Appeal Hearing 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 Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

The story was about a former accountant at OR Tambo District Municipality who had been sentenced for fraud.

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, while whereas the story was about a former accountant of OR Tambo Municipality.

The acting Press Ombud concluded that the headline did not reflect the story and was therefore misleading. He accepted that there was a convention to shorten names but found that the meaning should not change consequently. In summary, even though he found fault with the headline, he was of the view that the newspaper did not deliberately bring the name of the ANC or that of its President OR Tambo into disrepute. He concluded that even a cursory glance at the story would clear up any possible misunderstanding. For these reasons and because the necessary corrections were made speedily, he decided that no sanction should be imposed.

Both parties applied for leave to appeal, which were both granted.

The Panel confirmed the Ombud’s finding that the headline was misleading. However, the Ombud’s decision that no sanction be imposed was set aside. Daily Dispatch was directed to publish an apology as it might have misled readers. The text should also reflect that there had not been an intention to mislead and that efforts had been made to correct the headline.

THE RULING ITSELF

Before the Appeal Panel of the Press Council of South Africa

In the matter between:

Mr Lumko Mtimde                                                                  Complainant

and

Daily Dispatch                                                                         Respondent

Introduction, context and factual background

1. At the hearing before us on the 14^th of May 2021, Mr Mtimde appeared in person and the respondent was represented by Ms Adrienne Carlisle, its internal ombud. We are grateful to both for their useful written and oral submissions.
2. Mr Mtimde complained that the headline of an article in the Daily Dispatch of 26 March 2021 which read ‘Ex-OR Tambo accountant gets 15 years for fraud’ is misleading in that it brought the ANC and the name of the former ANC president Mr OR Tambo into disrepute. Mr Mtimde appeared to suggest that this was a deliberate attempt to wrongly impugn the reputation of the former president of the ANC. The rest of the article made clear that an ex- accountant of the OR Tambo Municipality had been sentenced to 15 years for fraud. It is also common cause that 20 minutes after Mr Mtimde complained, the editor of the Daily Dispatch, Ms CA James, amended the headline and added in the word ‘municipality’ which then read ‘Ex-OR Tambo Municipality accountant gets 15 years for fraud’. This on its own did not appease Mr Mtimde and Ms James then in a further effort to resolve this matter mentioned at the end of the article that the headline had been amended.
3. In their correspondence with the Press Council, Mr Mtimde maintained that the headline was misleading in that it referred to the ex-accountant of OR Tambo while the story referred to an ex-accountant of OR Tambo Municipality. In his arguments, he contended that this appeared to link the former president of the ANC with a corrupt accountant and took strong exception to this.  Ms Carlisle submitted that the changes to the headline were done as a gesture of goodwill to resolve the issue and did not acknowledge any fault on the part of the Daily Dispatch.  She further submitted that there had developed a convention of shortening names in the headlines and gave us a number of examples of this occurring in practice. She also went onto to argue that the article made it clear that reference was being made to an accountant of OR Tambo Municipality and not to an accountant of Mr OR Tambo, the former president of the ANC. Her contention was that a reasonable reader would understand the headline to refer to an ex-accountant of OR Tambo municipality. Mr Mtimde perceived this to be a slight and found the response to be insensitive and unacceptable as it suggested that he was an unreasonable reader.
4. The acting Press Ombud, Mr Johan Retief, concluded that the headline did not reflect the story and was therefore misleading. He accepted that there is a convention to shorten names but found that the meaning should not change as a consequence. In summary, even though he found fault with the headline, he was of the view that the newspaper did not deliberately bring the name of the ANC or that of its President OR Tambo into disrepute. He concluded that even a cursory glance at the story would clear up any possible misunderstanding. For these reasons and because the necessary corrections were made speedily, he decided that no sanction should be imposed. Both Mr Mtimde and the Daily Dispatch were aggrieved by the findings. Mr Mtimde appealed against the decision not to impose a sanction and the Daily Dispatch appealed against the finding that the headline was misleading and did not give a reasonable reflection of the contents of the report. Both applications for leave were granted.

Issues to be determined

5. The issue before us is whether the Daily Dispatch breached Clause 10.1 of the Press Code and if so whether a sanction should be imposed in the circumstances of this case. Ms Carlisle, both in her written argument and oral submission, argued that the purpose of the headline is to summarise and draw attention. The main thrust of her argument was that the headline must be read in context and not in isolation. She contended that the acting ombud had erred in reading the headline in isolation especially since he had found that a ‘cursory reading of the article would have cleared up any possible misunderstanding.’ The context that she referred to was that Mr OR Tambo had died some three decades ago and that the headline would make no sense if it was interpreted to refer to him. She also stated that if the appeal were to find that there was an infringement of clause 10.1, no sanction should be imposed for the reasons given by the acting Ombud.
6. Mr Mtimde in his written and oral submission before us disputed the conclusion that the Daily Dispatch did not intend to deliberately bring the ANC and its former President Mr OR Tambo into disrepute. He took issue with the decision not to impose a sanction despite a finding that the code was breached as this would undermine the self-regulatory mechanism.

