Ombudsman Ruling

Minnie Dlamini-Jones vs Sunday/Daily Sun

Complainant: Ms Minnie Dlamini-Jones represented by Mr David Feinberg of Rosengarten and Feinberg

Date of article: February 10, 2019

Headline: ‘Big Trouble for Minnie!’

Page: 5, Sunday Sun

Online: Yes, Daily Sun

Author: Theo Nyhaba

Respondent: Mr Johan Vos, Deputy Editor, Sunday Sun, Legal Editor, Sunday Sun and Daily Sun

Particulars

This ruling is based on written documents submitted by Mr David Feinberg of Rosengarten and Feinberg for Ms Minnie Dlamini-Jones and responses from Mr Johan Vos, deputy editor of the Sunday Sun and legal editor of the Daily Sun and Sunday Sun. It is also based on the Ombudsman’s interviews and consultations with both Mr Vos and Mr Feinberg, various sources used for the article in question, as well as sources not consulted by the journalists but who were able to cast factual light on the contested issues.

Complaint

Mr David Feinberg, on behalf of Ms Minnie Dlamini-Jones, complains that the Daily Sun and Sunday Sun:

  • Falsely stated that his client, a TV host, “stole” the idea for a skin-care range from Ms Noni Gasa.
  • Reported that “Noni approached Minnie with everything, including the formula of the product and the lab where the product would be developed.”
  • The article also refers to her (Ms Dlamini-Jones) receiving funding from the IDC (in the form of a loan or a grant) for the concept developed by Ms Gasa.
  • Did not give Ms Dlamini-Jones the right of reply.

He argues this breached the following clauses of the Press Code:

1.1: The media shall take care to report news truthfully, accurately and fairly…

1.2: News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions or summarization.

1.3 Only what may be reasonably true, having regard to sources of the news, may be presented as fact and such facts shall be published fairly with reasonable regard to context and importance. Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.

1.4 News shall be obtained legally, honestly and fairly unless public interest dictates otherwise

1.8 The media shall seek the views of the subject of critical reportage in advance of publication.

  1. The text
  • The story concerns “TV personality”, Minnie Dlamini-Jones. The introduction to the article reports she has recently “been burnt by the unforgiving Black Twitter.”
  • “The entertainment darling this week posted on a social media platform – and stated during a Destiny Magazine interview – that she’d received a R10 million grant from the Industrial Development Corporation of South Africa.”
  • It goes on to report that some Twitter users had asked her to specify whether this was a “grant” or a “loan”, after which she retracted her statement.
  • The article then changes focus somewhat and goes on to report that she is “dealing with another problem behind the scenes”. It quotes “insiders” to say she and her “family friend and TV personality-turned-executive”, Noni Gasa, are “wrestling over the same concept Minnie received funding for”.
  • It then again quotes “insiders” to say that “Minnie stole Noni’s skin-range idea”
  • The article suggests Noni Gasa approached Minnie after first trying “media personality”, Nandi Madida, who was “allegedly unavailable” because of her “hectic schedule.” The informant told the Sunday Sunreporter that Noni had approached Minnie with “everything, including the formula of the product and the lab where (it) would be developed.” It goes on to quote the informant: “She came to Minnie looking for a celebrity name and face, so it would be easy to get into the market.”
  • The newspaper also quotes “another source” saying she (Minnie) liked the idea: “Trouble started when Minnie went behind Noni’s back and approached the lab guys and told them Noni is going to make more money.”
  • Noni had seen the Destiny magazine cover, reports the newspaper, and took “drastic steps” (although it doesn’t say what these were).
  • There were no comments reflected from Noni Gasa, Dlamini-Jones or Nandi Madida. The newspaper reports that Noni “blocked” the Sun team’s number and that “both Minnie and Nandi could not be reached for comment and they failed to respond to our SMSes.”
  1. The arguments

