Appeal Hearing Decision: Goss Marlon vs News24

SUMMARY

WARNING: The content of this summary may offend sensitive readers

The headline to the story in dispute read, Jesus Thesis and Other Critical Fabulations: The sins Lot’s daughters saved from the ash (published on 5 February 2021).

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

 

Marlon Goss complained that the author called Jesus “a princely bottom, face serving, cum slut”, which was “offensive” and “directed at Christians”. He said that this was “unnecessary”, adding that the statement in dispute was malicious and that it amounted to hate speech.

The text in question was a review by Akhona Mjwara of Kopano Maroga’s book, Jesus Thesis and Other Critical Fabulations. The part of the review, which was the subject of this complaint, read: “In The Simpsons, Homer Simpson could barely utter the word Jesus, opting for a move in character ‘Jebus’, lest he be mistaken for a serious Christian. Yet within this ode to queer lives celebrated and mourned, Jesus is named and appears prominently not only as a ‘princely bottom, face serving, cum slut’, but [also] as a recurring author, confidant, and queer affirming mascot.”

The Ombud dismissed the complaint, inter alia saying the review was comment, not hard news, and the author had exercised his right to freedom of expression. Goss was then granted leave to appeal.

The Panel overturned the Ombud’s decision, mainly on the grounds that:

• religion was part of “cultural customs” (with which the Ombud disagreed) – which was mentioned in the Press Code;
• the comments in question were discriminatory or denigratory; and
• the text was pejorative – and not protected under any clause in the Press Code.

 

THE RULING ITSELF

BEFORE THE APPEAL PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter of

GOSS MARLON                                                                                                  APPELLANT

AND

1. This is an appeal by Mr Marlon Goss (“appellant”), against a Ruling of the Press Ombud dated 26 February 2021 which dismissed his complaint that was lodged against News24 (“respondent”). The complaint was about the review by Akhona Mjawara of a book. The article was published on 5 February 2021 with the head-line “Jesus Thesis and Other Critical Fabulations” written by Kopano Maroga. The review sought to highlight and decry the way the LBGTQ people were being treated. Jesus was centred in the review, almost as a fulcrum or point of reference. In the process, the article, taking verbatim from the book, described him as a “princely bottom, face serving cum slut”. The gist of the defence against the complaint was that the review was a comment which wanted to draw attention to the bad treatment meted to the LGBTQ people. The gist of the complaint was that describing Jesus in that manner, was offensive especially to Christians. The Ombud dismissed the complaint. The appellant sought, and obtained, leave to appeal. The submissions before us are really the same as they were before the Ombud.
2. Before considering the matter further there is one point that we need to make clear. Dr Claassen, who appeared on behalf of the respondent, correctly in our view, emphasized the context of the comment in dispute, namely, that the idea was to tackle hatred or bias or prejudice against the LBGTQ people. There is no doubt that there is indeed such hatred or prejudice on the part of some people, including some Christians, though most definitely not all them; after all, there are LBGTQ people who are themselves Christians. That said though, it does not mean that questioning comments such as the one above necessarily demonstrates or translates into hatred or prejudice towards LBGTQ people. Advocates of the rights of LGBTQ people may not, when there are genuine complaints of this nature, play the hatred card to silence the complainants; the same way as the race or gender card may not be played. Unjustified complaints should not be entertained; on the other hand, people with genuine complaints should not be intimidated for fear of being seen as hateful of the LBGTQ people. By all means, let there be a concerted and robust campaign against any hatred or prejudice against the LBGTQ people, such as in the form of comment, as in the parent case; however, the comments must still be within permissible limits. It is therefore to this question that we must, against the above background, now turn.
3. There are two clauses of the Press Code that are relevant to the dispute; namely, clause 5.1 and clause 7.1. The Preamble to the Code also came into the picture. We therefore have to look at this triangular regulatory framework.

