Appeal Decision – Bonang Matheba vs Drum Magazine

Case Number:174/2012

In The Matter:

Drum Magazine                                          Appellant/Applicant

And

1.This is an application by Drum Magazine to appeal both the Findings and the resultant sanction handed down by the Ombudsman and his panel on 18 February 2013.

2. The Respondent had lodged a number of complaints against the Applicant. I will deal only with those upheld against the Applicant, which the Applicant is seeking to appeal against.

3. Possession and publication of complainant’s medical records. The argument that Complainant’s consent could not be obtained as she denied the records and therefore that publication was justified, is disingenuous. She could have denied the records out of embarrassment or for a host of reasons; moreover, there is no prescribed way of withholding consent, failing which one would be licensed to publish. The bottom line is that she did NOT give consent, being the very person who, to the knowledge of Drum Magazine (denial notwithstanding) was the owner of the records. It didn’t help Drum’s case either to go on and depict the records as hers. Actually, what Drum did was merely to exploit Complainant’s denial of the records. I endorse the reasons given in the Ruling.

4. No verification. Reliance on the judgment in the case of National Media Ltd & Others v Bogoshi  is misplaced. The words “….will not be regarded as unlawful if…” indicate an exception to the general rule, which is that publication of “….false defamatory allegations….” would be unlawful; of course that must be so! Drum Magazine therefore needed to bring its case within the exception if it wanted the protection offered by the exception; it has failed to do so. As Bogoshi case says, it depends on the facts of each case and the publication must be found to have been reasonable. Drum’s problem is that there was a much publicized statement by one Euphonik that things were going to get ugly.This surely heightened the need for more vigilance, leading to more thorough verification. I refer to the reasons in the Ruling, which, in view, cannot be faulted.

5. Regarding coverlines. The Ruling states:  “….The first question addressed by the panel is whether the magazine was entitled to use Majola’s and Khoza’s denials as her comment.” The Ruling goes further to say “Common to both Majola’s and Khoza’s interactions with Drum were words to the effect that Matheba would not comment as the matter had been sub judice and that, therefore, she had reserved her right to speak….” I agree that the intention not to comment at that point was clear. It was therefore incorrect to give an impression that she had personally commented. I cannot fault the Ruling.

6. The sanction. I do not find the sanction inappropriately harsh. While public interest and information is important, the Constitution also protects the dignity of an individual, albeit within certain limits. The media can cause considerable damage to the dignity of an individual.

ACCORDINGLY, the application for leave to appeal the findings and the sanction is refused.

Judge B M Ngoepe

Chairperson of the Appeals Panel.

23 April 2013