Appeal Hearing Decision: Dr Abe Seakamela vs Sowetan
Wed, Mar 8, 2017
BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between:
DR ABESEAKAMELA APPLICANT
MATTER NO: 1972/09/2016
 Dr Abe Seakamela (“Applicant”) was granted leave to appeal to the Appeals Panel against a Ruling of the Press Ombud, dated 8 October 2016, dismissing in its entirety his complaint against Sowetan (“Respondent”)
 The parties were informed by e-mail that the hearing of the appeal before the Appeals Panel would commence at 10h00 on the 1 March 2017. By 10:00 Ms Wendy Pretorius, for Sowetan, was present but the appellant was not. Mr Mann, a member of the Appeals Panel, made several attempts to contact the appellant, without success. The Office of the Press Ombud likewise tried, but failed. At about 10h45, when we could not hear from the appellant either, we decided to proceed with the appeal in his absence. We decided to do so for the following reasons, amongst others: firstly, one member of the Panel had flown from Port Elizabeth specifically for the hearing; costs were therefore a consideration. Secondly, the issue to be resolved was a narrow one, as it will be seen later. Thirdly, most material facts were common cause; again as, can be seen in paragraph 6 below. Fourthly, the parties had submitted detailed heads of arguments in which all material issues were dealt with. Finally, we were particularly concerned that no contact could be made with the appellant at all. He appeared at the venue only in the afternoon after the matter was already disposed of. His explanation was that he had been told that the hearing would be at 14h00. But According to the emails sent to us, the hearing was to start at 10h00; the office of the Ombud has since confirmed that this was indeed the latest information given to all the participants.
 Appellant’s complaint against the respondent followed a report carried by the respondent on 22 September 2016, entitled “Education department hides from Public Protector”. The essence of the report was that the Department of Education in the North West had sat on a forensic report which revealed fraud on the part of some schools in the province. Three schools had asked for and received money to finance certain school activities which, it was later revealed, never took place. At the relevant time of the report the appellant was the acting superintendent-general of the department. The story said that he sat on the report; that is, did nothing about it. It was said that even the office of the Public Protector failed to illicit any response.
 The appellant’s complaint was that he was in effect being accused of corruption. He denied that he sat on the report. He argued that the story defamed him. He said as adverse allegations were made against him, he should have been contacted for comment. In response, respondent said that it had emailed some questions to the department’s spokesperson, and to another person as well, but got no response. The journalist said he spoke to one Malindi in the department, who was to get answers to the questions from other officials of the department; Malindi did not give appellant’s contact details.
 It is important to note that as at the time of the story, appellant had long (in 2013) retired from the department, a fact which was known by the respondent. It is not in dispute that respondent did not contact the appellant; the explanation given is that they did not have his contact details. In response to this, appellant says that his wife was still in the department and she could easily have been contacted by the journalist for his details. It was clear from the beginning that respondent’s main argument was that as the government spokesperson had been contacted for comment, it was not necessary to speak to the appellant; this was the argument which was advanced before the Ombud. The applicant did not agree. He argued that at the time of the story he had been out of government employment for years; therefore, a government spokesperson could not speak for him as he was no longer a government employee. He says the respondent knew that he was no longer in government employment. Therefore the vexed question was whether it was sufficient to speak only to the government spokesperson in the present case. The Ombud held that there was no need to contact the appellant; he dismissed the complaint, his view being that it was sufficient to speak to the government spokesperson.
 It is common cause that:
6.1 the appellant was no longer an employee of the government;
6.2 had ceased to being such an employee for about 3 years;
6.3 was not contacted by the journalist;
6.4 the allegations made against him were critical of nature; and
6.5 no effort was made to contact him, with the respondent clearly believing that speaking to the government spokesperson was enough.
On the basis of the above facts which are common cause, it is our view that it was not enough to contact the government spokesperson only. Indeed, the latter had no obligation to speak on behalf of someone who had long ceased to be their employee. We therefore do not agree with the Ombud’s ruling.
 At the hearing, Ms Pretorius sought to argue that the respondent did not know that the appellant was no longer in the employment of the department. Two points militate against this argument. Firstly, the appellant is referred to in the article as the “then” acting superintendent-general; conscious use of the word “then” indicates some knowledge of movement on his part. Secondly, in her earlier submission in response to appellant’s appeal dated 18 October 2016, Ms Pretorius stated: “At no point did Sowetan state that Seakamela was a ‘current’ employee of the department. The story say [sic] ‘…then acting superintendent-general…..’” and also “….a Google search shows news articles, an Ombudsman ruling, a Corruption Watch article that he was fired by the department….in 2013…” Thirdly, respondent’s defence has consistently been that it was not necessary to contact the appellant. We therefore do not accept that respondent did not know that the appellant was no longer in the employment of the department. At the very least, there was some indication that he no longer was. For these reasons, it is our view that respondent acted in breach of article 1.8 of the Press Council Code: “The media shall seek the views of the subject of critical reportage in advance of the publication…”
 The appellant also complained that respondent should have at least mentioned in the article that respondent was not able to contact appellant for his comment. This complaint has merit as doing so is in fact required by article 1.8. Respondent’s failure to do so is of course consistent with its attitude that contacting the government spokesperson made it unnecessary to speak to the appellant. Ms Pretorius said the appellant never asked for an opportunity to respond to the article and had he done so, Sowetan would have given him the right of reply. We find this to be a mitigating factor. As said earlier, the appellant was not there for us to canvass this issue with him; but since such a request by him is not apparent from the papers before us, we must give the benefit of doubt to the respondent.
 For the reasons we give above, we rule that Sowetan breached article 1.8 of the Press Code; therefore, the appeal must succeed. Accordingly, the following Orders are made:
9.1 The appeal is upheld.
9.2 The Ruling by the Press Ombud made on 8 October 2016 is hereby set aside in its entirety.
9.3 The Sowetan is hereby reprimanded.
9.4 Dr Abe Seakamela must, within 7 days of receipt of this Ruling, submit his response of not more than 200 words to the allegations made against him by the Sowetan in its story of 22 September 2016, to the Director of the Press Council for approval and transmission to the Sowetan within 3 days of receipt thereof.
9.5 Sowetan to submit to the Director of the Press Council, for his prior approval, its draft publication of Dr Abe Seakamela’s version, together with the fact of the reprimand.
9.6 The publication referred to in paragraph 9.5 above to appear on the same page as did the story of 22 September 2016, and in the Sowetan’s fourth edition after the receipt of the Director’s approval.
Dated this 4th day of March 2017
Judge B M Ngoepe, Chairperson
Mr P Mann, Public Representative
Mr F Groenewald, Press Representative