Ruling by the Press Ombud
16 May 2016
This ruling is based on the written submissions of Mr Sisa Mbuli and those of Johan Vos, deputy editor of the Sunday Sun newspaper.
Complaint
Mbuli is complaining about an article in Sunday Sun of 13 March 2016, headlined Uyanda’s gatvol with Sisa drama.
He complains that:
· the article fabricated allegations, and then stated them as fact (details below);
· the headline was factually incorrect;
· his personal life was not in the public interest, despite his association with his ex-wife, Uyanda Mbuli, who was in the public eye, and that the reportage infringed on his right to privacy and dignity;
· the story constituted contempt of court; and
· the newspaper’s modus operandi was questionable, alternatively it bordered on malice by neglecting to verify the information.
The text
The story, written by Theo Nyhaba, referred to an article in the Sowetan of 9 March 2016 on an interdict Sisa Mbuli had obtained to stop an “ill-fated” auction of the common home by his ex-wife (Uyanda Mbuli) – and that he had written to his ex-wife’s attorneys demanding an outstanding balance of R8 000 per month.
The Sunday Sun story started by stating, “Uyanda and Sisa Mbuli’s dramas aren’t going away any time soon! Last week there was a dispute over the auctioning of their house. Now, Sisa has written to Uyanda’s lawyers demanding an outstanding balance of R8 000 per month. Sisa is seeking a reimbursement of certain household expenses which he incurred.”
The complaint in more detail
False allegations
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Sentences in dispute |
Mbuli’s complaint, reaction |
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“Uyanda and Sisa Mbuli’s dramas aren’t going away any time soon!” |
The legal proceedings he instituted could hardly be described as “drama”. |
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“Last week there was a dispute over the auctioning of their house.” |
This dispute dates back to 30 October 2015, when his ex-wife stated her intention to auction, with the interim interdict being granted on 16 February this year. |
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“Now, Sisa has written to Uyanda’s lawyers demanding an outstanding balance of R8 000 per month.” |
An application for her to abandon monthly payments of R8 000 from him was served on 20 March 2015 already, and was still a subject of an out-of-court settlement – therefore, it cannot be "now”. The forwarding of the same application on 17 February was merely a follow-up and a heads up to her current lawyer. |
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“Sisa is seeking a reimbursement of certain household expenses which he incurred.” |
Again, this should have been written in the past tense. |
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“The letter reads in part: ‘And this reimbursement by your abandoning the balance outstanding from a garnishee order which is deducted from his account in the amount of R8 000 per month’.”
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This negates the claim the newspaper made two arguments above. The reimbursement of R141 262.92 to him would be in lieu of his ex-wife being ordered to forego the R8 000 monthly payments to satisfy maintenance arrears due to her (R176 300.19). He has met more than half of the initial arrears by the time he served the application on her on 20 March 2015. The full amount was paid at the end of October that year – a fact the newspaper would have been able to verify had they followed the principles of fair and objective reporting. |
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“Uyanda, who moved out of the house said she’s had it with Sisa and his endless dramas.” |
The legal proceedings he instituted could hardly be described as “drama”.
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“Sunday Sun sources said Sisa still benefits from the house after Uyanda left without taking anything.”
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He paid all expenses. His ex-wife took moveable property on 14 January 2016. She was due to take more, thus the lack of credibility and trustworthiness of the sources. Their identity should be disclosed confidentially to this office, for verification purposes. |
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“Another source said it wasn’t the first time she tried to auction the house but he successfully interdicted her. ‘It’s not true she wanted to auction the house without his knowledge. She tried it in November last year, but filed for an urgent court application to stop the auction and succeeded,’ said the source. The source said this was the second application.”
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While she initially intended the sale by auction (on 2 December last year), it later transpired that the purported mandate was only signed seven days later. The auctioneers attributed the delay in signing to the application. On 16 November, the court did not make a ruling on the auction, but only ruled on procedural matters.