2.1 The complainant

David Feinberg, representing Ms Dlamini-Jones, makes the following arguments:

  • Ms Dlamini-Jones and Ms Gasa are not in dispute about the intellectual property of any concept
  • She did not receive funding from the IDC for this skin-care range
  • She, not Ms Gasa, was the originator of the idea, and Ms Gasa was to render marketing services for the product. At that stage the skin-care range was to be known as “Charm”. Today it is known as the MD skin-care range. Mr Feinberg says this is “not in any way linked to the previous skin-care range”. Nor is Noni “the brains behind the idea”, as claimed by a source quoted in the Sunday Sun.
  • Ms Dlamini-Jones was not approached by Ms Gasa with “everything, including the formula of the product and the lab where the product would be developed”.
  • Rather she approached Ms Gasa to render marketing services for the product around September 2016.
  • Ms Dlamini-Jones also did not get the “formula” of the product from Ms Gasa, as claimed in the article, and then go “behind her back” to Zeta Labs; instead, Ms Dlamini-Jones established a relationship with Zeta Labs around 2015, independently of Ms Gasa, and it was Zeta Labs who created the formula. “It is unfathomable,” writes Mr Feinberg, “how Ms Gasa, who is not a cosmetic chemist, could have created the formula for the product…”
  • Ms Gasa did not give Ms Dlamini-Jones a “working contact” who then “vanished without a trace”, as reported.
  • On the right of reply: the attorney disputes the Sun’s claims that it tried to reach Ms Dlamini-Jones for comment; she has had the same cell number for the past decade and did not receive any missed call from a journalist at the Daily Sun, nor an SMS.
  • Ms Dlamini-Jones’ attorney also objects to the use of anonymous sources, arguing the journalists had alternatives: one was to communicate directly with the subject of the article. But he failed to do this.
  • Mr Feinberg asks that the newspaper give the names of its source to the Ombudsman. He believes one may be her former manager (whom I am not naming here), who has an “axe to grind”. She (the former manager) also has a “relationship with the journalist” and has previously shared information with him.
  • Mr Feinberg also suspects she is the source of some of the information in the Destiny magazine article.
  • He asks that if one of the confidential sources is indeed this person, the Ombudsman share that with his client, as she is “not deserving of legal protection against disclosure.”
  • Mr Feinberg argues that the Sunday/Daily Sun have breached the clauses of the Press Code outlined above and asks for:
  • An investigation into the “alleged sources” of the journalist and notification in this regard
  • A retraction and apology to be published in the Daily Sun and in all online media platforms in which the article has been published.

2.2 The Newspaper’s response

Mr Johan Vos, the Sunday Sun deputy editor and legal editor of the Sunday Sun and Daily Sun responded as follows:

  • The newspaper disagrees with arguments 2.1 1), 3), 4); 6) and 7) and says its sources corroborate their reporting.
  • On 2.1 2): whether Ms Dlamini-Jones got funding from the IDC, the paper points out that she herself had stated this in a Destiny magazine interview: she had told the interviewer for a cover story in Destiny Magazine published in December 2018 that she had received a R10 million “grant” from the IDC. But after the “backlash” on Twitter, she retracted the statement.
  • The newspaper concedes that the sentence attributed to an informant: “..Noni approached Minnie with everything, including the formula of the product and the lab where the product would be developed” created the impression “that Noni could’ve created the formula for the product, which is not the case.”
  • The newspaper has indicated its willingness to publish a correction in regard to this sentence.
  • On the question of the right of reply: Mr Vos says the reporter, Theo Nyhaba, tried to get hold of Ms Dlamini-Jones from his cellphone, the news editor’s cellphone, and the newsroom landline but that she “blocked” the numbers. The numbers were later “unblocked”
  • The newspaper says the allegations were all attributed to sources and nothing was ever stated as fact although it believed the allegations to be reasonably true at the time of going to press.
  • Further arguments
  • Ms Dlamini-Jones’ lawyers were particularly concerned, as stated above, about whether one of the sources was a previous business associate, whose name they supplied but whom I am not going to name to protect her privacy.
  • Mr Feinberg countered the newspaper claim that the issue about the IDC funding had in fact emanated from Minnie herself in the Destiny magazine interview. He argued the newspaper has written: “According to insiders, family friends and TV personality-turned-executive, Noni Gasa, and the star are wrestling over the same concept Minnie received funding for.” (emphasis theirs)
  • Mr Feinberg further says that Minnie never blocked the journalist, nor did she receive any SMSes from him.
  • He argues the article favoured the views of the “alleged sources” without considering the veracity of the claims or presenting a counter-view.
  1. Analysis

