Appeal Decision: Brian Kahn Inc Attorneys vs. Media24 Ltd/ta

SUMMARY

The headline to the story in dispute read, Lawyers dump Malema! (published on 20 February 2013).

This ruling by the Chair of the Appeals Panel, Judge Bernard Ngoepe, was based on the Press Code that was in effect before 30 September 2022.

The story was about the withdrawal of EFF leader Julius Malema’s lawyers, Brian Kahn Inc. (BKI), from a case in which he opposed SARS’s application to declare him bankrupt and to sell off his assets to pay his debts.

BKI complained that the use of the word “dump” in the headline and the phrase “allegedly dumped” in the introductory sentence were inappropriate, and that both the headline and the story had defamed it.

The Ombud upheld the complaint about use of the:

• word “dump”. He said it was beyond dispute that BKI’s and Malema’s ways have parted. But who took that initiative?  Because the newspaper had no proof of who took the initiative, it was not justified to choose the one alternative over the other. That, he said, was an assumption that was not necessarily based on facts. It also did not reflect the content of the story itself, which at most said that the “dumped” was an allegation; and
• words “allegedly dumped”. This meant that the journalist had concludedor assumed that “withdrew” (the word used by BKI) and “dumped” were synonymous. “But they are not synonymous – it depends on who took the initiative,” the Ombud opined.

Daily Sun was cautioned for using the word “dump” in the headline and the phrase “allegedly dumped” in the story.

The complaint about defamation was dismissed as the Ombud did not believe that the words in question had caused the law firm serious, unnecessary harm.

The newspaper then applied for leave to appeal – not against the finding, but against the sanction that the Ombud had handed out, saying it was too severe.

Judge Ngoepe dismissed the application, inter alia because:

• all the parties agreed that Malema was a well-known person; the headline would therefore have attracted a wide readership, which probably was the intention;
• BKI was a professional firm of attorneys and the idea of them dumping a client would be potentially harmful; an adequate remedy was therefore called for; and
• the journalist had been told that the firm had withdrawn from the matter.

The judge concluded that the wording of the sanction was balanced and appropriate.

THE RULING ITSELF

In the matter:                                                         77/2013

Media 24 Ltd t/a Daily Sun                                     Applicant

Vs

Brian Kahn Inc Attorneys                                         Respondent

1.The respondent lodged a complaint with the Ombudsman against the applicant in respect of an article published  in the Daily Sun edition of 20 February 2013. The first complaint related to the headline which read “Lawyers dump Malema.” The second was in respect of the inside story which said that the respondent had “allegedly dumped” Malema.

2.It is not necessary to go into the merits as the applicant only seeks leave to appeal the sanction. The Ombudsman’s finding was that the headline contravened article 10.1 of the Press Code, and that the inside story that respondent had “allegedly dumped” Malema contravened article 2.1. He cautioned the applicant, and also ordered the applicant to publish a correction, which he prepared.

3. The applicant seeks leave to appeal against the sanction on the ground that it is too severe. I do not agree that the sanction is too severe, for the reasons given below.

4. Firstly, all the parties agree that Mr Malema is a well known person; the headline would therefore have attracted a wide readership, which was probably the intention. Secondly, the respondent is a professional firm of attorneys and the idea of them dumping a client would be potentially harmful; an adequate remedy was therefore called for. Thirdly, Ms Galaktiou had specifically told the journalist that the firm had withdrawn from the matter. Finally, even if the sentence were to be felt to be too severe, it would be marginally so. I find the wording of the sanction to be balanced and appropriate.

5. In the circumstances, I find that there are no reasonable prospects that if leave to appeal were to be granted, the Appeals Panel would come to a different sanction; the application is therefore dismissed.

Judge B M Ngoepe, Chairperson, Appeals Panel.

21 August 2013