Appeal Hearing Decision: Zion Christian Church vs Sunday World

SUMMARY

This ruling by the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

 

The complaint was that the story was damaging to the high esteem in which Bishop Barnabas Lekganyane and that of the Zion Christian Church (ZCC) had been held. This was about the statement that the Bishop and the ZCC had violated a Court Order that warranted for their arrest and that they had faced arrest. In a letter to its members, apparently prepared the day before the publication of the story, the church reportedly called on its members not to buy the newspaper and its sister papers in the Tiso Blackstar Group. The publishers issued an apology, which the church considered inadequate and therefore unacceptable.

The Public Advocate accepted the complaint and after failing to resolve it and referred it to the Press Ombud for adjudication. The latter refused to entertain the complaint as it had been filed almost a month out of time.

The ZCC then successfully applied to the Chair of the Appeals Panel for leave to appeal the Ombud’s ruling.

At the meeting, the first issue was whether the Ombud had the authority to refuse to adjudicate a complaint after the PA had accepted it. The Panel opined that he indeed could do so.

However, the Panel said the Ombud had miscalculated the length of the delay. “The Ombud wrongly thought the period was longer; he added 17 extra working days. It means that the Ombud factored in a miscalculated time frame when he exercised his discretion; he inadvertently exaggerated the length of the delay,” they said.

The Panel then decided to deal with the merits of the complaint, rather than to send it back to the Ombud – that would have delayed the matter even further.

In the end, the Panel:

• set aside the Ombud’s ruling;
• found that the newspaper was in breach of several clauses of the Press Code;
• directed it to retract the statement that the Bishop and the ZCC had violated a Court Order that warranted for their arrest and that they had faced arrest, and to apologise for it.

 

THE RULING ITSELF

In the matter of

Zion Christian Church                                                                                    First Appellant

Bishop Barnabas E Leganyane                                                            Second Appellant

and

Sunday World                                                                                                          Respondent

 

DECISION

______________________________________________________________________

1. The Zion Christian Church (“first appellant/church”) lodged a complaint against the Sunday World (“respondent”) in connection with a story which appeared in the respondent’s edition of 17 September 2017. The complaint was also on behalf of the leader of the church, His Grace, the Right Reverend Bishop B E Lekganyane (“second appellant”). The complaint was, briefly put, that the story was damaging to the high esteem in which the Bishop was held, his reputation and that of the Church.  In a letter to its members apparently prepared the day before the publication of the story, the church called on its members not to buy the newspaper and its sister papers in the Tiso Blackstar Group. The publishers issued an apology, which the church considered inadequate and therefore unacceptable. The complaint was lodged with the Public Advocate of the Press Council only on 22 November 2017; i.e 27 days later than the latest date by which it should have been lodged, as prescribed by section 1.3 of the Complaints Procedures of the Press Council. In the complaint, the appellants argued that the respondent had violated several articles of the Code. Between the date of publication and the date on which the complaint was lodged, certain interactions took place between the parties and other interested parties.  Details of these interactions and their relevance will be dealt with later. The Public Advocate accepted the complaint and after failing to resolve it, referred it to the Press Ombud for adjudication.

2.      Apart from its defense on the merits, the respondent raised a preliminary point, namely, that the complaint was lodged beyond the period prescribed by section 1.3 of the Complaints Procedures without any satisfactory explanation. In his Ruling dated 17 January 2018, the Ombud upheld the respondent’s point and dismissed the complaint. The appellants then successfully applied to the Chair of the Appeals Panel for leave to appeal the Ombud’s Ruling. One of the issues raised in the application was whether, once the Public Advocate had accepted a complaint filed out of time, the Ombud could still refuse to adjudicate the matter on the ground that the complaint was out of time. The Chair felt that this was one of the points which would be better resolved by the full Appeals Panel, and not by him alone. In granting leave to appeal, the Chair gave the parties the option to deal with the preliminary issue first, or to argue it together with the merits. The parties opted for the latter course and filed their heads of argument accordingly. At the hearing, arguments on the preliminary point and the merits were therefore heard together. It would be more convenient to deal with the preliminary point first.

