Appeal Decision: Prince Mangosuthu Buthelezi vs Mail & Guardian

SUMMARY

The headline to the story in dispute read, Battered by the flu…and Shenge (published on 6 July 2018).

This ruling by the Prof Karthy Govender, a member of the Appeals Panel, was based on the Press Code that was in effect before 30 September 2022.

 

The article was about an imbizo called by Zulu King Goodwill Zwelithini to mobilise support against the proposals by Parliament’s high-level panel, headed by former president Kgalema Motlanthe, to scrap the Ingonyama Trust. More specifically, the text focused on Chief Mangosuthu Buthelezi’s (also called “Shenge” by his supporters) role in this matter.

The complaint was about reportage on the history of the establishment of the Ingonyama Trust, which Buthelezi and the IFP said was presented inaccurately, unfairly and out of context. The complainants added that it was unclear whether the text in question was news or comment.

The Ombud dismissed the complaint on the basis that the article was protected comment and fell under Section 7 of the Press Code.

Govender said the central issue was just that – was the text comment, or not? He noted that the text was clearly marked as an opinion piece; moreover, it was written in the first person. He explained what Section 7 of the Code entailed (and did not entail) and concluded that the text was indeed protected under that section.

The application for leave to appeal was dismissed.

 

THE RULING ITSELF

Before the Appeals Panel of the Press Council of South Africa

Case number: 388/2018

IN THE MATTER BETWEEN:

PRINCE MANGOSUTHU BUTHELEZI

INKATHA FREEDOM PARTY (IFP)                                                         APPLICANTS

AND

MAIL AND GUARDIAN                                                                               RESPONDENT.

Introduction and context.

1. Judge Bernard Ngoepe has requested that I consider this application for leave to appeal on his behalf.

2. Prince Mangosuthu Buthelezi and the members of the IFP Parliamentary Caucus complained about an article written by Mr Paddy Harper which was published in the Mail and Guardian on the 6^th of July 2018 titled ‘Battered by the flu … and Shenge.’ The applicants also made reference to two other articles published in the Mail and Guardian on the 26^th of January 2018 and on the 9^th of March 2018. The Press Ombud correctly came to the conclusion that the complaint in respect of the earlier articles was out of time and could not be considered. Section 1.3 of the Complaints Procedures require complaints to be lodged as soon as possible but not later than 20 days after the date of publication.  However late complaints may be condoned if there is a good and satisfactory explanation for the delay. From the papers, it is apparent that there was no application for condonation by the applicants and no explanation for the late submission of the complaint in respect of these earlier articles. The complaints against the articles published on the 26^th of January 2018 and that published on the 9^th of March 2018 therefore cannot be considered.  Hence the issue is whether the article published on the 6^th of July 2018 transgressed the Press Code and this application for leave to appeal will deal with the arguments made in respect of this article.

3.  In essence, the applicants take issue with the contention in the piece that the establishment of the Ingonyama Trust was part of a deal that was devised between former President FW de Klerk and the leader of the IFP, Prince Buthelezi, to secure the latter’s participation in the 1994 elections.  The applicants contended that this is factually inaccurate and is part of the ‘subjective invective’ of the author. They argued that the Ingonyama Trust had nothing to do with the negotiations and that the IFP agreed to participate in the elections after the signing of the Solemn Agreement by Mr Mandela, Mr De Klerk and Prince Buthelezi. They submitted that the Ingonyama Trust Act was passed by the KwaZulu Legislative Assembly in accordance with the legislative procedures existing at the time. As a consequence, the applicants argued that section 1 of the Code of Ethics and Conduct for South African Print and Online Media (the Press Code) had been infringed in that the publication was not truthful, accurate and fair.  They also submitted that the views were not presented as comment but rather as facts. In response, Mr Harper stood by his conclusion and submitted that ‘non partisan historical accounts’ of events supported his analysis.

4. The Press Ombud, Mr Johan Retief, dismissed the complaint on the basis that the article was protected comment and fell under section 7 of the Press Code.

Issues to be determined.

