Appeal Decision: Sunday Times vs Mgidlana Gengezi

In the matter between

SUNDAY TIMES                                                                                                 APPLICANT

AND

1.         This is an application by the Sunday Times (“applicant”) for leave to appeal the Ruling of the Ombud’s Panel (“the Panel”) dated 9 November 2017 to the Appeals Panel.  The Ruling was on a complaint by Mr Gengezi Mgidlana (“respondent”).  The complaint was against an article which appeared in the applicant’s edition of 18 July 2017, with the headline: “New twist in case against Mgidlana”.  The respondent is Secretary to Parliament.  The story reported that the respondent had been suspended from his duty, while certain investigations against him were being conducted.  It said certain documents had been stolen from the chambers of one Advocate Nortje who was to represent the suspended head of Parliament security, Ms Holtzman, against the respondent, who, the story said, had suspended Ms Holtzman.  The story said the advocate said that “it was strange that the documents were stolen just weeks after parliament asked its audit committee to investigate all the allegations levelled against Mgidlana”  and also that the “documents were due to be submitted as evidence against Mgidlana”. The respondent’s picture was put above the article.

2.         The respondent raised a number of complaints.  The Ombud decided not to hear the matter alone; he asked two members from the panel of adjudicators to sit with him, one representing the media, and the other representing the public.  The Ruling of the panel correctly summarized the complaints as follows:

“The gist of Mgidlana’s complaint is that the reportage unfairly and falsely linked the disappearance of a ‘red suitcase’, containing the Holtzman’s files’, to Parliament’s investigation into allegations levelled against him – creating the impression that he had been involved in a criminal act (theft) to make ‘evidence’ against him disappear (adding that the newspaper intended to harm his reputation and damage his character).

He also complained that the:

·                story contained several inaccuracies with regards to his and Ms Zelda Holtsman’s suspensions;

·                headline was sensationalist and misrepresented the story and that the use of his picture accentuated those misrepresentations; and

·                journalist did not give him an opportunity to respond.

In general, he says that the story flouted numerous clauses of the Press Code, and brought the standing of not only the Secretary to Parliament and the Parliament of South Africa into disrepute, but also that of the profession of journalism itself”.

The applicant denied the above assertions.  Regarding the alleged denial of the respondent’s right to respond, it was argued that there was no need to approach him as the journalist had spoken to Parliament’s spokesperson.

3.         After analysing the submissions by both parties, the Ruling dismissed a number of complaints, but upheld others, set out below. The applicant now seeks leave to appeal these findings.  In its application for leave to appeal, the applicant has raised a number of points to challenge the findings.  I propose to deal with these findings seriatim.

3.1    The Ruling found a breach of section 1.3 of the Press Code in that the applicant had stated as fact that the documents were stolen.  I agree with the Ruling that it was stated as a fact that the documents were stolen when this should have been reported as an allegation.  Apart from the Ruling’s analysis, I add that the mere disappearance of the documents did not justify, as the applicant seeks to argue, the conclusion that they were stolen.  The advocate’s word could not be sufficient source; he could not have been there when they were stolen, if they were indeed stolen at all. He did not lay sufficient basis for theft, as opposed to say a disappearnce of some sort; that his chambers faced a street is not sufficient. It may be a fact that a case of theft was reported; but this is still under investigation.

3.2    A breach of section 1.1 of the Code: applicant inaccurately reported that the respondent was suspended, whereas he was on special leave.  I need not add to what the Ruling says.  However, I find the applicant’s attempt to play down the distinction between a special leave (which one may ask for) and a suspension bordering on the absurdity; for one thing, there certainly is some stigma attached to the latter.

3.3    The headline was in breach of section 1.3 of the Code: reasonably reflecting as it did the content which wrongly presented an allegation as fact, it fell foul of the section.  It may be that the Ruling did not clearly come out on this. But the problem is that the applicant could find itself at the horns of a dilemma: either the breach of section 1.3 or of section 10.1. I do not think the Appeals Panel will lightly interfere here.

3.4    Breach of section 1.8: failure to seek the views of the respondent, who was the subject of critical reportage.  The Ruling cannot be faulted.  Just to add: Ms Holtzman, an employee of Parliament like the respondent, was approached by the journalist; why was the respondent not approached?  Secondly, there is merit in the respondent’s argument that his name is being mentioned many times as a key player.  Thirdly, a collection of the allegations, some clearly serious, required his comment.  Some are such that Parliament spokesperson could not meaningfully speak on his behalf.  He was on special leave, implying he was not at work for the spokesperson to easily consult with him for his views in formulating a response on his behalf. Fourthly, it appears from some of the allegations made against the respondent that the answers reposed in his personal knowledge; the spokesperson could therefore not have provided meaningful answers.

4.         For the reasons given above, I hold that the application has no reasonable prospects of success; it is therefore dismissed.

Dated this 6^th day of December 2017

Judge B M Ngoepe, Chair, Appeals Panel