Appeal Decision: Sydney Kaye vs. Cape Times

SUMMARY

The headline to the story in dispute read, Tafelberg joy for blacks (published on 6 May 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 story was about a Western Cape High Court decision, preventing the provincial government from selling the Tafelberg Remedial School site. Some people hailed the decision as a “victory for the poor working class”.

Sydney Kaye complained that the:

• headline did not reflect the content of the story, and
• the article provoked racial antagonism, advocating hatred that was based on race and ethnicity.

The Ombud dismissed the complaint, mainly because:

• the use of the word “black” in the headline was not likely to cause anybody any harm; and
• the statement that blacks had won, did not mean that whites had lost – the “fight” that had been won and lost was not between black and white, but between some black people and the City of Cape Town.

He said the newspaper should have been more cautious in not allowing a headline that did not strictly reflect the content of the story; however, the fact that the complainants in the court case were black did serve as some mitigation in this regard.

Kaye then applied for leave to appeal.

Judge Ngoepe agreed with the Ombud’s ruling. He inter alia noted that Kaye took issue with the fact that the Ombud found that the headline “did not properly reflect the content of the story” but still found against him on the ground that the headline caused no harm (that the Ombud said he had to take the headline’s intention, or spirit, into account). The judge opined that the headline duly reflected the content of the article.

The application for leave to appeal was denied.

THE RULING ITSELF

IN THE MATTER OF:

KAYE SYDNEY                                                                                                             APPLICANT

VS

CAPE TIMES                                                                                                                RESPONDENT            MATTER NO: 1720/05/2016

[1]     On 6 May 2016 the Cape Times (“respondent”) published an article headlined “Tafelberg joy for blacks.” The story was about a successful court action taken to stop a proposed sale of a piece of land by the Western Cape Provincial Government to a particular private institution to build a private school. The argument against the sale was that the land could be developed for housing to the benefit of poor and under-privileged people, who would be able to move closer to working place.

[2]     Mr Sydney Kaye (“applicant”) lodged a complaint with the office of the Press Ombud.  The latter, in his Ruling dated 24 may 2016, restated the complaint as follows: “Kaye complaints that the headline did not reflect the content of the story, and that it  provoked racial antagonism, and that it advocated hatred that was based on race and ethnicity”.  The respondent’s reply was that the land could have been used to house disadvantaged (“black”) people; and that the “people involved in the campaign are black.  So when the court ruled – it was victory for them – the poor.” The story was in the public interest, and aimed to show that the law protected people of all races, rich and poor.

[3]     The Ombud dismissed the complaint, for the reasons he gave; the validity of some of which the applicant challenges in his application for leave to appeal. I will restrict myself to those.  Applicant takes issue with the fact that the Ombud find that the headline “did not properly reflect the content of the story” but still finds against applicant on the ground that the headline caused no harm; that he says he had to take the headline’s intention, or spirit into account.  I do think in fact, that the headline rhythmed with the content.  In any case, the applicants complaint about the heading cannot be divorced from the second leg of the complaint; namely, that the heading implies that “whites” have lost.  A complaint against a heading must have substance; that is what the Ombud in effect means.  A literal variance between the headline and the contents of the story cannot fall foul of the Code no matter how trivial it (the variance) is, or has no substance.  One cannot construct a complaint out of such situation. The introduction by the applicant of a “white” defeat or loss is meant to provide a basis for the complaint; but it is patently far-fetched and cannot assist to add substance to a variance which has no significance.  In fact, in the present case, the variance hardly exists because the body of the story shows who were to benefit; at the very least, but of course not exclusively, “blacks”. The Code is a serious document and cannot be invoked to sustain inconsequential variances, or variances sought to be strengthened by farfetched and unsustainable interpretations of a headline.  When the Ombud speaks of “mitigation”, he means the elimination of any meaningful or significant variance between the headline and the story.  The above is therefore also an answer to applicant’s “Extra Motivation To Have Appeal Heard!!”

[4]     In light of the reasons given by the Ombudsman, which I support, as well as what I say above, I find no reasonable prospects of success for the applicant, and the application therefore fails.

Dated this 21^st day of June 2016

Judge B M Ngoepe, Chair, Appeals Panel