Appeal Decision: Adv Boyce Mkhize vs City Press

SUMMARY

The headlines to the stories in dispute read, Look who is back (published on 12 June 2016); and, MEGA’s massive corruption scandal – A failing Mpumalanga parastatal’s former CEO is believed to have quit his job to escape consequences of misspending at least R40m (5 April 2015).

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 Ombud accepted the complaint about the 2015-story, as the one published in 2016 was based on the previous one – and the newspaper did not object to it.

The issue was about a report that the former CEO of Mpumalanga Economic Growth Agency (Mega), Adv Boyce Mkhize, had left the agency “under a cloud”.

Mkhize complained the:

• stories falsely and unfairly suggested a report stated that he had personally incurred irregular expenditure while he had been CEO of Mega, to the tune of R25-million;
• newspaper did not provide him with a copy of this report despite several requests;
• journalist did not interview him; and
• reportage had tarnished his dignity and reputation.

The Ombud reprimanded City Press for:

• not stating that the report on which it based its stories might not have been the final one;
• stating that the document was a “forensic report”, instead of an “internal audit report”; and
• not indicating that its use of the word “corruption” was its interpretation (even though its interpretation might have been justified).

Some parts of the complaint were dismissed.

Mkhize then applied for leave to appeal, upon which the newspaper lodged a counter-application.

Judge Ngoepe granted leave to both parties given, inter alia because “views may differ on the significance of the report in question, and, in particular on whether the report is a ‘forensic report’ or an ‘internal audit report’ and on the significance of such difference, if any.” It was even a question whether that report really existed, he said.

THE RULING ITSELF

ADV BOYCE MKHIZE                                                                                APPLICANT

AND

[1]     Adv Boyce Mkhize (“applicant”) lodged a complaint with the Office of the Press Ombud in connection with two stories which appeared in City Press (“respondent”).  The second story, which apparently triggered the complaint against the first story as well, was published on 12 June 2016, with the headline “Look who is back.”  The first one was published on 5 April 2015 with the headline “A failing Mpumalanga parastatal’s former CEO is believed to have quit his job to escape consequences of misspending at least R40m.” Read together, the stories were about applicant who had been the CEO of the Mpumalanga Economic Growth Agency (Mega”).  The first story, as the headline indicated, alleged certain malpractices by the applicant while he was the CEO of Mega, where, it was alleged, he had left under a cloud.  The second story was based on the first one.

[2]     By the time the complaint was lodged, the prescribed period of 30 days for doing so had already long elapsed in respect of the first story.  Upon inquiry by the Ombud, the respondent accepted the complaint in relation to this story as well; this was because of the connection between the two stories, although respondent could justifiably still have objected.  The first story had made allegations of corruption against the applicant. The second one proceeded in similar vain.

[3]     The complaints were summed up by the Ombud in his Ruling dated 29 July 2016:

“l     stories falsely and unfairly suggested a report stated that he had personally incurred irregular expenditure while he had been CEO of Mpumalanga Economic Growth Agency (Mega), to the tune of R25-million;)

l   Newspaper did not provide him with a copy of this report despite several requests; and

l   Journalist did not interview him…….

He also questions the existence of the report, as Mega denied any knowledge of it, and concludes that the reportage has defamed him.”

[4]     One of the important features of the matter was that, whereas the allegations of corruption or misspend were based on a report (forensic or internal audit), Mega denied the existence of such a report whereas respondent said that it did exist and was puzzled by Mega’s denial of it. The existence of the report was also raised in the Mpumalanga Provincial Legislature.

[5]     There are many intriguing aspects in this case. The Ombud did his best, and in the end, found that the respondent had breached inter alia section 1.1 of the Press Code; and imposed a sanction. However, the applicant was not satisfied and launched an application for leave to appeal.  The respondent’s reaction was that, whereas it would have accepted to leave the matter where it was, it too decided to, and did in fact, launch an application for a cross-appeal.  In it, respondent indicated that it had since come across more relevant information which it submitted to the Ombud.  While the jury is still out as to why this information could not be obtained in time, I have decided to take it into account nevertheless (without necessarily admitting it or believing it at this stage) given the accommodative spirit in which the matter was conducted; i.e when respondent accommodated applicant’s very late complaint in relation to the 5 April 2016 story. It is clear to me that the parties want the issues in this dispute to be thoroughly ventilated.

[6]     I have decided to grant leave to both parties given, inter alia:

6.1    the fact that there are so many issues which may be approached and weighed up by the Appeals Panel differently to the way the Ombud did;

6.2    views may differ on the significance of the report in question, and, in particular on whether the report is a “forensic report” or an “internal audit report” and on the significance of such difference, if any.

[7]     There are therefore reasonable prospects of success to both, in varying degrees, which I need not go into.  Moreover, as I have said, the parties are desirous of a full ventilation of the issues. The parties are therefore hereby given leave to argue their cases before the Appeals Panel.

Dated this 16^th day of November 2016

Judge B M Ngoepe, Chair, Appeals Panel