The complaint was lodged out of time.

3. The relevant part of section 1.3 of the Complaints Procedures reads: “The complaint shall be made as soon as possible, but not later than 20 working days after the date of publication giving rise to the complaint. The Public Advocate … … may on reasonable grounds accept late complaints if, in his or her opinion, there is a good and satisfactory explanation for the delay.” The following is the sequence of events against the background of which the preliminary point must be considered.
   1. 1 The article complained about was published on 17 September 2017.
   2. 2 In the meantime, because the church was anticipating the article, it issued a letter dated 16 September 2017 to its members urging them not to buy respondent or other newspapers from its stable, Tiso Blackstar.
   3. 3 The respondent wrote a letter dated 20 September 2017 to the church requesting a meeting to resolve the dispute. The respondent says no response was received.
   4. 4 An apology was published on 24 September 2017;
   5. 5 In November 2017, the appellants decided the apology was inadequate and rejected it.
   6. 6 A letter by the South African National Editors’ Forum (SANEF) to the appellants dated 19 September 2017 deplored the call for the boycott against respondent and its sister newspapers, asked for a resolution of the matter, and asked the appellants to use the Press Council instead.
   7. 7 On 20 November 2017 an email was sent by Prof Mosia to the Secretary of the Church directing that a complaint be lodged with the office of the Press Ombud.
   8. 8 Complaint lodged on 22 November 2017.

What emerges from the above is that whereas the last day for the lodging of the complaint was 16 October 2017, it was only lodged on 22 November 2017; i.e 27 working days after the due date.  Adv Maleka SC, for the appellants, submitted that the Ombud wrongly calculated that the delay was from 24 September 2017 to 22 November 2017, thereby, says Mr Maleka, exaggerating the degree of non-compliance with some 17 days. We will revert to this when we deal with the question whether the Ombud exercised his discretion correctly in refusing the condonation.

4. Interpreted literally, section 1.3 of the Complaints Procedures means that the discretion to grant the condonation vests in the Public Advocate. But the appellants’ argument that the Public Advocate’s decision to accept a belated complaint binds the Ombud, cannot be correct. As the respondent pointed out, the Public Advocate’s role is more of a mediatory nature than an adjudicative one.  The real adjudication process starts with the Ombud. Those adjudicatory powers must include adjudicating disputes on section 1.3 or any other section for that matter, including of course sections of the Press Code. The Ombud is the higher level to which the Public Advocate escalates the matter once mediation fails. Once she/he does so, her decision to accept a belated complaint cannot bind that higher level; a tail cannot wag the dog. Whether the Ombud, in a case such as the present, exercises original or appellate jurisdiction is neither here nor there; the results are the same: the Public Advocate’s decision does not bind the Ombud. For these reasons, our decision is that the Ombud was competent to decide whether or not to grant the condonation; the matter must therefore be dealt with on that basis.
5. The next question is whether the Ombud correctly exercised the discretion vested in him in terms of section 1.3 of the Complaint’s Procedure. In his Ruling the Ombud gives the following reasons for dismissing the application for condonation:
   

   “I usually take into account a complainant’s efforts to settle the matter with a newspaper prior to lodging a complaint – if any. However, I have no correspondence to suggest that, between September 24 (the date on which the offending text was published) and November 22 (the date a complaint was lodged with this office) the ZCC has taken up the matter with either the newspaper or this office.  (I note that a meeting between the representatives of the SCC (sic) and the Public Advocate took place on December 14, but that was after the complaint was lodged).  I have been given no satisfactory reason to grant ZCC’s request, while also adhering to the Complaints Procedures”.

