Lupi Ngcayisa vs Sunday World

Compliant: Lupi Ngcayisa

Lodged by: Biccari, Bollo & Mariano Inc.

Article: Axed Ngcayisa owes R190 000

Author of article: Theo Nyhaba

Date: 2 June 2011

Respondent:  Sunday World

Complaint
Former Metro FM DJ and producer Lupi Ngcayisa complains about a story in the Sunday World, published on December 19, 2010 and headlined Axed Ngcayisa owes R190 000.
Ngcayisa complains it is untrue or a misrepresentation of facts that he:
  • was fired by the SABC;
  • owes any money to Monatic;
  • has soured relationships and has cost the SABC its reputation; and
  • was paid by the SABC (other than his salary).
He says that the above-mentioned matters are defamatory of him.
Analysis
The story, written by Theo Nyhaba, says that Ngcayisa was allegedly in the “dogbox” after failing to pay fashion house Carducci for suits worn by 2010 World Cup soccer analysts on SABC. Ngcayisa reportedly owed Carducci more than R190 000. Nyhaba writes that Ngcayisa was fired two days before the final between Spain and Holland and adds: “A source close to the situation says the SABC paid Ngcayisa the money to pay the suppliers.” A letter by the SABC reportedly stated that Ngcayisa’s conduct has led to a breakdown in confidence between itself and Ngcayisa as well as between itself and Monatic, the company that produces Carducci clothing.
I shall now consider the merits of the complaint:
Fired by the SABC
The story says that Ngcayisa was fired (by the SABC) shortly after he had received a tender to dress its presenters.
Ngcayisa denies this and argues that he continues to enjoy a good relationship with the organization.
Sunday World says that Nyhaba was informed by Mr Collin McKenzie, General Manager of the SABC’s Business Enterprises, that Ngcayisa’s contract to dress the soccer presenters had been terminated just before the final. Nyhaba says that he has notes to prove this, but that he does not want to compromise his source. It adds that the termination of a person’s contract in the middle of an event like the World Cup amounts to firing.
The newspaper also says that the story is a follow-up (published on August 1, 2010), in which Ngcayisa is quoted as saying: “If you call that being fired, that is your problem.” It adds that when its journalist spoke to Ngcayisa, he did not confirm or deny that he was fired.
To this, Ngcayisa replies that:
  •  the story in dispute does not refer to the August story and that readers would not have known that it refers to that article;
  • the fact remains that his comment/response was not published in the December story, which led to a one-sided and unbalanced article;
  • McKenzie has told Nyhaba prior to the publishing of the December story that the SABC never fired Ngcayisa; and
  • Nyhaba was aware that he was not fired (which, he says, is evident from the August article).
My task is not to establish whether Ngcayisa was fired or not (I am not a court of law), but only to establish if the newspaper’s reportage was reasonable or not.
Let’s start with the August 1 story. Ngcayisa is correct: It does not matter what that story said – it was published more than four months prior to the article in dispute and readers cannot be expected to remember that long ago.
What is relevant, though, is Nyhaba’s conversation with Ngcayisa at the time because it has a bearing on the disputed story. Let’s therefore take a closer look at what this story says in this respect: Ngcayisa reportedly denied that he was fired and explained that he was granted two days’ leave. It is in this context that he is quoted as saying: “If you call that being fired, that is your problem…”
Note that on the one hand, the newspaper reported on August 1 that Ngcayisa denied that he was fired, yet it also argues that he neither confirmed nor denied this.
It is also confusing that the newspaper says that McKenzie told it that Ngcayisa was fired, while the latter claims that McKenzie told the newspaper the opposite. McKenzie did indeed say in an email addressed to Ngcayisa (dated March 14, 2011) that he told Nyhaba that he (Ngcayisa) was never fired or hired by the SABC – but that was long after the publication of the story in dispute and this finding can therefore not take that into account.
The heart of the matter is how the story reports on what its source allegedly told the journalist.
This is the situation:
  • The story does not report that the journalist got his information from a source, but rather states this allegation as a fact; and
  • Nyhaba knew that Ngcayisa denied that he was fired (as is evident in his story on August 1), and yet he neglected to mention this fact.
Owing money to Monatic
The story mentions a letter by the SABC stating that Ngcayisa had seven days “to either pay up in full or to contact the SABC or Monatic to make the necessary payment arrangements…” The SABC also reportedly wrote that it would be left with no choice but to seek legal advice on this matter.
(This “letter” refers to an email by McKenzie that was addressed to Ngcayisa on November 24, 2011. Monatic is the company that produces Carducci clothing.)
Ngcayisa complains that he does not owe any money to Monatic and also therefore never advised anyone that he would pay that organization by the end of August.
However, in the email mentioned above McKenzie indeed gave Ngcayisa seven working days to either pay up in full or to contact the SABC or Monatic to make payment arrangements – failing which the SABC would engage its legal department. This payment, McKenzie stated, was agreed upon between Ngcayisa and the SABC.
To this, Ngcayisa:
  • replies that McKenzie told Nyhaba that the SABC had contracted with EMS and not with himself, “therefore rendering the SABC liable for any payment allegedly due to them”; and
  • referred me to McKenzie’s email dated March 14, 2011 in which he said that he told the reporter that he (Ngcayisa) was never fired or hired by the SABC and that it was rather EMS that was contracted by the SABC. (He argues that the allegations made in the email dated November 24 were inaccurate as evidenced by the one on March 14, 2011.)
He adds that when it was brought to his attention that Carducci had not been paid by EMS, he assisted in ensuring that EMS paid Carducci – which he says has been done.
Ngcayisa may or may not be correct on this matter. My only interest in this aspect of the complaint, however, is to ascertain whether the newspaper’s reportage was reasonable.
It was, as the story in this regard:
  • merely uses the content of McKenzie’s letter to Ngcayisa; and
  • presents it as such – not as the absolute truth, but as the content of a letter.
 Soured relationships, reputation
The story refers to McKenzie’s email where it says: “It states that Ngcayisa’s conduct has led to a breakdown in confidence between himself and the SABC. The letter says Ngcayisa’s conduct has also soured the relationship between the SABC and Monatic. It says that it has strained and cost the SABC its reputation.”
These statements, Ngcayisa complains, are not true, are defamatory to his reputation, and are harmful to his charity work.
In his email to Ngcayisa dated November 24, McKenzie indeed mentioned the matters that are described in the sentences in dispute.
However, the same applies here than in the section above. Again, the story:
  • states the matters that McKenzie raises; and
  • presents it as such – not as the absolute truth, but as the content of a letter.
 Paid by the SABC (other than his salary)

