Osiame Molefe vs. Business Day

SUMMARY

The headline to the piece of commentary in dispute read, When crooked politicians were not tolerated (published on 20 August 2013).

This ruling by Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.

The Public Advocate (PA) decided not to entertain Osiame Molefe’s complaint because the piece was commentary – and the author had a right to his opinion.

Molefe then appealed to Retief to adjudicate the matter.

Retief agreed with the PA and explained that the newspaper adhered to all the provisions in the Press Code that regulated comments.

He said the author had the right to express his opinion and, as he stayed within the boundaries of the above, the newspaper likewise had the right to publish those opinions. Even if the writer was wrong, “the Press Code as well as the country’s Constitution give him in a very real sense the right to be wrong”.

Dismissing the complaint, the Ombud added that he did not believe that the text amounted to hate speech.

THE RULING ITSELF

Dear Mr Molefe

Your complaint against Business Day refers (When crooked politicians were not tolerated – August 20, 2013, authored by Tony Leon).

I draw your attention to Section 7 of the Press Code, which deals with comment. It states:

7.1 The press shall be entitled to comment upon or criticise any actions or events of public interest provided such comments or criticisms are fairly and honestly made;

7.2 Comment by the press shall be presented in such manner that it appears clearly that it is comment, and shall be made on facts truly stated or fairly indicated and referred to;

7.3 Comment by the press shall be an honest expression of opinion, without malice or dishonest motives, and shall take fair account of all available facts which are material to the matter commented upon.

I read this section in conjunction with the Preamble of the Code, which states that the press holds the right to freedom of expression in trust for the country’s citizens and that it is its duty to defend and further this right.

I also point you to the following ruling by the Constitutional Court (McBride vs. The Citizen): “Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that are true.”

Leon had the right to express his opinion and, as he stayed within the boundaries of the above, the newspaper likewise had the right to publish those opinions. Even if you think that Leon was wrong, the Press Code as well as the country’s Constitution give him in a very real sense the right to be wrong.

Secondly, I do not believe that Leon committed hate speech. Section 16 of our Bill of Rights defines hate speech as the propaganda for war, the incitement of imminent violence, and the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. This is not what Leon’s piece amounted to.

In light of all of the above, I agree with the decision by the Public Advocate not to entertain your complaint – I do not believe that the newspaper has transgressed the Press Code in any way.

Our Complaints Procedures lay down that within seven working days of receipt of this decision, you may apply for leave to appeal to the Chair of Appeals, Judge Bernard Ngoepe, fully setting out the grounds for your application. He can be contacted at [email protected].

Johan Retief

Press Ombudsman