Appeal Decision: Lumko Mtimde vs Daily Dispatch

SUMMARY

The headline to the story in dispute read, Ex-OR Tambo accountant gets 15 years for fraud (published on 26 March 2021).

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.

Lumko Mtimde lodged a complaint against the headline, arguing that it was misleading and that it deliberately brought the ANC and the name of former ANC President OR Tambo in disrepute. He argued that the headline referred to OR Tambo, whereas the story was about a former accountant of OR Tambo Municipality.

In his ruling, dated 3 April 2021, the Ombud found that Daily Dispatch did bring some disrepute to OR Tambo and the ANC. However, he did not impose any sanction, inter alia because there had been no malicious intention on the part of the publication, and because the mistake had been corrected promptly.

Both parties applied for leave to appeal; both applications were granted. Judge Ngoepe said he did not want to go into the merits of either case as the matter was still going to be argued fully on appeal.

THE RULING ITSELF

In the matter of

LUMKO MTIMDE                                                                                                  APPLICANT

AND

1. In its edition of 26 March 2021, Daily Dispatch (“respondent”) published an article with the headline “Ex-OR Tambo accountant gets 15 years for fraud.” As the headline indicates, the former accountant was sent to 15 years imprisonment for fraud. The applicant lodged a complaint against the headline on the ground that it “deliberately brought the ANC and the name of the ANC President OR Tambo in disrepute”. The basis of the complaint was that the headline offended against article 10.1 of the Press Code, which says headlines may not “mislead the public and shall give a reasonable reflection of the contents of the report”.
2. According to the applicant, the reason for disparity between the headline and the content of the story was the following: In the headline, there is reference to “OR Tambo” whereas the story is about the former accountant of OR Tambo Municipality. This divergence has, according to the applicant, brought the late President of the ANC OR Tambo and the ANC into disrepute. In response to the complaint, the respondent quickly amended the headline to insert “Municipality”, but maintained that it was common practice to leave out words such as “municipality” etc where places have been named after people, for shortness; examples were given from other publications.
3. In his Ruling dated 3 April 2021, the Ombud found that the respondent breached article 10.1 the result of which was harm to the late ANC leader and the ANC itself; no sanction was imposed, however, as there was no intention on the part of the respondent, that the mistake was corrected promptly and that a cursory reading of the story would have corrected any possible misunderstanding.
4. The applicant is seeking leave to appeal against the sentence. The respondent has, for its part, launched a cross appeal, based on the argument it had raised, set out above. The respondent also argued, especially in its counter  application, that no harm could have been caused to the late ANC President, or to the party itself.
5. I have looked at both applications, and I feel that I should grant both. It is not appropriate, for that reason, for me to go into the merits of either as the matter is still going to be argued fully on appeal.
6. In light of the afore-going, the following Order is made:

Both applications for leave to appeal are granted.

Dated this 19^th day of April 2021

Judge B M Ngoepe, Chair, Appeals Panel