Appeal Hearing Decision: Kaizer Chiefs vs Soccer Laduma

KAIZER CHIEFS FOOTBALL CLUB                                                      APPELLANT

VERSUS

[1]     Kaizer Chiefs Football Club (“appellant”) lodged a complaint against Soccer Laduma (“respondent”), complaining that what respondent published in its edition of 18 November 2015, purporting to be based on an interview with one of their players, Mr Lucky Baloyi (“Lucky”) was false in that no such interview took place.  The interview was alleged to have been conducted by respondent’s freelance journalist, one Patrick Baloyi (“Patrick”).  This was the sole dispute between the parties.

[2]     The respondent insisted that the interview, which was recorded, did take place; it made the tape available.  In adjudicating the matter, the Ombud listened to the disputed taped, and compared it with the one submitted by the appellant which was said to be a genuine recording of Lucky’s voice. In his Ruling dated 8 April 2016, the Ombud held that he could not determine the authenticity of the disputed tape, effectively dismissing the complaint.  The appellant successfully sought leave to appeal.

[3]     The Decision granting leave to appeal allowed the parties to submit expert reports on the authenticity of the disputed tape, by comparing it with the second tape submitted by the appellant.  It is not necessary to go into details; what happened can be summarized as follows:

3.1    The respondent submitted a first report by Dr Jansen which, without being emphatic, tended towards confirming that the disputed tape was a genuine recording of Lucky’s voice.

3.2    The appellant, after much search, found Mr Swart as their expert, and submitted his report.  This he did after physically listening to Lucky, comparing it with the disputed tape.  His report supported appellant’s case. This resulted in the postponement of the appeal as respondent said it wanted to give Dr Jansen the opportunity to consider Mr Swart’s report.  The understanding was that he would, like Mr Swart, also physically listen to Lucky.

3.3    Dr Jansen did not physically listen to Lucky as had been arranged.  Instead, he re-listened to the same disputed tape in full, and the other.  This time round his report, in the form of an affidavit, was more emphatic that the disputed type was authentic.  He also criticized Mr Swart’s report.  At the hearing of the appeal, Mr du Toit submitted another report by Dr Jansen, part of which also impeached Mr Swart’s expertise.  Neither members of the Panel nor the appellant had been given a copy of this report before then.  Asked why, Mr du Toit could not explain, except to say that he thought it had been submitted to the Chair of the Panel directly, or to the Office of the Press Ombud; as it turned out, none of the two had received the document.  While we accept that Mr du Toit thought he had sent it through, we still cannot admit the document as this would be a classic case of litigation by ambush; bearing in mind that the report was dated 22 September 2016, at least two weeks before the hearing.

[4]     The reports submitted by the experts do not therefore settle the matter.  Mr du Toit said that, because of his vast experience and impressive curriculum vitae, we should prefer Dr Jansen.  We believe this would be too simplistic and unscientific an approach to approach to adopt.  Also problematic is the fact that, after specifically seeking and secured a postponement specifically for Dr Jansen to physically listen to Lucky as Mr Swart did, Dr Jansen did not do so.  Dr Jansen repeatedly indicated during the hearing that he was hard of hearing; he however explained that, because of his methodology, this would not be an impediment to listening to Lucky.  He gave some explanation.  The fact remains though, that the postponement was for him to listen to Lucky, like Mr Swart did.  In any case, as already said, the expert reports did not resolve the dispute. The matter does not, however, end there.  We had to deal with the credibility of the two main players, namely, Lucky and Patrick.

