Ruling by the Press Ombud
1 April 2016
This ruling is based on the written submissions of Majota Kambule and those of Susan Smuts, legal editor of the Sunday Times newspaper.
Complaint
Kambule is complaining about a story in Sunday Times of 6 March 2016, headlined Trouble comes in threes, as Phat Joe’s woes show.
He complains that the following statements in the story are misleading, inaccurate and unfair, and repeatedly asks the newspaper to provide evidence to substantiate the reportage:
· “Things are going from bad to worse for radio personality Phat Joe” – he adds that this was a statement of opinion that was not substantiated by the rest of the article;
· “First his domestic worker took him to the [CCMA] for unfair dismissal after he allegedly fired her via SMS” – he admits that he and the worker were due for an arbitration hearing at the CCMA, but says it was not for “unfair dismissal”;
· “Then he was suspended from Metro FM for an on-air rant about colleague Bonang Matheba” – he says the SABC has publicly denied that he was suspended;
· “Now Heart 104.9FM presenter and Top Billing voice-over artist Tapfuma Makina is suing Phat Joe (real name is Majota Kambule) after he borrowed money from him for a failed mobile radio project” – the false labelling of the service as a failed project was damaging to the commercial viability of the project;
· “Makina’s lawyer, Barry Varkel, said that Kambula and a business partner solicited a R150,000 loan from Makina in September 2012”;
· “The full amount was repayable by September 30 2013 with interest, but Kambula failed to pay”;
· “He asked for an extension to repay the debt before January 31 2014. That date also came and went, prompting Makina to launch legal action in December last year”;
· “The sheriff served Kambule with a summons on February 22”;
· “Meanwhile, Kambule is due to appear before the CCMA on March 14 to face a claim of unfair dismissal for allegedly firing his domestic worker of five years … by SMS” – not only was this statement false, but it was also a private matter, concerning two families, so why is it in the public interest to publish details?
· “In January, Kambule and co-host Pearl Thusi were suspended form Metro FM for an on-air rant about Matheba. The suspension was lifted last week.”
He adds the story said the newspaper spoke to MTN about this project and was told that “MTN is exploring the feasibility of this product with the parties concerned from a technical perspective”. However, this statement was only reported further down. He asks, “Why was this comment not placed alongside the claim above for balance and fairness? This further illustrates a biased attempt by the newspaper to paint a negative picture of me, my work, and my business.”
To this, he adds that the:
· newspaper did not make reasonable attempts to verify the accuracy of its reporting; and
· headline is misleading, biased and defamatory, making a statement of fact while appearing to be an opinion – he adds that the use of the word “woes” was intended to put the blame on him and to defame him.
He asks that the newspaper provides me with a chronology of how this story was “discovered”, researched and compiled, and concludes that it was written “with the express and malicious intent of harming my dignity and reputation”. He asks for an apology as well as a sanction on the front page in order to clear his name.
The text
The article, written by Philani Nombembe, may adequately be summarized by the first few sentences. They read, “Things are going from bad to worse for radio personality Phat Joe. First his domestic worker took him to the [CCMA] for unfair dismissal after he allegedly fired her via SMS. Then he was suspended from Metro FM for an on-air rant about colleague Bonang Matheba. Now Heart 104.9FM presenter and Top Billing voice-over artist Tapfuma Makina is suing Phat Joe (real name is Majota Kambule) after he borrowed money from him for a failed mobile radio project.”
Analysis
Smuts replies that the headline was a “straightforward” description of the story, which discussed three sets of woes facing Kambule. “There is nothing biased or defamatory about the headline. The invitation to provide the factual details of the woes is frivolous – these are described in the story,” she adds.
The legal editor submits that the introductory sentence was indeed substantiated by the rest of the story – which listed the woes as they unfolded. She adds that neither the headline nor this sentence put any blame on Kambule.
Smuts refers me to:
· Part B of the CCMA document under the heading Fairness/Unfairness of dismissal, which confirms that the issue is about unfair dismissal; and
· a statement from the SA Domestic Services and Allied Workers Union (SADSAWU), also stating that the hearing deals with unfair dismissal.
She says the newspaper is willing to correct the statement that Kambule was suspended.
Smuts submits that the section dealing with Makina suing Kambule and his business partner, as well as their company, N2 Media CC, was supported by court papers. She says the radio project failed because they could not get a royalty licence clearance and the project could therefore not be commercialized. “This was the project that [Kambule]…borrowed money for. Our reporting is accurate in this regard,” she asserts.