He did not have any details about the intention to auction, and got to know of it through an online search. It would simply not have made sense to submit another application for the same matter on which the court had pronounced itself, unless he was launching an appeal. The credibility and trustworthiness of the source is questionable, and this office should verify his or her information with the source. |
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“The source added that Sisa has been staying in the house for a year after the divorce was granted.” |
As a co-owner, he had a right to live in the property. He paid all expenses himself. He thinks his ex-wife is the source, and the only one at that. |
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“Uyanda said she’s gatvol keeping quiet while Sisa abuses her kindness.”
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The credibility or accuracy of this statement is questionable, having been an indirect quote. There is no “kindness” to “abuse”, as the full amount for her 50% share of the immovable property was secure in a trust account of his conveyancers (since 19 November 2015). The newspaper should have verified this fact. |
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“ ‘I don’t even stay at the house. For a 50-year-old Xhosa man to be running to the police, courts and media every other month for the last six years and trying to get maintenance from a woman 13 years his junior is totally puzzling. I’m now convinced he doesn’t want peace. He should rather put his energy into keeping his job and being a good dad to his son and totally leave me alone. This is so tiring,’ she said.” |
He is 48, and denies all the other allegations – there is no maintenance claim, only reimbursement. This was a direct quote, and she was not allowed to speak to the media on this matter (with regard to defamation and contempt of court), as the media were barred from publishing the identities of the parties.
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“Sisa refused to comment because of the court order.” |
He simply abided with the ruling of the court.
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In conclusion, Mbuli says that the newspaper did not have reasonable grounds to justify the publication of the allegations, as it was evident that the claims could never be said to be true.
“Thus my contention of malice, alternatively sensation and ridicule at my expense.”
Headline
Mbuli complains that the headline made a statement of fact, yet it took the cue for the word “drama” from his ex-wife’s verbatim quotes. He adds the legal proceedings he instituted could hardly be described as “drama”, and argues that readers often only read headlines – and in this case, the wrong impression has been created.
Not in the public interest; privacy, dignity
In later correspondence, Mbuli denies that he is a celebrity, as he was merely mentioned by association in the stories to which Vos refers, and says that he has “never courted the media”. The direct quotes attributed to him were taken from his sworn affidavits, save for one response to another newspaper. “The only reason the story made it to the Sunday Sun is that a former beauty queen is the subject.” Moreover, he says, Ms Mbuli’s glamorous picture, alone, featured prominently in these articles.
Contempt of court
Mbuli complains that the publication of the story constituted contempt of court.
Modus operandi
Mbuli complains that the newspaper’s modus operandi was questionable, alternatively that it bordered on malice by neglecting to verify the information.
Mbuli says he missed the journalist’s first attempt to contact him (from an “unknown” number, made on March 12 at 11:31) – but the reporter did not leave a message. The journalist called again at 12:36, asking about a monthly maintenance amount of R8 000.
He says he explained the context to Nyhaba “off the record” and also advised the journalist of the confidentiality provisions through the court order barring publication; he also explained why there was no story – upon which the reporter undertook to discuss the matter with his news editor (Norman Masungwini).
He asked to speak to the latter, but Nyhaba told him he was unavailable and had promised to call back.
When no such call came, he phoned Masungwini via the reporter’s mobile, and again explained the context. “[The news editor] indicated that he removed ‘maintenance’ from the story as it did not make sense.”
When questioned, Nyhaba mentioned a letter between Uyanda Mbuli and her attorneys (in which Sisa Mbuli was mentioned as asking for R8 000 on a monthly basis). Mbuli says he was convinced that this letter had been doctored – so he sent Nyhaba correspondence, on an off-the-record basis, about a Small Claims Court matter that he had sent to his ex-wife’s attorneys, advocating for an out-of-court settlement. He also requested that the newspaper be “barred” from publishing its information.
Mbuli says his last call to the news editor was at 17:06, when the latter promised to call back. He also called the editor (Prince Chauke) several times, but with “no joy”. He also did not get a response to his SMS to the news editor. “This leaves me with one conclusion – the story and the angle had already been determined.”
Mbuli says when he read the story, he realized that the document in question was an application he had served on 20 March 2015, which was the subject of settlement negotiations at that time. “Sunday Sun failed to verify a simple fact that this was a March 2015 matter, alternatively, [it] deliberately ignored this fact to push the ‘drama’ angle.”
