Unathi Msengana vs Sunday Sun

Finding: Complaint 4244

Date of Article: 27/1/2019

Headline: UNATHI SINGS IN THE DARK!

Subhead: Star’s power cut as she fails to pay over R100k

Page: 2

Online: No

Author: Hopewell Mpapu

Particulars

This ruling is based on a written complaint from Mr David Feinberg, who represents Ms Unathi Nkayi-Msengana, a written response from the Sunday Sun deputy editor, Mr Johan Vos, and a written reply to that from Mr Feinberg. Ms Msengana, who also goes by her maiden name Nkayi, is a judge in the popular TV talent show, IDOLS, SA, as well as being a singer herself. In this ruling I have referred to her, except in a direct quote, as Ms Nkayi-Msengana. I also asked further questions of both Mr Feinberg and Mr Vos, and interviewed the City of Johannesburg spokesperson, Mr Isaac Mangena, and referenced case law as well as previous Ombudsman rulings.

  1. Complaint

1.1 Mr David Feinberg representing Ms Unathi Nkayi-Msengana complains that an article in the Sunday Sun, headlined on its front page “UNATHI SINGS IN THE DARK!”, with a sub-head: “Star’s power cut as she fails to pay over R100k”,  and on page 2 where the actual article ran under the head: “Star Blames City Power”, transgresses the following sections of the Press Code:

  • The media shall take care to report news truthfully and accurately
  • Present news 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…..

1.7 Verify the accuracy of doubtful information, if practicable, if not this shall be stated.

1.8 Seek if practicable the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated.

1.2 He also complains about the headline in that it transgresses section 10.1 of the code; “Headlines and captions to pictures shall give a reasonable reflection of the contents of the report or picture in question.”

1.3 Mr Feinberg complains the newspaper took no care to report the news truthfully and accurately, nor did it present the story in context, and it also “failed to sincerely seek” the views of Ms Nkayi-Msengana.

  1. The text

2.1 The story was flagged on page 1 under the heading “UNATHI SINGS IN THE DARK!” with a sub-head, “Star’s power cut as she fails to pay over R100K.”

The article itself ran on page 2 under a headline: “STAR BLAMES CITY POWER”.

2.2. The intro ran: “IDOLS SA judge, Unathi Nkayi, is often engulfed by showbiz lights

                          “But the same can’t be said about her home…

                        “WHICH HAS BEEN IN LOAD-SHEDDING MODE.”

It goes on to recount how the lights in “her Randburg sanctuary” were switched off last month.

The move prompted her to go on social media to lambast City Power in a video posted on Instagram two weeks ago.”

2.3. The paper reports that the video was later deleted. In it she reportedly criticized City of Johannesburg officials for refusing to show their identification to prove they were from City Power. “Two males” were sent to her house to take meter readings and “according to her post, they ended up switching off the lights.”

In the video she posted, Ms Nkayi-Msengana said she needed to see the men’s identification because she had been robbed in October.

2.4 The newspaper then quotes City Power saying her lights were switched off because she owes R166 678.

The power utility said Unathi’s lights were offed because despite numerous requests for her to make payment arrangements, she hadn’t done so

2.5 It quotes City Power spokesperson Isaac Mangena saying any customer more than 30 days overdue on their municipal accounts was sent a “pre-termination” letter. This notice was sent five days after the due date and she had been given 14 days to settle her account. If the account was not settled or the customer had not signed an Acknowledgement of Debt notice, their services were cut.

2.6 The newspaper did not mention her address but quotes Mangena saying that the particular property, according to city records, was not registered in her name.

He also says the contractors did not see her. “It is unclear why she said our contractors didn’t produce identification.

“If she’s a tenant, she owes R166 000 to City Power and we’ve done all in our power to remind her and ensure it’s paid.”

He also defended the city contractors saying they were “patient and polite” and produced identification to “both the police and the rightful owner of the house.”

He said Ms Nkayi-Msengana was sent pre-termination notice letters on 24 December.

2.7 In her “commentary” (presumably on the social media video), Ms Nkayi-Msengana is quoted as saying: “I don’t know why City Power is invading my privacy.”

  1. The arguments

The complainant

3.1 Mr Feinberg argues that the statements pertaining to her alleged overdue electricity bill were all factually incorrect. He says on 15 January “a person who purported to work for the COJ attempted to gain access to our client’s property for the purpose of taking a reading of the electricity meter. Our client requested the individual to provide identification in order to confirm that he worked for the COJ. The individual refused to produce the requested identification. After a verbal altercation, the individual left the entrance to our client’s property. In the course of leaving the property, the person approached our client’s electricity box and disconnected the power supply.”

