Sunday Independent vs News24 & Karyn Maughan
SUMMARY
The headline to the story in dispute read, Is Karyn Maughan South Africa’s Leni Riefenstahl – the Nazi Film Propagandist? (published on 3 March 2024).
This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that became in effect on 30 September 2022.
The column said that reporter Karyn Maughan shared similarities with the Nazi filmmaker Leni Riefenstahl in that she operated as a propagandist in her coverage of the legal disputes involving Sekunjalo, the newspaper’s parent company.
The matter came before a Panel of Adjudicators, who upheld the complaint that the Sunday Independent and all online and other entities that had published the column had:
- not taken fair account of all material facts that were either true or reasonably true;
- not exercised care and consideration in matters involving dignity and reputation; and
- been conflicted.
The relevant publications were sanctioned to retract the column and to apologise to Maughan.
Sunday Independent then applied for leave to appeal.
Judge Ngoepe agreed with the Panel’s ruling. Regarding the sanction, he opined that it was not so severe “that one would think there are reasonable prospects that it would be interfered with by the Appeals Panel. In my view, the attack on Ms Maughan was quite serious”.
The application for leave to appeal was dismissed.
THE RULING ITSELF
BEFORE THE APPEAL PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between
SUNDAY INDEPENDENT APPLICANT
And
NEWS24 & KARYN MAUGHAN REPONDENTS
Matter No: 30739/03/2024
Decision on an Application for Leave to Appeal
- Sunday Independent (applicant) wants leave to appeal a Ruling by the panel that sat with the Deputy Press Ombud to adjudicate a complaint that had been filed against the applicant by News24 and Ms Karyn Maughan (respondents). The complaint followed an article published by the applicant on 3 March 2024 with the headline “Is Karyn Maughan South Africa’s Leni Riefenstahl – the Nazi Film Propagandist?” The applicant falls within the Independent stable; and there were other publications from the same stable with links to the same article, using leaders which Ms Maughan felt depicted her as amongst others “a Nazi/apartheid-style racist and propagandist ….”
- The complaint was that the article violated clauses 3.3 and 7.2 of the Press Code, resulting in injury to Ms Maughan’s dignity and reputation in that the article said that she discredited Sekunjalo’s application to the Constitutional Court with the intention to influence the court’s judges, was a propagandist and not a journalist, was a fraud, was comparable to a Nazi and an apartheid agent and was a racist. The complaint was also that the applicant breached clause 2.1 of the Code by engaging in a practice “that could lead readers to doubt the media’s independence and professionalism.”
- The Ruling aptly sums up the gist of the respondent’s defence, namely, that it “denies that the article is based on a claim that (Ms Maughan) misrepresented the Sekunjalo case. Rather, they say the writer was expressing an opinion that her reporting was aimed at painting a negative picture of Sekunjalo. The article presented a general critique of her reporting, using the specific article referred to as a starting point …. Overall, the article should be accepted as an expression of an opinion which the writer is entitled to, notwithstanding the use of strong language and rhetoric. It is therefore protected …. Construing rhetorical expression as literal claims would chill free expression, the newspaper says.” In their rejoinder, the complainants argued that the article did not meet the requirements of clause 7.2 for its protection as an opinion piece.
- As said earlier, the respondents also argued that there was a violation of clause 2.1 of the Code. The clause reads: “The media shall not allow commercial, political, personal or other non-professional considerations to influence reporting, and allow conflicts of interest as well as practices that could lead readers to doubt the media’s independence and professionalism.” The essence of the complaint was that the article was not by an independent writer, but was written “on behalf of, at the behest of or at least in the interest of” Independent Media as a company and Dr Survé and that the name used was a pseudonym. In this respect, the complainants pointed to the use of the pronoun “we” in a statement by Dr Survé, which pronoun would show that the article was written internally.
- Media Monitoring Africa (MMA), which had earlier on its own filed a complaint against the article, later instead submitted an application to be admitted as amicus curiae. The application was granted. I will return to this later.
- After considering all the submissions, the panel concluded, unanimously, that while the article could be accepted as an opinion, the requirements for protection in terms of clause 7.2 were not met and therefore that the article was in breach of clause 3.3; it also concluded, unanimously, that there has been a breach of clause 2.1. A sanction was therefore imposed. The applicant wants to appeal the findings and the sanction. For the application to succeed, the applicant must show reasonable prospects of success on appeal, which is what I must now assess.
