Appeal Hearing Decision: Mabuyane Lubabalo vs Mail &Guardian

Sun, Aug 2, 2020


In the matter of

MABUYANE LUBABALO                                                                                 APPLICANT


MAIL & GUARDIAN                                                                                       RESPONDENT


Hearing: 27 July 2020


  1. Mr Mabuyane Lubabalo (“appellant”) lodged a complaint against the Mail & Guardian (“respondent”) in respect of an article published by the respondent on 17 May 2019 under the headline “Eastern Cape ANC bigwigs in loan fracas”. The gist of the story alleged that some monies belonging to municipalities in the Eastern Cape were being looted by some African National Congress senior politicians in the province, including the appellant.
  2. The appellant lodged three complaints. Firstly, that the story omitted material information which had been furnished on request. Secondly, that the journalist had trespassed onto the appellant’s premises to take photos of his house that was the subject of the alleged abuse of monies. Thirdly, clause 10.1 of the Code was breached in that the editor published a false tweet. The allegations were denied by the respondent.
  3. The Ombud dismissed the first two complaints but upheld the third one. In doing so, she equated a tweet posting to a print street post. She ruled that it was a false tweet and that clause 10.2 was breached. A sanction was then imposed. The respondent noted an appeal. The appellant, in turn, noted a counter-appeal against the dismissal of the complaint relating to trespassing, contending that clause 1.4 of the Code was breached. Both parties were granted leave. In its notice of appeal, the respondent also alleged that the Ombud had acted irregularly by contacting respondent’s source directly without informing the respondent.

Regarding the alleged breach of Clause 10.1 (the tweet)

  1. The respondent pointed out that at the time of the publication of the tweet, the code had not yet been amended to cover digital media. That being the case, the provisions of the Code, as presently amended, cannot be made to apply retrospectively. That must be the end of the matter. Legislation is not made to apply retrospectively, especially in outlawing a conduct.

Regarding the alleged breach of Clause 1.4 of the Code (Tresspassing)

  1. There is no conclusive evidence that the journalist who took the photo climbed over the appellant’s parameter wall. The Ombud, having taken facts into consideration, concluded on probabilities that the photographer did not try to “sneak over the fence wall” as alleged. As there is no conclusive proof, we are not at large to overturn the Ombud’s finding.

Regarding alleged irregularities by the Ombud

  1. As we are in any case minded to uphold the respondent’s appeal against the Ombud’s adverse finding that there has been a violation of clause 10.2 of the code, the point is moot. We do point out, however, that this kind of allegation against the Ombud is not new; it has in the past been raised by other newspapers. We expressed the view then that, generally, the parties wish to be made aware of the Ombud’s consultations with outsiders; of course each case will depend on its circumstances.
  2. For the reasons given above, the following Order is made:

7.1         The Ombud’s Ruling dated 2 February 2020 that the Mail & Guardian has breached clause 10.2, and the sanction imposed, are hereby set aside.

7.2         Mr Mabuyane’s appeal against the Ombud’s Ruling that there has been no trespassing and thus no violation of clause 1.4 of the Code, is dismissed.

Dated this 1st day of August 2020

Judge B M Ngoepe, Chair, Appeals Panel

Prof M Chaka, Member, Public Representative

Mr Tshamano Makhadi ; Member, Media Representative