5. The issue before me is not to determine the veracity of either the version presented by Mr Harper or that advanced by the applicants. The issue is a much narrower one and is whether there is a reasonable prospect that the Appeal Panel will find that the article transgressed the provisions of the Press Code. A central issue in the determination of this matter is whether the assertions in the article can be deemed to be comment and whether they meet the requirements of section 7 of the Press Code. If these questions are answered in the affirmative then there would be no transgression of the Press Code.

Are the statements protected in terms of section 7 of the Press Code?

6. In their application for leave to appeal, the applicants contended that as Mr Harper did not rely on the protected comment defence, it was inappropriate for the Press Ombud to stray beyond the submissions made by the respondent and determine whether the comments amounted to protected comment as provided for in section 7 of the Press Code. The applicants disputed that the statements, that form the gravamen of this complaint, are comments and have argued that they were presented as historical facts. They also submitted that the comments do not meet the requirements of section 7 as the article did not take a fair account of all material facts that are substantially true. They also objected to their not being afforded an opportunity to comment on the statements in the article. They concluded that Prince Buthelezi’s dignity and reputation have been adversely affected by the publication.

7. The respondent submitted that the piece is unequivocally an opinion piece, is in the public interest and satisfied the various requirements of section 7 of the Press Code.

8. The primary responsibility of the Press Ombud is to determine whether the publication transgresses sections of the Press Code. The Press Ombud was correct to consider whether this article fell within the purview of section 7 of the Press Code even if this issue was not raised in the initial correspondence from Mr Harper. Given the responsibility of having to determine whether the sections of the Press Code were transgressed, it would have been a material error had the Press Ombud not considered whether section 7 was applicable in these circumstances.  An assessment and application of section 7 was necessary in order to determine this complaint properly. The submission that the Press Ombud strayed beyond his jurisdiction is incorrect.

9. I am also of the view that the statements that form the basis of the complaint are part and parcel of an opinion piece and amount to comments by the author. The article is clearly described as an opinion piece and is written in the first person narrative format. The author laments his incapacities due to his ongoing battle with the flu virus and then reflects on one of the major issues of the day – the mobilisation by King Goodwill Zwelithini against proposals to scrap the Ingonyama Trust. The informal conversational tone of the article also reinforces the notion that this is an opinion piece.

10.  The comments which form the subject matter of the complaint is preceded by the author saying ‘I can understand why Shenge’s peeved.’ He in effect is making an argument as to why suggestions that the Ingonyama Trust be scrapped would be totally unpalatable to Prince Buthelezi.  It would be an unduly narrow and restrictive reading to say that the comments about the creation of the trust being a sweetener to secure the participation of the IFP in the 1994 elections were presented as historical facts while much of the rest of the articles were comments. A reasonable and objective reading of the article as a whole clearly indicates that Mr Harper, drawing on facts known to him, expressed an opinion as why the Ingonyama Trust was formed in 1994 and is of the view that it is not serving the people it was meant to serve. The fact that the applicants robustly disagree with Mr Harper’s opinion, have an alternative narrative and have communicated their views to the respondent does not mean that the comments cease to be comments. I am satisfied that the statements that the ‘trust was one of the sweetners given to Shenge’s party- and the king- to secure their participation in the 1994 elections …’  are part of the comments and conclusions drawn by the writer and are presented as comment.

The requirements of section 7 of the Press Code

11.  I now turn to whether the comments are protected comments as provided for in section 7 of the Press Code.

Section 7 provides:

7.1.        the media shall be entitled to comment upon and criticise any actions or events in the public interest.

7.2         comments or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it:

7.2.1.        expresses an honestly-held opinion.

7.2.2         is without malice.

7.2.3         is on a matter of public interest.

7.2.4         has taken fair account of all material facts that are substantially true; and

7.2.5         is presented in such a manner that it appears clearly to be comment.

12. It is indisputable that the issues commented upon are matters of public interest and the criticisms and comments of Mr Harper are on issues that are pertinent to the ongoing debates regarding land redistribution and security of tenure.  There is no evidence that this is either not an honestly held opinion or that it is made with malice.