- The Ruling dealt with the issues raised in detail. I need not repeat the analyses and reasons, but will make a few observations. With regard to clause 2.1, one is puzzled by the interaction between the hearing and Mr Phiri, the supposed independent commentator and analyst, as summarized in the Ruling: “Asked to turn on his camera so the meeting could see him, he said he could not do so for technical reasons. He said the desktop computer he was using did not have a camera. Asked whether he could at least briefly use his mobile phone to show himself, he said he did not have He did not indicate that he feared for his safety ………. During cross-examination, he was asked to give some details of the basis on which he is described on the column as an ‘independent commentator and analyst’, but declined to do so as he felt it was an irrelevant question.” (Own underlining). Well, I am afraid it was not an irrelevant question; on the contrary, it was a very vital one. The crux of the Ruling’s reasons is set out in its paragraphs 130 to 133, and others, leading to its conclusion that “Sunday Independent allowed corporate interests to influence its editorial decision to publish the column at issue, creating a conflict of interest that breaches clause 2.1.” Those considerations, in the words of the Ruling, constituted enough evidence to sustain an accusation that the newspapers in the group use editorial means in support of corporate interests. In light of all those considerations, it is highly unlikely that a different finding would be reached on appeal.
- In its application for leave to appeal, the applicant raises certain points of procedure.
- Firstly, it alleges irregularities with regard to the admission of MMA as amicus curiae. I see no basis for the suggestion by the applicant that the Press Council (Public Advocate?) had in advance already made up its mind to admit the MMA. To the extent that the Public Advocate advised MMA to rather make such an application as opposed to filing their own complaint, he was doing exactly what he is supposed to do, namely, to assist complainants, some of whom may not be highly knowledgeable with the Code or at all.
- Secondly, it is said that “although the amicus curiae was admitted, Sunday Independent was not afforded a full opportunity to respond to its papers in full detail. The MMA was merely admitted at the hearing, without Sunday Independent or Sekunjalo being afforded an opportunity to respond in writing…” (Applicant’s own emphasis.) Contrast this with the following response by the respondents:
“….when the Deputy Press Ombud informed the parties …… that he would be convening a hearing, he requested Independent Newspapers to respond to our complaint and MMA’s application. Sekunjalo’s internal counsel even motivated a request for an extension by stating that they needed time to respond to MMA’s ‘lengthy’ application. When they finally delivered their response to our complaint, however, they said nothing about MMA’s submissions.” (My own emphasis.) Additionally, MMA, in its response to the applicant’s above claim, submitted a copy of an email confirming that the MMA application was sent to and received by the applicant, who then asked for an extension of time to respond. The second email MMA sent to me was from the Public Advocate, to which the MMA’s application was among the documents attached; this was a week before the hearing. The applicant’s above alleged irregularity that it was not given a full opportunity to respond in full detail to MMA’s application therefore baffles me. Furthermore, there is no indication that at the hearing the applicant raised the issue, or asked for a postponement to go and write a response to MMA’s application.
- The rest of the arguments raised in the application are on the merits, which, as I have said, have been fully traversed in the Ruling; there is nothing new in the application which was not covered. For clarity though, just two points. Firstly, I understood the Ruling to say that as other requirements prescribed in clause 7.2 were already found not to be met, there was no need to establish malice. That would have been the correct approach because all the requirements must be met and, once one or two are not met, what would be the point in determining whether any other, such as malice, is there or not? Secondly, regarding the admission of MMA as amicus curiae, I understood the Ruling to say that MMA would not be allowed to bring in new grounds of complaint which had not been raised by News24 and Ms Maughan; for example, by alleging that additional clauses had been breached. I do not find any indication that the Ruling allowed that to happen.
- Regarding the sanction, it is not so severe that one would think there are reasonable prospects that it would be interfered with by the Appeals Panel. In my view, the attack on Ms Maughan was quite serious.
- I conclude that the application for leave to appeal has no reasonable prospects of success; it is therefore dismissed.
Dated this 27th day of September 2024
Judge B M Ngoepe (Retired Judge President) , Chair, Appeals Panel