There have been cases in the past where applications for condonation were denied or granted, and this will continue to happen in future. This is because each case is decided in accordance with its own facts and circumstances. The judgment of the Supreme Court of Appeals in Melane v Southern Insurance Co Ltd 1962 (4) SA 531 (AD), (page 532 B-E) is still one of the leading authorities on the exercise of such discretion: “In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation.  Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion.  What is needed is an objective conspectus of all the facts.  Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong.  Or the importance of the issue and strong prospects of success may tend to compensate for a long delay.  And the respondent’s interest in finality must not be overlooked. … … I think that all the foregoing clearly emerge from decisions of this Court.”  (Own underscoring). It is therefore trite law that the material factors to be taken into account for a proper exercise of the discretion as to whether or not an application for condonation should be granted are: (i) the explanation, if any, for the delay; (ii) the length of the delay; (iii) prejudice to the other party; (iv) whether the matter is of public importance; (v) the merits of the case.

It is against the above guidelines that the Ombud’s decision and the reasons therefor should be considered.

1. 1 The explanation given by the applicants for the delay: The explanation was that after the intervention by SANEF, the church had to consult with its membership. It is a big church with a number of branches, extending beyond our borders. This is clear from the papers submitted by the parties, such as the Court Order, which emanates from a neighbouring country, Botswana. The full details of the consultation were, however, not given. In relation to the delay, the respondent argued that the appellants had initially chosen a different path to the Press Council process, namely, calling for a boycott of the respondent and its sister newspapers. The respondent argued that this was an indication that the appellants had acquiesced in the alleged harm. This argument is wrong because the appellants were at all times on the warpath about the story in question to the extent that they called for the boycott. We also consider the fact that SANEF did seek to engage the applicant. Again, at one time the respondent issued what it considered to be an apology, only to be rejected by the appellants as being inadequate. The issue between the parties was therefore still alive as at the time the complaint was lodged. The Ombud says he usually takes into account what a complainant did from the date of publication to the day the complaint was lodged. He says in the present case the appellants did nothing between the two dates. He is wrong; as indicated above, there were steps the church took. The Ombud came to this wrong conclusion because, as it appears from his reasons above, he mistakenly thought that the publication was on the 24^th whereas it was on the 17^th of September.
2. 2 Length of the delay:  As indicated above, the complaint was lodged 27 days beyond the period prescribed. The Ombud wrongly thought the period was longer; he added 17 extra working days. It means that the Ombud factored in a miscalculated time frame when he exercised his discretion; he inadvertently exaggerated the length of the delay. We do not know whether, had he computed the days correctly, he would still have come to the same conclusion. This is a problem, because we cannot second-guess him.  Should we refer the matter back to him to reconsider it on the basis of a correct computation? This would prolong the dispute between the parties.
3. 3 Whether the granting of the condonation would cause prejudice to the respondent: The Ombud did not deal with the issue of prejudice; nor did the respondent show any when challenged before us. Mr de Klerk, for the respondent, argued that the prejudice suffered would be that the matter would have taken too long to be resolved, but did not show any prejudice that would result from the granting of the condonation. Yet instead of suffering any prejudice, the respondent would benefit from a final resolution of this complaint. This is because the respondent says that it wants the matter resolved instead of continued strained relations with the appellants.
4. 4 The merits of the case: Where the merits of an applicant’s case are poor, this would count against the application as going into the appeal would be an academic exercise. Conversely, where the merits are strong, this would count in favour of the application. The Ombud says this is a matter he would have wanted to deal with, but for the late filing of the complaint. From what he says, it can be deduced that he saw some merits in the complaint. That the case is strong on the merits admits of no doubt.  Given our view that the application should be granted, there is no need to go fully into the merits at this stage as this will be done when we deal with the actual merits; suffice it for now to state that the respondent in fact did offer an apology and a correction even before the complaint was lodged.
5. 5 Whether the matter is of public importance: This is undoubtedly a matter of public importance. Actually the matter does have international dimensions, a fact which seems to have been lost on the respondent. A Bishop in the country is said to have disobeyed the order of a court of law in a neighbouring country; secondly, as a result, he is facing arrest. There is no way that the arrest of Bishop Lekganyane, a South African Citizen residing in the country, could have been carried out without the involvement of the South  African authorities in one way or another. In fact, it would be no exaggeration to say that both the Botswana and South African Authorities who saw the headlines and the article would have been concerned, not to talk of the millions of the church members. That the developments were of public interest was also indicated by the involvement of SANEF. The mere fact that a Bishop of a church, let alone a church with several millions of followers, defied a Court Order and was facing imminent arrest was in itself a matter of public interest; as it would be if the person were say a political figure like a Cabinet Minister. It could again be that the reason the Ombud was eager to deal with the matter was because of its public interest element, though there is no indication from his reasons on the record that this was indeed the case.

