Appeal Decision: Bheki Khenisa vs Runstenburg Herald

SUMMARY

The headline to the story in dispute read, Former Municipal Manager allegedly blamed for R397m debacle…(published on 10 June 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 said that Bheki Khenisa, a former municipal manager, became the latest to leave the service of the Rustenburg Municipality after a settlement had been reached. The municipality had reportedly suspended him on 23 December 2015 with full salary pending a disciplinary process, which lasted all of five months. The main “charge” investigated against him was “that he was apparently to be blamed for the fact that the Rustenburg Municipality had effectively lost R400 million in terms of Municipal Infrastructure Grants (MIGs) or ‘conditional grants’ by the National Treasury”.

Khenisa complained that the article was unbalanced and out of context, and that he had not been given a right of reply.

The Ombud said Khenisa did not address exactly what was wrong, unbalanced or out of context in the story, despite having given him an opportunity to explain what he meant. He also dismissed the complaint about not having been given a right of reply. He said a settlement had been reached between Khenisa and the municipality, which meant that the matter had been finalised.

Khenisa then applied for leave to appeal.

Judge Ngoepe said he agreed with the reasoning and analysis of the matter by the Ombud.  However, he opined that Khenisa had reasonable prospects of success to convince the Appeals Panel that the text constituted critical reportage which necessitated him being contacted for comment. The application for leave to appeal succeeded.

THE RULING ITSELF

KHENISA BHEKI                                                                                         APPLICANT

AND

[1]     This is an application by Mr Bheki Khenisa (“applicant”) for leave to appeal to the Appeals Panel of the Press Council against the Ruling of the Press Ombud dated 14 July 2016 in a complaint by the applicant against Rustenburg Herald (“respondent”).  The complaint is in respect of an article which appeared in the respondent’s edition of 10 June 2016, with the headline: “Former Municipal Manager allegedly blamed for R397m debacle …”. The headline and the content of the story were referring to the applicant.  He was the municipal manager of the Rustenburg Municipality for a certain period until he was discharged after some settlement was reached; this followed his suspension and the institution of a disciplinary inquiry.

[2]     The essence of the story, insofar as it related to the applicant, was that money granted to the munucipality by National Treasury for infrastructure and other developments was instead used “to cover running costs such as salaries and similar expenses”.

[3]     The article went further: “The result of this was that National Treasury insisted on a ‘payback’ of the conditional grants within a certain period, otherwise it would be deducted from grants destined for the Rustenburg Municipality in the current financial year.  Mr Khenisa apparently failed to heed the warning and missed the cut-off date, he also failed to report the matter to Council and that was the end of it – National Treasure wanted the money back and has in fact already started the process of recovering the money ….” The article concluded with the following sentence: “Several other charges were also investigated against Mr Khenisa”.

[4]     The applicant complained that the article was in breach of article 1.2; but this was not substantiated and the matter really ends there.  Secondly, he complained that article 1.8 of the Press Code was breached because he was not contacted for comment.  It is this latter complaint that merited consideration by the Ombud.  The respondent did not deny that it did not contact the applicant for comment, but raised some defences; mainly, as held by the Ombud, that the article did not constitute a critical reportage against the applicant. This defence was upheld by the Ombud, and the complaint dismissed.  The applicant now seeks leave to appeal; the respondent opposes the application.

[5]     I agree with the reasoning and analysis of the matter by the Ombud.  I have considered the contents of the article, in particular those I quote above (which was why I did so extensively).  I have also looked at the heading, much as it says “allegedly” framed; the concluding sentence as well.  Having done so, I am of the view that the applicant has reasonable prospects of success to convince the Appeals Panel that the above constituted critical reportage which necessitated him being contacted for comment.  Of course, some parts of the article merely reported the truth of what happened and did not warrant his comment.

[6]     The applicant is therefore hereby granted leave to appeal the Ombud’s Ruling of 14 July 2016 to the Appeals Panel.

Dated this 5^th day of August 2016

Judge B M Ngoepe, Chair, Appeals Panel