Date of publication:
23 July 2023
Headlines:
Page 1 cross-reference: Mkhari and traditional leader at war over ICT hub
Article: Tzaneen ICT hub grinds to a halt after fallout with royals
Author of article: Phumla Mkize
Particulars
This finding is based on a written complaint by attorney Mr Danny-Junior Maimele on behalf of Hosi TLP Nwamitwa, Princess Tsakani Nkambule and the Valoyi Traditional Authority Trust, and includes a letter to Sunday World dated 24 July 2023 as well as various annexures; a written response on behalf of Sunday World by its Acting Editor, Mr Ngwako Malatji; and a further written response by Mr Maimele on behalf of his clients. In addition, the complainants and the respondent provided additional information at my request.
Complaint
The complainants submit that the article transgresses Clauses 1.1, 1.2, 1.8 and 3.3 of the Press Code:
“1. The media shall:
“1.1 take care to report news truthfully, accurately and fairly;
“1.2 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 summarisation; …
“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; …
“3. The media shall:
3.3 exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:
3.3.1 the facts reported are true or substantially true; or
3.3.2 the reportage amounts to protected comment based on facts that are adequately referred to and that are either true or reasonably true; or
3.3.3 the reportage amounts to a fair and accurate report of court proceedings,
Parliamentary proceedings, or the proceedings of any quasi-judicial tribunal or forum; or
3.3.4 it was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct; or
3.3.5 the article was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party; …”
In view of the complainants’ objection to the Page 1 cross-reference to the article, I have added Clause 10.1 of the Press Code to the complaint:
“10.1. Headlines … shall not mislead the public and shall give a reasonable reflection of the contents of the report … in question …”
1. Summary of article
1.1. According to the article, a multimillion-rand ICT hub to support small, medium- and micro-sized enterprises (SMMEs) in Limpopo is in danger of becoming a white elephant because of a dispute with a local traditional authority.
1.1.1. The hub was constructed in 2022 in Mhlava, a village in Tzaneen, by the non-profit company (NPC) Hope Givers Foundation (HGF) with funds from the Small Enterprise Development Agency (Seda).
1.1.2. The foundation reportedly received R5 million from Seda to set up the hub “to assist start-ups through an incubation programme and digital and business solutions” in the province.
1.1.3. The hub was expected to be fully operational at the start of 2023 as part of a five-year project. However, its official launch has been postponed twice.
1.2. The article also states that Seda has not yet released funding for the hub’s operational costs, even though this has been approved, which reportedly forced the HGF to dip into the funding of its other projects to meet the demands for assistance by SMMEs.
1.2.1. The NPC’s CEO, Tsakani Mkhari,[1] said its problems started when she had a fallout with the Valoyi Traditional Authority Trust (VTAT), which is led by chief Tinyiko Nwamitwa. The article notes that Nwamitwa’s daughter, princess Tsakani Nkambule, is a Seda board member.
1.3. Before the hub made its permanent home in Mhlava, the foundation rented premises from the VTAT in Nwamitwa village. Mkhari said the relationship between the foundation and the trust “soured when the terms of the rental agreement were not met”.
1.3.1. According to Mkhari, the NPC was given access to only one building instead of three buildings as two of them were still occupied by other tenants. Nevertheless, she said, the foundation paid the full monthly rental initially agreed upon.
1.3.2. The VTAT reportedly assured the foundation that the other tenants would vacate the premises at the end of the first month; however, this did not happen.
1.3.3. Instead, two months into the lease, the foundation received a R11 744 electricity bill in addition to the rental amount. However, the NPC said that it did not yet occupy the building and that only painters were on site during the day at that stage.
1.3.4. Mkhari said the relationship between the NPC and the VTAT became even more strained when donors and partners were refused access to the building by protesting security guards who were wrongly informed that the foundation was responsible for paying them.
1.3.5. Mkhari then terminated the lease with immediate effect in August 2022 and cited, among other things, the high occupational rent for just one building, the electricity bill and accessibility threats to clients.
