Decision: Application for leave to appeal
Respondent: Mouton and Fourie
1.On October 21, 2013, the Appeals Panel of the Press Council of South Africa heard an appeal by Rapport against a ruling by the Press Ombudsman, Dr Johan Retief, regarding complaints by the respondents, Ds Danie Mouton and Dr Pieter Fourie about an article that appeared in Rapport on March 10, 2013, entitled “Kerkman lieg, se brief”.
2. Mr Pieter Malan appeared for Rapport, and Ms Latiefa Mobara, the Public Advocate, appeared for the respondents, who were also in attendance.
3. The Panel noted, with both parties agreeing, that the core issue was not about the merits of the reported dispute, but whether Rapport had been fair to Ds Danie Mouton and Dr Pieter Fourie in its reporting thereof.
Nature of the complaint.
4. Both Mouton and Fourie complained that the article was based on unsubstantiated accusations that harmed their personal integrity and reputations as ministers and leaders in the NG Kerk. The article was based on letters written by Mr Danny Fourie in which he accused the two complainants of lying.
5. In a letter written after the report appeared, Danny Fourie wrote a letter in which he issued a public apology to Dr Fourie and Ds Mouton. Danny Fourie also said he had based his letter on inaccurate/false facts and assumptions.
In his letter of apology, he said: “Ek het die twee briewe in woede, met foutiewe feite and aannames, geskryf. My woede het veroorsaak dat ek twee mense valslik beskuldig het en disrespekvolle aantygings teenoor die Direksie en uitvoerende hoof gemaak het.”
Submissions by the Public Advocate
6.In the heads of argument submitted by the Public Advocate Ms Latiefa Mobara, the following comment is made in Ad para 4a: “The Ombudsman’s finding was indeed based on the letter by Danny Fourie in which he admitted that he had based his letter on incorrect/false facts.”
7. In his findings on both complaints (Danie Mouton and Pieter Fourie), the Ombudsman, Dr Johan Retief, says, “was dit nie vir Danny Fourie se bekentenis nie (dat hy vir Pieter Fourie/Mouton sedertdien om verskoning gevra, en erken dat hy die brief uit woede en gebaseer op verkeerde feite en aannames geskryf het), sou ek nie teen die koerant kon bevind het nie (our emphasis) – omdat ek gewoon nie grond sou gehad het om die valsheid van die stellings bo redelike twyfel te bewys nie.”
Dr Retief says that in the light of this it is reasonable to believe that Danny Fourie’s accusations were not true. He concludes that the report was therefore not based on truth. He therefore found that Rapport was in contravention of Art 4.2.1 and 4.2.4 of the Press Code, which state that (4.2.1) the facts reported should be true or substantially true and (4.2.4) it must be reasonable for the article to be published because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.
The Panel’s view
8.Of overriding significance was Dr Retief’s comment that were it not for Danny Fourie’s retraction of his comments, he would not have found against Rapport.
The problem with this, in our view, is that this retraction, both verbal and in writing, came only after the article was published. In other words, the fact that the retraction was made was not known to Rapport at the time of publication, even if it was made before the publication. Mr Malan, who was the journalist concerned, told the hearing that when Mr Fourie’s retraction was issued days after the publication was made, it was printed by Rapport. It must also be borne in mind that Mr Malan told the hearing that he confirmed the contents of Fourie’s original letters with other reputable sources, whom he named.
9. We are of the view that Danny Fourie’s retraction should not have been a factor in the Ombudsman’s consideration of the complaints against Rapport. It could not have had any bearing whatsoever on the information Rapport had when the article was written and published as it did not exist at that time, or at least, Rapport was not privy thereto.
10. Based on what was said at the hearing and on documents before us, we believe that it was reasonable for Rapport to have regarded the information it had as true or substantially true. Also, it was evident that the article was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.
As said earlier, in the Ombudsman’s own words, he based his censure of Rapport on Mr Danny Fourie’s retraction , which was issued or came to the knowledge of Rapport days after publication. Without that, said the Ombudsman, he could not have found against Rapport.
For the reasons given above, we rule in favour of the appellant, Rapport, and overturn the finding of the Ombudsman, as well as the sanction imposed.
Dated this 29th day of October 2013
Judge B M Ngoepe, Chairperson,
Mr N Woudberg, Member, Public Representative
Mr H Jeffreys, Member, Media Representative