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Appeal Decision: Democratic Alliance vs The New Age

Thu, Sep 19, 2013

Zakhele Mbhele                                                      Applicant


The New Age                                                            Respondent

                                                                           Matter 148/2013

Application for leave to appeal to the Appeals Panel: Decision

1.This is an application by the appellant for leave to appeal the Ruling and sanction by the Ombudsman, which application is being opposed by the respondent.

2.The complaint was lodged by the appellant on behalf of the Premier of the Western Cape, Mrs Helen Zille, and the Western Cape Government; at least, that is according to the appellant. This aspect, the relevance of which will appear later, is not in dispute.

3. A day before the story complained about was published on 18 April 2013, Mrs Zille called a press conference at which, as respondent puts it, she wanted to pre-empt information and statistics to be released in the Commission of Employment Equity 13th Report relating to the employment of people of different races and gender in the country. Apparently, a journalist of the respondent was either already having a copy of the report when he attended Mrs Zille’s press conference, or he obtained the report shortly thereafter; whatever the case may be, he had it prior to the publication of the story. Respondent published the story with the following headline and sub-headline: “Zille fails race test-White males still dominate top jobs in the DA province.”

4. The headline and the sub-headline, as well as certain aspects of the story, caused the applicant to lodge a complaint with the Ombudsman. One complaint in this respect was that the content was a distortion and did not include or accurately reflect the information Mrs Zille had given.

5. Regarding the inaccuracy of the content, the Ombudsman states: “ I have compared Zille’s statement (which she had made to the media) with the story and I am satisfied that he (the journalist) did cover the salient points in the statement.” He accordingly dismissed the complaint that the content was inaccurate or a distortion. I agree with the Ombudsman. He did, however, find that the respondent violated article 2.4 of the Press  Code in that it failed to mention that it could not or did not verify its information; he also found that respondent violated articles 2.1 and 2.2  in “inaccurately and misleadingly stating that it based its story on more than one source.”  The respondent was reprimanded.

6. Turning to the complaint relating to the headline and the sub-headline, the Ombudsman found respondent to have breached articles 10.2 of the Code in that the headline and the sub-headline did not give a reasonable reflection of the contents of the story. He ordered an apology and crafted a version which had to be published on page 2 or 3 of the respondent. Applicant had wanted publication on the front page.

7. In the Ombudsman’s drafted version, the apology is ordered to be to “…the DA and to its leader, Mrs Helen Zille.” The appellant is unhappy about this. He wants the apology to be to the Premier and the Government of the Western Cape. He argues that he lodged the complaint in his capacity as the spokesperson for the Premier and the Government of the Western Cape. In other words, he argues that the Ombudsman is wrong in his directive. Of course, strictly speaking, appellant is, on the face of it, correct; in fact, it is doubtful whether the appellant could have competently lodged a complaint on behalf of another person, namely, “Mrs Helen Zille;” one person cannot lodge a complaint on behalf of another, except in a few exceptional circumstances, which would not apply in the present case; neither could appellant have competently lodged the complaint on behalf of the Democratic Alliance as he was a spokesperson for the provincial government. The respondent has no answer to appellant’s argument; it says it has no comment. Secondly, the appellant seeks leave to appeal against the Ombudsman’s directive that the apology be published on the 2nd or 3rd page. He wants it to be published on the first page, like the heading and the sub-heading.

8. It seems to me that the only way to correct the Ombudsman’s directive, if it is indeed wrong, that the apology be to the DA and to its leader, Mrs Helen Zille, is by way of an appeal. As, in my view and for the reasons I have mentioned above, there are reasonable prospects that the Appeals Panel my find that the apology is misdirected, I must grant leave to appeal. It could be something which the parties may easily sort out between themselves; but it is up to them to do so. The implication of my Decision is that the entire sanction imposed by the Ombudsman, including the fact that the apology be published on page 2 or 3 (as opposed to front page), falls to be appealed against as the sanction cannot be appealed against in parts. I have already stated that I agree with the Ombudsman’s dismissal of the complaint that the story failed to cover the Premier’s statement; there are therefore no reasonable prospects that the appellant would succeed before the Appeals Panel on this aspect and the request is therefore turned down.

9. For all the reasons given above, leave is hereby granted to the appellant to appeal only against the sanction imposed and crafted by the Ombudsman in his Ruling dated 18 July 2013.

            Dated 19 September 2013.

            Judge B M Ngoepe, Chair, Appeals Panel.