Appeal Decision: Khumalo Kelly vs City Press

SUMMARY

The headline to the story in dispute read, SENZO MEYIWA MURDER – HITMAN SAYS IT WAS KELLY (published on 30 August 2020).

This ruling by the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

Kelly Khumalo applied for leave to appeal the ruling by the Acting Press Ombud dated 11 January 2021, in which her complaint had been dismissed.

The article said that some people were arrested for the murder of the late national soccer team goalkeeper Senzo Meyiwa. It also said that some of the accused had made confessions. In one of them, which the journalist claimed to have seen, the accused said that Khumalo had paid them some money to kill Meyiwa.

She complained that the journalist did not afford her reasonable time to properly comment on the allegations against her prior to publication; that the reportage was malicious and caused her harm; and that the information reported in the article was neither substantiated, verified, accurate nor fair.

Judge Ngoepe agreed with the Ombud’s reasoning and finding, and dismissed the application for leave to appeal.

THE RULING ITSELF

In the matter of

KHUMALO KELLY                                                                                             APPLICANT

AND

1. This is an application by Ms Kelly Khumalo (“applicant”) for leave to appeal the Ruling by the Acting Press Ombud dated 11 January 2021. The Ruling dismissed the applicant’s complaint against City Press (“respondent”). The complaint was about an article published by the respondent on 30 August 2020, with the headline “SENZO MEYIWA MURDER – HITMAN SAYS IT WAS KELLY”.
2. The article said that some people were arrested for the murder of the late national team goalkeeper Senzo Meyiwa. It also said that some of the accused had made confessions. In one of them, which the journalist claimed to have seen, the accused said that the applicant had paid them some money to kill the deceased. The journalist stated that he had seen certain official documents. The day before the publication of the article the journalist sent a message to the applicant around 18.33 for her comment. The questions from the journalist were very pointed and specified that it was about the above allegations. After the story was published the next day, the applicant lodged her complaint with the office of the Press Ombud. It must be stated that the article went into some details of the allegations.
3. In his Ruling, the Ombud summarized the applicant’s complaints. He stated them as:

“1.1      Khumalo complaining that the:

1.1.1 journalist did not afford her reasonable time to properly comment on the allegations against her prior to publication;

1.1.2 reportage was malicious and caused her harm; and

1.1.3 information reported in the article was neither substantiated, verified, accurate nor fair”.

The summary was accurate. The Ombud then tabulated sections of the Code which were relevant. In its response, the respondent said that it had given the applicant time to comment on the allegations and that it had seen certain documents, including the confession, on which it relied. It also denied that the reportage was malicious and that the publication was unsubstantiated.

4. For an application to succeed, the applicant must show reasonable prospects of success before the Appeals Panel.
5. It is true, as already said, that the applicant was approached on the evening of the publication, around 18:33, when the text message was sent. Respondent stated that several unsuccessful attempts were made prior to that to contact the applicant. No less than 12 calls were made without answer, including three WhatsApp messages, one of which was indicated as having been read. Eventually, the journalist used a friend’s phone to send applicant a message, which was responded; the response was reflected in the article. The response was “Thank you for informing me and all the best with your story”. I do not understand how much time was needed for one to simply admit or deny allegations of involvement in a murder, especially in respect of someone you were close to and who was allegedly shot in your presence. One would expect the answer to be immediate and spontaneous. The complaint that the applicant was not given reasonable time to respond to the allegations cannot stand.
6. The Ombud dealt fully with the complaint that the story was malicious and injurious to the applicant’s dignity and reputation. The story indicated the sources of the information, and stated that they were claims, and that investigations were continuing. The article went into some details regarding its sources, including what it termed official documents. It had seen the confessions. The claim that the contents of the reportage were unverified, unsubstantiated or inaccurate cannot therefore stand. The respondent did not have to proof the truth of the allegations made; it was sufficient to present them as claims or allegations by certain people. If there were to be anybody malicious, it would be the people who fed all the information to the journalist. In coming to the conclusions he did, the Ombud dealt extensively with the complaints. The applicant’s argument in the application for leave to appeal did not take the matter any further. One sympathises with the applicant’s complaint about allegations that were flying in the media, but it is difficult to understand why she could not on the spot respond to the allegations of her involvement raised by the journalist because she must have at all times been aware of their truth or otherwise.
7. For all the above reasons and those given by the Ombud, the application has no reasonable prospects of success and it is therefore dismissed.

Dated this 10^th day of March 2021

Judge B M Ngoepe, Chair, Appeals Panel