Appeal Decision: Gayton McKenzie vs News24

SUMMARY

The headline to the story in dispute read, Gayton McKenzie admits his plans for Central Karoo not approved by Council (published on 11 July 2022).

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.

A complaint was filed on behalf of Gayton McKenzie, the then mayor of Central Karoo.

The article was about a claim that had violated municipal processes by failing to get approval from the Council for his improvement plans in the district.

The Deputy Ombud dismissed the complaint as he concluded that McKenzie effectively had admitted to this. McKenzie then sought leave to appeal (only regarding the headline).

Judge Ngoepe disagreed with the Deputy Ombud. He said, “It seems to me that there are reasonable prospects for Mr McKenzie to argue that he could not have admitted to failing to get that which he did not need to get in the first place.”

The judge granted leave to appeal.

THE RULING ITSELF

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between:

Gayton McKenzie                                                                                                      Applicant

and

News24                                                                                                                  Respondent

Matter No: 9563

1. On 11 July 2022, News24 (respondent) published an article with the headline: “Gayton McKenzie admits his plans for Central Karoo not approved by Council”. A complaint was then filed on behalf of Mr Gayton McKenzie (applicant), who was the mayor of Central Karoo. The complaint quoted a number of clauses of  the Press Code, which he said had been violated by the respondent. Because there was also a complaint about the headline, clause 10.1 was added later by the Deputy Ombud. The applicant complained that he never admitted to failing to get the Council’s approval, as he did not need it to start with.
2. In its response to the complaint, the respondent said that the applicant had put on Facebook a post, which the respondent ran with, admitting that he had not obtained the Council’s approval; a post which he later removed but only after the article was published. The respondent also said that prior to the publication, it had asked the applicant for comment, which he failed to give.
3. In his Ruling dated 25 August 2022, the Deputy Press Ombud summarized the article as follows:

“1.1 The News24 article reported on a claim that Central Karoo District Mayor Gayton McKenzie had violated municipal processes by failing to get approval from the Council for his improvement plans in the district.

1.2    The article followed a complaint lodged by the South African Communist Party (SACP) with Western Cape Local Government MEC Anton Bredell”.

4. In light of the response from the respondent, and after considering submissions on both sides, the Deputy Ombud dismissed the complaint. The applicant is now seeking leave to appeal, but only with regard to the dismissal of the complaint against to the headline.
5. For an application for leave to succeed, an applicant must show reasonable prospects of success before the Appeals Panel. I must therefore assess that.
6. In his Facebook post, the applicant says amongst others: “… The SACP are also complaining about the fact that I don’t have Council permission to invite all these businesses. This is very true, I don’t need permission to do my job, my job is to create jobs …”.
7. The Deputy Ombud came to the conclusion that what stands above amounted to the applicant’s admission that he did not get the Council’s permission, and therefore dismissed the complaint.
8. While both the article and the applicant appear to agree that permission was not given, the real disagreement is deeper than that: the applicant gives different reasons for the absence of the permission. The applicant says he did not need it. There are some parts of the article that are open to debate about what they convey; for example, the sub-head: “… Mayor Gayton McKenzie had admitted that he failed to seek approval from Council … (Own emphasis). Again “… Mayor Gayton McKenzie has been accused of violating municipal processes after failing to get approval from the Council for his improvement plans …”. (Own emphasis) It seems to me that there are reasonable prospects for Mr McKenzie to argue that he could not have admitted to failing to get that which he did not need to get in the first place. This is of course in relation to the headline. In the circumstances, the following Order is made:

• The applicant is granted leave to appeal in relation to the headline: “Gayton McKenzie admits his plans for Central Karoo not approved by Council”.

Dated this 1^st day of October 2022

Judge B M Ngoepe, Chair, Appeals Panel