6. Having considered all the above, we are of the view that this is a case where condonation should be granted:

6.1 There was a delay but that had to be considered against the explanation that the church had to consult with its branches, having called for the boycott of the respondent, and SANEF intervened.

6.2 While there has been some delay, steps taken by the appellants show that they at all times felt aggrieved and never acquiesced in the harm; they did not simply fold their arms.

6.3 No prejudice would be suffered by the respondent if the application is granted; on the contrary, see paragraph 6.6 below.

6.4 The complaint has merits; in fact the respondent has no convincing defense.

6.5 The matter is of huge public interest.

6.6 One other important consideration: as said earlier, the respondent said at the hearing that it was desirous of having the dispute resolved to avoid an acrimonious relationship with the church. In fact, the respondent had written a letter to the church to that effect. This is not only commendable, but also belies respondent’s argument of prejudice in the event the condonation is granted; surely that would lead to a final and peaceful resolution of the matter! Secondly, the respondent was amenable to apologizing though the parties could not agree on the wording thereof.

The fact that there was a delay, and that the details of the consultation with church members were not given, are far outweighed by the rest of the considerations in favour of the condonation. The present is a good example that each case will always depend on its own facts and circumstances. The application for the condonation of the late filing of the complaint is therefore granted; that being the case, we now proceed to deal with the merits of the case.

Merits of the case:

7. As Mr Maleka pointed out, the headline and some contents of the story simply contain some untruths.
8. 1 There is a teaser headline in huge letters on the first page reading “ZCC BISHOP FACES ARREST”. The teaser is factually incorrect, and the respondent conceded this. Firstly, Mr de Klerk for the respondent had to admit that there could not be an arrest before a finding of contempt of court; and we know there was no such finding. Secondly, this is a big problem for the respondent which keeps on coming back: even at first glance the papers show that the Bishop was not a party to the proceedings before the court. Section 10.1 of the Code says the headline “shall give a reasonable reflection of the contents of the story…” As it will appear later, the teaser accurately reflects the content of the story that the Bishop faced arrest. There is therefore no contravention of section 10.1.

7.2  The content of the story:

7.2.1 The very first paragraph of the story reads: “Aggrieved branches of the Zion Christian Church (ZCC) in Botswana are heading to the High Court of Botswana to have their leader Bishop Barnabas Lekganyane arrested and the church sanctioned for a contempt of court.”  The respondent makes a statement which is factually incorrect.  As said earlier, the Bishop was not even a party to the proceedings. To make things worse, the respondent was in possession of a copy of the court order, listing all the parties therein cited. Confronted with this difficulty, Mr de Klerk sought to argue that after all, the Bishop is, in terms of the constitution of the church, the head thereof.  This is a startling argument, to say the least; surely the Bishop has his own separate identity and personality. Secondly, there had to be a finding of contempt of court first before such an arrest could be made; there was no such finding against the Bishop or the church. In fact no obligation was imposed on the Bishop by the Order. On the contrary, the Order says the Bishop should be allowed the space to investigate the grievances that gave rise to the case. We therefore find that there has been inaccurate reporting in contravention of section 1.1 of the Code.