1.3.6. The foundation subsequently received a letter from the VTAT’s lawyers demanding R2.5 million from the Seda funds.
1.4. Mkhari then approached the neighbouring Nkuna traditional council and built the ICT hub there. However, she claims, Nkambule used her position as a Seda board member and a Valoyi royal family member “to frustrate the implementation of the project”.
1.4.1. As a result, about 20 businesses from 34 villages were instead assisted with resources from the foundation’s other projects. Another 80 to 100 businesses were unable to obtain assistance as the foundation was running out of funds.
1.4.2. In addition, nine people were laid off because the HGF was struggling to keep the centre up and running.
2. Arguments
Hosi TLP Nwamitwa and Others
2.1. The complainants submit that the Sunday World article is “a constellation of untruths” and describe it as “a slanderous account”.
2.1.1. They go on to state that the Page 1 cross-reference and the article implicate Nwamitwa; that the article outlines various unsubstantiated allegations against her, her daughter and the VTAT; and that the article gives Nkambule an opportunity to respond.
2.1.2. However, they submit, Nwamitwa and the VTAT were not afforded an opportunity to respond to the allegations (in breach of Clause 1.8 of the Press Code), and that these allegations were accepted “voetstoots” (“as is”).
2.1.3. They argue that the failure to approach Nwamitwa for comment amounts to “a vacillating commitment to the principles of natural justice” and declare that Nkambule is neither the “mouthpiece” of the chief nor of the VTAT.
2.2. The complainants further contend that the journalist’s conduct was in breach of the principal objectives of the Press Code, which require an article to be accurate, truthful and fair (in line with Clause 1.1).
2.3. In addition, the complainants contend that the article is not balanced and that it intentionally departs from the facts through misrepresentation and material omissions (in breach of Clause 1.2 of the Press Code).
2.4. Furthermore, the complainants argue that the article does not portray them “in a good light” and, accordingly, that it is slanderous (and hence in breach of Clause 3.3 of the Press Code).
2.4.1. The complainants submit that a careful perusal of the lease agreement between the VTAT and the HGF would have made it clear that the foundation was peddling falsehoods. (The lease agreement is provided as Annexure E.)
2.4.2. They suggest that the same conclusion would have been reached if the correspondence between the VTAT and the foundation had been scrutinised (Annexure D) and if either Nwamitwa or an authorised representative of the VTAT had been approached for comment.
2.5. In conclusion, the complainants note that Sunday World rejected their request for an unconditional apology and for a page to be allocated for an article to place the matter in its proper context.
Sunday World
2.6. In reply to the complaint, the respondent denies that its article contains unsubstantiated allegations – or, in fact, any allegations at all – against Nwamitwa.
2.6.1. It submits that any allegations in the article are directed at the VTAT and Nkambule, and argues that Maimele rebutted these in an extensive response which was incorporated in the article.
2.6.2. It therefore regards the complainants’ claim that there are unsubstantiated allegations in the article against the trust and Nwamitwa as being without any foundation or merit.
2.7. The respondent further submits that there was no reason to solicit comment from Nwamitwa because the article is not about her, but about the trust which she leads.
2.7.1. It further notes that Maimele is quoted extensively in the article on behalf of Nkambule, in which he rebuts the allegations by Mkhari or the HGF about the trust and Nkambule.
2.7.2. Accordingly, it rejects the complainants’ claim that the newspaper acted in bad faith by not granting Nwamitwa and the VTAT a right of reply, and calls for this complaint to be dismissed.
2.7.3. Sunday World adds that when Maimele raised these concerns after the article was published, the newspaper asked him to make Nwamitwa available for an interview, but he refused and demanded an apology instead. It rejected this demand as unreasonable and unjust.
2.8. The respondent concedes that the allegations levelled against the trust and Nkambule may be viewed by them as untruthful, but submits that the article is fair and balanced “as Maimele was given an opportunity to rebut … Mkhari’s allegations”.
2.8.1. It goes on to state that the total word count of the article is 929 words, of which 361 cover Mkhari’s complaint against the VTAT and about 310 outline the background of the project and how it aims to benefit the community. It notes that the VTAT’s comment amounts to 220 words and suggests that the article is therefore far from one-sided.
