Davin Phillips, executive director of Celebrity Services Africa, who represents Bonang Matheba, told Channel24 that the article “contains factual errors” and that Bonang “was never summonsed to appear and never appeared on charges of tax fraud”.
NPA spokesperson Phindi Mjonondwane told Channel24 that Bonang did not appear in court and that there is no official tax fraud case on the roll against her as it stands.
“The matter was not enrolled pending further investigations,” Mjonondwane said.
Bonang claims R10m in damages from Sunday World over ‘tax fraud’ cover story Channel 24 28/8/2018
Sunday World rejects assertions that have been circulated that our recent story titled ‘Hawks pounce on Bonang as SARS zooms in on taxes‘ is fake.
We stand by the report and the comment by National Prosecuting Authority (NPA) spokesperson Phindi Louw-Mjonondwane, who firmly confirmed the matter to us.
A fraud docket with a case number that Sunday World has seen has been registered at the Johannesburg Central Station against Bonang Dorothy Matheba.
Sunday World stands by its story Sunday World 29/8/2018
Three questions are germane in assessing the chances of TV star, influencer, radio host and businesswoman Bonang Matheba being paid R10 million by the weekend tabloid Sunday World which, she alleges, defamed her and the way she has gone about defending herself.
Is she serious about suing the newspaper?
On 19 October 2012, Media Freedom Day in South Africa, the country’s leading authority on defamation law, Dario Milo had this to say about President Jacob Zuma’s using legal threats to intimidate his critics: “Between 2006 and 2010, the president instituted court action in 15 cases, suing eight newspapers, a radio station, two cartoonists, a columnist, op-ed writers, and journalists.
“The majority of [Zuma’s] claims, which total over R50 million, are not about news stories that the president regards as inaccurate, but rather concern criticism of his conduct.”
The most obvious example of this was Zuma’s threat to sue Zapiro over the 2008 ‘Lady Justice’ cartoon.
Initially he claimed R4-million in damages to his reputation and R1 million for injury to his dignity. As time went by and with Milo representing Zapiro, Zuma reduced his claim from the initial R5 million to R100 000 with an apology. Then, a few days before the scheduled hearing, Zuma ignominiously sounded the retreat and dropped the lawsuit.
Something similar happened when Dr Iqbal Survé of Sekunjalo Independent Media had papers served on human rights activist Rhoda Kadalie claiming R1 million for a letter she had written to the Mail & Guardian which he claimed was injurious to his reputation.
The background to his threatened lawsuit was that in January 2015 Survé withdrew from the UCT positions he held saying that this was because the university was “paying lip service” to transformation.
Kadalie’s letter alleged that Survé “didn’t jump, he was pushed” and after senior counsel representing her replied to Survé, saying that the matter should proceed to court, nothing further was heard. It then became obvious this legal threat by Survé was, as in the case of Zuma vs Zapiro, an intimidation tactic
Kadalie was vindicated when the then Vice-Chancellor of UCT, Dr Max Price, confirmed her version in an interview with Jonathan Jansen for the latter’s book As by Fire – The end of the South African University, an account that was buttressed by the research of UCT honours student, Ricky Stoch.
If Bonang does take Sunday World to court and wins, will she get R10 million?
In his definitive book on the matter, Defamation and Freedom of Speech, Dario Milo writes: “… punitive damages unnecessarily deter public speech with no countervailing benefit to the right of reputation. The award of punitive damages is a disproportionate restriction on freedom of speech.” [Pg 254]
So what would our courts regard as reasonable sum of money a newspaper should pay if it has defamed someone?
In 2016 one of Survé’s newspapers, The Daily Voice, was found guilty of defamation in the Cape High Court. It was ordered to pay R70 000 to a teetotal policeman with an exemplary career record after it had falsely described him as being drunk and belligerent on duty. The court found that the newspaper had made no attempt to contact the plaintiff in terms of the audi principle, had not apologised for its falsehoods and never offered a retraction.
Costs were awarded against the Daily Voice on the High Court scale. This was yet another and typical example of how the lives of people – innocent of any wrongdoing – have been unnecessarily harmed since Sekunjalo took control of the largest group of English newspapers in the country in 2013.
Now here’s a startling point. The Daily Voice omitted to contact the policeman, Charles Miller, to get his side of the story, omitted to apologise when it became obvious that the offending article was devoid of truth, and omitted to publish a retraction. But this censorship by omission does not transgress the carefully crafted code of ethical newspaper conduct which is available for scrutiny on the IOL website!
Read this code of conduct and note that the words ‘omit’ or ‘omission’ are nowhere to be found.
Now go to the code of conduct of the Press Council of South Africa and go to point 1.2 under Gathering and reporting of news
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 summarisation.
Note the words ‘material omissions’ and the absence of this condition in the SIM code of ethical conduct.
I have digressed somewhat, but the salient point in terms of the headline on this article is that the defamed policeman was paid substantially less than R10 million Bonang is suggesting the Sunday World should pay her if it is found to have defamed her.