Findings

7. We accept that it is permissible and appropriate for publications to abbreviate and shorten names in headlines. However when doing so they have to proceed on the understanding that some organs of state or other state or public entities have been named after persons that are revered by many South Africans. Further it is important that both the headline and the reporting reflects the distinction between the person after whom the organ of state or state or public entity is named and the organ of state itself. While it will not always be necessary to use the words ‘municipality’ or ‘airport’ or ‘university’ etc specifically, it may be necessary to use words that indicate, to a reasonable degree of clarity, the entity to which or person to whom reference is being made. Care should be taken when crafting the headlines to ensure that it is a reasonable reflection of the contents of the article.
8. Clause 10 of the Press Code states:

“Headlines and captions to pictures shall not mislead the public and shall give a reasonable reflection of the contents of the report or picture in question.”

Clause 10 requires that the headline not mislead the public and must provide a reasonable reflection of the contents of the report. It is clear that clause 10.1 focuses on the headline itself and the reason for that is that persons may do no more than cast their eye over the headline and form opinions as a consequence. It is our view that clause 10.1 requires that from an objective perspective the headline not be misleading. We accept that in this case that the Daily Dispatch did not intend to refer to the ex-accountant of Mr OR Tambo but rather intended to refer to the ex-accountant of OR Tambo Municipality. The text immediately following the headline makes that abundantly clear. This headline was an attempt to use an abbreviation to refer to OR Tambo municipality. However as Ms Carlisle correctly conceded, this headline was not the most appropriately phrased headline.

9. The issue before us is whether this headline is misleading. As it refers to the ex-accountant of OR Tambo, it is in our opinion misleading. A person reading the headline on its own may reasonably come to the conclusion that the ex-accountant of Mr OR Tambo had been imprisoned for fifteen years for fraud even when assessed within the context that Mr OR Tambo passed away some three decades ago. That is literally what the headline states.    Greater care should have  been taken to ensure that the headline was not misleading and that it was a reasonable reflection of the contents of the report. Our view is that this could have been done by inserting the word ‘municipality’ or some similar phrase to indicate that reference was being made to the municipality and not to the person.  We are of the view that the best way of interpreting clause 10.1 is to consider the headline, reflect  separately on the contents of the report and then determine whether the headline gives a reasonable reflection of the contents of the report.
10. As stated earlier, we accept that it is customary to use abbreviations in headlines. However care must be taken that the abbreviations used do not convey a misleading impression. Clause 10.1 requires adequate care to be taken by the media when crafting a headline to ensure that it is not misleading and reasonably reflects the contents of the report. We are not satisfied that the required care was taken in this instance and are of the view that in this case the headline was misleading.  We accordingly confirm the finding of the acting press Ombud that this amounted to a violation of Clause 10.1.
11. We now turn to the issue of whether a sanction should be imposed. We are satisfied that there was no intent to mislead and that this was a loosely and perhaps inaccurately drafted headline. Further we are not convinced that this headline besmirches the reputation of Mr OR Tambo. The headline taken literally refers to the ex-accountant of OR Tambo and it is common knowledge the latter passed on some three decades ago. However, that does not detract from the fact that the headline was misleading.  It is clear that the Daily Dispatch within twenty minutes corrected the headline and later acknowledged that the amendment had been made.
12. However there was a transgression of the Press Code which could have been avoided if the headline was more carefully crafted. This obviously caused some distress to Mr Mtimde and others.  A sanction should have been imposed; therefore:

12.1. we are of the view that a qualified apology reflecting the essence of this finding is appropriate in this case;

12.2. the apology should reflect that there was no intent on the part of the respondent to mislead, that efforts were made to correct the headline but that the headline may have misled some readers and an apology is offered.

Order

1. The Ombud’s finding that the Daily Dispatch breached Clause 10.1 of the Press Code is hereby confirmed;
2. The Ombud’s decision that no sanction be imposed is hereby set aside and replaced by the Order in  (3) below;
3. Daily Dispatch must publish a statement of apology reflecting the contents of paragraph 12.2 above;
4. The draft statement to be submitted to Mr L Mtimde and the Executive Director of the Press Council within seven days of this Decision for Mr L Mtimde to comment, if he is so minded, within three days thereof to the Executive Director;
5. In the event the parties do not agree on the version to be published, the Executive Director will decide;
6. The Executive Director will determine when the publication should be made, which publication shall be on the same page as the headline was and shall enjoy the same prominence.

Dated this 4th day of June 2021

Judge B M Ngoepe, Chair, Appeals Panel

Professor K Govender; Member, Public Representative

Ms J Sandison, Member, Media Representative