Appeal Decision: Kormorant vs Mathibedi OTN Holdings
Mon, Jul 9, 2018
MATHIBEDI OTN HOLDINGS RESPONDENT
MATTER NO: 3759/04/2018
DECISION: APPLICATION FOR LEAVE TO APPEAL
 Kormorant (“applicant”) published online on 9 March 2018 a story with the headline “’African Island’ Report for Schoemansville.” The story was about a resort to be known as “Wellness Resort” on the foreshore of the Hartbeespoort Dam. This was a development planned by Mathibedi OTN Holdings (“respondent”). The gist of the story was about an objection against this development by some residents of the area; a number of reasons were advanced such as that the value of the property in the area would drop; and that the development would not be in keeping with the kind of life practised in Schoemansville. It would be fair to say that the story evoked emotions, to such an extent that the initial stages of the development, such as the planted flowers and fencing, were vandalised, evidently by those opposed to the proposed resort. There were allegations that no environmental impact study was made. The respondent went through a torrid time.
 The respondent lodged a complaint against the applicant with the Office of the Press Ombud. It complained, amongst others: that the story was inaccurate, biased, that respondent was not contacted for comment and that the story gave the impression that the respondent wanted to grab the land. The respondent also complained against the nature and tone of the story. A public meeting called at the instance of the respondent to exaplain its position failed to resolve the issue. In its complaint to the Ombud, the respondent wanted, as relief, a public apology, publication of what it regarded as correct information regarding the proposed Wellness Resort together with pictures sourced directly from the respondent.
 In its response, applicant said it had published two opinion pieces on a contraversial matter affecting residents (I understand this to mean that it was a matter of public interest). Applicant conceded that it mistakenly failed to mark its online piece accordingly; that this mistake was corrected and that it was not averse to apologizing. However, allegations of racism, hate speech and maliciousness were denied. Applicant said the publication was errenously labelled “local news” whereas it was an opinion piece.
 The matter found its way to the Press Ombud. In his Ruling dated 12 May 2018, the Ombud, after thoroughly analysing the matter, upheld most of the complaints and found that the applicant had violated sections of the Press Code, and imposed a sanction. The applicant is now seeking leave to appeal.
 For leave to appeal to be granted, an applicant must show reasonable prospects of success before the Appeals Panel. As I said, the Ombud made a thorough analysis of the matter. One of the important points he makes is that the drawing of a parallel between African Island and the proposed “Wellness Resort” was the heart of the complaint. The fundamental reason why the parallel was flawed was that other races visited African Island, as the editor conceded. The editor knew that at least some of the people in that area were racist. The Ombud was correct to say that a message was conveyed by both the first and a second story, that the respondent’s occupation of the property was illegal, or that it began working on the property without approval. Just a few further points: the inacuracy in the report can therefore not be denied; reference to African Island did have some racial undertones, particularly given certain acknowledged racist segments in the area; the “opinion” was presented as news. Again, it cannot be disputed that respondent’s views were not sought as prescribed by article 1.8 of the Code. Serious harm was caused to Mr Mathibedi (the developer) as a result of the inaccurate story: damage to property, threats, harassment and financial loss.
 I am not moved by the applicant’s motivation for its application for leave to appeal. The underlying facts on which the Ombuds Ruling is based, cannot be disputed. I find no fault in the manner in which he dealt with the matter. For the above considerations, and the reasons given by the Ombud, my view is that the applicant has no reasonable prospects of success; if anything, the results before the Appeals Panel could be worse. The application is therefore dismissed.
Dated this 9th day of July 2018
Judge B M Ngoepe, Chair, Appeals Panel