There are three key areas I looked at to try to establish both the veracity of the story or whether it was “reasonably true” in terms of Clause 1.3 of the Press Code:

  • Sources
  • Other reporting and verification
  • Right of reply

3.1 Sources

  • The newspaper agreed to provide me with its sources for the article. Out of the four they gave me, I managed to speak to three of them.
  • Two of the sources told me they had heard this story from Noni Gasa herself. In other words, their knowledge was based on hearsay from one party to the alleged dispute.
  • The third seemed genuinely knowledgeable and appeared to have been close to both Minnie Dlamini-Jones and Noni Gasa. The speculation about the fall-out between the two women began when Noni did not go to Minnie’s wedding to Quinton Jones in 2017.
  • There was also an incident described to me of how the two had met at a business class lounge in OR Tambo in August/September of 2014 when “Noni put the idea to Minnie”. Minnie was on her way to New York City and Noni was on her way to Milan. According to the source, they agreed to communicate later.
  • The source described Minnie as having “no work ethic”, so it is unlikely she would be able to pilot such a project through from concept to execution. “She will leave her plate on the floor and walk over it rather than picking it up,” said the source.
  • I am not going to reveal the identity of any of the sources to protect them, the newspaper, and the credibility of this office.

3.2 Other reporting and verification

  • The newspaper reported, correctly, that Ms Dlamini-Jones had “stated during a recent Destiny Magazine interview…. that she’d received a R10 million grant from the Industrial Development Corporation of South Africa.
  • It then implied, using Dlamini-Jones’ tweet to back this up, that she had then changed the story of the “grant” to a “loan”, without explicitly stating this (“Said a source: ‘There’s a huge difference between a grant and a loan’”)
  • Three paragraphs further down, the newspaper says, attributing this to “insiders”, that “Noni Gasa and the star are wrestling over the same concept Minnie received funding for.”
  • It is true that Destiny Magazine stated that Ms Dlamini-Jones had received an IDC grant: “Interestingly,” reports the magazine in a generally flattering article in its December 2018 issue, “the product was bankrolled via a R10-million grant from the Industrial Development Corporation, which generously covered the company’s start-up costs.”
  • Every indication is that the source of this (mis)information was Ms Dlamini-Jones herself. It quotes her as saying: “Our engagements with the IDC were pretty painless because my partner has been dealing with them for a long time. So it was just a case of creating a new joint company for the deal. I’d also applied for IDC funding many times before, so going back all those times to strengthen my applications really helped me.”
  • It was after this article was published that the “backlash” on Twitter, as described by the Sunday Sun, began.
  • Ms Dlamini-Jones then apparently posted a tweet on the 28 January 2019, which said: “In my Destiny cover I was quoted as saying I received a grant from the IDC for my new business. I in fact applied for a loan payable with interest, which is still pending due to the error. My apologies for any confusion caused.”
  • I have a screenshot of the Tweet but should point out that I can’t find it on her Twitter timeline. This may be because she deleted it.
  • It is hard to understand why she made the statement on Twitter so long after she tweeted the cover of Destiny Magazine where she featured: she tweeted the cover featuring her photograph towards the end of November 2018.
  • Nonetheless her claim to Destiny and the subsequent Tweet should have aroused the curiosity of the reporter sufficiently to check with the IDC whether in fact she had a grant or a loan and what business she had registered in her application.
  • I checked with the IDC and discovered that although two applications were made, no loan or grant was approved.
  • One application was made by Modi Dlamini Marketing in October 2018; the other by Zeta Laboratories in March 2017. Neither were successful.
  • The applications were made by a business partnership which I was informed by a spokesperson for the IDC comprised of Ms Dlamini-Jones and “an Indian male.”
