Appeal Decision: Kormorant vs Mathibedi OTN Holdings

SUMMARY

The headline to the story in dispute read, ‘African Island’ resort for Schoemansville (published on 9 March 2018); and, DWS did not approve foreshore development (15 March 2018); and, Land grab skulduggery (4 April 2018).

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 issue was about a proposed development by Mathibedi OTN Holdings, represented by Thabiso and Onnica Mathibedi, in a dominantly white area In Hartebeespoort.

The stories were about the approval by the Department of Water and Sanitation (DWS) of a resort similar to African Island on the Schoemansville foreshore at Hartebeespoortdam. (African Island was a beach-like development where day visitors could spend the day at a fee, with all sorts of entertainment for young and old. Visitors to this resort were reportedly all black.)

After a meeting with the relevant parties, the Ombud said his first and overriding concern was that this matter had the potential to fuel tension among people of different races, which in turn could escalate into further violence. He directed the newspaper to unconditionally apologise for various breaches of the Press Code.

Kormorant then applied for leave to appeal.

Judge Ngoepe said the Ombud had made a thorough analysis of the matter.  One of the important points he made was that the drawing of a parallel between African Island and the proposed “Wellness Resort” was the heart of the complaint.  The editor knew that at least some of the people in that area were racist.

He said the Ombud was correct to say that a message was conveyed by both stories that the respondent’s occupation of the property was illegal, and that it began working on the property without approval.

The judge concluded:

• It could not be denied that the report were inaccurate
• The reference to African Island did have some racial undertones;
• Opinion was presented as news;
• The Mathibedis were not given a right of reply; and
• Damage to property, threats, harassment and financial loss occurred because of the reportage.

The application for leave to appeal was denied.

THE RULING ITSELF

KORMORANT                                                              APPLICANT

AND

[1]  Kormorant (“applicant”) published online on 9 March 2018 a story with the headline “’African Island’ Report for Schoemansville.”  The story was about a resort to be known as “Wellness Resort” on the foreshore of the Hartbeespoort Dam.  This was a development planned by Mathibedi OTN Holdings (“respondent”).  The gist of the story was about an objection against this development by some residents of the area; a number of reasons were advanced such as that the value of the property in the area would drop; and that the development would not be in keeping with the kind of life practised in Schoemansville.  It would be fair to say that the story evoked emotions, to such an extent that the initial stages of the development, such as the planted flowers and fencing, were vandalised, evidently by those opposed to the proposed resort.  There were allegations that no environmental impact study was made.  The respondent went through a torrid time.

[2]  The respondent lodged a complaint against the applicant with the Office of the Press Ombud.  It complained, amongst others: that the story was inaccurate, biased, that respondent was not contacted for comment and that the story gave the impression that the respondent wanted to grab the land. The respondent also complained against the nature and tone of the story.  A public meeting called at the instance of the respondent to exaplain its position failed to resolve the issue. In its complaint to the Ombud, the respondent wanted, as relief, a public apology, publication of what it regarded as correct information regarding the proposed Wellness Resort together with pictures sourced directly from the respondent.

[3]  In its response, applicant said it had published two opinion pieces on a contraversial matter affecting residents (I understand this to mean that it was a matter of public interest).  Applicant conceded that it mistakenly failed to mark its online piece accordingly; that this mistake was corrected and that it was not averse to apologizing.  However, allegations of racism, hate speech and maliciousness were denied.  Applicant said the publication was errenously labelled “local news” whereas it was an opinion piece.

[3]  The matter found its way to the Press Ombud.  In his Ruling dated 12 May 2018, the Ombud, after thoroughly analysing the matter, upheld most of the complaints and found that the applicant had violated sections of the Press Code, and imposed a sanction.  The applicant is now seeking leave to appeal.

[4]  For leave to appeal to be granted, an applicant must show reasonable prospects of success before the Appeals Panel.  As I said, the Ombud made a thorough analysis of the matter.  One of the important points he makes is that the drawing of a parallel between African Island and the proposed “Wellness Resort” was the heart of the complaint.  The fundamental reason why the parallel was flawed was that other races visited African Island, as the editor conceded.  The editor knew that at least some of the people in that area were racist. The Ombud was correct to say that a message was conveyed by both the first and a second story, that the respondent’s occupation of the property was illegal, or that it began working on the property without approval. Just a few further points: the inacuracy in the report can therefore not be denied; reference to African Island did have some racial undertones, particularly given certain acknowledged racist segments in the area; the “opinion” was presented as news.  Again, it cannot be disputed that respondent’s views were not sought as prescribed by article 1.8 of the Code.  Serious harm was caused to Mr Mathibedi (the developer) as a result of the inaccurate story: damage to property, threats, harassment and financial loss.

[5]  I am not moved by the applicant’s motivation for its application for leave to appeal.  The underlying facts on which the Ombuds Ruling is based, cannot be disputed.  I find no fault in the manner in which he dealt with the matter.  For the above considerations, and the reasons given by the Ombud, my view is that the applicant has no reasonable prospects of success; if anything, the results before the Appeals Panel could be worse.  The application is therefore dismissed.

Dated this 9^th day of July 2018

Judge B M Ngoepe, Chair, Appeals Panel