2.9. The respondent further points out that the number of buildings referred to the article was provided by Mkhari. It adds that the lease agreement refers to three subleases, which were to be transferred to the foundation.
2.9.1. Sunday World notes that it understood the lease agreement to include security groundsmen and an alarm system as part of the rental. For this reason, it was comfortable about using Mkhari’s information on this aspect.
2.10. In conclusion, the respondent calls for the dismissal of the entire complaint as “baseless, unreasonable, unjust and without merits”.
Hosi TLP Nwamitwa and Others
2.11. In response to the respondent’s reply, the complainants state that they stand by their complaint and submit that the allegations “fed to” the newspaper are unsubstantiated.
2.12. They further deny that the respondent called on Maimele to make Nwamitwa available for an interview and call upon the newspaper to produce proof that this request was denied.
2.12.1. They go on to argue that it is contradictory to claim that there was no basis for the newspaper to solicit comment from Nwamitwa and yet, at the same time, it maintains that it requested Maimele to make the chief available for an interview.
2.12.2. They contend that Nwamitwa’s name would not have been cited if the article was not about her and that it would therefore have been sufficient to simply name the institution that she leads (namely the VTAT).
2.13. The complainants then refer to the attached correspondence between the VTAT and the foundation, dated 24 July 2023, and submit that the respondent ignored this information after it was sent to the newspaper.
2.13.1. They contend that “[b]alance and fairness cannot be about the opportunity to rebut allegations but [about] reporting truthful stories”.
2.13.2. In support of their argument, they state that the article does not make any reference to Maimele’s reply on behalf of the VTAT to the foundation’s notice to vacate the premises in Nwamitwa.
2.13.3. They also point out that when an attempt was made to furnish the newspaper with this reply, the journalist replied that she had been furnished with all the relevant correspondence by the HGF.
2.14. The complainants further submit that the word count provided by the respondent “is also an indication of the one-sidedness of the story”.
2.14.1. They add that the publication did not approach Seda for information or to verify Mkhari’s allegations.
2.15. In light of the above, the complainants wish to refer their complaints to the Press Ombud’s panel for adjudication.
3. Analysis
3.1. The complainants argue that the article is in breach of Clause 1.1 of the Press Code in various respects. These complaints are outlined in more specific detail in the attached letter sent to Sunday World on 24 July 2023 by Maimele on behalf of Nkambule and the VTAT.
3.1.1. Firstly, the letter states that the lease was for one property or facility only – not for three properties or buildings, as Mkhari claims in the article.
3.1.1.1. According to the newspaper, the figure of three buildings was provided by Mkhari. It adds that the lease states that three subleases were to be transferred to the foundation (namely those of “Kinderfonds Mama, Cheka Impilo and Creche”).
3.1.1.2. However, the lease clearly states that the three subleases would each pay a monthly rental of R5 000. In other words, the subleases would be transferred to the HGF and remain in place during the foundation’s occupancy of the property.
3.1.1.3. Nowhere does the lease make any reference to three buildings to be occupied by the HGF.
3.1.1.4. Although the newspaper did question Mkhari on this aspect of her claim, the newspaper should have pursued this line of questioning more thoroughly in light of the contents of the lease agreement. After all, it was in possession of a copy of the agreement.
3.1.1.5. Furthermore, as the complainants rightly note, the HGF’s letter in which it informs the VTAT of its decision to vacate the trust’s property (Annexure B) does not state anywhere that the foundation was offered three buildings nor that – in breach of the lease agreement – it was given access to just one building.
3.1.1.6. Although the article reports that the reasons that Mkhari gave for terminating the lease include “the high occupational rent for only one building” (my emphases), the foundation’s letter to the VTAT merely declares that “the rent is set too high” – not that the rent is too high for just one building.
3.1.1.7. Ultimately, however, the role of the Press Council is not to make any pronouncements on the contents and reasonableness or otherwise of the lease agreement between the foundation and the trust.
