Appeal Hearing Ruling: Ziyad Motala vs Sunday Times

Decision: Application for leave to appeal

Applicant: Ziyad Motala

Respondent: Sunday Times

A majority of the Press Appeal Panel of the Press Council of South Africa (the Panel) has dismissed an appeal by Prof Ziyad Motala against a ruling by the Press Ombudsman regarding a column by Mr Fred Khumalo which was published in The Sunday Times newspaper on October 24th, 2010.

The chairman of the Panel, retired Judge Ralph Zulman, disagreed with the view of his two fellow panellists, Peter Mann (media) and Brian Gibson (public) and has published a dissenting view, which is attached below.

However, the Panel has agreed that the majority view should prevail.
As chairman Judge Zulman, presided over the appeal hearing on January 12th, 2011 in the offices of the Ombudsman in Johannesburg, assisted by the two panellists.

Representing the complainant were Messrs Irshad Motala and Aslam Mayat and Ms Susan Smuts represented the Sunday Times.

The Complaint:

The complaint related to a column by Fred Khumalo headlined, ‘When our leader sneezes, the media must catch a wake-up’, and the portions complained about refer specifically to allegations of racism and the stereotyping of Indians in the article.  

The original complaint was rejected by the Press Ombudsman on the grounds, inter alia, that it was partly satirical; and that it was a column. The Press Ombudsman in his ruling held that the column was not racist, nor was it stereotyping, and dismissed the complaint.

The complainant appealed this ruling. In his complaint he argues that Khumalo:

“draws from the infamous stereotype of Indians as unethical and dishonest, referring to cases where Indians abused political connections for financial gain, to reinforce a secondary stereotype…namely Indians in general – owing to their corrupt and corrupting behaviour – seek and exploit politically connected blacks to enrich themselves”.

 

The complainant’s case was founded on Section 2 of the South African Press Code, which deals with Discrimination and Hate Speech.

Section 2 reads:

2.1  The press should avoid discriminatory or denigratory references to people’s race, colour, ethnicity, religion, gender, sexual orientation or preference, physical or mental disability or illness, or age.

 

2.2 The press should not refer to a person’s race, colour, ethnicity, religion, gender, sexual orientation or preference, physical or mental illness in a prejudicial or pejorative context except where it is strictly relevant to the matter reported or adds significantly to readers’ understanding of that matter.

 

2.3 The press has the right and indeed the duty to report and comment on all matters of legitimate public interest. This right and duty must, however, be balanced against the obligation not to publish material which amounts to hate speech.

 

The complainant argued that this section “contains an outright prohibition on referring to a racial group in a manner which is prejudicial. It prohibits mentioning the race of an individual being discussed unless absolutely necessary”

 

The Complainant also cited Section 16 of the Constitution of the Republic of South Africa which enshrines the right to freedom of expression as follows:
(1) Everyone has the right to freedom of expression, which includes:
(a) Freedom of the press and other media;
(b) Freedom to receive or impart information or ideas;
(c) Freedom of artistic creativity; and
(d) Academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to
(a) Propaganda for war;
(b) Incitement of imminent violence; or
(c) Advocacy of hatred that is based on race, ethnicity, gender or religion,
and that constitutes incitement to cause harm.

The complainant said the article contravened Clause 2 (c) of Section 16 of the Constitution. Alternatively, the complainant said the publication was in breach of Section 10 of the Constitution (Everyone has inherent dignity and the right to have their dignity respected and protected) and that it was contrary to international norms and rulings of other Press Councils

The complainant submitted that publication of the article constituted racial stereotyping that was beyond the acceptable norms of society.

He asked the Panel to

“follow the rulings of our Constitutional Court and international best practice to reject the promotion of prejudice and discrimination and disallow an author to inject the poison of racial prejudice into a newspaper article by relying on stereotypes, generalisations or negative emphasis on race in order to buttress his argument”

The complainant asked the Panel to find against the Sunday Times and to order the newspaper to apologise. He also asked the Panel to outline guidelines to prevent stereotyping and racism in the media.

The response of the Sunday Times:

The Sunday Times argued that the South African Press Code, accepted journalistic practice and the Constitution provided a defence for the column.

It argued that Section 16 of the Constitution…“places only the following limits on freedom of speech:

(a) Propaganda for war;
(b) Incitement of imminent violence; or
(c) Advocacy of hatred that is based on race, ethnicity, gender or religion,
and that constitutes incitement to cause harm”.

 

The Sunday Times argued that the article “does not come close to meeting any of these limits”.

Further, the Sunday Times argued that Khumalo’s column “is a space where he airs his opinion. The column is clearly marked as such and has a catchline, ‘Somewhat serious, somewhat fun’, which indicates to readers that it is not always to be taken seriously”….

 

It argued further: “In his column, Khumalo often writes about ethnic foibles and stereotypes. He often pokes fun at the various races and ethnic identities of South Africans. He does this in a satirical tone and the vast majority of his readers understand that the views he expresses in such columns are not to be taken seriously.

“Some of his columns may offend some people, but that is of no consequence. He may write what he likes, so long as he does not breach the constitutional limitations on the freedom of expression.”

 

The Sunday Times also submitted that the newspaper had published, prominently, a letter from the complainant headlined, Dignity should be protected, with the sub-head; Khumalo’s column was offensive, says Zihad Motala. The newspaper also published two other letters of complaint/comment.