The newspaper’s response
Vos replies that Sisa and Uyanda were a celebrity couple who have been in the limelight for numerous years. He provided this office with several stories to this effect, published of late.
Regarding Mbuli seeking reimbursement, he supplied me with “proof” that this was not a doctored document.
He also argues that the newspaper was not in contempt of court.
The deputy editor says the newspaper has made use of two reliable sources.
Vos defends the headline, saying Ms Mbuli told Nyhaba that she was “gatvol, sick and tired of Sisa Mbuli”. He adds, “Therefore we used the word gatvol in the headline. She also told the newspaper that ‘she’s had it with Sisa and his endless dramas’.”
Referring to some e-mail correspondence, Vos said the saga between the two parties was ongoing, which was why the words “last week” and “now” had been used. The story merely reported on the latest development in this matter.
Vos concludes, “We believed the article to be reasonably true and in the public interest, and therefore decided to publish.”
Mbuli replies to the newspaper’s response
Mbuli goes into detail about the amount of R8 000, maintenance, court issues, reimbursement for household expenses, out-of-court settlement negotiations, the divorce settlement, etc.
He adds that the “doctored document” pertained to Masungwini’s mention of a “letter” that he had sent to Ms Mbuli’s attorneys requesting R8 000. He attests, “There is no letter to this effect… I submit that a mere submission of the letter, even to me, would put the matter to rest. There are numerous ways to do so without revealing sources.”
Mbuli says he has not mentioned a sub judice averment – the point is that the court order explicitly bars the media from publishing the identities of the parties (Case 2012/21038, Rule 43).
He says on 12 September 2013 Judge Kathleen Satchwell of the South Gauteng High Court ruled (4.6) that “neither party shall speak to any member of the media, answer any question, divulge any information concerning this matrimonial dispute and it is ordered that the identities of these parties to this dispute shall not be published by any member of the media”.
Mbuli says that no credence or reliance can be placed on notes which could have been prepared afterwards.
Analysis
In many ways, Mbuli protests too much:
· If the newspaper thinks that the saga is dramatic, then so be it – if Mbuli disagrees, then so be it as well;
· The saga is indeed continuing, and the use of words such as “now” and “last week” do not disregard the past as such;
· Some statements he calls false were duly attributed to a source – but it is not for me to decide who is right or wrong. My task is to adjudicate the reporting, and surely the newspaper was justified in telling the story – also from the perspective of sources;
· If Ms Mbuli said she was “gatvol” (and I have no reason to believe that she did not), it is not for me – or for Mr Mbuli – to say that she was not “gatvol”; and
· His argument that he was not a celebrity and that he was mentioned in earlier stories “by association” (and in this case, his statement that the only reason the story made it to the Sunday Sun was that a former beauty queen was the subject of the article) and that this should prohibit the newspaper from publishing the story – his wife is a celebrity, even if he is not, and by virtue of that the publication of the story was justified.
It is not for this office to decide who is right and who is wrong about the amount of R8 000, maintenance, court issues, contempt of court, reimbursement for household expenses, out-of-court settlement negotiations, the divorce settlement, etc. – those issues are for a court to decide.
Here are some more observations:
· I note that point 12 (Confidentiality) of the settlement agreement between the two Mbulis, signed on 23 February 2015, stated: “The parties agree that neither party shall disseminate, publish or divulge any information or documents which forms part of these proceedings to any media, persons, employer, present of past or any other person whatsoever for whatsoever reason.” If Ms Mbuli has transgressed this ruling, surely the blame for that is not to be laid at the newspaper’s door;
· I have not been presented with any evidence that the media had been prohibited from identifying the parties;
· I have seen what Mbuli calls a “doctored document” (which I was asked to keep confidential); and
· The headline, which made use of a direct quote by Ms Mbuli, was justified.
In the end, I have no reason to agree with Mbuli that the newspaper did not have reasonable grounds to justify the publication of the allegations, or that the newspaper was malicious.
Finding
The complaint is dismissed.
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