[5]     In order to bolster its case that the interview between Lucky and Patrick did take place, respondent submitted a short affidavit by the latter, deposed to on 8 February 2016.  It stated that the interview was done on 14 October 2015.  As the contest of the interview talked about games which took place on, 3 November and 7 November 2015 (Orlando Pirates) appellant pointed out that the disputed interview could not have taken place on 14 October 2015! Secondly, contrary to the report, appellant pointed out, Lucky had played two other full games since his injury period on which were on 24 and 27 October 2015, both of which were against Mpumalanga Black Aces, as opposed to Golden Arrows and Orlando Pirates. Faced with this problem, respondent filed another affidavit by Patrick, attested to on 6 October 2016.  In it, Patrick says that the date of 14 October 2015 given in his previous affidavit as the date of the disputed interview was wrong; he could, however, not remember the date of the interview.

[6]     By stating under oath that the interview took place on a particular date only to shift to another date when proven wrong, Patrick severely compromised his credibility. We are afraid Mr du Toit did not accord sufficient weight to the problem of giving incorrect information under oath.  The following points are important, given that the very fact that the interview did take place at all is hotly disputed:

6.1    The first affidavit was made specifically to confirm that the interview did take place.  A date was not immaterial; after all, without it, one cannot locate the event timewise.

6.2    This was a short, uncomplicated affidavit, and contains only two elements, namely, that the interview did take place, and, secondly, the date.

6.3    In his second affidavit, Patrick says he was wrong with the date, but cannot recall the correct one.  For a journalist, one would have expected of him to have had a diary.

6.4    Patrick does not explain why he made a mistake in such a short and simple affidavit.  As a result, one does not know how the date “14 October 2015” crept in; did he pluck it from the air?  For example, it could be understandable if the explanation was that he confused Lucky’s interview with that of another soccer player whose interview took place on that day.

6.5    Even in the second affidavit; no details are given to strengthen his case; for example: where did the interview take place?  How was it arranged? What time and under what circumstances? Given the scarcity of this information in the affidavit and the lack of a date, how will Lucky manage to defend himself? Significantly, Patrick abandoned 14 October 1015 once it was demonstrated that the interview could not have taken place on that date. The Panel is expected to accept that, on a date unknown, time unknown and place unknown an interview did take place.

[7]     Mr du Toit argued that sometimes players deny interviews for fear of sanction by their teams.  But it cuts both ways; it could also be argued that given the fact that Lucky knew that this was not allowed at his team, it is unlikely that he would have acceded to such an interview.

[8]     Finally, respondent argued, in its heads of argument, that the onus was on the appellant that the disputed voice was not that of Lucky.  Such an argument could possibly only arise if Lucky had at the very least admitted that he had agreed to an interview, and that it did take place.  In any event, how would the appellant discharge the onus if it is not even told when, where, what time etc, the alleged interview took place?  The onus remained on the respondent.

[9]     For all the reasons given above, it is our view that serious doubts exists that Mr Patrick Baloyi did have an interview with Mr Lucky Baloyi, and that the voice on the disputed tape is that of the latter.  The appeal therefore succeeds, and the following Orders are made, which the Director of the Press Council is hereby mandated to implement:

9.1    Soccer Laduma must apologize to Mr Lucky Baloyi and Kaizer Chiefs Football Club for an article in its edition of 18 November 2015 about an alleged interview with Mr Lucky Baloyi, and for saying that there was such an interview.

9.2    The apology must be accompanied by a statement, stating that the Appeals Panel of the Press Council has found that no interview with Mr Lucky Baloyi took place, and that the alleged interview is withdrawn.

9.3    If the interview was carried on line, it be removed forthwith.

9.4 The apology and the statement referred to in 9.1 and 9.2 above must be submitted to the Director of the Press Council, within 5 days of receipt of this Decision by Soccer Laduma, for prior approval before publication.

9.5    The publication of the apology and statement referred to in 9.1 and 9.2 above must be given the same prominence as the published report on the interview.

9.6   The Director to determine the date for the publication.

Dated this 13^th day of October 2016

B M Ngoepe, Chair, Appeals Panel

Ms S Smuts, Member, Press Representative

Ms C Mohlala, Member, Public Representative

Dated at Pretoria this 9^th day of May 2016

Judge B M Ngoepe, Chair, Appeals Panel