The Preamble

4. As the Ombud correctly points out, the review of the book was not hard news, but commentary. As already mentioned, he dismissed the complaint. One of the grounds on which the Ombud relied in dismissing the complaint was that in his view, “cultural customs” protected in the Preamble of the Press Code does not include religion. He is wrong.  Religion is part of a people’s culture, call it a religious culture if you will. Depending on the depth of a people’s religious belief, it can dictate their conduct and way of life. A group of say Christians or Muslims would, as a religious grouping, live in accordance with the dictates (“customs”) of their religion (“culture”); that is, live in accordance with their “cultural customs” in that context. Culture is a wide concept; religion is an element of culture. It is not clear on what basis the Ombud justifiably interpreted the concept “cultural customs” so narrowly as to exclude a people’s practice of their religion. It is common cause, or there is no doubt, that the objection is from a point of Christianity as Jesus is, to say the least, the centre of that faith. Commitment or devotion to Christianity as one’s practice of religion has over centuries been so deep that people – many of whom were later dubbed martyrs – sacrificed their lives in its promotion and defence; a large number of people continue to have such commitment and devotion; indeed, not only Christians, but adherents to other religions such as Muslims. These beliefs are embedded in, and in some instances form the very basis of, some people’s way of life. The Ombud was therefore wrong. In any case, as pointed out by the Public Advocate who assisted Mr Goss, his view was inconsistent with his own previous rulings.

Clause 5

5. Next relevant is Clause 5 of the Code. In terms of clause 5.1, the media shall

“avoid discriminatory or denigratory references to people’s race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, and not refer to such status in a prejudicial or pejorative context – and shall refer to the above only where it is strictly relevant to the matter reported, and if it is in the public interest …..”   (The underscoring by both bold format and underlining made by us).

6. Clause 5.1 has three elements. Firstly, except in certain strict circumstances, it prohibits discriminatory or denigratory references therein enumerated, ranging from “people’s race” down to “language and birth or other status”. These are “discriminatory or denigratory references.” However, for such a reference to be protected, it should not be made in a “prejudicial or pejorative context”, otherwise it would not be protected. This may be referred to as the first requirement for the protection of otherwise discriminatory or denigratory references. We have in the previous paragraph emphasized this requirement by putting it in bold. There is a second or additional requirement (also emphasized in the previous paragraph by underlining) which a discriminatory or denigratory reference must meet to be protected. It is in fact a ground of justification and has two sub-elements or legs: it is that such a reference must be strictly relevant to the matter and be in the public interest; that is, both its sub-elements or legs must be met. Because the first requirement (in bold) and the second requirement (underlined) for protection are cumulative (note the use of the word “and” in both instances), they must both be met. Therefore, it would for example not avail a respondent to plead that the reference to race or religion or culture was relevant or in the public interest if it was “prejudicial or pejorative”. The  clause does not countenance references to race, culture, religion etc which are not only “discriminatory and denigratory” but, over and above that, are also “prejudicial or pejorative” – no matter what excuse.

A question may be asked why, if “discriminatory or denigratory references” should not be made at all, what is the need for the two requirements. For clause 5.1 to make for a sensible read, the word “avoid” should be understood as meaning “Avoid as far as possible.” That would mean that references to “people’s race” etc down to “language and birth or other status” may be made if unavoidable, provided they are not made “in a prejudicial or pejorative context.” This interpretation is fortified by the fact that protection is given provided the matter is also relevant and of public interest; the clause therefore contemplates that reference to race, etc, may be made, but subject to the two conditions  mentioned above.

Clause 5.1 is a general prohibition against all the above enumerated instances, and, while it speaks of “matter reported”, it is not restricted to the reportage of only hard news, but also applies to articles in the form of comments; this is settled by 5.2 which speaks of “duty to report and comment.” (Own emphasis.)

Clause 7: Protected Comment

7.     Clause 7 deals with protected comment. What does it protect comments from or against? It aims to protect comments from, or against, the Preamble and the strictures of clause 5 but only in certain specific instances. It reads:

“7.1   The media shall be entitled to comment upon or criticize any actions or events of public interest; and

                                              7.2  Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as                                                       long as it is without malice, is on a matter of public interest, has taken fair account of all material facts that                                                         are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.”

Clause 7.1 speaks for itself and it is of no moment. Clause 7.2 makes a list of instances in which comment or criticism is protected (subject to certain conditions, as to which, see below). It is necessary to list those instances: comment is protected even if it is (a) extreme (b) unjust (c) unbalanced (d) exaggerated and (f) prejudiced. In those instances, protection is given provided certain conditions are met, namely, absence of malice and the matter being of public interest.