3.2 He mentions that she was the victim of a house robbery in October 2018 and as a single mother exercises “extreme caution in allowing persons access to her property.” This was why she asked for identification from the COJ representative; his refusal to comply was “unreasonable”

3.3 When the journalist from Sunday Sun, Mr Hopewell Mpapu, contacted Ms Nkayi-Msengana, she informed him she was not in arrears with her COJ account and the “reason for her electricity being turned off was that she refused the COJ representative access to her property.”

3.4 Mr Feinberg also says Ms Nkayi-Msengana offered to send Mr Mpapu a copy of her latest municipal bill but that he refused this offer because he “was on a tight deadline.”

3.5 Mr Feinberg says she does not owe R166 000 to the COJ.

He attached an electricity bill dated the 3rd January 2019 for a particular address, known to be that of Ms Nkayi-Msengana. The amount was for R2623.53.

3.6 Ms Nkayi-Msengana also denies she has received any notice pertaining to cutting off her electricity. She is not a tenant – as inferred by Mr Mangena quoted in the Sunday Sun story – but the owner of the property.

There was only one representative of the COJ present, not two, and that person did not arrive with the police.

The journalist ignored Ms Nkayi-Msengana’s version of events and “refused” to receive evidence from her

3.7 Apart from not reporting the news truthfully, accurately or fairly, the reporter also neglected to seek her views in advance of publication.

The newspaper

3.8 The Sunday Sun argues that the story came to its attention in the first place because the complainant chose to put a post on social media about her electricity being cut off by City Power. To verify this, the newspaper contacted official City Power spokesperson Mr Isaac Mangena.

Mr Mangena confirmed her electricity was cut off.

He told the newspaper that the amount owing was R166 678.

He also answered a query relating to her allegation about the number and conduct of the City Power officials who had come to her home. He told the paper there were two representatives, as there always are, they had identification and produced it.

3.9 The newspaper argues that its article was reasonable having “secured confirmation from a reputable government source.”

It was not incumbent on the journalist “to second guess Mangena. Having never been led astray by Mangena before and considering he was the manager of City Power and the COJ’s spokesperson on the matter, the journalist certainly had no reason to question the veracity of the information furnished to him.”

The COJ confirmed the amount of money allegedly owed and also told the reporter that Ms Nkayi-Msengana had received a notice from the COJ prior to her electricity being cut off.

3.10 It was Mr Mangena who said Ms Nkayi-Msengana was a tenant at the property, which he sourced to COJ records. However, this does not change the “general thrust” of the article, which reported that the electricity was cut off at “her home”.

3.11 Mr Feinberg says she dealt with one COJ official, not two. The article refers to “they”, and Mr Mangena refers to “our contractors”. The newspaper argues this does not detract from the general point of the article.

In response to the claim that “one person” refused to show identification to Ms Nkayi-Msengana, the newspaper said the social media video mentions men in the plural: “…Unathi insisted she wanted to see the men’s identification because she’d been robbed in October and was afraid.” Mr Vos, for the paper, adds that Ms Nkayi-Msengana’s attorney, Mr Feinberg, also uses the plural – “representatives” – in his complaint (“..our client took to social media and published a video of herself expressing her concerns about the COJ’s failure to adequately address the problem of its representatives not producing identification when requested to do so.”)

3.12 On the issue of the right of reply, Mr Vos says Ms Nkayi-Msengana was contacted for comment and “provided a reasonable right of reply.” (sic)

The journalist himself, Mr Mpapu, reports that after he had seen the video posted on social media by Ms Nkayi-Msengana, he contacted Mr Mangena from City Power. Once he had the response, he contacted Ms Nkayi-Msengana for her comment. “She referred me to her publicist Nyiko. I then contacted Nyiko but my attempts drew a blank as his phone went straight to voicemail. I contacted Unathi back and I stressed to her that I was on a tight deadline. I explained to her that according to City Power she is in arrears of over R166 000. She expressed shock upon learning that I had obtained documents from City Power. She commented: ‘I don’t know why the City of Jo’burg should do this to me’.

3.13 He adds that the claim in her complaint that she had offered to send him her bill “is completely devoid of truth…had she told me she had a copy of her latest municipal bill, I would have furnished her with my email address…However she did not ask for my email address nor express an interest in delving more into what had happened that caused her to vent her frustrations on social media..”

Shortly after this conversation, says Mr Mpapu, “she went back to social media to deride me.”

