Appeal Decision: News24 vs Gayton McKenzie and the PA
SUMMARY
The headlines to the stories in dispute read, McKenzie’s mirage: Money PA leader ‘raised’ for Karoo town was never deposited into its account; and, McKenzie’s millions: The lawyer, the R3m Karoo cash and the PA-linked trust account (published on 10 and 17 June 2023 respectively).
This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that became effective on 30 September 2022.
News24 asked for leave to appeal against a finding of the Deputy Ombud, who dismissed parts of the complaint, while upholding others. Its main concern was that the matter was adjudicated on papers and that it should have gone to a hearing.
The stories were about Gayton McKenzie who, after becoming the mayor of the Central Karoo District Municipality, had raised certain funds for the purpose of improving some infrastructure and facilities. The issue was that the money reportedly had not been paid into the account of the municipality; it was common cause that it had been paid into the account of some attorneys who were associated with the respondents.
Judge Ngoepe said that the Deputy Ombud dealt with the matter thoroughly and applied his mind to both arguments for and against. He rejected News24’s argument that, had the matter gone to a hearing, there would have been a different outcome. He opined that the issues were fully ventilated and canvassed in the papers before the Deputy Ombud.
He dismissed the appeal, saying it had no reasonable chance of success.
THE RULING ITSELF
BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between:
NEWS24 APPLICANT
and
GAYTON McKENZIE 1ST RESPONDENT
PATRIOTIC ALLIANCE 2ND RESPONDENT
______________________________________________________________________
DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
- This is an application by News24 (applicant) for leave to appeal the Ruling of the Deputy Press Ombud who found against the applicant in respect of a complaint that had been lodged against it by Mr Gayton McKenzie and the Patriotic Alliance (first and second respondents). The complaint followed two articles that had been published by the applicant about the respondents. The first article was on 10 June and the second on 17 June 2023 which was a follow-up. The central message carried was that the first respondent, after becoming the mayor of the Central Karoo District Municipality, raised certain funds for the purpose of improving some infrastructure and facilities. Although Mr McKenzie had obtained the prior approval of the municipality for the fundraising occasion, the money was not paid into the account of the municipality; it is common cause that it was paid into the account of some attorneys associated with the respondents. There is a dispute about the actual amount raised at the fund raising occasion.
- The articles said that the projects for which the money was raised were not executed, while the respondents, through their spokesperson, argued otherwise. For the purpose of deciding on this application, it is not necessary to go into the articles or counter-arguments in greater details.
- After considering the complaint and analyzing the arguments, the Deputy Ombud, in his Ruling, dismissed some complaints, while upholding others. He then imposed a sanction. It is against this Ruling that the applicant is seeking leave to appeal, including leave to appeal the sanction which the applicant feels it is too severe. Each time the Deputy Ombud upheld or dismissed a complaint, he referred to specific paragraphs and sub-paragraphs (indeed even to sub-sub-paragraphs) on the basis of which such a finding is made. To demonstrate the point, in finding a breach of Clause 1.1 of the Code, the Ruling indicated that the finding was based on the “reasons set out under points 3.3.1.5, 3.3.3.3, 3.3.4.1 and 3.3.4.2 of my Analysis;” the same was done in respect of the rest of the findings. I mention this point in order to show that the Deputy Press Ombud dealt with the matter thoroughly, and applied his mind to both arguments for and against. I will return to this point later in another context.
- There are two points which I must make about the application for leave to appeal.
- The first one is that the applicant suggests some irregularity in the manner in which the Deputy Press Ombud dealt with the matter, namely, that he did not constitute a hearing (with two additional panel members) but instead disposed of the matter on paper. In support of its argument, the applicant says that had a hearing been held, the applicant could have furnished some more facts or information. There is no merit in this argument:
5.1 Firstly, nothing prevented the applicant from furnishing all the facts and information it wanted to give in written form. What is fatal to this argument, is the absence of any explanation why such information could not be furnished. The applicant argues that at a “hearing, further facts can be (not would have been) presented to the panel and matters argued.” This is speculation as to what could have happened had an oral hearing been held. If certain facts could have been raised at a hearing, what prevented the applicant from canvassing them in the papers? After all, the applicant knew that the Deputy Ombud had the discretion to dispose of the matter on papers.
5.2 The applicant then proceeds to say that “it is not explained why the Press Ombud deemed it reasonable to hear the matter on the papers only”. In terms of the Complaints Procedures, the Ombud (or Deputy Ombud), may decide the matter on papers if they deem it reasonable to do so. It therefore follows that where the matter was disposed of in that manner, it was because the Ombud had felt it reasonable to do so. Save to speculate that had a hearing been held further facts could have been presented, the applicant gives no reason why the Deputy Ombud’s discretion to disposed of the matter on papers was wrongly exercised. The applicant shows no reason why the matter could not be resolved on paper.
5.3 The papers on which the Deputy Ombud disposed of the matter were pretty comprehensive. In his Ruling, he says the following: “This finding is based on a written complaint by Mr Charles Cilliers on behalf of Patriotic Alliance (PA) leader Mr Gayton McKenzie and the PA, which includes a number of documents; a written response by News24 investigative reporter Ms Azarrah Karrim, Assistant Editor: In-depth news Mr Pieter du Toit and Public Editor Dr George Claassen (together with a list of questions sent to Mr McKenzie’s spokesperson, Mr Steve Motale); and a further written response by Mr Cilliers on behalf of Mr McKenzie and the PA.”
It is clear from the above that the issues were fully ventilated and canvassed in the papers before the Deputy Ombud.
- The following are the main points of the case:
6.1 some money was raised at the instance of Mr McKenzie;
6.2 the money was supposed to be spent on i.a. the improvement of the municipal infrastructure and the repair to some of its facilities;
6.3 Mr McKenzie obtained the council’s approval for the occasion a few days before;
6.4 the money was not paid into the council’s account, but into the trust account of attorneys associated with Mr McKenzie;
6.5 the extent to which the objectives of the money were achieved or not achieved.
- The submissions by the parties revolved around the above points and so too the Ruling. This brings me to the second point about the application for leave to appeal. Apparently in an attempt to show that a lot more could have been said at a hearing, the applicant indulges in some hair-splitting exercise in support of its application; for example whether the money was to repair a “pool” or “pools”. The result is a 49-page document which, in some respects, goes beyond the parameters of the case, as broadly stated in paragraph 6 above. This, in turn, drew more and more issues from the respondents’ response which were also outside the perimeters of the real case, such as the reason why money was not deposited into the council’s account (giving an explanation that imputes criminality to some officials of the municipality). In the result, the matter became drawn beyond the parameters of the complaint as correctly described by the Deputy Press Ombud.
- I have already alluded to the fact that the Deputy Ombud fully dealt with and analized the arguments presented to him. I find no fault with the manner in which he dealt with the matter.
- I find that the application has no reasonable prospects of success; accordingly, the application is dismissed.
Dated this 27th day of September 2023
Judge B M Ngoepe, Chair, Appeals Panel
