Decision: Application for leave to appeal
Applicant: The New Age
Respondent: Hellen Zille
Mater No: 25/05/2014
 The applicant, the New Age, applies for leave to appeal to the Appeals Panel against the Ruling and sanction of the Ombudsman, handed down on 30 June 2014. The respondent, Hellen Zille, in her capacity as the Premier of the Western Cape, opposes the application.
 The complaint was lodged by one Mpofu, in his capacity as the spokesperson for the Premier and the Government of the Western Cape. The complaint was against an article which appeared in the 22 June 2014 edition of the applicant. The story appeared under the head “Zille under fire over Cabinet.” The sub-heading read “ANC BLASTS MAJORITY WHITE MALE COMPOSITION BUT PREMIER DISMISSES CRITICISM AS HOT AIR.” The opening paragraph read: “Western Cape Premier Hellen Zille has again come under fire from the ANC for appointing a provincial cabinet dominated by white males.”
 The first complaint relates to the sub-heading. The essence of it is that the applicant states as a fact that white males are the majority in the Cabinet. This, argues the respondent, is an incorrect statement. The second complaint is against the opening paragraph. It is contended that it too is factually incorrect in saying that the provincial Cabinet is “dominated” by white males. The respondent complains that the applicant presents a distortion by the ANC as a fact. The opening paragraph is therefore also said to be false and misleading. Together with the sub-heading, they convey an impression that the Premier is racist in that she appoints only white males to the Cabinet, while this is not so. Respondent says that while the applicant is free to report on allegations made by the ANC, applicant cannot present them as facts. By doing so, says respondent, the applicant has violated articles 2.1; 2.2 and 2.3 of the South African Press Code. The respondent demanded an apology and a retraction and/or correction, on the first page.
 The applicant’s response was that what it had said in both the sub-heading and the opening paragraph was true; namely, that white males were in the majority, and that white males dominated the provincial Cabinet. The foundation of the argument must be that if the classification of members of the provincial Cabinet were to be done on the basis of gender and race, white males would constitute the majority of a particular classification (known as “white males”) and therefore dominant.
 The complaint, and the response, are based on the following facts which seem to be common cause between the parties: the Cabinet consists of 11 members, including the Premier; of this number, 4 members are “white” males; 3 are “coloured” males; 1 “black” male; one “black” female and 2 “white” females.
 The Ombudsman found in favour of the respondent. He found that the applicant had reported as a fact an allegation by the ANC, which was not true. He found that the sub-heading and the opening paragraph conveyed that the respondent was racist in her appointments in that she had put up a Cabinet dominated by, or the majority of whom were, white males. He ordered the applicant to apologize and to publish the apology on page 2, with a kicker on the first page. He also drafted the apology.
 In its grounds of appeal, the applicant repeats the same defence, with some criticism of the Ombudsman. In my view though, the Ombudsman has come to the correct conclusion, for the reasons he has given, which I endorse. Moreover, I have a further view. Irrespective of what the parties might think, they are both wrong in their understanding of the concept “black”. They confuse it with “African”. The concept “black” has long come to be accepted as generic: inclusive of Africans, so-called Coloureds, and people of Indian origin. Since the jettisoning of the abominable term “non-white” in this country, this would be the understanding of an average reader in this country. On the basis of the correct understanding, which would be that of an average reader, there are therefore 4 black males, comprising 3 so-called “coloured”, and 1 African. The result is that there are 4 white males and 4 black males; therefore, it is factually incorrect to say “white males” are in the majority or in dominance, either as a gender or a racial unit. A question may also be asked: suppose a motion, supported by only the 4 white males, is put to vote; would the motion succeed? The clear answer is, No! To sustain its argument of white male majority and dominance, the applicant is forced to, as it were, employ the tactic of divide and rule; in particular, in relation to the other males, by seeking to dividing them into “coloureds” and “blacks,” thereby obtaining a false white male majority and dominance. An average South African reader would not fall for that. The statement that “white males” are in the majority and do dominate, is therefore a falsehood. My above reasoning should not be construed as derogating from the Ombudsman’s reasons for his finding. I am merely pointing out the fallaciousness of the applicant’s argument, through a different route, which is over and above the Ombudsman’s. I am perfectly happy with the Ombudsman’s reasons. Applicant has therefore reported as facts, both in the sub-heading and the opening paragraph, things which are not. As the Ombudsman says, it would have been different if the applicant had put what the ANC allegedly said, in inverted commas.
 The applicant is wrong, in its grounds of appeal, to say that the Ombudsman himself says that the criticism of the ANC is true; he does not say that. What he says is that it is true that the ANC raised a criticism; but he definitely finds fault with the applicant presenting the criticism as fact.
 The applicant also says that “the Ombudsman erred in finding that the opening paragraph of the article suggests that the Western Cape Government are racists.” I do not agree that the Ombudsman erred. It is, after all, the applicant itself which, in both the sub-heading and the opening paragraph, imported in the issue of race. There is an emphatic and repeated reference to race in both. Actually, as I indicated above, applicant went so far as to bring racial distinction even between “coloureds” and “blacks”. Both the sub-heading and the opening paragraph raise the issue of appointments to the provincial Cabinet vis-avis, not only gender, but race as well. Clearly, the purpose was to play the race card against the respondent.
 For all the reasons given by the Ombudsman as well as those above, I hold the view that the applicant has no reasonable prospects of success before the Appeals Panel; the application therefore fails.
Dated this 3rd day of September 2014
Judge B M Ngoepe: Chair of the Appeals Panel