Appeal Decision: Ladybrand Rekord vs Mkhunjulwa Nkosinathi Eric

SUMMARY

The headline to a post on Twitter read, BREAKING NEWS: MUNICIPAL SPOKESPERSON BEING INVESTIGATED BY TWITTER FOR RACIAL REMARKS (posted in January 2016).

This ruling by Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.

A Facebook update alleged that Twitter was investigating a tweet of Ladybrand municipal spokesperson Eric Mkhunjulwa who “created and posted a photoshopped and edited version of a post” about waterleaks in town, originally posted by a DA councillor.

Mkhunjulwa complained that:

• he did not get a right of reply;
• the report was misleading, untruthful, unfair and biased in that he had not photoshopped a photograph and edited a comment, and that Twitter was investigating him in this regard; and
• the report was demeaning to him and to his office as it incited racial tensions in the area.

The Ombud said there was no evidence that the newspaper had independently verified the claims made in its Facebook update. The information in the headline and story could also not be proven. The Ladybrand Rekord was directed to apologise to the complainant for not giving Mkhunjulwa a right of reply. It also had to update the original status to indicate that it was incorrect “and therefore retracted”.

Mkhunjulwa then applied for leave to appeal.

Judge Ngoepe dismissed the complaint as the application for leave to appeal was way out of time.  He said he could not find any substantial reason for the delay.

THE RULING ITSELF

LADYBRAND REKORD                                                                            APPLICANT

AND

[1]     Mr Nkosimathi Eric Mkhunjulwa (“respondent”) lodged a complained with the Office of the Press Council Ombud against a story which appeared on the Facebook platform of the Ladybrand Rekord “(applicant”) on or about 9 February 2016, with the headline “MUNICIPAL SPOEKSPERSON BEING INVESTIGATED BY TWITTER FOR RACIAL REMARKS”. The person referred to was the respondent. The story went on to say that the respondent was being investigated by Twitter for having “created and posted a photo shopped and edited version of a post originally posted” by a DA Councillor.  The respondent is a confessed member of the ANC.  It was said that he made certain damming allegations against one of the resident of the town. The respondent denied all the allegations while the applicant stood its ground.  The respondent also complained that he was not contacted for comment.

[2]     The matter was adjudicated upon by the Deputy Ombud. In her Ruling dated 7 March 2016, she found that the applicant had violated articles 1.1 and 1.8 of the Press Code and, to that extent, upheld respondent’s complaint.  As a sanction, the applicant was ordered to apologise to the respondent, and to effect the necessary correction.

[3]     The applicant is now seeking leave to appeal the Ruling, and the respondent opposes it.  Of course, the requirement is that an applicant must show reasonable prospects of success before the Appeals Panel.  But there is, however, a first hurdle the applicant must overcome.  In terms of article 3.7 of the Complaints Procedure, a party wanting to appeal the Ruling of the Ombud must apply to the Chair of the Appeals Panel within 7 working days of receipt of the Ruling.

[4]     The Ruling was dated 7 March 2016 and therefore sent to the parties soon thereafter.  The application for leave was launched only on 14 June 2016; i.e just more than 3 months later. By all accounts, the application was way out of time.

[5]     Upon the advice of the Director of the Press Council, the applicant also filed an application for the condonation of the late filing of the application for leave to appeal.  I must therefore first decide on whether the condonation should be granted.  Curiously, one of the factors for consideration is whether there are reasonable prospects for success, though this is not necessarily decisive.  I have no difficulties in dismissing the application for condonation, for the reasons given below.

5.1    As already mentioned, the application for leave to appeal was way out of time.  One of the principles underlying the process is that matters should be finalized as expeditiously as possible.  To condone such a delay would compromise this principle.

5.2    A bad precedent would be created.

5.3    I have read the applicant’s explanation for the delay.  I find it devoid of substantial information; in particular, it does not give dates as to when the applicant became aware of the Ruling; when the person who was in charge left its employment, etc.  There is absolutely no time frame given of applicannt’s activities helping to just understand the delay.

5.4    A delay in exercising one’s rights, if not adequately explained, demonstrates lack of interest, lack of the desire to treat the matter with zeal.  This is to some extent also indicated by the manner in which the applicant made its submissions to the Deputy Ombud before adjudication: it was only after the Ruling that certain points were dealt with in detail; for example, the efforts taken to contact the respondent.

[6]     In light of what is stated above, the application for the condonation of the late filing of the application for leave to appeal is dismissed.  With that, the application for leave to appeal the Deputy Ombud’s Ruling of 7 March 2016 also falls and it is not necessary to consider it.  Even if the application had shown prospects of success before the Appeals Panel, I would still not have granted it for the reasons given in paragraph 5 above.

Dated this 21^th day of July 2016

Judge B M Ngoepe, Chair, Appeals Panel