She says that the story merely quoted Varkel (with reference to the following sentences):
· Makina’s lawyer, Barry Varkel, said that Kambula and a business partner solicited a R150,000 loan from Makina in September 2012”;
· “The full amount was repayable by September 30 2013 with interest, but Kambula failed to pay”; and
· “He asked for an extension to repay the debt before January 31 2014. That date also came and went, prompting Makina to launch legal action in December last year”.
Referring to the letter of demand from Varkel to Kambule, the legal editor argues, “There can be no confusion in the minds of our readers that [the sentences quoted above] are the allegations that are to be tested in court”.
She also provides this office with a copy of the particulars of claim, as well as the sheriff’s return of service.
In conclusion, Smuts says Makina phoned Kambule twice on March 2 and once on March 4, but his voicemail facility did not allow a message. She adds that the journalist also sent a Whatsapp as well as a text message to Kambule, asking for comment (referring to Makina’s lawsuit and the CCMA case). “Two blue ticks were immediately displayed above the message which indicated that he had read the message. But he did not respond.”
In his response to Smuts’s reply, Kambule largely repeats his complaint. I shall focus on his elaborations – while keeping in mind that it would be unfair to include new aspects to the complaint.
He says SADSAWU has been using the issue between him and his former domestic worker to promote workers’ rights – and adds the newspaper should have read between the lines, instead of quoting words verbatim from the union’s documentation.
He adds the CCMA’s letter clearly stated that:
· its proceedings would begin with a hearing on “condonation”. He argues this meant that the applicant accepted that the CCMA did not have jurisdiction in this matter at that stage;
· the union’s primary issue was that the “reason for dismissal is not known”; and
· its proceedings would be held in limine – because the proceedings were to determine if the CCMA had the necessary jurisdiction in the matter.
Kambule notes that the story did not report these facts.
He also says that Sunday Times did not make any attempt to verify the “existence” of the SMS. “Did the Sunday Times have a copy of this sms and if not, why?”
Regarding the loan by Makina, he says Sunday Times acted negligently and perpetuated a falsehood about him, rather than studying the evidence in the newspaper’s possession. “The evidence referenced by Sunday Times clearly states that the monies in question were paid to … N2 Media. Rather than report this, the Sunday Times chose to deliberately lie and assert that I was paid monies into my account by … Makina.”
Kambule adds that the court summons, which the newspaper references, mentioned him as a third defendant – however, the story (falsely) asserted that he had solicited the loan from Makina, that he had failed to pay back the loan, and that he had been the liable party and had been sued. “This is false, biased, selective, tabloid, and damaging journalism by the Sunday Times,” he says.
He also denies that he asked for an extension to pay and that he had received a payment from Makina, adding that the newspaper had evidence (provided by Makina and his attorney) that proved this.
Kambule explains that N2 Media was the contracting party, and another person (Nicholas Regisford) was the negotiating party. “There was no mention of these two material facts, which the Sunday Times [has in its] possession…”
He also says the article falsely stated that the MTN mobile radio project was failing, even though MTN said that the program was undergoing a “technical feasibility exercise”. He submits, “We can state categorically that this project is very much alive and successful. This deliberately false, sensational, and negligent reporting … has been damaging to this multimillion rand project.”
My considerations
I have perused all the documentation provided by Sunday Times (as cited above, representing the evidence Kambule is requesting), and I am satisfied that its reportage regarding all the aspects mentioned above was accurate and fair. I am also convinced that Smuts’s arguments are reasonable.
The bias that Kambule complains about also does not hold water – even if he was mentioned as the third defendant and even if the CCMA still had to make a decision regarding its jurisdiction in this case, the fact remains that he was a defendant, and that the issue before the CCMA was one of unfair dismissal.
I have no reason to rule against Sunday Times, let alone find that its journalist was malicious.
Finding
The statement that Kambule was suspended is in breach of Section 1.1 of the Code of Ethics and Conduct which states, “The media shall take care to report news…accurately…”
The rest of the complaint is dismissed.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breach of the Code of Ethics and Conduct as indicated above is a Tier 2 offence.
Sanction
Sunday Times is cautioned for wrongly stating that Kambule was suspended, and directed to correct this mistake.
The text, which should be approved by me, should:
The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.
If the offending article appeared on the newspaper’s website, the correction should appear there as well.
Appeal
Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombud