Sizwe Snail ka Mtuze vs. Sunday Times

This ruling is based on the written submissions of Mr Sizwe Snail ka Mtuze, and Ms Susan Smuts, legal editor of the Sunday Times.

Complaint

Snail complains about a story headlined Irate lawyer rages against judge, top court and JSC – Dina Pule appointee taken to task for ‘disturbing antics’ in the Sunday Times, published on 15 September 2013.

Snail complains that:

• the reference to him being a “Dina Pule appointee” was unfair and defamatory; and
• he was incorrectly quoted as saying that he was “wealthy”, and did not care if he was stopped from practicing law.

He raises several times issues about racism in the courts, and argues his case along these lines. Please note that this office is not a court of law, and that I shall therefore not entertain any of these matters. My only concern is with good, ethical journalism – and not with the merits of Snail’s court case(s).

Analysis

The story, written by Khanyi Ndabeni, said that Snail who was recently appointed to a top job by “disgraced minister Dina Pule”, has been accused of “absolutely reprehensible” conduct in court by Judge Sulette Potterill. Snail reportedly described this court as a circus and vowed to fight back “to the bitter end”. And: “Snail said the judge’s attitude was ‘reminiscent of that of an apartheid judge’.”

‘Dina Pule appointee’

The sub-headline called Snail a “Dina Pule appointee”. The story also said: “Snail, who runs his own firm, was appointed by former communications minister Pule to head the e-commerce committee of the ICT policy review panel in March.”

Snail complains that it was unfair and defamatory of the newspaper to call him a Dina Pule appointee. He says that he was legitimately appointed by the Department of Communication in December 2012 after he had received a nomination from the Law Society of South Africa, and argues that this matter implied that he was “an associate to whatever the outgoing Minister has done”.

He calls the phrase in question “tactical” (as his appointment was not political, but as a result of the nomination mentioned above) and argues that this suggestion would mean that all 22 panel members were “Dina Pule appointees”. “This is an unfair statement and not only is it defamatory to me, but I believe that it [is] also defamatory to the Department of Communication.” He adds that he only met Pule twice – when he was appointed, and when she delivered her budget speech in Parliament.

Snail concludes: “This is another attempt by white liberals and racists to not only undermine our Black lead government, but [also to] allow them to make allegations…and get away with it.”

Sunday Times replies that, even though he had been nominated by the Law Society, Pule accepted Snail’s nomination “and the appointment was made”. The minister also announced his appointment. “We submit there is nothing defamatory about the statement… It is a bland statement of fact.”

It adds that the story never said that his appointment was not legitimate, and argues: “He was never implicated in any of Ms Pule’s wrong-doing that we uncovered. If he had been, we would certainly have reported that. The fact that Ms Pule abused her position to enrich her boyfriend does not mean that she did not do legitimate work as well. We reject the contention that mentioning the appointment…is defamatory.”

I have no doubt that Snail was indeed appointed by Pule, and therefore do not have any qualms regarding the accuracy of this issue. The real question, though, is if it was fair.

If there was anything in the story that connected Snail with Pule’s wrong-doing, I would certainly have submitted that the link was unfair and was therefore probably done with some hidden agenda – especially as the story referred to Pule as a “disgraced minister”. However, there is no such indication or implication in the article (as the newspaper correctly argues).

The connection between Snail and “disgraced” Pule may have been unnecessary and perhaps even unfortunate – but this does not mean that it was of such a serious nature that I can conclude that it constituted a breach of the Press Code.

Incorrectly quoted

The story said: “Even if they stop me from practising because of the point I’m making (regarding racism in the courts) I don’t care. I come from a wealthy and educated family. I will survive.”

Snail denies that he said the above. He argues that:

• it is the fight against racism that makes him want to practice law more and more; and
• he used the Xhosa word “engalimbiyo” in his conversation with the reporter – the correct translation of which is “not poor”, rather than “wealthy”.

Sunday Times said that the reference to Snail not caring if he was stopped from practising law was made during a telephone conversation. “Our reporter is adamant that she has correctly quoted him… Our reporter is a person of integrity who has always been willing to own up to errors. We submit that she should be given the benefit of the doubt in the dispute over the quote about disbarment.”

With regards to the use of the word “wealthy”, the newspaper says that the reporter’s notes showed that she quoted him correctly. “We submit that her notes should be accepted as evidence that Mr Snail was properly quoted.”

This puts me in a position where I do not have any sort of some reasonable basis to make a responsible decision for or against any party – and no realistic prospect to find proof of any kind to this effect either.

Finding

‘Dina Pule appointee’

This part of the complaint is dismissed.

Incorrectly quoted

There is no finding on this issue.

Appeal

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman