Appeal Decision: Patriotic Alliance vs News24
SUMMARY
The headline to the story in dispute read, Welcome to the City of Clowns (published on 30 January 2023).
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.
The Patriotic Alliance (PA) lodged an application for leave to appeal the dismissal of its complaint by the Press Ombud.
The complaint was especially against the following statement: “McKenzie and the PA have been blunt about the fact that they are in it for the tenders. Their aim will be squarely to capture departments with the highest budgets and opportunities for rent-seeking.” The PA argued that this was stated as a fact, and not as an opinion.
The Ombud disagreed and argued that the text met all the demands set for opinion pieces in the Press Code.
However, Judge Ngoepe was rather sceptical. He asked whether the comment really took fair account of all material facts that were either true or reasonably true. Keeping in mind that the word “blunt” had been used, as well as “in it for tenders”, he reckoned that “the jump … might have been too high”. He also flagged the question if the text was “clearly” presented as comment.
He refrained from commenting further as that might have compromised the hearing that was to follow.
The application for leave to appeal was granted.
THE RULING ITSELF
BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between:
PATRIOTIC ALLIANCE Applicant
and
NEWS24 Respondent
Complaint 9740
DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
- Patriotic Alliance, a political party, is the applicant in this matter and News24 is the respondent. The applicant lodged a complaint against the respondent following an article published by the latter on 30 January 2023, with the headline: “Welcome to the City of Clowns” written by Mr Adriaan Basson. The article followed the election of the executive mayor of the City of Johannesburg from a very small party, with the support of amongst others the applicant. The piece wanted to show that from the statements that had been made by the applicant’s leader, Mr McKenzie, the applicant had certain motives, in particular to capture the tenders.
- The complaint was especially against the following statement:
“McKenzie and the PA have been blunt about the fact that they are in it for the tenders. Their aim will be squarely to capture departments with the highest budgets and opportunities for rent-seeking.” On behalf of the applicant, Mr Cilliers framed and summarized its complaint as follows:
“News24’s editor-in-chief claims in his opinion piece that it is a fact that the leaders of the PA have openly stated that they are seeking opportunities for rent-seeking through tenders in the departments with the largest budgets. Yes, it’s an opinion piece, but even opinion pieces must be factual when they claim to be relying on proven facts in their statements. What Basson wrote was not phrased as opinion, but rather as fact, and many readers would assume that he was basing his comment on some hard evidence that he may have come across”. Mr Cilliers challenged the respondent to provide the factual evidence and basis for its above assertion; or apologize.
- The respondent’s defence was that the article was an opinion piece. In his Ruling dated 27 March 2023, the Press Ombud upheld this defence and dismissed the complaint. The applicant now seeks leave to appeal the Ruling. The question is whether the applicant has reasonable prospects of success.
- In his Ruling, the Press Ombud says the following: “Basson replied that the sentences are in line with clause 7.2 of the Press Code as he has taken fair account of all material facts that are either true or reasonably true before he expressed an honestly held view. Basson proceeded to list previous news reports he says contributed to the basis for his views”.
The above is an accurate summary of the respondent’s case. But one of the important questions is whether the previous reports referred to and relied upon, claimed to be the basis for what is said to be an opinion, are indeed such a basis. It will be recalled that the gist of the complaint is the statement that “McKenzie and the PA have been blunt about the fact that they are in it for the tenders…” (own underlining), an assertion for which Mr Cilliers challenged the respondent to show the basis.
- At least two possible fundamental questions arise as to whether the requirements of article 7.2 have been met:
5.1 Firstly, do the examples given and relied upon by the respondent, and also by the Press Ombud, make the comment to be in line with article 7.2 which, amongst others, requires the comment to take fair account of all material facts that are either true or reasonably true? Put differently, do those examples justify the comment made by the respondent, which is the subject of the complaint? This is highly arguable; the jump, as indicated by my underlining in the previous paragraph, might have been too high.
5.2 Secondly, again as required by article 7.2, has the piece been presented clearly as a comment? This is also arguable.
Let it be noted that the two requirements of article 7.2 referred to above are cumulative; that is, they must both be met. In its application, the applicant aptly raises the above points.
- As I am of the view that leave to appeal should be granted, I prefer not to say anything further.
- The applicant is hereby granted leave to appeal the Ruling of the Press Ombud dismissing its complaint.
Dated this 14th day of April 2023
Judge B M Ngoepe, Chair, Appeals Panel
