Appeal Decision: Sydney Kaye vs. Cape Times

SUMMARY

The headline to the story in dispute read, Complaints against the Cape Times dismissed (published on 15 February 2016).

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 text on the front page said that the office of the Press Councial had dealt with Sydney Kaye’s complaint in response to an article published on 19 November 2015, headlined Israeli military chiefs face SA arrest. The Press Ombud reportedly found that the newspaper had portrayed the conclusion as fact, namely that South Africa had pledged to enforce Turkey’s arrest warrants against four Israeli military commanders, should they set foot on our soil. The newspaper was cautioned for stating conclusions as facts.

Kaye complained that the text and the headline of the Ombud’s sanction were:

• in contempt of this office’s instructions; and
• an intentional attempt to deceive the public.

Kaye added that the front-page teaser mentioned only the peripheral complaints that had been dismissed. He argued, “It is well documented that a very high percentage of readers only read the headline and the first sentence or two and most don’t every finish an article. This was a blatant attempt to mislead the readers and at the same time avoid its obligations to the Ombudsman.”

Referring to communications between him and the newspaper, the Ombud pointed out that he was not satisfied with some drafts by the newspaper – which was changed accordingly. He added he believed that, even though the front-page headline and teaser were not entirely satisfactory, the publication of the full finding inside more than made up for it.

The complaint was dismissed, upon which Kaye applied for leave to appeal.

Judge Ngoepe dismissed the application, mainly because:

• pages 6 and 7 of the corrective edition did carry the full findings of the ruling.  The interest would have been aroused by the headline and the teaser, he said, and any anybody wanting to know more would have proceeded to those pages; and
• a fair balance was struck – Kaye did get a fair redress.

THE RULING ITSELF

KAYE SYDNEY                                                                                          APPLICANT

VERSUS

[1]     After Mr Sydney Kaye (the applicant) had lodged certain complaints against the respondent, the Ombudsman, in his first Ruling, dismissed the majority of the complaints, but upheld others. The Ombudsman then ordered, as sanction, a reprimand and a publication thereof apparently on the first page. The sanction was foreshadowed in the headline and the teaser on the first page.  The full coverage was published on pages 6 and 7 of the edition in question.  The Ombudsman saw and was satisfied with that.  The applicant was however not satisfied and as a result, submitted a fresh complaint on the basis of respondent’s non-compliance with the first Ruling of the Ombudsman.

[2]     The Ombudsman considered the new complaint.  In his second Ruling, he dismissed the (second) complaint.  It is against this Ruling that the applicant now seeks leave to appeal.

[3]     The Ombudsman held that pages 6 and 7 of the corrective edition did carry the full findings in the Ruling.  I find no fault with this; a large space was devoted thereto. It seems to me that the root of the (second) complaint was that an average reader would not turn to pages 6 and 7.  I do not think so.  The interest would have been aroused by the headline and the teaser, and any anybody wanting to know more would have proceeded to pages 6 and 7.  It is true that the Ombudsman could not waive his earlier decision or depart from it.  But the question is whether he did so.  Looking at the matter objectively, I don’t think he did so; I think a fair balance was struck. In my view, the applicant did get a fair redress.  This is how the Ombudsman saw and expressed the balancing:  “I believed that, even though the front-page headline and the teaser were not satisfactory, the publication of the full finding inside more than made up for it”.  For this reason, I do not think that the appellant has any reasonable prospects of success before the Appeals Panel; that being the case, the application fails.

Dated this 30^th day of April 2016

Judge B M Ngoepe, Chair, Appeals Panel