator bonis (an independent advocate, appointed by the court) clarified that he (Nonxuba) had no role to play in respect of investigations into the matter, and was not responsible for any delays in the paying out of the funds;
• The application for the appointment of this curator was supported by the Law Society of the Northern Province (he quotes from a letter by the Law Society to substantiate his argument);
• Mathimba engaged a number of sets of further attorneys, who thereafter sought to have the earlier order granted by agreement set aside on a basis which had subsequently been held by the High Court to be without any legal or factual foundation;
• The subsequent (unsuccessful) “interlocutory applications” brought by Mathimba’s more recent attorneys led to significant delays in the finalisation of the initial application; and
• His actions were determined by the effect of the court order, which was that the proceeds of the damages claim be held in trust by him pending the outcome of the application proceedings. He says the order by agreement stated, “In the interim and pending the finalisation of this application the Applicant is ordered to retain the proceeds of the damages claims in Trust.” After Mathimba terminated his mandate, the next attorney should have taken steps to secure a release or partial release of funds as considered by the High Court (if necessary).’

Mr Nonxuba concluded by saying: ‘In these circumstances, the report in question contains an unjustified gloss and innuendo, is highly and unfairly selective, distorts the true position, and is grossly unfair.’

In his analysis the Press Ombud noted that Mr Nonxuba’s complaint is that the story failed to reflect the contents of existing court reports  which validated his actions, and that the delays in the payout of the money to Mr Mathimba was not the former’s fault – therefore, the reportage unfairly put him in a bad light.

He also added: ‘I do not believe that the story can rightfully be described as a human interest article, as Smuts argues. True, the text does contain elements of human interest – but the many references to fraud in general (details about RAF’s litigation) and to Nonxuba in particular (the RAF has launched a forensic investigation into several claims paid to his firm) took the article some way out of the realm of “human interest” and into the sphere of hard news. (Had the story been a human interest one only, it would have focused much more on the hardship that Mathimba had been suffering despite the money due to him.)

‘Smuts’s argument that the article was not court reporting is correct, of course – but still, when allegations such as those contained in the story are made, the journalists should ensure that they do not misrepresent court documents in the sense that the reportage reflects unfairly on Nonxuba. She is also correct that a newspaper may use court documents to write human interest stories and that a publications is not compelled to tell such stories only through court documents. Nonxuba’s main complaint is not so much about what was written, but rather about what was omitted.’

Mr Retief found that it was unfair to Mr Nonxuba not to balance out Mr Mathimba’s statement about ‘rushing to court’ with Mr 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. He added: ‘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).’

Section 8 of the Complaints Procedures distinguishes between minor breaches (tier 1), serious breaches (tier 2) and serious misconduct (tier 3). The level of breach of the Sunday Times in this case was tier 2.

The Sunday Times was directed to publish this outcome on the same page on which the offending story was carried. ‘The text, which should be approved by [the ombud], should start with the sanction; and end with the sentence, “Visit www.presscouncil.org.za for the full finding”,’ he said. He added: ‘The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable. If the story appeared on the newspaper’s website, this text should be published there as well.’

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2016 (May) DR 11.