Appeal Hearing Decision: Bheki Khenisa vs Rustenburg Herald

KHENISA BHEKI                                                                                         APPELLANT

AND

[1]     Mr Bheki Khenisa (“appellant”) was granted leave to appeal against the Ruling of the Ombuds dated 14 July 2016 in which his complaint against the Rustenburg Herald (“respondent”) was dismissed.  The article was published in respondent’s edition of 10 June 2016, with the headline “Former Municipal Manager allegedly blamed for R397 million debacle”.  This was referring to the appellant, who, until his suspension, was the municipal manager of Rustenburg Municipality.  There were other allegations mentioned against appellant, and the article also concluded with the sentence: “Several other charges were also investigated against Mr Khenisa”.

[2]     The appellant complained, inter alia, that he was not contacted for comment prior to publication.  In its defence, respondent argued that the article was not critical of the appellant; that it merely reported what was announced in the chambers of the municipal council and that the allegations had appeared in prior other media reports. The respondent also said that it merely recorded what had happened and that, in any case, the appellant had indeed left the employment following a settlement reached with the municipality.  The Ombud dismissed the complaint in its entirety.

[3]     The appellant was given leave to appeal only in respect of the complaint based on the alleged breach of article 1.8 of the Press Code, namely, that respondent failed to give him the opportunity to comment.  It is our view that the appellant should have been given the opportunity to comment.  The article was critical of him; it cast aspersions on his honesty and competence; moreover, it added that there were several other allegations being investigated against him.  During the hearing of the appeal, the appellant produced documents which, at least prima facie, refute the allegations of impropriety levelled against him.  The parties agreed at the hearing that the article has resulted in some personal security issues for the appellant. As a result, we have decided not to mention in detail the allegations made in the article or the responses he tendered before us. In any case doing so was not necessary given our finding that the article was critical of the appellant and that respondent does not deny that it did not ask the appellant for his comment.  After considering the matter, it is our finding that the respondent breached article 1.8 of the Code by failing to contact the appellant for his comment before publishing the article.

[4]     The appellant complained that the allegations in the article hurt his professional reputation a lot. Prior to accepting the post of Rusternburg Municipal Manager, he had been a CEO in two companies.  The appropriate sanction, in our view, would be an apology for not asking him to respond, to be published together with his response to the allegations. Normally, a complainant’s version is submitted to both the Director of the Council and the publisher of the allegations. The latter would then send to the Director, for approval, a draft of the version sought to be published. In the present case, it would be more appropriate for the Panel or its Chair to take over the role of the Director. This is because certain sensitive information, which was common cause between the parties, was conveyed to the Panel in confidence.  The Director, not being privy to such information, would therefore not be well suited to decide on the appropriateness of respondent’s apology and appellant’s response.

[5]     In light of all the reasons above, the following Order is made:

5.1    the appeal succeeds and the Ombud’s Ruling dated 14 July 2016 is set aside to the extent that it dismissed Mr Khenisa’s complaint in terms of article 1.8 of the Press Code;

5.2    Mr Khenisa must within 5 days of the receipt of this Decision submit his brief and succinct response to the critical allegations contained in the edition of the Rustenburg Herald of 10 June 2016, to both the Chairperson of the Appeals Panel and the Rustenburg Herald;

5.3    within 5 days of receipt of Mr Khenisa’s response, the Rustenburg Herald must submit to the Chairperson of the Appeals Panel a draft of

5.3.1      its apology for not having given Mr Khenisa the opportunity to respond to the allegations contained in its edition referred to in paragraph 5.2 above, and with it,

5.3.2      a version of Mr Khenisa’s response it proposes to publish;

5.4    the Rustenburg Herald must publish the approved apology and Mr Khenisa’s response within 3 days of receipt thereof from the Press Council;

5.5   the publication must be as prominently placed and displayed as the article of 10 June 2016.

5.6  The interaction set out in paragraphs 5.2, 5.3 and 5.4 is to be only between Mr Khenisa and the Rustenburg Herald, and does not involve the Rustenburg Municipality.

Dated this 15^th day of September 2016

Judge B M Ngoepe, Chair, Appeals Panel

Ms S Smuts Member, Media Representative

Ms C Mohlala, Member, Public Representative