3.14 Mr Mangena had told the reporter: “It never happens that there is one contractor going out to read meters – they are always in pairs.” He also told him that “the contractors resorted to calling police because Unathi was becoming violent toward them.[This allegation was not included in the article] Furthermore, Mangena maintains that when contractors go out in the field, they do so in marked cars to prove they indeed work for City Power.”

3.15 Mr Vos cites prior decisions by the Ombudsman (to which we shall return) to argue that a newspaper has to show not complete truth but that it is “reasonable” to publish particular facts (or allegations) at a particular time

3.16 The newspaper had no reason to doubt the word of Mr Mangena, who was the official spokesperson of City Power, and thus it had not transgressed the Press Code.

Further arguments

3.17 In response to the Sunday Sun, Mr Feinberg argues that the newspaper does not contest that the following facts are false:

  • That Ms Nkayi-Msengana owes the COJ R166 678.
  • That a notice was sent five days after the due date
  • That the property is not registered in her name
  • That pre-termination letters were issued on 24 December

3.18 Mr Feinberg provided the Ombud with a copy of her electricity bill dated January 3rd (as stated above) as well as a document from the Deeds Office showing the property is registered in her maiden name, Ms Unathi Nkayi.

3.19 He also argues that, notwithstanding the official source, the newspaper still has a duty to prove the truthfulness of the allegations.

3.20 Quoting the Bogoshi case, which the newspaper relies on to say that the publication of “false defamatory allegations of fact will not be regarded as unlawful if….it is found to have been reasonable to publish them”, he cites part of the judgment that says: “Ultimately, there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a license to lower the standards of care which must be observed before defamatory matter is published in a newspaper.”[1]

3.21 He also cites the Press Code (section 1.10) which says: “The media shall make amends for presenting inaccurate information…by publishing…a retraction, correction, explanation or an apology.”

3.22 Mr Feinberg argues that the sub-head, which states: “Star’s power cut as she fails to pay over R100K.” is presented as fact and not attributed.

3.23 He cites the “repetition rule” of the law of defamation as spelt out in the case of Tsedu and Others vs Lekota and Another. [2] This is that if one repeats a defamatory statement, even if one did not generate it, it is still defamatory.

3.24 Mr Feinberg says the journalist also “tellingly fails to state” that there were three calls between himself and Ms Nkayi-Msengana on the day in question. The first was his call to her; she referred him to her publicist. Ms Nkayi-Msengana then called him back to offer to send him her bill “to quash the issue”; however, the reporter refused to accept it or give her his email address. “In the third call, Ms Nkayi again told the journalist that she could send him the municipal statement and he said in that conversation that her did not have time to wait for Ms Nkayi’s email.”

3.25 He also says Ms Nkayi-Msengana insists there were not two City Power officials as stated by Mr Mangena. “I have been in residence for a little over 24 months. In that full period save for on only two occasions, one representative from the City of Johannesburg has come out to read my meter. But I suppose that for the journalist, because Mr Mangena says otherwise, I must be imagining this.”

3.26 Whether the “falsehoods” – such as whether there were one or two meter readers – had no impact on the “thrust” of the story is irrelevant because in terms of the Press Code’s preamble, it transgresses the ethos that news should be  reported “truthfully, accurately and fairly.”

3.27 The article also damaged Ms Nkayi-Msengana’s reputation. The article suggests she owes R166 000 to the City of Johannesburg, which in terms of a rough computation of an average bill of R3 500 a month, would mean she has not paid for electricity for nearly four years. “The connotation that is inferred is that Ms Nkayi does not follow the laws of the country and is a delinquent.”

3.28 The newspaper, in its argument, pointed to relevant previous rulings of the Press Ombudsman to show that it did not need to prove the “truthfulness” of its allegations only that “the allegations…are reasonably true and that it acted reasonably in relying on the information at hand.”

The cases the newspaper relies on are Justice Ndaba vs Sondag (28/11/11) [3]and Jacqueline Maaronhanye vs Sunday Sun (10/9/14) [4] where the then Ombud ruled that the newspapers’ reporting in both instances was justified, and that it was not its “task to establish” the guilt or otherwise of the affected parties.

In fact, the allegations in both of those stories were far more “colourful” and potentially damaging than they are in this one. In the story about Ndaba, a former SABC executive, the reporter calls him a “jagse donner” and “katoolse taksgeldvermorser.”

3.29 The newspaper also refers (as does Mr Feinberg) to the Bogoshi judgment to argue that “the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way at the particular time.”

