Appeal Decision: Luzuko Jacobs vs Sunday Times

SUMMARY

The headline to the story in dispute read, Parliament in fear as spooks move in (published on 18 October 2015).

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 article said that Parliament had launched an aggressive onslaught against its own staff  (read: re-vetting of staff) to root out spies and whistle-blowers. The outrageous campaign, reportedly involving the State Security Agency and initiated by the Secretary to Parliament, Gengezi Mgidlana, was the latest in a string of attempts to clamp down on officials.

The above represented the crux of Luzuko Jacobs’s complaint. He complained on behalf of Parliament as also on behalf of the Secretary to Parliament, Gengezi Mgidlana.

Sunday Times was reprimanded for not affording Parliament reasonable time to respond, and for not stating that it was unable to get comment prior to publication. The newspaper was also required to ask Mgidlana for comment.

The rest of the complaint was dismissed. The Ombud argued that:

• it was reasonable for the journalists to have used the word “outrageous”;
• the story did not even touch on Mgidlana’s character;
• the journalist did not fail to use available information; and
• the use of the word “fear” in the headline was justified, even though that word did not appear in the article itself – the severity of the accusations, including the one about spies, could have been interpreted in such a way.

Jacobs then allied for leave to appeal. He argued that the Ombud had erred and/or misdirected himself in critical areas in his analysis of the inaccurate reporting and misleading statements by failing to attribute to words their regular meaning and by failing to consider the negative context of the report, the failure to use available information and the manner in which it impugned the character of Mgidlana and Parliament as a democratic institution. He added that the Ombud “was unduly selective in his analysis”.

Judge Ngoepe dismissed the application, mainly because he agreed with the Ombud’s analysis of the case and the reasons he gave for his decisions.

He added that:

• by its very nature, a process of re-vetting raised, amongst others, trustworthiness or the lack of it – the issue automatically came into the picture once re-vetting was deemed necessary; and
• references to Parliament in the context of the report were about the administrative section of Parliament – it did not refer to the National Assembly or the National Council of Provinces, even less so to its members.

THE RULING ITSELF

JACOBS LUZUKO                                                                               APPLICANT

AND

[1]     Mr Jacobs Luzuko (“applicant”) appears in this matter as complainant on behalf of Parliament of the Republic of South Africa, as also on behalf of the Secretary to Parliament, Mr Mgidlana. The complaints were against the Sunday Times (“respondent”), and were in respect of an article which appeared in respondent’s edition of 18 October 2015.

[2]     The heading to the article read: “Parliament in fear as spooks move in”.  The sub-heading read: “Parliament has launched an aggressive onslaught against its own staff in an attempt to root out spies and whistle-blowers”.  The essence of the story was really about steps taken by Parliament, in particular the Secretary to Parliament, to re-vet staff.  It is not in dispute that steps to that effect were taken.  It seems the applicant contends that what was being done was a normal exercise, whereas respondent saw it as a renewed effort  following certain developments. A number of complaints were raised, which included the following (they are also set out in the Ombudsman’s Ruling referred to below):

2.1    it was stated as a fact, that there was a “clampdown on staff”;

2.2    that the headline violated article 2.2 of the Press Code: it was an exaggeration, and was sensationalist;

2.3    the article was an untruthful, inaccurate and unfair reporting against Parliament and its Secretary, thus violating articles 2.1 and 2.2;

2.4    although applicant had information at its disposal explaining the context of the re-vetting process, it failed to make use of the information;

2.5    applicant failed to give Parliament and its Secretary the opportunity to comment prior to publication;

2.6    applicant failed to state that it did not obtain comment from Parliament and its Secretary.

Needless to say, applicant contested all the complaints.

[3]     The Press Ombudsman, in his Ruling dated 10 December 2015, dismissed all the complaints, except the last two mentioned above, which he upheld.  He ruled:

“Sunday Times is reprimanded for not affording Parliament reasonable time to respond, and for not stating that it was unable to get comments prior to publication, and is directed to publish a summary of this finding prominently on page 2.  The newspaper is also required to (ask) Mgidlana for comment, if indeed he wishes to do so.

The headline should reflect the contents of the text.  A heading such as Matter of Fact or something similar is not acceptable.  If the story appeared on the newspaper’s website, the text should be published there as well”.

The appellant now seeks leave to appeal the dismissal of the other complaints.

[4]     For the application to succeed, the applicant must show that there are reasonable prospects of success before the Appeals Panel.

[5]     The appellant sums the ground of appeal as follows:

“(a)    The Ombudsman erred and/or misdirected himself in critical areas in his analysis of the inaccurate reporting and misleading statements by failing to attribute to words their regular meaning and by failing to consider the negative context of the report, the failure to use available information and the manner in which it impugned the character of Mr Mgidlana’s, the Office of the Secretary to Parliament and Parliament as a democratic institution.

(b)     The Ombudsman was unduly selective in his analysis …”

I do not agree with the above argument. I agree with the Ombudsman’s analysis of the case (which was quite thorough), and the reasons he gives for his decision. I therefore need not deal with the matter further, save for one or two remarks.  The context of the use of words such as “onslaught”, “clampdown on staff” “aggressive” etc is very important.  Depending on the relationship between the role players (eg Parliament and its staff), a conduct may indeed be seen to be an “onslaught” or “clampdown” or “aggressive”. One of the important elements in the relationship between an employer and an employee is trust.  A move by an employer on an employee, such as re-vetting, may appear to be heavy handed, as opposed to a situation where no such relationship exists.  By its very nature, a process of re-vetting raises, amongst others, trustworthiness or lack of it; the issue automatically comes into the picture once re-vetting is deemed necessary.  In this context, the respondent is saying no more than that the exercise of re-vetting one’s employees is drastic, given the alleged circumstances under which it was being undertaken, and also the displeasure on the part of at least some employees. A spouse might certainly feel that here is an “onslaught” on her trust if he/she were to find that he/she is being spied upon by the other for infidelity, as opposed to a business person discovering he/she is being spied on by his/her business rival.  This would be because of the supposed trust between spouses, as opposed to business rivals where none owes the other any trust. One other observation: reference to Parliament in the context of the report must surely have to the administrative section of Parliament; it was not reference to the National Assembly or the National Council of Provinces, even less so to Members thereof. The fear referred to was the concern, founded or otherwise, on the part of staff.  Finally, let it not be forgotten that the Ombudsman directed that the respondent be offered the opportunity to respond, if so advised. In light of all the above and the reasons given by the Ombudsman, I do not think the applicant has reasonable prospects of success.  The application therefore fails.

Dated this 18^th day of February 2016

Judge B M Ngoepe, Chair, Appeals Panel