She might well get far more as a famous television star than the R70 000 awarded to a policeman who was not known to the general public – but R10 million is, quite literally, a big ask.
Three previous defamation cases, two successful and one not, bear recall.
In 1985 an article by Lin Sampson was published in the Caxton-owned magazine, Style, which was critical of cosmetics entrepreneur Reeva Forman and her business methods.
Five years later, in an appeal judgment, Caxton was forced to pay her a combined total of R1 350 000 being R150 000 for the injury to her reputation and R1 200 000 for the financial losses she testified that she had incurred as a result of the article.
In 1996 the Cape Town Supreme Court ruled in favour of noseweek publisher Martin Welz and the Cape Argus who were sued for R1.6 million by American businessman, Dr Robert Hall.
In 2013 Arms deal whistle-blower Richard Young sued Jacob Zuma and a website associated with him for a million rand – half a million for himself and half a million for his company. He was awarded R270 000 – which is still a long way from the R10 million which Bonang feels would be adequate compensation for the reputational loss she feels she has suffered.
Suing for defamation is a gamble which could backfire.
The hearing could take several years and, if it goes against you, you could be saddled with significant costs.
The Bogoshi case loaded the legal dice heavily in favour of the media company which you feel has defamed you and this is one reason why Bonang is unlikely to get her R10 million – even if the court rules in her favour.
Traditionally one’s defences against being sued for defamation were truth, the fact that article or claim was in the public interest and the extent to which you could prove your claim.
As this article by Gilbert Marcus indicates, the 1998 Bogoshi ruling added what became known as the ‘media defence’.
In essence it said that a media claim, even if found to be untrue, would not be detrimental if the reporter could prove that he/she had not been negligent in making a mistake. They would have to prove that they had good reason to feel their account was true and had observed and implemented the normal checks and balances when researching their article and during their investigation.
In National Media Ltd v Bogoshi, the Supreme Court of Appeal ruled: “We must not forget that it is the right, and indeed a vital function, of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion… The press and the rest of the media provide the means by which useful, and sometimes vital, information about the daily affairs of the nation is conveyed to its citizens…”
The amounts rewarded to Richard Young and the policeman, Charles Miller, in their successful attempts to counter egregious attacks on their integrity are, nevertheless, precedents. They indicate that Bonang, even if she succeeds, is unlikely to receive R10 million in recompense for the reputational damage she claims she has suffered as a result of the Sunday World article alleging that she has been charged for tax fraud.
The third question is:
Why has she, apparently, chosen to go head to head with the parent company of Sunday World, Tiso Blackstar, with its deep pockets, rather than filing a complaint with the SA Press Council?
With defamation suits being so risky, most people who are aggrieved by false print and online allegations against them, choose to approach the Press Council of South Africa which, as its constitution indicates, has constantly evolved for the better and refined its processes over more than two decades.
Had she gone this route, Bonang would have had her complaint assessed by Dr Johan Retief, author of a book on media ethics. His judgements, as the rulings on the PCSA website indicate, are deeply analytical and scrupulously fair. He is part of a team which has strength in depth.
If the PCSA system is not bombproof it comes pretty close to it and its big deterrent factor is that, if you err in your article, its ombudsman dictates the size and prominence of the apology, where it is placed in the newspaper and its content.
This is the stark difference, I feel, between a legal victory over a defaming newspaper and the apology sanction dictated by the Press Council. Let’s say the courts find that the Sunday World has unjustly sullied Bonang’s reputation and diminished the esteem in which society holds her.
Let’s say it awards her damages of R1 million, something which would not significantly impact on the Tiso Blackstar bottom line. My sense is that the company would find that preferable to the reputational damage it would suffer and the humiliation it would experience by having to place an apology of equal prominence to the original article on the front and inside pages of Sunday World – not to mention the subsequent derision on social media.
If, however, you are defamed by one of Independent Media’s newspapers, your options are much more limited because in October 2016, Survé, following the example of the Guptas, withdrew his newspapers from the oversight and accountability system provided by the Press Council. He did this at a time when an outraged public had submitted dozens of complaints to the Council about the damaging fake news articles published by the group.
The differences between the Press Council Code of Conduct (which comprises more than 5 000 words) and Surve’s code of ethical conduct for his newspapers (which comprises less than a thousand words) is stark.
Go to the IOL website and you will find no obvious reference to its code of ethical conduct. Then go to the News24 website and you cannot miss the front and centre reference with a photograph of its ombudsman, George Claassen.
There is a further impediment to those seeking redress for a defamatory article published by Sekunjalo Independent Media which is summed up in this extract from a Times Live editorial published on 30 May last year.
It remains to be seen whether Bonang is sincere in her stated intention to sue the Sunday World for defamation, given the fact that the newspaper says it stands by its article.
If she does, the precedents of the Bogoshi judgment and the 2016 award of R70 000 to Charles Miller in his defamation lawsuit against the Daily Voice, indicate that her chances – should the court rule in her favour – of being compensated with R10 million are less than negligible.
Ed Herbst is a retired journalist.