AfriForum vs Sunday World (2) and Solidarity vs Sunday World

Complaints 32089 & 32090

Ruling by the Deputy Press Ombud

Date of publication:

10 November 2024 (print)

11 November 2024 (online)

Headline of publication:

“Moegoe: AfriForum” (online)

Link: https://sundayworld.co.za/news/opinion/moegoe-of-the-week/moegoe-afriforum/

Author: No byline

Particulars

1. A complaint was lodged on 11 November 2024 by Ernst van Zyl, the head of public relations at AfriForum, on behalf of the organisation. A second complaint was filed by Pieter Jordaan, spokesperson for Solidarity, on 12 November 2024. By agreement with the parties, the complaints are being considered as one matter.
2. A response was received from the newspaper’s editor, Ngwako Malatji, on 26 November 2024.
3. Both AfriForum and Solidarity responded on 5 December.
4. I take into account the various submissions filed in this matter.

The article

5. The article names AfriForum the “Moegoe of the Week” on the basis that the organisation co-organised a protest against the Basic Laws Amendment Act (BELA) where the apartheid flag “was flying high”. The newspaper also noted other indicators of sympathy for apartheid, particularly the extensive use of the colour orange, one of the colours of the old flag. It expressed the view this was similar to demonstrating support for Nazism in Germany.

The complaint

6. The AfriForum complainant is that the article is in breach of Sections 1.1, 1.2, 1.3 and 3.3 of the Press Code. Solidarity refers to Sections 1.1, 1.2, 1.3 and 6 of the Press Code.

Complaint: The apartheid flag

Arguments

7. Both complaints say that the old South African flag was in fact not flown at the event, and that the colour orange is the corporate colour of Solidarity.
8. The respondent argues that the term “the apartheid flag” was intended to refer more broadly to any symbol of apartheid and so can be held to include the Vierkleur flag of the Transvaal Republic, which was reportedly flown at the event.
9. In response, Solidarity says the reference in the article was evidently to the specific flag used by the apartheid government before 1994, not to wider symbols. The complainant also disputes that the Vierkleur was flown at the event. One person tried to join the protest with the flag but was prevented from doing so, they say. AfriForum’s response merely says they stand by the original complaint.

Discussion

10. It is clear that the article in question is comment by the newspaper, which labels AfriForum as a “moegoe” because of what it regards as endorsement of apartheid views. The evidence it provides is the use of the old apartheid flag.
11. The newspaper accepts that the flag in use in apartheid South Africa was not flown but argues that the term can also be applied to the Vierkleur, used until the early 1900s by the South African Republic of the Transvaal.
12. Other commentators have alluded to the prominent colour combination in the crowd of orange, white and blue, the use of the Voortrekker Monument as venue and other symbolic allusions to the old order, but the newspaper argues only on the basis of the flag.
13. The reference to “the apartheid flag” clearly refers to the flag used immediately before 1994 and recently declared to be criminal hate speech by the courts.
14. Though the Vierkleur is widely seen as associated with right wing and racist attitudes, it is a different flag and its status has not been tested in court. The ordinary reader would have understood the reference to be to the flag usually referred to as the apartheid flag.
15. In addition, Solidarity makes the point that just one person made an attempt to bring the flag to the event but was turned back, which undermines the accusation that the flag was “flown high” at the event.
16. The article appears clearly as comment and the newspaper is entitled to express sharp criticism of the complainants.
17. Nevertheless, as comment, it needs to satisfy the terms of the Press Code.
18. It has become established practice by this office to test a disputed comment against Section 7.2, which protects comment “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”. If an article or statement satisfies these conditions, it counts as protected comment. If not, it may fall foul of the Press Code. Section 7.2 is therefore frequently referred to as a “safe harbour”.  (See for instance Embassy of Russia and the Ambassador of Russia to South Africa vs Daily Maverick, complaint 29490; News24 & Karyn Maughan vs Sunday Independent, complaint 30739; Appeal: Goss Marlon vs News24, complaint 4555.)
19. As has also been pointed out, an article may constitute a comment overall but also contain claims of fact. (See for instance Appeal Hearing Patriotic Alliance vs News24, complaint 9740) In the present case, the criticism of AfriForum is based on the claim that the apartheid flag was “flown high”, which I have found to be unsupported. Therefore the article cannot be said to have taken “fair account of all material facts that are either true or reasonably true”.
20. The claim is in breach of Section 1.3 of the Press Code, in that it presented as fact something that was not reasonably true.
21. AfriForum also complains about breach of Section 3.3, alleging a lack of care with regard to dignity and reputation. Though juristic entities also have a right to their reputation, organisations active in political question must have a higher threshold of tolerance for public criticism. An additional finding in terms of this section is not warranted.
22. Solidarity also complains about a breach of Section 6. The section allows advocacy by newspapers on terms that are similar to the way Section 7.2 deals with comment. In this case, “comment” describes the newspaper’s article better than “advocacy”, which usually refers to sustained campaigning for a particular cause. Section 7.2 is therefore the more appropriate provision to consider, as I have done here.

Ruling

23. The complaint is upheld to the extent discussed above.

Rulings

24. I find that the article breached Section 1.3 of the Press Code, by presenting as fact the unsubstantiated claim that the apartheid flag was flown high at the BELA protest.
25. I direct the newspaper to publish an apology and correction of the report, both in print and online. The note should
    • Be published in the next print edition of the newspaper.
    • Be published at the foot of the online article, with a line inserted high up in the report referring readers to the correction.
    • Provide a brief summary of this ruling.
    • Make it clear it is in line with a ruling by the Deputy Press Ombud, Franz Krüger, and link to the full text of this ruling on the Press Council of SA website.
    • Be published with the PCSA logo.
    • The headline should include the terms “apology”, “AfriForum” and “Solidarity”.
    • A draft of the note should be provided for approval by the Deputy Press Ombud before publication.

Appeal

26. The Complaints Procedures lay down that, within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected]

Franz Krüger
Deputy Press Ombud
10 January 2025