Sunday Times successfully appealed Press Ombud’s ruling over ‘The tragic tale of a penniless SA millionaire’ article

October 24th, 2016

By Kgomotso Ramotsho

The Sunday Times newspaper has emerged victorious, after appealing the decision that was taken by the Press Ombudsman, Johan Retief, on an article that was published on 17 January, Sabelo Skiti and Monica Langanparsad ‘The tragic tale of a penniless SA millionaire’ Sunday Times 17-1-2016 at 1 (see 2016 (May) DR 11). In Sunday Times v Zuko Nonxuba (unreported case no 1587/02/2016, 24-6-2016) the Ombud had found in favour of Eastern Cape attorney, Zuko Nonxuba, that the article written by journalists Sabelo Skiti and Monica Langanparsad, had breached s 1.1 of the Code of ethics and conduct for South Africa print and online media, that states: ‘The media shall take care to report news truthfully, accurately and fairly’. The article reported that 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. The claims were 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’ to have a curator appointed for Mr Mathimba.

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, Mr Nonxuba’s complaints boiled down to being 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.

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 Sunday Times was in breach of level two in this case.

The Sunday Times was directed to publish this outcome on the same page on which the offending story was placed. ‘The text, which should be approved by [the ombud], should start with the sanction; and end with the sentence, “Visit 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.’

The Sunday Times appealed the ruling based on the Press Ombud’s findings. According to the decision of the Appeal’s Panel, acting on behalf of the respondent, advocate Matthew 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.  On the other hand, Willem de Klerk, of Willem de Klerk Attorneys, argued for the appellant 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 the respondent and Mr 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,’ he said.

The panel was tasked with determining whether the basis of the Ombuds finding was correct. They had to determine whether –

  • the reporting was not balanced; and
  • the appellant failed ‘to balance out Mathimba’s statement about “rushing to court” with Nonxuba’s argument that his actions were determined by a court order.’

The Appeals Panel headed by Judge Bernard Ngoepe, found that two points negate the Ombud’s findings. Judge Ngoepe said: ‘In the same paragraph in which the story says [that the] 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.’ From these sentences three different reasons are given not only explaining why the respondent would go to court, but also be justified in doing so without delay. These reasons being, at least prima facie, sound. The statement that the 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’ the respondent. Any responsible attorney would be entitled to act swiftly under the circumstances. The Ombud said 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’. The problem being 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 stating that he should keep the money in his trust account and not pay it over to Mr Mathimba. The only court order in existence was one dated 5 June 2013, ordering the RAF to pay Mathimba the money awarded as damages.  There was no additional order for the 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, seemed that the Ombud was given the wrong impression, that there was such an order, said Judged Ngoepe. The Appeal Panel’s decision states: ‘Whether one sees what was reported as a comment by [Mr] 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 the respondent’s reasons for going to court, rushing or otherwise.’

Sunday Times journalist Sabelo Skiti said that, he was very disappointed about the ruling of the Press Ombud. ‘When we (the publication) read the ruling we found that the Ombudsman was misled by the attorney, about a court order that did not exist,’ he said. Mr Skiti said that he felt that the story was and still is important in regard to people placing their trust in lawyers, but some of the lawyers do not do right by their clients.

Mr Skiti added that they (the publication) knew that they would be justified when they decided to go to the Appeals Panel of the press counsel and that Mr Nonxuba did not have a case, because the article he and his colleague wrote was a balanced article, and that Mr Nonxuba was given a chance to comment.


Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

 This article was first published in De Rebus in 2016 (Nov) DR 14.

De Rebus