Appeal Decision: Sicwetsha Mvusiwekhaya vs The Herald

SUMMARY

The headline to the story in dispute read, Zuma packs electoral list with loyalists – Alliance partners not snubbed despite ideological tumult (published on 12 March 2014).

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 Pres Jacob Zuma had “strengthened his hand” in the ANC “as those close to him secured spots as candidates for the National Assembly in the May 7 elections”, and that the electoral lists were “packed with Zuma loyalists”.

Mvusiwekhaya Sicwetsha (a member of the ANC but complaining in his personal capacity) complained that the headline was misleading and that the statement that Zuma had fired former Pres Thabo Mbeki (in 2008) was factually incorrect.

The Ombud said that, technically speaking, Sicwetsha was correct – one had to be careful not to disregard the democratic processes within the ANC that had preceded the compilation of the lists of candidates.

However, he also had to keep in mind that Zuma was the leader of the ANC. In that sense, he was not only ultimately responsible for what happened in that party, but he also must have had a huge influence on what transpired – especially on something as important as electoral lists. The complaint was dismissed.

Sicwetsha then applied for leave to appeal.

Judge Ngoepe said he agreed with the Ombud’s ruling – Zuma was the public face of his organisation. That did not necessarily mean, nor could it be understood to mean, that he personally went about picking names.

He also said that Sicwetsha could not have lodged a complaint on behalf of Zuma or the ANC) and that the Ombud should therefore not have accepted his complaint.

The application for leave to appeal was refused.

THE RULING ITSELF

MVUSIWEKHAYA SICWETSHA                                                              APPELLANT

AND

[1]     Mr Mvusiwekhaya Sicwetsha (“applicant”) submitted to the Press Ombud a complaint against what was published by The Herald (“respondent”) on 26 July 2016.  This was not a complaint about what was said about the applicant. His first complaint was that the respondent replaced one word in a letter which he had written to the respondent for publication.  He says the respondent replaced a word he had used, namely, “prose” with the word “prove”.  This was in the following sentence: “While the Human Right (sic) Commission might investigate the matter, the discourse around this should not favour a side that can prose its defense in a manner that gives usable sound bytes and quotes.” (Own emphasis).

The second complaint he had was that the respondent left out certain questions was asking about the object of his letter, namely, Mr Trollip who was at the time a mayoral candidate in the Nelson Mandela Bay Metropolitan for the Democratic Alliance. The applicant said he was a member of the African National Congress, writing in his personal capacity.  He complained that by so doing, respondent was protecting Mr Trollip.  The portions he says were left out accused Mr Trollip of racism.

[2]     In its response, the respondent says that it had the right to edit applicant’s letter. It said “Like any other newspaper, we reserve the right, without reason, to shorten or edit letters.  This happens on a daily basis, with all letters written, and no justification is provided”.  Respondent also denies that it was seeking to protect Mr Trollip.

[3]     In his Ruling dated 24 August 2016, the Ombud upheld the first complaint, and ordered respondent to publish a correction for the use of the word “prose” to “prove”.  The respondent accepted the sanction, and conceded that it was a misprint.  The second complaint was, however dismissed.  The Ombud upheld respondent’s defence that it had the right to edit what the appellant had submitted for publication.  This application is for leave to appeal the latter finding.

[4]     I notice that in his application for leave to appeal, applicant argues that what he had submitted was not a letter, but an opinion piece. I do not think that, given the defence raised by the respondent, this makes any difference.  It must be noted that what appellant submitted, be a letter or what he calls an opinion piece, was indeed very lengthy. The Press Council be slow to take away editorial discretion to amend or edit pieces.  If the appellant’s view were to be correct, it would mean that each and every opinion piece, no matter how long, should be published in full.  This would simply not work.  The sanction against a paper which regularly emasculates letters or opinion pieces is that it would, amongst others, loose credibility and therefore popularity; people would stop writing to it.  It is also noteworthy that part was what was published was critical of the respondent as well; that is, respondent was not out to suppress applicant’s critical views. Also, what was said to have been left out was a series of questions for Mr Trollip to answer, as opposed to making pertinent substantive points to drive a message home.

[5]     For the reasons given above, the application has no reasonable prospects of success.  It is emphasized that there are no prospects that the Appeals Panel would compel respondent to publish an opinion piece in its entirety; that could set a difficult precedent.  What if someone next time writes a piece of twice as many words as applicant’s?

Dated this 4^th day of October 2016

Judge B M Ngoepe, Chair, Appeals Panel