 

It asked the Panel to dismiss the complaint.

 

The finding of the majority of the Press Appeals Panel:

 

The column undoubtedly contains much offensive material.  However, the Panel rejected the reliance by the complainant on Section 2 of the South African Press Code, as the Code also provides in Section 4 for Comment, as below:
4. Comment
4.1 The press shall be entitled to comment upon or criticise any actions or events of public importance provided such comments or criticisms are fairly and honestly made.
4.2 Comment by the press shall be presented in such manner that it appears clearly that it is comment, and shall be made on facts truly stated or fairly indicated and referred to.

4.3 Comment by the press shall be an honest expression of opinion, without malice or dishonest motives, and shall take fair account of all available facts which are material to the matter commented upon.

 

Khumalo’s column is clearly identified as comment.
The Panel is of the opinion that regardless of the motive behind Khumalo’s commentary, and putting aside any discussion as to its journalistic merits, he has raised an issue of crucial and legitimate public interest; namely the tendency (comprehensively demonstrated in the complainant’s submission) for South Africans pejoratively to stereotype people of Indian descent.
Given our country’s history, the Panel believes that this is a subject of national importance that should be aired, not concealed.

As in a previous Press Appeal Panel hearing viz; Team Media Israel vs The Sunday Times; the Panel wrestled with the concept that it should somehow be the arbiter of “the line” which defines “the acceptable norm” in comment. This is the notion that the Press Council and/or the Press Ombudsman and/or the Press Appeals Panel should be the arbiter of society’s social mores and express itself against comment which crosses this “line”.

The Press Appeals Panel, again, has refrained from doing so. South African society is a very broad, complex construct – and what is offensive to one section of society today, may not be offensive tomorrow – or may not ever have been offensive to another section of society. In the current hearing even the relatively homogenous panel was not ad idem on just how offensive the column was.

 

Section 16 of the Constitution of the Republic of South Africa, which was cited by both parties, relieves us of this burden as it explicitly defines that freedom of speech is only prescribed (by Section 2,) viz; it should not be:

(a) Propaganda for war;
(b) Incitement of imminent violence; or
(c) Advocacy of hatred that is based on race, ethnicity, gender or religion,
and that constitutes incitement to cause harm”…

While the Khumalo column might be considered by many to be hate speech, it is not obviously “incitement to cause harm”.

Accordingly, we dismiss the complaint but make the trite observation that editors and journalists should observe great sensitivity when dealing with topics spelt out in Clause 2 of the Press Code; and that there is a danger that “fair comment” is used as the justification for hate speech that, deliberately or not, has the potential for “incitement to cause harm”.

The Panel believes it would be instructive for The Sunday Times to publish an abridged version of this finding.

Dissenting minority ruling:

Judge R H  Zulman

 

1.      I have had the benefit of reading the majority ruling of my colleagues Mr Gibson and Mr Mann. Regrettably I disagree with their conclusion. I would allow the appeal and direct the Sunday Times and Mr Khumalo to publish an apology to the Indian community in a prominent part of the newspaper. My reasons are briefly as follows.

 

2.      The basic facts of the matter are set out in the majority ruling. I will not repeat them.

 

3.      I agree with the argument of the complainant to the effect that the import of the piece draws from an ‘infamous stereotype’ of Indians as ‘unethical and dishonest’. The fact that the piece may be satirical or humorous is no excuse. It contravenes Section 2 of the Press Code which is quoted in full in the majority ruling. More particularly the piece contains “discriminatory or denigratory references to people, race and ethnicity” So for example it states, inter alia, in regard specifically to Indians :

‘….a kind –hearted businessman by the name of Gupta,[an Indian]who has his fingers in many business pies, has bought the president’s son, Duduzane, a house in one of the leafy suburbs in the north of Johannesburg… In fact the media should be commending poor Duduzane for being a fast learner: he realized that his good father became quite a comfortable man thanks to his friendship with Shabir Shaik, who just happens to be an Indian and a businessman.

‘So Duduzane figured: ah, let me get myself my own Indian as well.
This was nothing new, an Indian businessman finding a politically powerful darkie or vice versa.

‘Nelson Mandela has his own Indians. You remember those chaps who started selling some pieces of paper with doodles on them to art galleries under the pretext that the Old Man was the original artist? If such a powerful, reputable darkie-with-political power could have his Indians, why couldn’t a Zuma have his own Indian? ‘

4.      In my view the fact the piece may amount to a statement of opinion does not save it from censure. It is written in offensive, derogatory and insulting terms, not only about Indians but also Chinese people.

 

5.      Section 16 of the Constitution, again quoted in full in the majority ruling and more particularly section 16(2) (c) is also of relevance. It states, in far as concerns this matter- ‘(c) Advocacy of hatred that is based on race, race, ethnicity… that constitutes incitement to cause harm’, is not acceptable. In my view, the inference to be drawn, and contrary to that of the majority of my colleagues, is that the piece constitutes advocacy of hatred based on race or ethnicity of Indians.

 

6.      The majority ruling refers to Section 4 of the Press Code. Section 4. 3 requires that Comment by the press shall be an honest expression of opinion, without malice or dishonest motives. In my view the fair inference to be drawn is that comments in the article about Indians are made with malice.

 

Judge R H Zulman
Chairperson
Press Appeals Panel
South African Press Council