Appeal Decision: SA Hindu Dharma Sabha vs Sunday Times.

Decision: Application for leave to appeal

Applicant: South Afican Hindu Dharma Sabha and Veruksha Bhana and Others

Respondent: Sunday Times

Matter No: 373/2013 & 203/2013

Decision: Application for Leave to Appeal to the Appeals Board

1.The applicants filed a complaint against the respondent following a cartoon published by the latter on 27 October 2013. The cartoon showed Cricket South African Cricket (“CSA”) offering its Chief Executive Officer, Mr Lorgat, as a sacrifice to the Hindu God Lord Ganesha, with some money and the cricket bat in the Lord’s hand. A large number of people of the Hindu faith felt offended by the cartoon; they saw it as denigrading the religion and indeed Lord Ganesha, who does not even take sacrifices, let alone human ones. They alleged that respondent  violated a number of sections of the Code of the South African Press Council. The Ombudsman, in his Ruling dated 5 November 2013, dismissed all the complaints; hence this application.

2. The material facts in the case are not in dispute. The context in which the cartoon was made is important. A great deal of public interest was aroused by a debate which raged about why the Board of Control for Cricket in India (“BCCI”) was allegedly wanting Mr Logart to be removed from his position, linking the issue with the prospective tour of the Indian team to South Africa. The matter was presented in the media as if the tour would be jeopardized if Mr Logart was not removed. An impression was created that, for fear of losing money as a result of jeopardy to the tour, CSA acceded to the removal of Mr Logart. The cartoon in dispute therefore conveyed the message that Mr Logart was being sacrificed for money; apparently the link with Lord Ganesha is that there are millions of people of the Hindu faith in India (where cricket is the most popular sport) who therefore revere Lord Ganesha.

3. Ombudsman’s reasons for dismissing the complaint were, briefly, amongst others the following: Firstly, the focus of the cartoon was, was not on Lord Ganesha, but on the CSA to show that it was religiously after money; secondly, that the question whether or not Lord Ganesha was denigrated was a matter of interpretation, and opinions were bound to differ; thirdly, there was an element of huge public interest in the tour saga. The Ombudsman weighed up the respondent’s (the cartoonist’s) right to freedom of expression, as enshrined in section 16 of the Constitution, against the hurt which some people felt.

4. In their application for leave to appeal, the applicants repeat very much the same arguments. They made very lengthy submissions. Their submissions were, however, largely sentimental; this is of course to be expected when it comes to matters of this nature. Clearly, they felt very strongly that their religion and Lord Ganesha had been denigrated. They also contend that it was not necessary or relevant to use Lord Ganesha; the feel that other symbols peculiar to India could have been used. It is argued that the “CSA officials (are) drawn ready to stab and sacrifice Mr Logart to appease Lord Ganesha who is standing by observing a human sacrifice…….. No human sacrifices are made to the deity.” It is also contended that just “as Zapiro has the right to freedom of expression, I have the right to practise my own religion.”

4. For its part, the respondent argues that the cartoon is a satire, used to criticize the two cricket bodies, and not Lord Ganesha. Respondent relies heavily on section 16 of the Constitution; that is, the right to freedom of expression. It argues that the cartoon does not advocate any hatred based on religion, since, as already said, it is a mere satire, aimed at criticizing the two bodies.

5. I agree with the Ombudsman’s approach; namely, that the right to freedom of expression must be weighed against the complaint and the offence some people feel. Of course, every right has some limitation. A number of factors fall to be considered in the process of weighing up the rights in question. Firstly, the context is very important. As said already, the cartoon was in the light of what was going on between the CSA and the BCCI. The latter was not comfortable with Lorgat and gave indications  that their then forthcoming tour to South Africa might be in jeopardy  as a result; for its part, CSA was concerned about possible financial loss and appeared to be inclined to removing Lorgat. It is against this background that the theme of “sacrifice”, as it were, should be understood. Reference to the deity aimed to convey the message that, as respondent puts it, the BCCI had god-like powers to which CSA cowered; the deity symbolized that power. Of course, in India cricket is the most popular sport and the country has a huge Hindu population. It would not be flippant to suggest that had for example the English cricket authorities been in the role of the BCCI, the cartoon could have made reference to a Christian deity. To applicants’ argument that other symbols could have been used, respondent says that it was not obliged to elevate the religious factor above others. This argument may not be acceptable to those belonging to some faith, but it is actually correct because believers cannot impose their own values on those who have no faith in any religion; to the latter, a religious factor does not necessarily weigh more than other factors.

6.Considering that money was the key thing in the saga, and the apparent impression that the CSA was being swayed by it, I am inclined to agree with the respondent that “the money and the cricket bat in Lord Ganesha’s hand is not directed at the deity, but rather at the CSA.” In fact, other people could interprete the cartoon differently: that the deity was invoked to demonstrate that Lord Ganesha was angered by the sacrifice of Lorgat, all for money; after all He does not want sacrifices. This possible interpretation is postulated to demonstrate that people’s interpretations may differ; some innocuous, others offensive.

7. My conclusion, like the Ombudsman, is that the primary target was the CSA; the deity was to demonstrate the huge power the BCCI, in the view of the cartoonist, wielded which caused CSA to cower for fear of financial loss; that the interpretation is a matter of opinion, and, finally, that there was a huge element of public interest in the matter. I accordingly hold that there are no reasonable prospects that, if leave to appeal is granted, the appeal would succeed; the application is therefore dismissed.

Dated this 19th day of December 2013.

Judge B M Ngoepe, Chair, Appeals Board.