  1. Analysis

4.1 It is important to note the genesis of this story.

Ms Nkayi-Msengana herself posted on social media to express her irritation about her power being cut off by the City of Johannesburg. This was in early to mid-January.

The Sunday Sun reports that she “lambasted” City Power, and also accused the officials (they are reportedly in the plural on her video) of “refusing to show their identification.”

This was because she had suffered a house robbery the previous October.

That the post was later deleted makes it difficult to check exactly what was said; in any event she does not dispute this. The contentious issue that arose later as a result of the newspaper report was whether there were one or two officials from City Power who came to her house.

After watching the video, the newspaper reporter called her and then called City Power spokesperson, Mr Isaac Mangena to confirm the incident.

Mr Mangena confirmed to the newspaper that her lights were “offed”, as it put it, because “despite numerous requests for her to make payment arrangements, she hadn’t done so.”

4.2 I spoke to Mr Mangena who confirmed he was correctly quoted. He told the newspaper that she owed R166 678, and also said that the house was not registered in her name. “With regard to (address withheld), which Unathi Msengana complains about, as per our records, the property is not registered in her name.”

He also refuted her claims that City Power employees did not produce identification saying they were “patient and polite.”

4.3 When I asked him the relevance of his statement, “If she’s a tenant…”, he told me that the point he was making was that whoever lives at the address, whether tenant or owner, is liable for the amount owed. Still, it is puzzling that he refers in the article to the “rightful owner of the house”, when the title deed shows it belongs to her.

4.4 He also confirmed that there was an “altercation’ at the address because she refused to give City Power officials access.

4.5 I asked him about the significant disparities between the bill he was quoted as giving: R166 678 and the bill provided to me by her attorneys: R2 623.53. He replied it may be that she had paid off the previous bill before the new one was issued.

The date on the new electricity bill is 3rd January, some three weeks before the Sunday Sun published its story.

4.6 It also may well be that the City made a mistake in her account. This is not uncommon and has been reported in several anecdotal articles in newspapers, including over the past year. [5]

4.7 However, the point is that Mr Mangena has acknowledged he was correctly quoted in his comment to Sunday Sun, even when presented with the bill which Ms Nkayi-Msengana’s attorneys had sent to the newspaper, and notwithstanding his understanding of who the owner of the property is.

4.8 There is also the question of legal precedent quoted by both sides.

The newspaper cites the well-known Bogoshi case, argued before the SCA shortly after the new Constitution was passed, where Judge Hefer found that “false defamatory statements” could not be regarded as unlawful if it was found to be “reasonable” to publish them at the time. [6]

Mr Feinberg uses the case to make the point that “..there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a license to lower the standards of care which must be observed before defamatory matter is published in a newspaper.”

Leaving aside the question of whether a dispute with the municipality over an electricity bill is “defamatory” or not, Judge Hefer does make it clear in the judgement, referencing Gertz vs Robert Welch in the US Supreme Court, that while there is no “constitutional value in false statements of fact… an erroneous statement of fact is nevertheless inevitable in free debate.”

4.9 The facts in this case are disputed by both sides and this office cannot determine the falsity or truth of either side’s claim. For instance, there is the dispute about the amount owed to the COJ by Ms Nkayi-Msengana. Mr Mangena says it was a certain amount, which she disputes.

There is also the dispute about whether she owns the property or not. Mr Mangena told the Sunday Sun (which quoted him accurately) that the property was not registered in her name.

Mr Feinberg produced deeds office records to show that the property in question is owned by Ms Unathi Fundiswa Nkayi.

There is also the dispute about whether the reporter “refused” to accept by email the copy of her latest bill which would show she did not owe the amount specified by Mr Mangena. The reporter strenuously denies she offered to send him the bill. Mr Feinberg, on the other hand, accuses the reporter of being disingenuous about the number of phone calls between him and Ms Nkayi-Msengana, saying there were three not two. The second call – in dispute – is material because it was when she says she called him and offered to send him her bill.

4.10 Mr Feinberg also refers to the case of Tsedu and Others vs Lekota and Another   to make the point that repetition of a defamatory statement is not a defense in defamation suits.[7] The repeater – or publisher – of a defamatory statement is as liable as the originator.

However, there is a significant difference between the matter that gave rise to that case and this one, in my view. It is true that Mr Mathatha Tsedu, then editor of City Press, told a radio interviewer that if Mr Lekota and S’bu Ndebele (the respondents) “have problems with [what was said in the book]they should take the author of the book to court and not City Press”, a point Judge Harms rejected. Mr Lekota and Mr Ndebele, both then senior leaders in the ANC, had complained of an article purportedly quoting a book saying they had “unwittingly…spied” on the ANC. However, as the judges found, these allegations were not in the book at all. “They were fabricated by the author of the article.”