  • This could have been checked by the reporter and in fact may have given him a better – and substantiated – story.
  • I t seems Ms Dlamini-Jones may have been dissembling in her interview with Destiny about the status of her funding application with the IDC.
  • The story also quotes an “informant” saying “Noni approached Minnie with everything, including the product and the lab where the product would be developed.”
  • The newspaper does not mention the name of the “lab” but the complainant does. Mr Feinberg says his client (Ms Dlamini-Jones) “established a relationship with Zeta Labs independently of Ms Gasa, which is the laboratory where the product was developed.”
  • I checked with the MD of Zeta Labs, Mr Yasheen Modi. In an email to the Ombudsman, he wrote: “The idea to start a skin-care range with Minnie was my idea. I approached her with the idea as far back as December 2015.” He provides a string of email correspondence from that time to substantiate his point.
  • He goes on to say that Noni Gasa was approached to help with marketing, but a meeting in 2016 between the three of them ended badly after she (according to him) “stormed out” when she could not get equity in the new firm. He goes on to level various accusations against her which I will not repeat here.
  • I cannot say whether this is the complete truth. But the point is my consultations with both the IDC and Zeta Labs offered a different version of the story than that which Sunday Sun published, and both emanated from sources that would probably have been prepared to go on the record.
  • So while I am concerned that Ms Dlamini-Jones misled the interviewer in the Destiny Magazine article, there is nonetheless evidence to back up her claim that the business was not Ms Gasa’s idea.
  • Her attorney, Mr Feinberg, without mentioning the misleading statement in the Destiny article, also states that it is false that she received funding from the IDC for her skin-care range.
  • The sources I consulted (the IDC and Zeta Laboratories) gave me reason to doubt the veracity of the unnamed sources’ claims that the product was “Noni’s idea”.

3.3 Right of reply

  •  This has been difficult to ascertain as records have proved hard to come by.
  • The story in the Sunday Sun says “Noni (when contacted) said she was in a meeting and requested to be called later, When called again, she blocked the SunTeam’s numbe
  • It adds: “Both Minnie and Nandi [Madida, described by the paper as a “media personality” whom Noni had first approached with the idea] could not be reached for comment and they failed to respond to our SMSes.”
  • I asked the reporter for his phone records to show he had tried to call or SMS them.
  • He said because his number was initially “blocked” by both women, he had tried to call them from the news editor’s cell phone and the office landline.
  • Mr Vos was unable to give me records of the office landline. He provided me with statement from their IT department saying that the telephone system had changed in 2018 and could not keep records of outgoing calls over the period in question.
  • The news editor did however send me a statement to say the reporter had used his (the news editor’s) cellphone on at least one occasion to try to contact Minnie
  • I asked the reporter for evidence of SMSes he had sent to “both Minnie and Nandi” but he sent me (through Mr Vos) an affidavit made to the SAPS at the Jeppe police station on the 23rd February, stating that a bag, which contained his laptop and cell phone, were stolen from his boot when he was parked outside Zoo Lake while attending a function.
  • So there is no evidence available of whether SMSes were sent or not.
  • Mr Vos sent me a video of the reporter dialing Ms Gasa’s number to show he had been “blocked”.
  • Mr Feinberg has sent me a list of numbers “blocked” by Minnie. They do not include the numbers of the reporter, the news editor, or the landline phone.
  • Given the lack of evidence forthcoming from the newspaper, it is hard to make a judgement on the issue of the right of reply, but I also view the lack of any records in a dim light.
  • Reporters should at least make a note of calls they make to their contacts stating the date and time of the call; this would be better than no evidence at all especially in the case of unfortunate incidents such as the changing of telephone systems or theft. It is also generally a bad idea for a reporter to leave his cell phone in a parked car.
  1. Finding

