Appeal Decision: Eye Witness News vs Mgidlana Gengezi

In the matter between

EYE WITNESS NEWS                                                                                       APPLICANT

AND

1.         Mr Gengezi Mgidlana (“respondent”) lodged a complaint against Eye Witness News (“applicant”) with the Office of the Press Ombud in connection with a story published by the applicant on 27 July 2017 under the headline “Nehawu concerned over theft of case in Gengezi Mgidlana matter”.  The respondent was at the material time Secretary to Parliament.  It was reported that there were certain investigations that one Ms Holtzman, apparently a parliamentary senior security officer who had been suspended, had taken the respondent to the Labour Court to fight the suspension.  As the headline indicated, the concern was that certain documents to be used in respondent’s case were allegedly stolen.   In its Ruling dated 9 November 2017, the Ombud and his panel dismissed some of the complaints raised by the respondent, while upholding others; and then imposed a sanction. It is against those findings that the applicant now seeks leave to appeal to the Appeals Panel.

2.         The panel’s Ruling summarized the respondent’s complaints as follows:

“The gist of Mgidlana’s complaint is that the reportage linked the disappearance of stolen documents unfairly and falsely, with ‘evidence’ that could have been used in parliament’s probe into him – creating impression that he had been involved in a criminal act (theft) to make ‘evidence’ against him disappear (adding that the newspaper intended to harm his reputation and damage his character).

He also complains that the:

?    Headline and picture portrayed a misleading inference; and

?    Journalist did not give him an opportunity to respond.

In general, he says that the story flouted numerous clauses of the Press Code …”.

3.         The applicant denied the charges, with the following as the gist of its response:  Regarding the headline, it was contended that it accurately reflected the content of the story.  Concerning the right of reply, the applicant argued that the reportage was not critical of the respondent; that in fact, the subject of the story was the theft of the documents and not him. The average reader would not link respondent with the alleged theft of the evidence.

4.         After considering the submissions and analysing the facts, the panel held that the applicant breached the following sections of the Code:

“?       Section 1.8 : ‘The media shall seek the views of the subject of critical reportage in advance of publication’;

?  Section 1.1: ‘The media shall take care to report news … fairly’ and

?  Section 1.3: ‘… Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner …’; and

?  Section 3.3: ‘The media shall exercise care and consideration in matters involving dignity and reputation’ ”.

A sanction was then imposed.

5.         This being an application for leave to appeal, it would only be granted if there are prospects of success before the Appeals Panel.  After considering the submissions by the parties on the application, I have come to the conclusion that the application does have such prospects and therefore should be granted.   That being my conclusion, it would be inappropriate for me to deal with the parties’ merits of their respective cases as I would not want to prejudice anyone of them.  What I want to say though is that it has not been lost on me that I have dismissed Sunday Times’s application for leave to appeal in respect of similar complaints by the respondent, against the Ruling of the same panel; this is in the matter of Sunday Times (applicant) and Gengezi Mgidlana (respondent) matter no: 3439/08/2017. The coverage by the two publications was not the same; for example, in the present case the story speaks of documents that “could have been used”; that they were “allegedly stolen”; that they “went missing”.  Also very importantly, the applicant said respondent was on special leave, while the Sunday Times said he was suspended and persisted, wrongly, that there was no difference between a special leave and a suspension.

6.         As one of its grounds of appeal, stated in its submission dated 20 November 2017, paragraph 3.1.3, the applicant says the following: “The Panel ought not to have interrogated a number of other issues such as EWN’s source which were irrelevant to the two issues stated above and the Panel’s approach in regard to these issues sets un untenable restraint on the ability to break and report news failry”.  There is no substance in this so-called ground of appeal and no leave is granted to argue it before the Appeals Panel.

7.         In light of the aforegoing, the applicant is hereby granted leave to appeal to the Appeals Panel against  findings made against it, listed in paragraph 4 above.

Dated this 6^th day of December 2017

Judge B M Ngoepe, Chair, Appeals Panel