Appeal Decision: Lindinkosi Ndibongo vs Mail&Guardian

In the matter between

LINDINKOSI NDIBONGO                                                                                   APPLICANT

AND

1. Mr Lindinkosi Ndibongo (“applicant”) lodged a complaint against the Mail & Guardian (“respondent”) about an article published by the latter on 5 April 2019, with the headline: “Staff back ‘moonligthning manager.” The gist of the story: One Mdazana was an acting manager at the Media Development and Diversity Agency (MDDA).  It appeared she was involved with and indeed a signatory to the account of one of the community radio stations, Forte, which had received some R1.4 funding from MDDA approved by her.  For also working at Forte, Mdazana was suspended by the Chief Executive Officer of MDDA.  Apparently the staff disapproved of the suspension and supported her against the CEO.  The appellant attended a meeting of the Board which appeared to have been in support of the CEO, at which the suspension was discussed.  The story alleged that the applicant, who was on breathing apparatus, attended the meeting.  It was alleged that he was vehemently against the suspension of Mdazana, so much so that he allegedly threatened and shouted at other members of the Board.  It is important to note that as at February 2019, Mdazana was still listed as director of Forte.
2. The applicant’s complaints were summarized by the Ombud as follows: The headline was misleading; his photograph was stolen (used without acknowledgement); the article was a fabrication and was malicious; the mentioning of his illness was malicious, and, finally, that he was not afforded the opportunity for a proper reply.  All the complaints were dismissed, except two: that the headline was misleading, and that he had not been given the opportunity to respond; a sanction was then imposed by the Ombud.
3. The applicant now seeks leave to appeal against the dismissal of the other complaints.  For me to grant that leave, the appellant must show reasonable prospects of success before the Appeals Board.  The Ombud dealt with and analysed the complaints thorougly; I found  no fault with her reasons.  The Ombud also listened to  the recordings; this shows the extent to which she went in applying her mind to the issues. Moreover, contrary to the Ombud’s finding, I have reservations about whether or not details of the applicant’s chronic illness were given; what came through was that he had some breathing apparatus, which must have been obvious to the naked eye; this can hardly be a matter of a detailed expose of someone else’s illness. The mentioning of his condition was not gratuitous, given the context. The context was that the applicant went out of his way despite his condition to go and speak for Ms Mdazana. Well, the Ombud found that context to be misconceived, but that does not change the nature of the context as perceived, rightly or wrongly, by the respondent, namely, to show that the applicant went out of his way to attend the meeting. It was important to report on a matter in which attempts were made to support someone in the position of Ms Mdazana.  I have already mentioned her dual relationship with both Forte and the MDDA. On the face of it, it justified public scrutiny through the media.
4. The applicant did not lodge his notice of appeal against the Ombud’s Ruling in time.  He says he was only moved to doing so at the stage of the implementation of the sanction.  I will assume, without firmly so deciding for fear of creating a precedent, that his explanation is adequate.  Having done so though, I am afraid he has shown no reasonable prospects of success; the application therefore fails.

Dated this 20^th  day of September 2019

Judge B M Ngoepe, Chair, Appeals Panel