13.  The applicants contended that the opinion does not take fair account of all material facts that are substantially true. In response, the respondent refers to facts upon which the opinion is premised. They point out that while the Trust was created by the Kwazulu legislature, this law had to be approved by former President De Klerk. The Kwazulu Ingonyama Trust Act was assented to by President De Klerk on the 25^th of April 1994, a few days before the first democratic elections. There was thus an agreement between former President De Klerk and the Kwazulu Legislature on the creation of the trust. They also point out that the signing of the Solemn Agreement between President Mandela, FW de Klerk and Prince Buthelezi was followed a few days later by the creation of the Trust.  This, they argued, provides a sufficient factual premise to meet the requirement that opinion has taken fair account of all material facts that are substantially true.
14. The following comments by Cameron J in The Citizen 1978 (Pty) Ltd and others v RJ McBride and others[1] are appropriate in determining this issue.

So to dub the defence “fair comment” is misleading.  If, to be protected, comment has to be “fair”, the law would require expressions of opinion on matters of fact to be just, equitable, reasonable, level-headed and balanced.  That is not so.  An important rationale for the defence of protected or “fair” comment is to ensure that divergent views are aired in public and subjected to scrutiny and debate. Through open contest, these views may be challenged in argument.  By contrast, if views we consider wrong-headed and unacceptable are repressed, they may never be exposed as unpersuasive.  Untrammelled debate enhances truth-finding and enables us to scrutinise political argument and deliberate social values.

Protected comment need thus not be “fair or just at all” in any sense in which these terms are commonly understood.  Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true. In the succinct words of Innes CJ, the defendant must “justify the facts; but he need not justify the comment.

Perhaps it would be clearer, and helpful in the understanding of the law, if the defence were known rather as “protected comment’’.

15.  It is instructive that section 7 of the Press Code refers to protected comment and not just fair comment. The various subsections of section 7 must be read consistently with each other, to the extent reasonably possible. Comments are protected even if extreme, unjust, unbalanced exaggerated and prejudiced if they have taken account of all material facts that are substantially true. Further the comment must be honestly held and without malice. The objective of section 7 in protecting comments and criticism is to ensure that divergent views are debated and subjected to public scrutiny. The comments of Mr Harper in these circumstances should be subjected to counter-argument and debate by those holding a contrary view in order to facilitate what Cameron J refers to as ‘truth finding.’ We are satisfied that the factual premises provided in support of the comments by the respondent as detailed in para 13 above and which appear to be substantially true provide an adequate basis for the making of the comments.

16. These facts did not appear in the original piece but are sufficiently well-known and notorious that they can be incorporated by reference. In McBride, Cameron J held [2]:

The requirement that the facts must be truly stated does not mean, as Innes CJ pointed out a century ago, that “in all cases the facts must be set out verbatim and in full”. This is because “there may be cases where the facts are so notorious that they may be incorporated by reference.”  And indeed, in the decision that authoritatively incorporated the defence of protected or “fair” comment into South African law, the Court took account of notorious facts about the labour disturbances on the Witwatersrand during 1913 and 1914, from which the disputed publication arose, even though the comment did not expressly set them out.  It was enough that the facts were “in the common knowledge of the person speaking, and those to whom the words are addressed”

17. Finally the applicants complained that the sources that Mr Harper originally relied upon cannot be described as non-partisan and historical. They submitted that some of the sources were opposed to the Trust. Section 7 protects extreme, unjust, unbalanced, exaggerated and prejudiced comment provided that the various requirements discussed earlier are met. The person expressing these opinions does not have to prove that he or she relied on non-partisan sources provided. It is clear that the comments fall within the purview of section 7 of the Press Code and are protected as such.

18. In the circumstances, it appears that there are no reasonable prospects of the Appeal Panel coming to a different decision to that of the Press Ombud that the publication was in accordance with section 7 of the Press Code and thus protected as such.

Order:

The application for leave to appeal is dismissed.

Dated at Durban on the 29^th  of January 2018

Professor K. Govender

Member: Appeals Panel