Appeal Decision: Mvusiwekhaya Sicwetsha vs. Business Day

Sicwetsha Mvusiwekhaya                                                  Applicant

Vs

Business Day                                                                      Respondent

Matter Number 24/2014

Decision:  Application for Leave to Appeal to the Appeals Panel

1. In his Ruling of 11 April 2014, the Press Ombudsman dismissed the applicant’s complaints against the respondent.  The complaints were lodged in the wake of an article published by the respondent on 12 March 2014, with the headline “Zuma packs electoral list with loyalists”.  The complaints were dismissed by the Ombudsman, hence this application for leave to appeal.
2. The first complaint related to the headline itself and the contents of the story thereto.  The applicant’s quarrel with the headline was that it was misleading to say that President Zuma had packed the electoral list with his loyalists.  He explains how the list was put up; it was not just by President Zuma.  He says the headline is misleading; the content of the story does not provide proof thereof.  Applicant suggests that the headline should have, instead, rather read “Zuma loyalists pack ANC list.”  This would have been in line with his argument that it was not President Zuma who packed the list with his loyalists.
3. The second complaint is headed “Unfair accusation against Zuma”.  This related to the recall of former President Thabo Mbeki, which the applicant cross-referenced to the relieve of President Zuma of his then office of Deputy President by former President Mbeki. The applicant’s complaint is that respondent’s story on this matter misrepresents the facts by saying that it was Zuma who fired Mbeki. He says it was not President Zuma, but the National Executive Committee of the ANC which recalled Mbeki. In dismissing this complaint, the Ombudsman allowed for some political interpretative leeway, the obvious factual context being that President Zuma was at that time the president of the organization. But importantly too, I don’t think an average ready would fail to appreciate that Mbeki was recalled by the NEC; it would be plain nonsense for anybody to think that Zuma, simply because he was the President of the ANC, alone recalled Mbeki.
4. Back to the first complaint, I agree with the Ruling by the Ombudsman and,  as contended for by the respondent, that President Zuma is the public face of his organization; it does not necessarily mean, nor can it be understood to mean, that he personally went about picking names.  For the reasons given by the Ombudsman, I hold the view that the applicant has no reasonable prospects of success against the Ruling.
5. There is another problem with this complaint.  The complainant simply describes himself as “Mvusiwekhaya Sicwetsha.”  Yet the complaint is in effect on behalf of another person, namely, President Jacob Zuma, or the ANC. For example, the complainant says “I hereby lodged a complaint ….”; again he says “I hereby submit my complaint as follows….”   [own emphasis].  He also says “With this I argue, the Business Day abused its space to bully Zuma…..” .  Indeed later, in his submissions supporting his application for leave to appeal, the applicant says the following: “The Complaint I submitted with the Press ombudsman (sic) was done in my personal capacity  as the member of the ANC and as the reader of the newspaper and it was not the ANC complaint.” [own emphasis].  In terms of article 1 of the Complaints Procedures the complainant could not have lodged a complaint in the protection or on behalf of another person or organization (President Zuma or the ANC). If he wanted to do so, he should have established that capacity as required by the article.  This was a jurisdictional requirement in default of which the complaint should not have been accepted.  It cannot be so, that any member of the ANC can simply lodge a complaint against a statement about the President of the organization without satisfying the requirements of the said article. I am afraid when the Ombudsman said in his Ruling that “the ANC is complaining….”, he was too charitable; the ANC has lodged no complaint in this matter; at least, as far as I could tell.
6. The application for leave to appeal has no reasonable prospects of success and is therefore refused.

Date: 8 June 2014

Judge B M Ngoepe, Chair, Appeals Panel