7.2.2 Further down the story, the following appears: “The order decreed that ZCC and its leaders in the neighbouring country of South Africa must appear in court on November 8 to explain why the temporary order should not be made final.”(Own underlining) The underlined part is not there in the court order; the statement is therefore incorrect. This therefore again amounts to a violation of section 1.1 of the Code. A second problem arises as a result: the Bishop is, as the respondent acknowledges, the leader of the church; therefore he is automatically, yet incorrectly, included in the underlined portion, particularly as the story (again incorrectly) puts in the words “in South Africa” which are not included in the order. These underlined portions were clearly meant to get the Bishop into the net to justify the theme “ZCC BISHOP FACES ARREST.” All these statements are surprising as the article says the respondent saw the court order. This therefore also violates section 1.2 of the Code which says news shall be presented accurately and without distortion, or misrepresentation.

7.2.3 Again the following appears in the article: “Speaking to Sunday World Motsilenyane said they have filed an urgent application in the court for Lekganyane to be arrested and the church to be sanctioned for violating the order”. A copy of the order of the court, which the respondent had had sight of, would have shown that what Motsileyane said was plainly false; Lekganyane could not be a candidate for arrest for contempt of court in a case he was not party to. Section 1.1 was therefore contravened.

8. There is no need to deal further with the content of the story. What has been said above amounted not only to instances of inaccurate reporting, but they have also caused damage to the dignity of the Bishop; that should be the case when a Bishop is cast as a person who has no respect for court orders, to the extent that he faces arrest. There has therefore been a violation of section 3.3 of the Code – the media shall exercise care and consideration in matters involving dignity and reputation; none of the exceptions therein mentioned is applicable, namely, that the dignity or reputation of an individual may be overridden if it is in the public interest and in other circumstances.
9. In was in light of the above patently inaccurate reporting and its consequences to the Bishop that Mr Maleka asked us to call for an inquiry into the conduct of the journalist concerned. In motivation, Mr Maleka said similar adverse findings had in the past been made against the same journalist. We do not think such a call is for us to make; it is a matter for his editors to deal with. The appropriate sanction in this complaint is as set out below.
10. There was a complaint that the appellants, especially the church, were not given the opportunity to respond. The court order was issued in July 2017. The journalist sent an email to the church the day before the publication, expecting to get the response, if any, apparently by the same day. Mr Maleka argued that given the date of the issuance of the court order (July 2017), and that the publication was only on 17 September 2017, there was no urgency and thus no reason to contact the appellants only a day before the publication. The respondent has not given any explanation for this. But, argued Mr de Klerk, the church did not ask for an extension of time; that being the case, we cannot make a finding that the applicants were not given the opportunity to respond.
11. In light of all the reasons given above, the application for condonation is granted, and the appeal is upheld. The following Order is accordingly made:
    1. 1 The Ombud’s Ruling of 17 January 2018 is hereby set aside.
    2. 2 The respondent is found to have contravened the following sections of the Code of Ethics and Conduct for South African Print and Online Media: 1.1, 1.2 and 3.3.
    3. 3 The respondent must retract, and apologize to Bishop Barnabas E Lekganyane and the Zion Christian Church for its story that the church and the Bishop violated the Court Order, that warrants for their arrest have been issued and that they faced arrest.

11.4 A draft of the retraction and apology by the respondent for publication must within 5 working days of the date of this Decision be submitted by the respondent to the applicants and the Director of the Press Council for the latter’s prior approval.

11.5 The applicants to submit to the Director of the Press Council, if they so wish, a response to, or comments on, the proposed retraction and apology within 5 days of receipt thereof.

11.6  In the event the parties do not agree on the content of the retraction and apology to be published, the Director of the Press Council will have the final say.

11.7 The Director of the Press Council will decide on the date of the publication, provided that it shall be as soon as possible after the steps mentioned above are accomplished,

11.8 The publication of the retraction and apology must be given at least the same prominence as the story, including a prominent teaser on the first page leading into the retraction and the apology.

Dated this 15th day of May 2018

Judge B M Ngoepe, Chair, Appeals Panel

Ms C Mohlala, Public Representative

Mr J Thloloe, Media Representative.

For the appellants: Adv V Maleka SC

Instructed by My Leslie Mkhabela

For the respondent: Mr W de Klerk; Willem de Klerk Attorneys

Mr T Khunou

Mr C du Plessis