Appeal: ANC EC vs Sunday Times

Decision: Application for leave to appeal

Applicant: ANC EC

Respondent: Sunday Times

Matter No: 195/2012

On March 4, 2013, the Appeals Panel of the Press Council of South Africa conducted an appeal hearing in East London between the Appellant and the Respondent after the Appellant had appealed a ruling by Deputy Press Ombudsman Johan Retief.

The Appeal Hearing was chaired by retired Judge Ralph Zulman. He was assisted by two panellists, Brian Gibson (public) and Peter Mann (press).

The Appellant was represented by Mr Mvusiwekhaya Sicwetsha and Mr Pindile Miza. The Respondent was represented by Mr Eric Van Den Berg of attorneys Fasken Martineau; by its legal editor, Ms Susan Smuts and reporter Mr Sibusiso Ngalwa the author of the articles complained of.

The Appellant appealed against a ruling by the Deputy Press Ombudsman delivered on December 20, 2012, on the grounds that:

Ø  the Deputy Press Ombudsman did not appear to have done justice when he dealt with the complaint;

Ø  the processing of the complaint was not done in the spirit expressed in the South African Press code; and

Ø  they suspected that the Deputy Press Ombudsman was put under pressure which may have influenced his decision.

Further the Appellant persisted in its complaint that three reports published by the Respondent on April 15, 2012, and headlined, “Power put before pupils”; “As Zuma woos support, Eastern Cape suffers” (editorial comment); and “When education takes a back seat to politics” (a review article); were unfair, unethical, unbalanced  and reflected deliberate bias.

Specifically, the Appellant insisted that, contrary to the finding of the Deputy Press Ombudsman:

Ø  the headline did not reasonably reflect the content of the story;

Ø  the statement that President Zuma had placed personal ambitions ahead of thousands of schoolchildren was unsubstantiated; and

Ø  the report omitted comment from two people the newspaper had interviewed.

Application for the Chairperson of the Press Appeals Panel to recuse himself:
The Appellant  had been granted leave to appeal the Deputy Press Ombudsman’s ruling by the Chairperson of the Appeals Panel, retired Judge Ralph Zulman.

When the Appeal Panel Hearing began at the scheduled time in East London, the Appellant’s representatives were not present.

The Chairperson explained to the parties who were present that he had first set the hearing for early February. When the Appellant was unable to make that date, he had asked in a series of emails over a period of time, for them to recommend a date for the hearing. When his emails went unanswered he had set a new date for the hearing unilaterally, and had informed all the parties of this date. He had received no reply from the Appellant.

He had also asked both the Appellant and the Respondent to provide heads of argument to assist the panel. These were provided by the Respondent, but not by the Appellant.

The Chairperson ruled that the hearing would proceed without the Appellant. The hearing began. About 10 minutes later Mr Miza for the Appellant arrived. He apologised for being late and said he had been lost. He added that Mr Sicwetsha was in the vicinity of the hearing, but that he too, was lost.

The Chairperson then adjourned the hearing to allow Mr Miza time to find Mr Sicwetsha; and the hearing was re-started when this had been achieved.

The Appellants apologised for being late as they had experienced difficulty finding the venue. The Chairperson accepted their apology saying he had experienced the same problem.

He again explained how he had initially set a date for the hearing and had then been asked to move the date by the Appellant to which he had agreed.
He recounted that the Appellant had not responded to any of his emails meaning that he was forced to set another date unilaterally, and asked why this was so?

He also asked why the Appellant had not heeded his request to provide the panel with heads of argument for the appeal hearing.

Mr Sicwetsha replied that it was very difficult for the Appellant to set a date for the hearing as the party was “very busy”. He said the Appellant had not provided heads of argument because it believed that its written appeal against the ruling by the Deputy Press Ombudsman “was sufficient”.

The Chairperson asked why the Appellant had not informed the Press Appeals Panel of these issues.

Mr Sicwetsha said that he had a problem with the way the Chairperson had conducted himself in setting the meeting; and that he was unhappy that Chairperson had interrupted him. He said the Chairperson’s actions were “not professional” and that they led him to question whether there was a “basis of fairness” for the hearing to proceed under his chairmanship. He then applied for the Chairperson to recuse himself – saying that if he failed to do so the Appellant would withdraw from the hearing.

Mr Van Den Berg, for the Respondent said there was no basis for asking for the Chairperson to recuse himself.

The Chairperson adjourned the hearing to consult with his two panellists. They agreed, unanimously, that there was no reason for him to recuse himself.

This decision was conveyed to the parties and it was explained that, if the Appellant elected to withdraw, the hearing would continue in their absence with panel members relying on their written submissions.

Mr Van Den Berg for the Respondent, appealed to the Appellant not to leave the hearing – saying that the Chairperson had not been unfair and, in fact, had been far less robust than most presiding officers in the courts.

The Chairperson also urged the representatives of the Appellant to not to withdraw from the hearing. They were offered time to caucus about their decision.

However, the two representatives of the Appellant chose to leave the hearing; which continued in their absence.

Hearing:

The appeal hearing then proceeded with the panel questioning the Respondent basing their questions, inter alia, on the written submissions of the Appellant.

Finding:

The appeal was dismissed.

The panel could find no fault with the ruling by the Deputy Press Ombudsman; and it found the submissions made on behalf of the Respondent by Mr Van Den Berg to be persuasive.

As he noted, the complaint in essence was whether the headline, ’Power put before pupils’, breaches the Press Code, whether the claim regarding President Zuma was substantiated and whether two members of the Appellant who had been interviewed ; Messrs Lubalo Mabuyane, the Appellant’s provincial secretary; and Modidima Mannya, former Eastern Cape Department of Education Superintendent General; should have been quoted.

We find that the headline, Power put before pupils, was a reasonable reflection of the contents of the report and did not breach the Press Code.

The panel agreed with the Deputy Ombudsman that the claim regarding the President had been properly attributed.

With regard to the exclusion of the quotes by Messrs Mabuyane and Mannya, we are of the view that this did not render the reports unfair.

The panel was not persuaded by the argument that the Deputy Press Ombudsman was biased or under pressure.

The ruling by the Deputy Press Ombudsman, issued on the 20th December 2012, is upheld.

Ralph Zulman

Chairperson Appeals Panel of the Press Council of South Africa

Brian Gibson
Public Representative
Appeals Panel of the Press Council of South Africa

Peter Mann
Press Representative
Appeals Panel of the Press Council of South Africa
March 5, 2013