RULING IN THE APPEAL HEARING: PESCHKES VS SUNDAY TIMES

5 OCTOBER 2011: LA GROTTO HOUSE, CAPE TOWN (CORRECTED)

Appellant: Horst Peschkes
Respondent: Susan Smuts, Legal Editor, Sunday Times
Chairperson: Judge Ralph Zulman: Chairman: Press Council of South Africa Appeals Panel
Assisted by: Gerda Kruger – Press representative on the Press Council of South Africa Appeals Panel
Simon Mantell – Public representative on the Press Council of South Africa Appeals Panel
Background to the Appeal
An article appeared In the Business Times section of the Sunday Times on 31st July 2011. The piece was titled “Violence and anarchy cow men of steel – Bargaining Council deal on metalworkers’ strike pleases few.”
The piece was written by Chris Barron, a columnist for The Sunday Times.
Mr Barron’s article was to a large extent based on the interview he conducted with a Mr Dave Carson, the executive director of SEIFSA (The Steel and Engineering Industries Federation of South Africa).
In the article Mr Carson claimed amongst other things that SEIFSA was:
1. An employers’ organisation
2. The dominant party in the Bargaining Council
The complainant, a Mr Horst Peschkes from Cape Town, felt that the article was incorrect for the following reasons:
1. SEIFSA is a “federation of employers’ organisations” and not an employers’ organisation
2. As it is not a recognised employers’ organisation as defined by the Labour Relations Act, it cannot legally be a party to or a signatory to any Bargaining Council agreement, notwithstanding the fact that it might indeed have signed such agreement
It is apparent that Mr Peschkes communicated with The Sunday Times Business Editor and supplied The Sunday Times with documentary evidence to support his complaint.
The Sunday Times Business Section, based on his (Peschkes’) submissions agreed that SEIFSA was in fact not an employers’ organisation as described by its executive director, Mr Carson.
To this end, in The Sunday Times Business Section’s small “MATTERS OF FACT” column, the following was printed on 21st August 2011:
In the article “Violence and anarchy cow man of steel” (July 31), SEIFSA was referred to as an employers’ organisation. It is, in fact, a federation of employers’ organisations.
Mr Peschkes, unhappy that the other leg of his complaint had not been dealt with, approached the office of the Ombudsman and filed his complaint.
In a ruling on 13th September 2011, the deputy ombudsman, Mr Retief dismissed the complaint based on the following reasons:
1. Sunday Times had provided him with evidence supporting their story
2. Peschkes had provided him with evidence to the contrary
3. The Sunday Times’ columnist was reporting what was said to him by the representative of SEIFSA and was justified in doing so
4. The right to freedom of speech is enshrined in the constitution and even if the SEIFSA representative was wrong, he was entitled to make the claims he made
5. Similarly, the reporter was entitled to report on those claims, whether they be right or wrong
6. As the article was based on an interview it cannot be reasonably expected of a journalist to check everything that an interviewee claims is factually correct

Judge Zulman granted Peschkes leave to appeal and an appeal hearing was held on 5th October 2011.

In the appeal hearing Susan Smuts of The Sunday Times supplied similar arguments to those supplied by the deputy ombudsman when dismissing the original complaint. She argued further that based on all the evidence being:
1. Representations from Mr Carson the executive director of SEIFSA
2. Claims made on the SEIFSA website
3. Media releases from the Bargaining Council
that SEIFSA was de facto a participant in the Bargaining Council notwithstanding the evidence supplied by Peschkes which included correspondence from the Registrar of Labour Relations confirming that SEIFSA is “not an employers’ organisation and that it can consequently not become a party to a bargaining council…”

Peschkes’ argument was supported by documentary evidence, the most compelling being a letter from the Registrar of Labour Relations dated 8th September 2011. The contents of this letter were not disputed by The Sunday Times and nor was the fact disputed that the said registrar is the final arbiter in deciding who is a member of a bargaining council.

The following issues were considered by the appeals panel:
1. When The Sunday Times first printed the article, they printed it in accordance with the Press Code as they believed it to be factually correct and were not in possession of information proving the contrary
2. When they were made aware of the true state of affairs, they erred in not correcting it as there is a responsibility under 1.6 of the Press Code to make amends for inaccurate reporting
3. The Sunday Times gave a prominent position and significant space to the fact that the deputy ombudsman had rejected Peschkes’ complaint – the article was positioned on page 3 in the top right hand corner
FINDING
1. The appeal is upheld as there is a responsibility to correct factually incorrect information published
2. The Sunday Times is to print a correction with the Appeals Panel finding in the same position (top right hand corner of page 3) and the same size as the article which was printed reporting the deputy ombudsman dismissing the original complaint.

Corrigendum: The indefinite article "a" was added before the word "party" where it appears in the quoted sentence of the registrar of labour relations towards the of the ruling.

RH Zulman Chairman SA Press Counsel Appeals Panel
G Kruger Press Representative Member
S Mantell Public Representative Member

10 October 2011