Appeal Decision: Sunday Times vs Dr N Dlamini-Zuma

SUMMARY

The headline to the story in dispute read, The Nkandla home where Nkosazana has spent a lot of time these past two years (published on 29 January 2017).

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 article quoted sources to the effect that Dr Nkosazana Dlamini-Zuma had spent a lot of time at Pres Jacob Zuma’s compound (Nkandla), that she and the President had reconciled (after their divorce a few years ago), and that they were “so close” that she had a house allocated to her at Nkandla.

Dlamini-Zuma complained that the story contained several unverified, untruthful, inaccurate and unfair statements as fact. She added that the newspaper refused to publish her reply, which she provided to the journalist after the story in dispute had been published, and that the reportage had tarnished her reputation and invaded her privacy. In later correspondence, she also complained about the headline.

The Ombud directed the newspaper to apologise to Dlamini-Zuma for stating as fact in the headline the allegation that she had recently spent a lot of time at Nkandla. The rest of the complaint was dismissed.

Dlamini-Zuma then applied for leave to appeal.

Judge Ngoepe noted the newspaper’s justification for stating the above-mentioned allegation as fact. It said, “Our position is that although the story was based on allegations, these allegations were independently corroborated by a number of people telling us essentially the same thing.  This corroboration makes it reasonable to present the allegations as fact – both in the copy and in the headline”.

The judge disagreed – an allegation could not be turned into a fact just because a number of people had made the allegation. He also decided on which page the apology should be published (a “puff” on page 1 and the apology on page 5). There was some confusion about this matter, as the Ombud had mistakenly thought that the article in dispute had been published on page 1, whereas it appeared on page 5.

The application for leave to appeal was dismissed.

THE RULING ITSELF

In the matter of

SUNDAY TIMES                                                                                          APPLICANT

AND

[1]     Sunday Times (“applicant”) seeks leave to appeal to the Appeals Panel against the 6 May 2017 Ruling of the Press Ombud made in favour of Dr N Dlamini-Zuma (“respondent”).  The latter had lodged a complaint with the office of the Press Ombud against an article which had appeared in the applicant’s edition of 29 January 2017 with the headline: “The Nkandla home where Nkosazana has spent a lot of time these past two years”. The opening paragraph reads: “President Jacob Zuma and his ex-wife, Nkosazana Dlamini-Zuma, may be divorced, but the two are so close that she has a house allocated to her at the Nkandla homestead”.  The article went on to say that President Zuma’s “close relatives also revealed that Dlamini-Zuma had become a regular visitor to Nkandla over the past two years.  The couple divorced in 1998”.  The above was the thrust of the article.

[2]     The respondent complained, inter alia, that the article was “untruthful, inaccurate and unfair”; that it was not balanced, and importantly, that allegations were presented as fact.  She demanded retraction/correction.  The Ombud accurately summarized the complaints referred to above, and added:  ‘(respondent) adds that the newspaper did not afford her a right of reply, and complains that the story has tarnished her reputation and invaded her privacy”.

It is also important to note the following statement in the Ruling:

“In later correspondence, Khoza (respondent’s spokesperson) also mentions the headline – to which Smuts (of the applicant) responds.  This obliges me to entertain the headline as part of the complaint”.

[3]     The applicant contended that the story was fair, balanced, justified, and thus complied with the provisions of the Code; for this reason, even though the respondent sent her comment to the applicant, the latter refused to publish it.

[4]     The Ombud has dealt extensively and in detail with the points raised by the parties.  Dealing with the complaint relating to the headline, the Ombud correctly reflects the view of the Appeals Panel: an allegation in a story or a headline may not be presented as a fact.  On this basis, the Ombud held that the headline was incorrectly presented as a fact instead of an allegation.  He therefore held that the applicant breached article 10.1 of the Code.  The Ombud said the respondent should be given “the opportunity to voice her opinion more extensively”. He held that the headline was presented as fact, in contrast with the contents of the story, which had been presented as mere allegations; he therefore ruled that article 10.1 of the Code was breached, and ordered an apology to the respondent for stating that she has recently been spending a lot of time at Nkandla.  He suggested, without prescribing, as to which of her refutations should at least be published.

[5]     For the application for leave to appeal to succeed, the applicant must show reasonable prospects of success before the Appeals Panel. I now turn to consider that.

Merits: Contravention of article 10.1

[6]     On the basis of Khoza’s submissions, to which Smuts for the respondent had responded, the Ombud made a finding that the applicant contravened article 10.1 of the Code. In its papers seeking leave to appeal the finding, the applicant says the following: “Our position is that although the story was based on allegations, these allegations were independently corroborated by a number of people telling us essentially the same thing.  This corroboration makes it reasonable to present the allegations as fact – both in the copy and in the headline”. This argument is problematic.  That a number of people repeat an allegation cannot simply turn it into fact. The furthest a journalist can go would be to form an opinion, and then present it as such, not as fact. It is not for a journalist or the paper to be judgmental, but to present the allegations as allegations, and leave it to the public to make their own individual judgments.  In any case, as the Ombud points out, applicant’s story was itself presented as an allegation, and as fact. The applicant therefore blows hot and cold: if the supposedly corroborated content of the story is presented as mere allegations, as the applicant itself says, how can such admittedly mere allegations be used to justify presenting the headline as a proven fact?

Regarding on which page the ordered apology should be published

[7]     The applicant takes issue with the fact that the Ombud ordered that the apology be published on page 1 as the story had appeared on page 5.  In his explanation, the Ombud says he did so as he was under the impression that the story had appeared on page 1.  When told that the only reference to the story on page 1 was a “puff”, the Ombud gave the applicant two options: to publish the apology on page 1, or on page 5 together with a “puff” on page 1.  The applicant does not want to do either; all what the applicant would be prepared to do (in the event it loses the appeal on the merits), would be to publish an apology on page 5 without even a “puff” on page 1. The applicant seeks to motivate its stance by arguing that respondent never complained about the “puff”.  I do not agree with this argument; it amounts to a hair-splitting exercise.  The truth of the matter is that the impact of the “puff,” which was on page 1, was so powerful, that the Ombud thought the story was on page 1!! One cannot divorce the “puff” from the complaint.  What the complainant wants (publishing the apology on page 5 without even a “puff” on page1) would really amount to a meaningless remedy, bearing also in mind that not only was there a “puff” on page 1, but also applicant’s picture to drive the message home. On the other hand, I do not agree with the respondent’s persistence that the apology be on page 1; I believe that the Ombud did the right thing by correcting himself once he realized he had laboured under a wrong impression regarding the location of the story. To my mind, the second option given to the applicant (a “puff” on page I and an apology on page 5) would produce fair results to both parties.

[8]     For the reasons given by the Ombud, as well as those added by myself, I am of the view that the applicant has no reasonable prospects of success; accordingly, the application is dismissed.

Dated this 8th day of June 2017

Judge B M Ngoepe, Chair, Appeals Panel