3.1.1.8. Its role is limited to determining whether or not the contents of the article adhere to the Press Code. And it is in this regard that the article falls short: it uncritically quotes Mkhari’s claim that the rental agreement refers to three buildings whereas the lease, in fact, makes no such reference.
3.1.1.9. What compounds this breach is that the VTAT was not approached for comment on Mkhari’s claims on this issue. (See point 3.3 below for my discussion of the article in relation to Clause 1.8 of the Press Code.)
3.1.2. Secondly, in response to the foundation’s complaint about the electricity bill, the letter to Sunday World submits that Clause 16 of the lease agreement clearly states that the HGF leased the property “as it is” (“voetstoots”).
3.1.2.1. However, this reference applies specifically to the condition or quality of the property, and cannot reasonably be interpreted to apply to the cost of electricity consumption as well.
3.1.2.2. In fact, the cost of electricity consumption is addressed separately in Clauses 5.1 and 6 of the lease agreement. The latter clause explicitly refers to the lessee’s responsibility for the “costs of electricity consumed on the property”.
3.1.2.3. The condition of the property and the cost of electricity consumed on the property are two separate issues, and cannot justifiably be conflated.
3.1.2.4. Be that as it may, it is not the role of the Press Council to determine or make a pronouncement on whether the electricity bill that the HGF received was excessive or not. Its ambit is confined to the obligations prescribed in the Press Code.
3.1.2.5. In this regard, the article merely records Mkhari’s views on the electricity bill and, as such, sufficiently meets the requirements of the Press Code. (Its failure to solicit the VTAT’s view on this issue is another matter entirely and falls under the ambit of Clause 1.8.)
3.1.3. Thirdly, the letter to Sunday World maintains that, in terms of Clause 5.1 of the lease agreement, the HGF accepts that security is the responsibility of the foundation.
3.1.3.1. This claim is most odd. The inclusion of the reference to “3 security personnel, 2 grounds men [and] alarm system” in this clause clearly indicates that security is part of the rental agreement.
3.1.3.2. Furthermore, the reference to security personnel in Clause 5.1 is immediately followed by the words “part of lease” in brackets. This confirms that security is included in the lease agreement and, logically, so too any costs associated with it.
3.1.3.3. Nevertheless, the VTAT should have been approached for comment on this aspect of the article, too.
3.1.4. Fourthly, the letter to Sunday World disputes the claim in the article that the HGF terminated the lease in August 2022. It maintains that the VTAT was only informed by email on 27 September 2022 of the foundation’s intention to terminate the lease with immediate effect and goes on to claim that the HGF surreptitiously vacated the VTAT’s premises on the evening of 26 September 2022.
3.1.4.1. According to additional information provided by the respondent at the request of the Deputy Press Ombud, the newspaper did specifically ask Mkhari about when the HGF moved out of the VTAT’s property and was informed that it did so in August 2022.
3.1.4.2. The significance of this discrepancy in dates is unclear. The only inference that can be made is that the complainants wish to draw attention to this aspect in order to challenge the accuracy and truthfulness of the article and/or to raise questions about Mkhari’s integrity.
3.1.4.3. However, even if Mkhari’s version of when it vacated the VTAT property is incorrect, this does not alter the main thrust of the article – that there was a dispute between the foundation and the trust over the lease agreement – in any material way.
3.2. The letter to Sunday World also claims that the article is in breach of Clause 1.2 of the Press Code in several aspects.
3.2.1. Firstly, the letter denies the claim in the article that a number of partners and donors were refused access to conduct routine inspections at the ICT hub when it was located on the VTAT’s premises.
3.2.1.1. The letter points out that there was only one such incident, which involved MTN, and that this matter was subsequently resolved at a meeting. The letter accuses the respondent of trying to create “a storm in a teacup” – in other words, of exaggerating or misrepresenting the facts.
3.2.1.2. However, the complainants cannot summarily dismiss the foundation’s claim simply because they were aware of only one such incident.
3.2.1.3. According to further information provided by the respondent, among those who were denied access to the VTAT’s property were Vodacom and MTN as well as suppliers and staff involved in renovations.