8. The six instances mentioned above are a closed list. Clause 7 is therefore not a blank cheque. This is understandable as it stretches the boundaries for comments, yet at the same time guarding against harm or abuse. Comment is therefore allowed only to the instances listed in 7.2, and not beyond. The drafters deemed it fit to actually list the six instances without using any words to indicate elasticity. Singularly missing is, for example, the entitlement to be “prejudicial or pejorative” in your comment; such a comment would therefore not enjoy protection under 7.2. It will be remembered that there is no defence under clause 5.1 against references which are not only discriminatory and denigratory, but  are also prejudicial and pejorative; not even relevance or public interest would assist. Some clarification is necessary regarding the usage and meaning of the two words “prejudiced” and “prejudicial’. A “prejudiced” reference, which may be permissible under clause 7.2, may be against or in favour of  the object of comment just as one may be biased against or in favour; that is why a “prejudiced”  reference is permissible under certain conditions. In contrast, the word “prejudicial” denotes being harmful, and it is dealt with and prohibited under clause 5.2 and not amongst the permissible list in clause 7.2 which countenances a “prejudiced” reference albeit subject to certain conditions therein mentioned. It is therefore no accident that “prejudicial” is put together with “pejorative” in clause 5.2 , both of which are off limits.

The complaint before us is that the comment in question is pejorative of Jesus or Christianity. The question is therefore whether or not the words are indeed so.

Whether the words complained of are pejorative

9. The words “cum slut” are, in our view, pejorative of Jesus or Christianity; in fact, had other revered Prophets in some of the religions in this country been referred to as such, the objections could possibly have been stronger or more robust. We have no intention of setting out in our Decision the dictionary meaning of the words, lest our Decision is soiled. Anybody interested in establishing for themselves the vulgarity or crudity of the words are welcome to consult any dictionary of repute. We have indicated above what Jesus and Christianity mean to many people. Campaigning against the undeniable prejudice and, in some instances, open hatred of the LBGTQ people is a noble cause, but it did not require the employ of pejorative and offensive language, nor does it give licence to do so. It cannot be correct, as the respondent implied, to adopt the attitude that the end justified the means. For such an argument to stand, one would have to show that the means employed was the only way or the least harmful available, for, while there are more than one ways of killing a terminally ill cat, some methods may be reprehensible as being unnecessarily cruel to the animal. No case was argued or made out that that was the only way; what was argued time and again was the nobility of the end sought to be achieved, namely, the ending of the hatred against the LBGTQ people. It would be presumptuous to think that the reviewer could not have had the intellectual prowess to express his comments in any other way than by employing the vulgar language he did.
10. Once it is found that the words are pejorative, the next question is whether they are protected under clause 5.1 or 7.2.

10.1 Under 5.1: Because the words are not only “discriminatory and denigratory” but also “pejorative”, they are not protected thereunder; the respondent falls at the first hurdle and there is no need to inquire into whether or not they are relevant or in the public interest.

10.2 Under 7.2: Because being “pejorative” is not one of the six instances single out for the protection of a comment, the respondent here too falls at the first hurdle and, similarly, there is no need to inquire into whether or not there is malice or public interest, both of which would, in any case, have to be established. This is because they are additional to the  first requirement, namely, that the words may not be pejorative. At any rate it is hard to see how something pejorative can be in the public interest; words of that nature must, not surprisingly, fall at the first hurdle. Anyway ours is to simply interpret the clauses as they stand.

11. There is another point. What is protected under 7.2 is a “comment”. The disputed words are, technically, not a comment. They have been transplanted, exactly as they are, word for word, from the book; such an exact reproduction does not constitute a comment at all.

Of course, for as long as the words in question are inside the book, they are protected by different mechanisms, such as the Constitution. But once you uplift them verbatim out of the book – be it a whole page, paragraph or merely a few words as in the present case – and plant them exactly as they are into the midst of what is otherwise a genuine comment, you bring them into an arena governed by the Code where the protection may be lost. News24, by election, chose to be governed by the Code and by the Code it must live! It will always be a risk for one to reproduce verbatim the words, which are not yours, out of a protected book and bring them into the purview of a Code in the course of a review. It would, for example, be problematic, in commenting on a book using the “k” word in full, to quote the word in full in the midst of what is otherwise a comment.