4.1 The complainant accuses the Sunday Sun of breaching the following sections of the Press Code: 1.1; 1.3; 1.4; 1.7; 1.8 (see above)

4.2 I will deal with each of these below:

4.2.1 I am not satisfied that the Sunday Sun took “care to report news truthfully, accurately and fairly.” (1.1)

The sources were all, with the exception of one, people who said they had heard Ms Gasa claim the skin-care product was “her idea”. There may have been corroboration but this is not the same as verification. “Corroboration”, as the former Ombudsman points out in his handbook Decoding the Code, “is when you get another source to affirm what your other source told you….it is possible to corroborate a lie.”

In this case the sources had no primary knowledge of the allegation that Minnie had “stolen” Noni’s idea. There was one exception and it is common cause that this source had had a contentious relationship with Minnie.

The complainant has asked for an “investigation “of the sources for this article and notification to them about our finding.

I have spoken to all the sources with the exception of one, whose phone was constantly on voice-mail. I am not prepared to reveal their identities. To do so would be to undermine not only the newspaper but the credibility of this office. Furthermore, the sources are not on trial in this process.

4.2.2 On 1.2 and 1.3: I am also not satisfied that the reporter presented what was “reasonably true”

The sources were problematic.

He should have checked the official sources he knew existed: the IDC and Zeta Labs. He may not have arrived at a perfect truth but he would have got a different view of the story.

The fact that the newspaper repeated an untruth – that Ms Dlamini-Jones got “funding” from the IDC – is not only due to the subject’s own fudging of the truth in her Destiny Magazine interview. It is also due to the reporter failing to check this out with the IDC.

The newspaper has conceded that one sentence that created the impression that Noni “could have created the formula for the product”, was not the case.

4.2.3. On 1.4: There is no indication that the newspaper did not obtain the news legally, honestly and fairly. Minnie Dlamini-Jones is a public figure (who thrives on her image and publicity when it suits her), and her skin-care product was the legitimate subject of an article. The problem came in the omissions of reporting quoted above.

4.2.4 On 1.8: The right of reply: it is difficult to discern the truth in the absence of any phone records from the reporter’s side. There is some evidence that Noni Gasa blocked his call. But there is no tangible evidence, except the reporter’s word, that he tried to contact Ms Dlamini-Jones.

I am willing to give him the benefit of the doubt because both sides have said they have been in contact before this incident. There is no reason I can think of as to why he did not try to contact her.

However, especially for a story as contentious as this, and laden with so many allegations, he should have made an extra effort, and he should have at least kept a better record of his attempts to contact her.

I find that the Sunday Sun is in breach of clauses 1.1, 1.2 and 1.3 of the Press Code

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).                           The breaches of the Press Code as indicated above are all Tier 2 offences.

Sanction

The Sunday Sun is directed to:

  • Apologize to Minnie Dlamini-Jones for reporting, without context or giving other views, that she had “stolen” Ms Gasa’s idea for a skin-care range.
  • Apologize and withdraw the statement, as it has already agreed to do, that Noni Gasa had approached Minnie Dlamini-Jones with both the formula for the product and the lab where it would be developed. There is no evidence of this .
  • The apology should be published on the same page as the original print story and on all online platforms where it was used.

It should:

  • be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
  • refer to the complaint that was lodged with this office;
  • end with the sentence, “Visit www.presscouncil.org.zafor the full finding”;
  • be published with the logo of the Press Council (attached); and
  • be prepared by the publication and approved by me.

Appeal

The 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.