Appeal Decision: Mabuyane Lubabalo vs Mail & Guardian

SUMMARY

The headline to the story in dispute read, Eastern Cape ANC bigwigs in loan fracas (published on 17 May 2019).

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 gist of the story was that some municipal monies had been used to benefit some individuals, including Mabuyana Lubalalo. The article also described him as a bigwig.

He complained that the:

• journalist had omitted material information;
• reporter had trespassed and had misrepresented himself when taking pictures of his house; and
• editor’s tweet was false, incorrect and misleading in that it did not reflect the content of the story.

The Ombud upheld the last complaint and dismissed the first two.

Lubabalo applied for leave to appeal, inter alia on the ground that the Ombud had erred in equating a tweet to a poster, and that she had erred when she contacted some sources (with the danger of revealing them).

In turn, the publication also raised some objections against the Ombud’s ruling and applied for leave to appeal.

Judge Ngoepe granted both parties leave to appeal.

THE RULING ITSELF

BEFORE THE SOUTH AFRICAN PRESS COUNCIL

In the matter of

MABUYANE LUBABALO                                                                                 APPLICANT

AND

1. This is an application for leave to appeal by Mr Lubabalo Mabuyane (“applicant”) against a Ruling by the Press Ombud dated 2 February 2020. The ruling followed a complaint by the applicant against an article by Mail & Guardian (“respondent”), published on 17 May 2019 entitled “Eastern Cape ANC bigwigs in loan fracas”. The applicant was one of the people described as bigwigs. The gist of the story was that some municipal monies had been used to benefit some individuals including the applicant in some way.
2. The applicant had raised three main complaints; that can briefly be stated as follows:
   1. 1 Omitting material information, thus breaching clauses 1.1, 1.2, 1.3 and 3.3.1.
   2. 2 Trespassing by the journalist and misrepresenting himself when taking the pictures of the applicant’s house; breach of clause 1.4.
   3. 3 Breach of clause 10.1, it being argued that the editor published in her tweet text that was false, incorrect and misleading in that it did not reflect the content of the story. The respondent raised various points in defence. The respondent denied the first two complaints. Regarding the third, the respondent said the tweet was corrected.
3. In her Ruling the Ombud held that the respondent breached clause 10.2 because of its incorrect tweet. The rest of the complaints were dismissed. A sanction was then imposed.
4. The respondent noted an appeal. It is not necessary to go into all the grounds of appeal. One of the grounds is that the Ombud erred in equating a tweet to a poster, and thus bringing it within the scope of clause 10.2. Secondly, there are allegations of irregularity regarding the manner in which the Ombud handled the matter; in particular, that she contacted some sources, with the danger of revealing them.
5. In turn, the applicant launched a counter-appeal in which it raised some objections against the Ombud’s Ruling and that the Ombud got some of the facts wrong.
6. I have concluded that both the respondent and the applicant be granted leave to appeal. For that reason, it would have been inappropriate for me to deal with their respective cases beyond what I have stated above. But I must caution that when parties make written submissions, they should not be unnecessarily prolific. It is not the length of argument that matters, but its substance.
7. The following order is therefore made:

Both parties are granted leave to appeal.

Dated this 17^th day of June 2020

Judge B M Ngoepe, Chair, Appeals Panel