12. It was incumbent on the respondent to ensure that it published a comment that met the strictures of clause 7.2, on which it sought to rely. For all the reasons given above, it is our finding that by publishing the words “princely bottom, face serving cum slut”  of Jesus, the respondent acted in breach of Clause 5 of the Press Code and its Preamble, read together with Clause 7.2. Accordingly, the Ombud’s Ruling cannot stand; the followings Orders are therefore made:

12.2 The appeal succeeds.

12.3 The Ruling of the Ombud is hereby set aside, and replaced by the finding that News2 has contravened Clause 5 of the Press Code           and its Preamble, read together with Clause 7.2.

12.4 The words “princely bottom, face serving cum slut” said of Jesus must be deleted immediately.

12.5 News24 must, within 7 days of the date of this Decision, submit to the Executive Director of the Press Council a draft apology for the         latter’s prior approval of same for publication.

12.6 The Executive Director to determine the date of the publication.

12. 7 The published apology to be given the same prominence as the offending words enjoyed.

Dated this 10th day of June 2021

Judge B M Ngoepe, Chair, Appeals Panel

Ms J Sandison, Member, Representing the Media

 

Minority  View

Matter number: 8524/02/2021

In the matter between:

Marlon Goss                                                                                        Appellant

And

News24.Com                                                                                       Respondent

Introduction and a summary of the arguments

1.  I have had the privilege of reading the carefully reasoned decision of the majority. While I agree with the outcome, I prefer reaching that end through a slightly different route than that taken by the majority. Primarily, my area of difference is that I am not of the opinion that section 5.1 of the Press Code is applicable to protected comment.
2. This is a complaint about an opinion piece written on the 5^th of February 2021 entitled ‘Jesus Thesis and Other Critical fabulations: The Sins Lot’s daughter saved from the ash’. by Akhona Mjware. It is a review of a book written by Kopano Maroga. It was common cause that the only issue revolved around a direct quote from the book in the review describing Jesus as a ‘princely bottom face serving, cum slut.’
3. At the hearing on the 14 May 2021, the applicant was represented by the Public Advocate Mr Groenewald and the respondent was represented by Dr G Claassen and Mr H Eloff.  It was clear that the complainant was deeply aggrieved by the use of the term ‘face serving, cum slut’ to describe Jesus. At the commencement of the hearing we were informed that the offending words had been removed from the text of the article. Dr Claassen placed on record that this was not done with his concurrence. Mr Goss however wanted a finding that the Press Code had been breached and an apology.  It is also material to point out that both in their papers and in their oral presentation, the applicant accepted that the article was a comment piece. While we had some issues about whether a direct quote from a book can be deemed to be an opinion, I am constrained to accept that this was an opinion as it was accepted as such throughout the proceedings.
4. As stated in the majority decision, the term ‘cum slut’ to describe the son of God is profoundly offensive and hurtful to most religious adherents, particularly those that are Christian. It is also apparent in the arguments before us that had these words not appeared in the article, the complainant would not have persevered with this complaint before us. Mr Goss is a committed Christian and has reservations about the reporting on LBGTQI issues and appears to take the view that News24 is ‘pushing a particular narrative.’ Section 16 of the Constitution of the RSA 1996 protects the freedom of the press and other media and the right of persons like Mr Goss to express his view on what is reported. Our role is the narrow one of ascertaining whether provisions of the Press Code have been infringed in this instance and if so on an appropriate sanction.
5. The respondent contended that a careful reading of the review indicates that the work is not an attack on Christianity. It accepts that the words are ’strong, controversial and provocative, but do not in themselves amount to hate speech. Nor do they impede on anyone’s right to practice their faith. In fact the work does the exact opposite, in allowing for queer safety in spaces normally deemed to be violently homophobic.’ This is part of the process on the part of LGBTQI people ‘to reclaim visibility and engage Christian beliefs, texts and symbols. Part of this is the transformation and reclamation of words that have been used to demean them.’  The respondent denies that the term ‘cum slut’ is used as an insult as it is preceded by what it describes as praise words ‘princely bottom, face serving.’ They equate it to a group of women using the term ‘bitch’ in a convivial and friendly manner.’

Analysis of the key applicable provisions of the Press Code

6. Part of the Preamble of the Press Code states:

As journalists we commit ourselves to the highest standards, to maintain credibility and keep the trust of the public. This means always striving for truth, avoiding unnecessary harm, reflecting a multiplicity of voices in our coverage of events, showing a special concern for children and other vulnerable groups, and exhibiting sensitivity to the cultural customs of their readers and the subjects of their reportage, and acting independently.

