Appeal Decision: Gayton McKenzie vs Sunday Times


Wed, Nov 22, 2017

In the matter between

GAYTON McKENZIE                                                                                      APPLICANT

AND

SUNDAY TIMES                                                                                            RESPONDENT

MATTER NO: 3509/09/2017

DECISION: APPLICATION FOR LEAVE TO APPEAL

1.         Mr Grayston McKenzie (“applicant”) lodged a complaint against Sunday Times (“respondent”) in respect of two articles published about him on apparently 10 September 2017 (first article) and 17 September 2017 (second article).  The headline to the first story read: “Zuma’s fight back: NDZ for Cabinet”. It was mentioned in the story that the applicant and a Mr Kunene had a lot of influence over the President, and that, as a result of the influence the two had on the President, the President had been considering a certain Williams for appointment as a deputy Minister. It was said they were using their influence to seek favours,  with one source calling them “the new Guptas”.  They were also linked to the leaked e-mails about alleged infidelity on the part of Ramaphosa. The headline to the second story read: “Zuma pals in R5-billion gas deal”, with sub-head “’New Guptas’, former convicts Kunene and Mckenzie, introduced as ‘BEE partners’ on Moscow junket”.  The story said that the two had access to President Zuma; that they sought favours from him; that they were being lined up for a Russian oil deal.  The story continued with the issue of the pair’s alleged influence with the President; regarded as the “new Guptas” who even had access to the President’s official residence.

2.         The applicant was reported as denying all the above allegations.  The respondent’s defence, broadly stated, was that it had put what was complained about as allegations , and not fact; that it had gotten the information from several credible sources including some senior members of the African National Congress (“ANC”).

3.         In his Ruling dated 17 October 2017, the Press Ombud dismissed the complaint in its entirety.  The applicant now seeks leave to appeal the Ruling; the application is opposed by the respondent.   It is a requirement that for such an application to succeed, an applicant must show reasonable prospects of success before the Appeals Panel; this is what I must now assess.

4.         The Ombud dealt in detail with the complaint.  He carried out an analysis of the stories.  Because of this, and given the detailed submissions made, the Ruling had to be long.  For the benefit especially of the applicant, I will only identify some of the crucial findings by the Ombud, which lead to the conclusion he came to and also throw some more light where necessary.

5.         Regarding the first story:  What the Ombud had to consider first and foremost was whether the things said in the report were put forth as facts or as mere allegations.  After careful analysis, he came to the conclusion that they had been put forth as mere allegations, baring only one instance. The next thing was to consider whether the allegations were harmful to a person and indeed defamatory.  In the present case the allegations were, at least prima facie, defamatory.  That being the case the Ombud, correctly proceeded to inquire whether the allegations were reasonably true and in the public interest. The latter is obvious given the position and powers of Mr Zuma as the President.  In answering whether the allegations were reasonably true (not whether they are true), regard had to be had to the quality of the sources. How did the Ombud apply the above guidelines; did he apply them correctly?  In this respect he says the following in his Ruling:

Applying these considerations to the complaint at hand, I have no doubt that the allegation by ‘insiders’ that Mckenzie had influence over Zuma was of public importance.  The mere fact that the allegation in question was made should be revealed to the public, as it passes the tests of reasonable truth, public importance and the credibility of sources.

Please note that, by accepting that the sources were credible, I am not saying that their information was necessarily true. Fact is, though, that they were in high places, which made their opinion worthwhile to publish. ... I have no reason to believe Sunday Times is lying about what its sources told the reporters (which is no guarantee that the information was correct).  That being the case, it was their duty to report the information.  The condition again, is that the information is presented as an allegation or an opinion and not as fact ...

The Ombud analysed what was said in the article against the above guidelines, and concluded as follows:

In all but one of these sentences it was not stated as fact that Mckenzie had influence over Zuma – the article consistently attributed such claims to sources and presented them as allegations”.

There was one instance where the Ombud found that what was said was stated as fact, but promptly proceeded to explain why a complaint in respect thereof would not stand.

6.         The question is therefore whether there are reasonable prospects that the Appeals Panel will find fault with the Ombud’s reasoning, analysis, application of the trite guidelines and the final conclusion he reached.  It is clear from what is set out above that the applicant would be hard pressed to show any such  fault.

7.         The second story: I went into some details with regard to the first story for the following reason: Exactly the same considerations apply here as in respect of the first story, and therefore need not repeat the same exposition set out in paragraph 5 above.  To sum up: what was reported was in the form of allegations (not fact); imputed to credible and many sources; there was an indisputable element of public interest.  The Ombud says in his analysis of the second story:

Having studied the second story, I am satisfied that the reportage was on exactly the same level as that of the first one – the allegations were presented as such, the sources were credible, and the issues were in the public interest”.

8.         I may add the following few observations in respect of both stories: The theme in the second story is really a continuation of the one in the first story. There are certain material facts not in dispute, such as the visit to Russia and at coinciding times with individuals who are public figures, thus bringing in the element of public interest and also contextualising allegations of favours and influence.  Then there is the undisputed appointment of Mr Williams to Petrosa, as well as the small matter of the so-called Rosgeo oil deal.  Again, while it is true that the prerogative to appoint cabinet ministers is the President’s, it does not mean that people may not suggest names, nor would there be anything wrong in doing that. All these things are mentioned to show that the respondent was entitled to believe that the allegations could reasonable be true (they did not need to be proven true).

9.         For the reasons given above, the application has no reasonable prospects of success, and is therefore dismissed.

Dated this 21th day of November 2017

Judge B M Ngoepe, Chair, Appeals Panel