Appeal Decision: Referendum Party vs Daily Maverick

SUMMARY

The piece in question, published on 28 March 2024, was headlined, Fact check – Is it likely the Western Cape could become an independent state?

This ruling by the chairperson of the Appeals Panel, Judge Bernard Ngoepe, was based on the Press Code that became effective on 30 September 2022.

The Referendum Party (RP) applied for leave to appeal after the Press Ombud had dismissed its complaint in its entirety on 5 May 2024. The original complaint was about an article in which the journalist reportedly concluded “objectively” that an independent Western Cape was not likely to be achieved (as promised by the RP).

Judge Ngoepe said the central issue was whether the respondent’s fact-checking article was an opinion piece – as pointed out by the Press Ombud.

He agreed with the Ombud, inter alia:

• pointing out that the RP itself, in its initial complaint, labelled the article as an opinion piece;
• arguing that the use of the words “likely”, “simply impossible to imagine”, and “appear to be” supported the above; and
• stating that the article clearly was in the public interest.

The application for leave to appeal was dismissed.

THE RULING ITSELF

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between:

REFERENDUM PARTY                                                                                      APPLICANT

and

DAILY MAVERICK                                                                                         RESPONDENT

DECISION ON AN APPLICATION FOR LEAVE TO APPEAL

1. The Referendum Party (applicant) asks for leave to appeal the Ruling of the Press Ombud, dated 5 May 2024, on a complaint the applicant had brought against the Daily Maverick (respondent). The complaint was against an article published by the respondent on 28 March 2024, with the headline: “Fact check – Is it likely the Western Cape could become an independent state?” In effect what the article was doing was to test (or fact check) objectively whether what the applicant was promising to deliver to the voters, namely, an independent Western Cape as a state that would have seceded from the rest of the country, was an achievable likelihood. In its conclusion, after taking into account the views of some legal and economic experts, the article concluded that objectively speaking, that result was not likely to be achieved.
2. The applicant alleged that the article breached several clauses of the Press Code. In response, the respondent argued that it was doing a fact-checking of the viability of the promise the applicant was making to the voters, to assess whether the applicant could deliver an independent state for the Western Cape. The respondent said that its article was an opinion piece. In his Ruling, the Press Ombud dismissed the applicant’s complaint in its entirely; hence this application for leave to appeal.
3. For the application to succeed, the applicant must show reasonable prospects of success before the Appeals Panel; this is what I must now assess. In doing so, I have decided to go straight to the central issue; after all, the Ruling has dealt with all aspects of the complaint, and gave reasons for dismissing each of the alleged breaches of the Press Code, which reasons I find sound. The central issue turned out to be whether the respondent’s fact-checking article that the applicant was selling the voters an unlikely promise, namely, the holding of a referendum which could achieve secession or an independent state for the Western Cape Province, was an opinion piece.
4. The Ruling held that the article was an opinion piece; as a result, the  applicant’s complaints such as the breach of clauses 1.1, 1.8, 2.1, 6, and  1.3 of the Press Code were dismissed. In its application for leave to appeal, the applicant says  the Ombud’s finding that the article was an opinion piece was wrong. I do not agree with this contention. The Ombud’s reasons are clear. Firstly, as he points out, in its initial complaint, the applicant itself labelled the article as an opinion piece. Secondly, the use of the word “likely”, says the Ombud, places the subject matter within the realm of opinions. He says the piece is testing the likelihood of the claim, hence a clear opinion. Thirdly, the Ombud says the following (which appears in the piece) demonstrates further that the article is an opinion piece: “It is simply impossible to imagine a world in which South African law and politics line up to allow one of the nine provinces to assert itself as a separate country – especially since even parties like the DA do not support such an idea. As such, the CapeXit parties appear to be selling voters pipe dreams.” In my view, the Ombud’s finding that it was an opinion piece is correct as clearly appears from the above. Fact-checking does not necessarily result in factual reporting particularly where, as in the present case, the article is based on the views of others. I do not find anything wrong with the exercise of fact-checking done by the respondent. On the contrary, given the nature of the promise made by the applicant to the voters in the face of coming elections, one would argue that there was an obligation on the media to subject the promise to scrutiny so that the voters are properly informed. As the respondent says, the purpose was to hold the promise up to objective scrutiny; and the conclusion reached by the respondent that the applicant and others were selling the voters a pipe dream referenced the views of some experts.
5. The following was said to be part of the applicant’s election campaign: “Our sole purpose as a political party is to force the DA to call a referendum on Cape independence which will establish an ideological homeland for people who think like we do….” In light of this as well as similar statements about secession, the respondent raised, amongst others, the following question: “…… regardless of the popularity of the idea or its actual merits, are the pro-independence parties promising something that is actually legally viable”? As the applicant correctly points out, this is an election period; its promise had to be looked at; hence the respondent’s above question. Both the promise and the question implicate the current constitutional setup. In its submissions, the applicant referred to judgments in other jurisdictions, such as in Canada, and then argued that once a referendum were held by the Western Cape Premier on the secession, the results thereof could not be ignored. Really? Here is the point: the applicant does not tell the voters how the applicant would navigate the South African current constitutional provisions to achieve secession, hence the respondent’s above question (the very purpose of fact-checking); it is a justified question given some provisions of our Constitution; remember that the respondent refers to “South African law” and whether the promise was “legally viable”. This is reference to the Constitution. The promise was therefore food for thought. Why? The very first Founding Provision in the Constitution reads:

“1.     The Republic of South Africa is one, sovereign, democratic state …” (own emphasis); and the second Founding Provision reads:

“2.     This Constitution is the supreme law of the Republic; law or conduct inconsistent with it (such as a referendum seeking to undermine the first Founding Provision that the country is one state) is invalid …”.

A Founding Principle is exactly that; you cannot go round it. Changing South Africa (which includes the Western Cape Province) from a one state would violate the very first Founding Provision, yet a Founding Provision cannot be undermined or removed; that is exactly why it is called a “Founding Provision.” In any case, the respondent did not even put the point as strongly as I do above; all the respondent asked was “Is it likely the Western Cape could become an independent state?” The making of such a contentious promise by the applicant without explaining how to overcome the above constitutional hurdles, constituted food for thought for the respondent, which was precisely what the piece was, namely, an expression of a thought; that is, an opinion.

6. The Press Ombud was correct in coming to the conclusion he did; there are therefore no reasonable prospects of success on appeal, and the application is therefore dismissed.

Dated this 21st day of May 2024.

Judge B M Ngoepe; Chair, Appeals Panel