APPEALS HEARING: ANC vs City Press

1. On 13 May 2008 the Panel heard the above appeal, leave to appeal having previously been granted. City Press was represented by Advocate D I Berger SC. The African National Congress (ANC) was not present or represented at the hearing.

2. On 28 March 2008 the Press Ombudsman (the Ombudsman) handed down a ruling which found the front-page lead article of the City Press on 27 January 2008 headed “ Cracks in Zuma’s NEC “ to have been in breach of articles 1.1,1.2,1.3 and 5.1 of the South African Press Code (‘the Press Code”).

3. The following essential facts were placed before the Ombudsman and were not disputed by the ANC:

3.1 Mr Tsedu (the editor in chief of City Press ) received information from a member of the NEC of the ANC concerning an angry outburst by Mr Jacob Zuma (President of the ANC )at a meeting of the NEC on 7 January 2008;

3.2 The source spoke to Mr Tsedu on condition that his identity would not be revealed publicly. He described the angry outburst as well as a subsequent apology by Mr Zuma;
3.3 Mr Tsedu then briefed Mr Msomi (a political editor of City Press) with the information he had received and asked Mr Msomi to check the information with his own sources;

3.4 Mr Msomi then briefed Mr Ndlangisa (a senior reporter employed by the City Press) with the information he had received and asked him to check the story with his own sources;

3.5 Mr Msomi spoke to three sources all of whom are members of the NEC who attended the meeting on 7 January 2008. Two of the sources spoke on condition of anonymity. The third source, Mr Blade Nzimande spoke on the record;

3.5 Mr Msomi’s first source confirmed that Mr Zuma had indeed expressed his anger and also confirmed that Mr Zuma had later apologised;

3.6 The second source confirmed the information that had been given to Mr Tsedu in all material respects and the subsequent apology;

3.7 Mr Msomi also received information from Mr Kgosana , a journalist based in Cape Town and employed by City Press as a parliamentary correspondent. He had earlier been requested to obtain comment from the ANC. He contacted Mr Mantashe, the ANC Secretary General, who denied that Mr Zuma had said anything about Mr Motlanthe or Mr Phosa. However, Mr Mantashe confirmed that Mr Zuma did refer to people gossiping and back stabing and back biting. He also said that Mr Zuma had apolgised to the NEC for using the word “angry” not for being angry;

3.8 Mr Ndlangisa also spoke to three sources , all of whom are members of the NEC and attended the meeting on 7 January 2008. Two them spoke on condition of anonymity. The third source, Mr Phosa spoke in part on the record and in part off the record. One of the sources confirmed the information, one denied it. Mr Phosa’s on the record comments appear in the article.

3.9 On the basis of the information given and confirmed and in the context of information which was already in the public domain, Mr Mosomi and Mr Ndlangisa concluded that the information given to Mr Tsedo had been corroborated. A draft of the articles was sent to Mr Tsedu who made the final edits and approved the article for publication on 27 January 2008 .

4. The Ombudsman , having heard the above undisputed evidence ruled that it “takes much more than reasonable belief that a story is true to elevate it to being true.”. He did not specify what “more” is required to satisfy article 1.3 of the Press Code.

5. The Panel is of the unanimous view that the Ombudsman erred:

5.1 In requiring City Press, contrary to the provisions of article 1.3 of the Press Code, to prove the truth of its corroborated confidential information.

5.2 In ruling that Article 1.3 “requires much more than reasonable belief that a story is true to elevate it to being true” in that the ruling is contradicted by the clear wording of Article 1.3 and a proper construction thereof.

5.3 In finding that the structure and wording of the article “resulted in a story that was not fair and balanced.” and in so doing erred in attributing insufficient weight to the comprehensiveness of, and prominence given to, the denials of the official sources of the ANC.

5.4. In finding that the headline of the article was misleading and therefore in breach of Article 5.1 of the Press Code, more particularly since the factual basis for the headline appears from the content of the article and is a reasonable reflection of the contents of the article as required by Article 5.1.

6. In all the circumstances :

6.1 The appeal of City Press is upheld

6.2 The ruling of the Press Ombudsman of 28 March 2008 is replaced with a ruling that the article in the City Press entitled “Cracks in Zuma’s NEC” and published on 27 January 2008 has not breached any of the provisions of the Press Code

6.3 The complaint of the ANC is dismissed

Dated at Johannesburg this the day of May 2008

R H Zulman Chairman of the Panel

R Taurog Member of the Panel

S Smuts Member of the Panel