Decision: Application for leave to appeal
Applicant: Mail & Guardian
Respondent: Tony Yengeni
Matter No: 181/2013
Application for leave to appeal to the Appeals Panel
1.The applicant seeks leave to appeal the Ruling and subsequent sanction by the Ombudsman. The Ruling was on a complaint lodged by the respondent in the wake of a story published in applicant’s edition of 14 June 2013. The respondent complained about the two headlines as well as against the contents of the article.
2. The first headline read: Revealed: “ Yengeni’s R-million ‘kickback’ agreement—German police find record of deal signed by ANC heavyweight when he headed Parliament’s defence committee.” The second headline, to be followed by the story, read: “Yengeni’s R6m ‘bribe deal’—Raid on German company revealed ‘bribe’ to Yengeni to secure purchase of corvettes.”
3. The Ombudsman found that the first headline violated article 10.2 of the code. He dismissed the complaint relating to the second heading, as also the one relating to the content of the story. As a sanction he ordered the applicant to publish a correction to be approved by him. The application seeks leave to appeal the Ombudsman’s Ruling and sanction.
4. It is my considered view that if were to be granted, the appeal would have any reasonable prospects of success. As the Ombudsman correctly points out, the first headline states as a fact that for example that there was an “agreement” to bribe; that there was a “record of deal” which was “signed” by the respondent. The words I bracketed were not done so by applicant, thereby giving an impression that they were not mere allegations but facts. Applicant argues amongst others that upon reading the contents of the story, a reader would realize that the headline merely stated allegations. Applicant says that the headline must be read in conjunction with the story to determine whether or not it is factual or merely states allegations. I do not agree. I do not think the content of the story would redeem a headline which misstates allegations as being facts. It could be equally argued that the contents of the story illustrates all the more why some crucial words in the headline should have been put in quotation marks. The sting in the offending headline cannot be taken out by the content. In any case, it would fair to say that some readers may not go into the story itself, especially as it does not immediately follow the headline and does not even appear on the same page as the headline concerned. Regarding the sanction, I do not think that it is too severe. The allegations stated as facts are serious harmful.
5. For the reasons given above, as also those given by the Ombudsman, I hold that there are no reasonable prospects of success against either the Ruling or sanction by the Ombudsman. The application is therefore refused.
Judge B M Ngoepe, Chair of the Appeals Panel
Dated 10 September 2013