The acting Ombud, Mr Johan Retief, took the view that the term ‘cultural customs’ in the Preamble to the Press Code does not include ‘religion.’ I respectfully disagree as there often is a significant overlap between religion and culture. The Constitutional Court in MEC for Education: Kwazulu Natal and others v Pillay and others[1]  held, when interpreting provisions of the Promotion and Equality and the Prevention of Unfair Discrimination Act 2000:

The alleged grounds of discrimination are religion and/or culture.  It is important to keep these two grounds distinct.  Without attempting to provide any form of definition, religion is ordinarily concerned with personal faith and belief, while culture generally relates to traditions and beliefs developed by a community.  However, there will often be a great deal of overlap between the two; religious practices are frequently informed not only by faith but also by custom, while cultural beliefs do not develop in a vacuum and may be based on the community’s underlying religious or spiritual beliefs.  Therefore, while it is possible for a belief or practice to be purely religious or purely cultural, it is equally possible for it to be both religious and cultural.

I agree with the majority finding that when the Preamble refers to exhibiting sensitivity to the cultural customs of readers, it is also requiring that sensitivity be exhibited to the religious beliefs and practices that may form part and parcel of the culture. To exclude religion from the definition of cultural practices would be artificial and is rejected. It is required of the media to exhibit sensitivity both in respect of reportage and in its comments. It is important that the Preamble be reflected upon when interpreting the sections of the Press Code and further its commitments must be respected by the media. I am of the view that the preamble is part of the Code and that there must be compliance with specific and reasonable clear undertakings such as the responsibility to exhibit sensitivity to the cultural customs of their readers, particularly if other sections of the Press Code do not deal directly with this obligation. This interpretation would better promote the spirit and purpose of the Press Code.

7. I now turn to the interplay between section 5 and 7 of the Press Code.

Section 5.1 provides:

The media shall avoid discriminatory or denigratory references to people’s race, gender, sex, pregnancy, marital  status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status and not refer to such status in a prejudicial or pejorative context – and shall refer to the above only where it is strictly relevant to the matter reported, and if it is in the public interest.

Section 5.2 provides:

The media shall balance their right and duty to report and comment on all matters of legitimate public interest against the obligations not to publish material that amounts to propaganda for war, incitement of imminent violence or hate speech- that is, advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Sections 5.1 and 5.2 of the Press Code deal with very different aspects. Section 5.1 imposes an obligation on the media to avoid discriminatory or denigratory references to people on the listed grounds while section 5.2 deals with the publication of material that amounts to propaganda for war, incitement of imminent violence or hate speech.  Section 5.1 requires the media to avoid discriminatory or denigratory references to people but permits such reference where it is strictly relevant to the matter reported and if it is in the public interest. No mention is made of comment by the media in section 5.1. If section 5.1 was deemed to apply to comment then we could have the somewhat untenable situation of protected comment or opinion pieces not getting the benefit of the last clause of the section. This would mean that a comment that made discriminatory or denigratory references to people on one or more of the listed grounds will be prevented from justifying it on the basis that it is strictly relevant to the matter reported and that it is in the public interest to do so. That could not have been the intention of the draftspersons.

8. Further section 5(2) unlike section 5(1) expressly deals with both reportage and comment. Thus it is clear that the obligations contained in section 5(2) apply both to reportage and comment.  The reason that comment is included in section 5(2) of the Press Code is because propaganda for war, incitement of imminent violence and hate speech fall outside the right to the freedom of expression as protected in Section 16 of the Constitution. Therefore expression which amounts to propaganda for war, incitement of imminent violence and hate speech is constitutionally unprotected and can be subject to more rigorous regulation as they are antithetical to the sort of society that we are seeking to develop. It is for this reason that the reach of section 5.2 is extended to both reports and comments.
9. These sections must be read with section 7.1 which provides:

The media shall be entitled to comment upon or criticise any actions or events of public interest.

Section 7.2 provides:

Comment or criticism is protected even it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all material facts that are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.

