Appeal Decision- Mvusiwekhaya Sicwetsha vs The Herald

Decision: Application for leave to appeal

Applicant: Mvusiwekhaya Sicwetsha

Respondent: The Herald

Application for Leave to Appeal to the Appeal Panel of the Press Council of South Africa

1.The Applicant, Mvusiwekhaya Sicwetsha, unsuccessfully took his complaint against the Respondent, The Herald newspaper, to the Press Ombudsman. The complaint followed the publication by the Respondent, in its edition of 18 February 2013, of a letter by an anonymous member of the public. The letter made certain adverse comments about Mr Qhoboshiyane, an MEC in the Eastern Cape, and his staff. The Respondent thrice offered to publish a full and unedited response by the MEC on certain conditions, but the offer was turned down as many times; the Applicant wanted nothing less than a retraction of the letter and an undertaking not to publish a similar letter in future.

2. In signing the letter of complaint, the Applicant was apparently doing so in his capacity as “MEC’s Spokesperson”.

3. I have read the complaint, the response by The Herald as well as the decision of the Ombudsman and his reasons.

4. In his complaint, the Applicant contents that, in publishing the said letter, Respondent violated sub-articles 7.2 and 7.3 of article 7 of the Press Code. The relevant provisions read:

“7. Advocacy

A publication is justified in strongly advocating its own

views on controversial topics, provided that it treats its

readers fairly by:


7.2 Not misrepresenting or suppressing facts; and

7.3 Not distorting the facts.”

5. In my view, the above provisions of the Code would only apply to the Respondent in respect of an article not only  published by it, but also generated or authored by it. To hold otherwise would attract an obligation which would be well nigh impossible for a newspaper to comply with; for example, how would it know that the author, a member of the public, is not “misrepresenting or suppressing facts”? The offer by the Respondent to publish fully an unedited response by the MEC is  of significance here; it was to offer the latter the opportunity to set the record straight in the event of the anonymous author “misrepresenting or suppressing facts” or “distorting facts”. This is at least one of the remedies available to an aggrieved person when a newspaper is merely the publisher, as opposed to being both the author and publisher; that is, the aggrieved person would not be without any remedy. To insist on retraction might stifle debates on matters of public importance and interest, let alone a demand for an undertaking not to publish similar letters in future, as demanded by the Applicant.

6. The Respondent had also challenged Applicant’s locus standi. I doing so, Respondent was relying on article 1.1 of the Complaints Procedures, which reads:

“1.1 ‘Complainant’ shall mean and include any person who

………….lodges a complaint provided that such

person….. has a direct, personal interest in the matter

complained of.”

6. Mr Sicwetsha has not shown any personal interest in the matter, or that he is bringing the complaint in any of the other capacities contemplated in the article. If the latter were the case, he should have established that in a substantive manner in the body of the complaint; it would not be enough for him to simply write “MEC’s Spokesperson” beneath his signature after concluding the letter of complaint.

7. It is my considered view that there are no reasonable prospects of success that the Appeals Panel of the Press Council of South Africa will come to a different decision to that of the Ombudsman. The decision of the Ombudsman is endorsed, and leave to appeal therefore refused.

Judge B M Ngoepe

Chairperson, Appeals Panel of the Press Council of South Africa.

15 April 2013.