DURBAN - GOVERNMENT spokesperson Ndabezinhle Sibiya is suing the Special Investigating Unit (SIU), a forensic accountant, Arena Holdings, and the Sunday Times editor and printer for R500 000 in damages, for claiming he was linked to Sotobe Media, in the matter between the SIU and Digital Vibes, where Sotobe Media had allegedly received potential irregular payments of just over R9.7 million from Digital Vibes.
Sibiya is seeking relief from the Special Tribunal to declare that this was all done without giving him an opportunity to be heard, and that it was defamatory and false. Further, he is calling for the section of the Sunday Times article, published on July 31, 2021 and August 1, 2021, based on the SIU report, which refers to his alleged link to Sotobe Media, to be removed from the article and its archives.
He also seeks to have Arena Holdings, the Sunday Times editor, and the Sunday Times, interdicted and restrained from “publishing any manner or form any statement written, oral or graphic, or any article that conveys to the public or implies that Sotobe Media is a company related to him”.
According to court papers, filed on October 12, Sibiya wants the five respondents to “jointly and severally” be directed to pay damages. His alternative relief sought is for an order declaring the five respondents to be liable to pay the damages; for the amount of the damages be referred to oral evidence; and that all five respondents pay his legal costs.
Sibiya said his application emanated from the SIU investigation into Digital Vibes and other parties, which was pending before the Special Tribunal and he, therefore, finds that the tribunal has jurisdiction to entertain his application.
In court papers, Sibiya said Hesti Marcia Le Roux, the forensic accountant and second respondent, on the SIU’s instruction, deposed an affidavit in support of an application against several companies, which include Digital Vibes.
The National Department of Health had appointed Digital Vibes, in November 2019, as the communication service provider regarding the National Health Insurance Bill and the department’s policy for one year, renewable annually for a maximum period of three years, for the total value of R144 million.
From January 2020 to February 2021, the department allegedly paid more than R150 million to Digital Vibes.
Sibiya said, in February 2021, after receiving information regarding potential irregularities in the department awarding the NHI media campaign to Digital Vibes, the SIU appointed Ngubane Assurance and Tax Advisory to conduct a forensic investigation into this appointment.
The conclusion reached by the firm’s report, in May, was that the Digital Vibes appointment and conclusion of the Service Level Agreement (SLA) were irregular and unlawful, and that the subsequent expansion of the SLA, to include Covid-19 communication was “unauthorised, irregular and unlawful”.
In June, the tribunal granted the SIU an interim interdict, for just over R22m, that was held in a number of accounts.
“In terms of the said interim order, the SIU was directed to bring a review application within 30 days, from June 17. The SIU brought a review application, which is currently pending in the Special Tribunal.
“In the founding affidavit in support of the review application, the SIU alleged that it traced subsequent transfers of funds, received by Digital Vibes from the department, to various parties. It further alleges that the funds received, by those parties from Digital Vibes, constitute undue gratification or were transferred for purposes of money laundering or as proceeds of unlawful activities,” read Sibiya’s affidavit.
He said one of the parties that allegedly received these funds from Digital Vibes was Sotobe Media. It allegedly received an amount of R9 781 250.
Sibiya said that according to the SIU founding affidavit, as detailed in Le Roux’s affidavit, large sums of money were allegedly paid to individuals with links to former Health Minister Zweli Mkhize.
In Le Roux’s affidavit, Sotobe Media was listed as a potential implicated entity and that its director was Sithembiso Sikhumbuzo Sibiya, and that Sithembiso was Ndabezinhle Sibiya, Mkhize’s previous spokesperson.
Sibiya said that after the SIU deposed this affidavit, the Sunday Times had, on July 31 and August 1, published the names of the people and entities that received funds from Digital Vibes.
He said the following was recorded in the article: “Sotobe Media, a company “potentially” related to Mkhize’s former spokesman Ndabezinhle Sibiya.”
He had attached the relevant pages of the Sunday Times article in his court papers as an annexure.
“The Sunday Times modified improperly what is contained in the affidavit of the SIU and, thus, perpetuated the falsehood in the affidavit,” he said.
Sibiya denied knowledge of this company and also said he did not know its directors. He said his attorneys conducted a Windeed search of Sotobe Media, which listed the directors – with his name excluded – and had attached it as an annexure to his affidavit.
He also detailed that, in August, his attorney sent a letter of demand to the SIU, stating that he was “falsely and wrongfully associated with Sotobe Media”. His attorneys said this could have been avoided had the SIU contacted him.
His attorneys said the reference was defamatory and infringed Sibiya’s constitutional right to be heard, prior to publication of his name. They called for the SIU to expunge his name from the proceedings by August 6.
His attorneys sent a similar letter to the Sunday Times and demanded payment of R500 000 for the defamatory allegations published. As an alternative, his attorneys demanded that the Sunday Times retract his alleged association to Sotobe, and to issue an apology on its front page, by August 7. In response, the Sunday Times said their story was based on the SIU affidavit and that the reporter attempted unsuccessfully to contact Sotobe Media, and was unable to get Sibiya’s contact details.
“I have suffered harm and continue to suffer harm to my reputation, both in a personal and official capacity, because of the widespread dissemination of the statement linking me to a company that is being investigated for corruption.
“Furthermore, there is a reasonable apprehension that the respondents will continue causing harm to me, given that they have refused to expunge the reference to my name from proceedings that are pending before the Special Tribunal and have refused to retract the reference to my name from the Sunday Times,” read Sibiya’s affidavit.
He said he felt he had no alternative remedy that could afford him the protection he needed.
‘Paper will defend article’
Approached for comment on Sibiya’s application to the Special Tribunal, SIU spokesperson Kaizer Kganyago said he was unaware that Sibiya was suing the institution.
Sunday Times managing editor Susan Smuts on Tuesday confirmed knowledge of the court papers and said that the publication would defend their article.
“All I can say for now is that I am aware of the summons and we are ready to defend our position on the matter,” said Smuts. | Additional reporting by Thabo Makwakwa
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