3.2.1.4. In view of the above, the article was therefore not in breach of the Press Code.
3.2.2. Secondly, the letter to Sunday World disputes Mkhari’s claim in the article that the VTAT’s lawyers demanded “R2.5-million of the Seda funds”.
3.2.2.1. Nkambule and the VTAT deny any knowledge of “Seda funds”, and submit that they are only aware of damages which the foundation owes to the VTAT for being in breach of its lease agreement with the trust.
3.2.2.2. This claim is open to question in view of Nkambule’s membership of Seda’s board and her membership of the Valoyi royal family. However, neither the complainants nor the respondent provides conclusive proof to either refute or support this claim. As such, no definitive finding can be made on this aspect of the complaint.
3.2.3. Thirdly, the letter to Sunday World takes issue with the allegation in the article that Nkambule abused her position at Seda and her membership of the Valoyi royal family to “frustrate” the implementation of the ICT project in Mhlava village.
3.2.3.1. Nkambule’s membership on the Seda board and her membership of the Valoyi royal family were bound to raise questions in this dispute between the foundation and the trust.
3.2.3.2. It is important to bear in mind, however, that the article did not categorically state as a matter of fact that Nkambule did indeed abuse her positions in Seda and the Valoyi royal family; this issue was clearly presented as an allegation by Mkhari.
3.2.3.3. Furthermore, the HGF is a non-profit company, with the sole objective of benefiting the public.[2] As such, it is in the public interest to record Mkhari’s allegation.
3.2.3.4. In addition, the article duly notes Maimele’s response on behalf of Nkambule that she is not involved in Seda’s operational matters and that the property in Nwamitwa village belongs to the VTAT and not to her.
3.2.3.5. For the record, the newspaper also made an attempt to obtain comment from Seda, as the article clearly notes.
3.3. Another complaint is that the respondent failed to approach Nwamitwa and the VTAT for comment and that, as a result, the article is in breach of Clause 1.8 of the Press Code.
3.3.1. There is indeed merit in one aspect of this complaint. By its own admission in its response to the complaint, the newspaper states that the article makes certain allegations “against the trust” (my emphasis).
3.3.1.1. In light of this acknowledgement, it is not clear why the VTAT was not approached directly for comment on the allegations in the article. After all, the foundation’s lease agreement with the trust is at the centre of the dispute between the two parties.
3.3.1.2. As a result of this oversight, the article contains various allegations about the lease agreement (see points 3.1.1.9, 3.1.2.5 and 3.1.3.3 above) without any response from the VTAT.
3.3.1.3. Even though Nkambule is a trustee of the VTAT, the article only makes reference to her as a Seda board member and as Nwamitwa’s daughter. There is no indication in the article that the respondent also approached her in her capacity as a VTAT trustee.
3.3.1.4. Moreover, Nkambule was not asked any specific questions about the lease agreement. The reporter’s WhatsApp message to her on 20 July 2023 merely asks Nkambule for her “response to allegations that you are using your power and influence as a Seda board member and member of the Royal House to frustrate the Hope Givers Foundation project because they refused to pay R2.5-million for cancel[l]ing the rental contract it had with the VTAT” (Annexure A).
3.3.1.5. The VTAT – the owners of the property at the centre of the dispute in the article – was therefore not afforded an opportunity to respond directly to the various claims about the lease agreement made in the article by Mkhari.
3.3.2. However, there was no obligation on the newspaper to approach Nwamitwa for comment. The article does not level any allegation against the chief either in her personal capacity or in her capacity as head of the VTAT.
3.3.2.1. It merely records, as a matter of fact and as background information, that Nwamitwa is head of the VTAT and that Nkambule is her daughter. It does not accuse her of any wrongdoing, either implicitly or otherwise.
3.4. The letter to Sunday World further claims that the article is in breach of Clause 3.3 of the Press Code in that it damages (“smear[s]”) Nkambule’s character and that it seeks to do the same with Nwamitwa.
3.4.1. However, the Press Code makes provision that considerations of dignity and reputation can be overridden if it is in the public interest and if the facts are substantially true (Clause 3.3.1).