 

4.11 In previous cases which have come before the Ombud, cited by Mr Vos, my predecessor found in one case (Ndaba vs Sondag) 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.”

In that case the allegations made about Mr Ndaba – which involved claims about a dispute in London after a course at the London Business School over payment of prostitutes, as well as a manipulated photograph of his head on a naked body – were far more damaging and more invasive of his privacy than this case about a disputed electricity bill.

And that case, unlike here, relied on anonymous sources. Here there were two, named sources – Ms Nkayi-Msengana herself and an official from City Power.

4.12 Mr Feinberg believes the newspaper should have gone to greater lengths to verify what Mr Mangena said, pointing to his error in saying she was a “tenant” rather than the registered owner of the property.

It is true that the reporter could have gone to the Deeds Office to confirm this, but this was not the point of the story.  Her status as owner or tenant was never a point of dispute. It was not relevant to the amount of her electricity bill.

4.13 The story about the power cut emanated from one central source, and that is Ms  Nkayi-Msengana herself, who complained on social media about her electricity being cut off. The reporter then did what a reasonable reporter would do under the circumstances: checked with her, and checked with an official source who is the spokesperson for the city power utility.

While it is true that verification is essential if a story is based on anonymous sources, or even a source who may be conflicted with the main subject of the story, this was not the case here. Mr Mangena is a reputable official, whose mandate is to communicate with the public through the media.

He can be held accountable for his words, and indeed, when I checked with him, he stood by them.

4.14 There is another element in this case too, which is not central to the article, but may explain why the relationship between Sunday Sun and Ms Nkayi-Msengana was somewhat fraught even before this story was published.

Last year, the paper got an interim protection order against her, on behalf of one of its other reporters, whom she accused on social media of inappropriately texting her former husband. The interim order was not made final .

However, the point is that the relationship between her and the newspaper is not an easy one. This may explain her insistence that she offered to send the reporter a copy of her most recent bill, and the reporter’s equally strong insistence that this is not true.

4.15 A final point is about public figures. Although the right to privacy and dignity is enshrined in our Constitution, the courts have ruled that it has always to be balanced with freedom of expression particularly in the case of public figures.[8]

4.16 Who constitutes a public figure can also be a subject for debate. It is not only politicians or officials paid with taxpayers money.

It is also “celebrities” or those close to “celebrities”. In 2005, the Supreme Court of Appeal substantially reduced a damages award against the Sowetan Sunday World awarded to a Pretoria advocate, Ephraim Seima, who sued the newspaper for reporting that he had given his girlfriend, a television presenter,  a “hot klap” at a petrol station because she had “taken notice of other men” at a wedding reception.

In the judgment, Judge Harms wrote: “Not unlike politicians, persons who move in or close to the limelight, have to expect that their lives will be to some extent in the public domain and they must be prepared to endure somewhat more than an ordinary citizen has to endure.” [9]

4.17 Ms Nkayi-Msengana is arguably much more a public figure than the hapless Mr Seima was. She is a public figure in her own right, being a judge in a popular TV show, Idols SA, as well as a performer.

Moreover, she actively seeks publicity often through social media. In this case, it was she who sparked media interest in the story of her electricity cut in the first place by using her social media account to “berate” City Power for cutting her electricity.

4.18 This, and the fact that the newspaper approached an official spokesperson for comment, is a sign that the it took care to “report news truthfully, accurately and fairly”, and presented it in “a balanced manner.”

It was “reasonably true” in terms of the Press Code “having regard to the sources of the news…”

4.19 The newspaper approached her for comment – twice, according to the reporter, (and she says she called him back once) – and called her publicist as she had suggested but was unsuccessful in reaching him.

4.20 However the sub-head is problematic. It states as a fact: “Star’s power cut as she fails to pay over R100k”. This should have been in inverted commas as a quote and made clear that the source of this information was Mr Mangena or City Power.

Finding

I find the newspaper has transgressed section 10.1 of the Press Code, which states that “Headlines and captions…shall give a reasonable reflection of the contents of the report..”

The Sunday Sun should publish a correction stating that the amount the sub-head stipulates she owes is a claim by City Power and is not undisputed fact. This is a Tier 2 offence. The newspaper’s correction should be published on the same page as the original print story and be approved by the Ombudsman.

The rest of the complaint is dismissed.

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.

Pippa Green

Press Ombudsman

September 18, 2019