It is pertinent to point out that extreme, unjust, unbalanced, exaggerated and prejudiced comments are protected provided that they satisfy the requirements of this section. Extreme, unjust, unbalanced, exaggerated and prejudiced comments may well amount to discriminatory or denigratory references to people. It could not have been intended to permit the comment in one section and for the very same comment to be prohibited in another section of the Code. I am satisfied that these sections can be read together. If a comment is a protected comment as provided for in section 7, it falls outside the ambit of section 5.1 but is within the purview of section 5.2. In other words, if the comment meets the requirements of section 7 it is in a safe harbour as far as section 5.1 is concerned. However only comments that are protected as defined in section 7 need not meet the requirements of section 5.1.  Further even protected comments as defined in section 7 may have to meet the obligations listed in section 5.2 of the Code.

Conclusion on whether the statements amount to Protected Comment.

10. I now turn to whether the comment meets the requirements of section 7(2) of the code of being without malice, is on a matter of public interest, has taken fair account of all material facts and is presented clearly as comment.  I am not satisfied that the respondent has demonstrated that the offending words were inserted without malice. Words have implications and must be assigned their natural meaning. ‘Cum Slut’ means what it says. The definition supplied by the applicant from Wiktionary that it refers to ‘a person who badly wants to receive multiple men’s semen, particularly in the mouth to be swallowed’ is what most readers would ascribe to the words.  These were outrageously vulgar, deeply demeaning, extremely insulting  and hurtful words used with reference to Jesus, one of the central figures in Christianity, which is one of the major religions of the world.
11. It was unnecessary for the purposes of the comment to make such obscene reference to a person who is revered by millions of worshippers throughout the world knowing that it is likely to be hurtful. There is no doubt that the applicant is not alone in finding this reference not just obscene but hurtful and harmful in the extreme.  The effect, underlying message and the theme of the comment would have been wholly unaffected by the omission of these words.  Thus a conscious decision was made to include this vulgar, hurtful, offensive and harmful reference to a central figure in Christianity even though its inclusion was unnecessary for the purposes of the comment.  The purpose of its inclusion appeared to be to shock and outrage as opposed to advancing a particular argument or opinion. Its inclusion had the effect of causing deep offence, hurt and harm.  It must have been foreseen that people will be hurt by the inclusion of this quotation and it was used notwithstanding.   After the publication of the comment and after the complaint was lodged, it is apparent that someone in the respondent’s organisation took a similar view as the offending words were removed from the article prior to the hearing.
12. The argument that the words ‘cum slut’ used in reference to Jesus is justified because it is part of a campaign to transform and reclaim words that were used to demean the LGBTQI community is unpersuasive. This comment was published and read by all subscribers and was in the public domain. It cannot be assumed that the general readership, particularly the adherents of the Christian faith, would interpret the words in the manner suggested by the respondent. In all probability, most readers would interpret it in accordance with the definition provided in Wiktionary and will perceive this as a profound insult and vilification of one of the central figures in Christianity.
13. The argument that the words do not impede anyone’s right to practice their religion misses the point. In Christian Education South Africa v Minister of Education[2] , Sachs J held:

There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important.  The right to believe or not to believe, and to act or not to act according to his or her beliefs or non-beliefs, is one of the key ingredients of any person’s dignity.  Yet freedom of religion goes beyond protecting the inviolability of the individual conscience.  For many believers, their relationship with God or creation^[3] is central to all their activities.  It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe.  For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth.  Religious belief has the capacity to awake concepts of self-worth and human dignity which form the cornerstone of human rights.  It affects the believer’s view of society and founds the distinction between right and wrong.  It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.

14. The inclusion of the offending words amounts to a failure to recognise and appreciate the centrality of the relationship between the believer and his or her god to the very being of the believer.   It was for this very reason that the Preamble of the Press Code committed the media and journalist to exhibit sensitivity to cultural customs. For the reasons stated earlier, I am of the view that cultural customs include religious beliefs. The inclusion of the reference of Jesus as a ‘cum slut’ did not exhibit sensitivity to the religious sentiments of the Christian community. In fact it demonstrated the opposite.  It is for these reasons that I conclude that the respondent has not satisfied us that this was protected comment.

       Conclusion                                                                       

15. The article breached the obligation in the Preamble to the Press Code to exhibit sensitivity to the cultural customs of their readers. The Preamble is part of the Code and the obligations undertaken must be respected and carried out. In conclusion I find the comment not protected in terms of section 7 of the Press Code and that there was a violation of the duty in the Preamble to exhibit sensitivity towards cultural customs of their readers. I am therefore of the view that the sanction of an apology as stated in the finding of the majority is appropriate.

Dated at Durban on the 10^th of June 2021

Prof K Govender