The sentence in dispute reads: “The source says after the submission of the invoice, the SABC informed Carducci that Ngcayisa was paid by the broadcaster.”

Ngcayisa denies that the SABC ever paid him any money, except for his salary.

The Sunday World furnished me with an email from Ngcayisa to Mr Levern Philander from Monatic in which he apologized for the delay in payments. In this email Ngcayisa also confirmed that Exclusive Management Services (EMS) would pay on the last day of the month (August 2010).
The newspaper adds that, in subsequent emails, Ngcayisa was asked when he will pay and that he was reprimanded for the change of invoice details from the SABC to EMS.
Ngcayisa replies that this email clearly states that payment was to be made by EMS. It says: “I can confirm, Exclusive Management Services will make the payment on the last day of the month.”
He also says that the apology was made on behalf of EMS “who failed to pay over the funds to Carducci after the SABC had paid Exclusive Management Services”. He says that he was embarrassed by this. If the journalist was not clear about this, Ngcayisa argues, he should have verified this piece of information.
Ngcayisa explains that invoicing was changed from the SABC to EMS because the public broadcaster was experiencing various administrative problems. He says EMS “stepped in” to assist in the administration of payments.
Because there is no mention in the story to EMS, I asked both parties for clarification: What is/was the relationship between Ngcayisa and EMS?
I got two totally different answers – the newspaper says that Ngcayisa co-owned EMS at the time; Ngcayisa says that he had no ties with EMS and that he apologized on behalf of EMS because he had advised the SABC to make use of that company (he therefore felt responsible for its lack of payment).
Be that as it may, in his email to Ngcayisa, McKenzie refers to an agreement between the latter and the SABC which stipulated that he (Ngcayisa) “would pay Monatic in full on receipt of payment from the SABC…” (own emphasis).
This may or may not be correct. That is not for me to establish. But based on this statement, that was in the Sunday World’s possession, it was reasonable for the newspaper to report that Ngcayisa had received money from the SABC – especially so because it merely quotes a source and does not state it as a fact.
Finding
Fired by the SABC
Ngcayisa’s denial that he was fired by the SABC should have been reported and the statement in dispute was not attributed to a source but stated the allegation as fact. As a result an allegation was presented as a fact. This is in breach of Art. 1.3 of the Press Code that states: “…Where a report is not based on facts or is founded on opinions, allegation, rumour or supposition, it shall be mentioned in such report.”
Owing money to Monatic
The reportage was reasonable as the story merely used the content of McKenzie’s letter to Ngcayisa and presented it as such. This part of the complaint is dismissed.
Soured relationships, reputation
The reportage was reasonable as the story merely stated matters that McKenzie raised and presented it as such. This part of the complaint is dismissed.
Paid by the SABC (other than his salary)
It was reasonable for the newspaper to report that Ngcayisa had received money from the SABC as it based its reportage on an email by McKenzie. It also not states it as a fact, but it merely quotes a source. This part of the complaint is dismissed.
Sanction
The Sunday World is reprimanded for:
  • reporting the allegation that Ngcayisa was fired by the SABC as a fact; and
  • not reporting his denial that the SABC fired him.
The newspaper is directed to publish a summary of this ruling (not the whole finding) and the sanction. The story should start with the reprimand, after which the newspaper can report on the dismissals.
Our office should be furnished with the text prior to publication.

Please add the following sentence at the end of the text: “Visit www.presscouncil.org.za (rulings, 2011) for the full finding.”

Appeal

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at khanyim@ombudsman.org.za.
Johan Retief
Deputy Press Ombudsman