3.4.1.1. As noted earlier, the HGF is a non-profit company, whose goal is to benefit the public. As such, the dispute between the foundation and the trust is unquestionably in the public interest.
3.4.1.2. And, in the course of reporting on this dispute, the newspaper was justified in mentioning Nkambule’s affiliation to Seda as a board member and as a member of the Valoyi royal family, as well as recording Mkhari’s allegation that Nkambule abused her membership of these positions.
3.4.2. There are also insufficient grounds to support the complaint that the article seeks to smear Nwamitwa. As noted above in points 3.3.2 and 3.3.2.1, the article does not level any allegations against the chief, either in her personal capacity or in her capacity as head of the VTAT.
3.4.2.1. The article merely reports, as a matter of fact, that Nwamitwa is head of the VTAT and that Nkambule is her daughter and a member of the Valoyi royal family. It does not accuse the chief of any wrongdoing.
3.5. With regard to the complaint about the Page 1 cross-reference, “Mkhari and traditional leader at war over ICT hub”, the complainants submit that the reference to Nwamitwa implicates her in the allegations contained in the article (in breach of Clause 10.1).
3.5.1. There is indeed some basis for this complaint. As stated previously, the article does not level any allegations against the chief (once again, note points 3.3.2 and 3.3.2.1 above), nor does it provide any information about her involvement in the dispute.
3.5.1.1. In the absence of any such allegations and/or information about Nwamitwa’s involvement in the dispute, there is no reason to include her in the cross-reference as being involved in a conflict with Mkhari over the ICT hub in Mhlava.
3.5.1.2. Accordingly, the Page 1 cross-reference is in breach of the Press Code.
4. Finding
The complaint that the article is in breach of Clause 1.1 is upheld in one respect (see the reasons set out under points 3.1.1 to 3.1.1.9 of my Analysis). However, the other aspects of the complaint are dismissed (see the reasons set out under points 3.1.2 to 3.1.2.5, points 3.1.3 to 3.1.3.2 and points 3.1.4 to 3.1.4.3 of my Analysis).
The complaint that the article is in breach of Clause 1.2 is dismissed (for the reasons outlined in points 3.2.1 to 3.2.1.4, points 3.2.2 to 3.2.2.2 and points 3.2.3.1 to 3.2.3.5 of my Analysis).
The complaint that the article is in breach of Clause 1.8 is upheld in one respect (see the reasons outlined in points 3.3.1 to 3.3.1.5 of my Analysis; also see points 3.1.1.9, 3.1.2.5 and 3.1.3.3). However, the complaint is dismissed in regard to the second aspect of the complaint (for the reasons set out under points 3.3.2. and 3.3.2.1 of my Analysis).
The complaint that the article is in breach of Clause 3.3 is dismissed (see points 3.4 to 3.4.2.1 of my Analysis).
The complaint that the article is in breach of Clause 10.1 is upheld (for the reasons outlined in points 3.5 to 3.5.1.2 of my Analysis).
Firstly, Sunday World is required to publish an apology to the VTAT for not affording it the right of reply and to Nwamitwa for unfairly and unjustifiably implying in the cross-reference that she was directly involved in the dispute between the VTAT and the HGF. The headline of the apology should contain the words “apology” as well as “Valoyi Traditional Authority Trust” and “Nwamitwa”, or some easily recognisable variations thereof, and the text of the apology should:
Secondly, Sunday World must publish the VTAT’s comment on the issues referred to under point 3.3.1.2 of my Analysis and publish a correction in the print edition specifically with regard to point 3.1.1.3. This should also be done in the text of the online article or at the bottom of the article, with an indication that it was amended following a ruling by the Deputy Press Ombud.
These amendments should be approved by the Deputy Press Ombud.
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 [email protected]
Tyrone August
Deputy Press Ombud
31 January 2024
[1] Mkhari’s surname is referred to in the online article and elsewhere as Muhlari. In the interests of consistency, the spelling used in the print edition of the article will be retained throughout this finding.
[2] See www.cipc.co.za, the website of the Companies and Intellectual Property Commission.