Appeal Decision: Kaizer Chiefs vs Sunday Sun

Mon, Sep 17, 2018


In the matter between:

KAIZER CHIEFS                                                                                                 APPLICANT


SUNDAY SUN                                                                                                RESPONDENT

MATTER NO: 388/06/2018


1.         Kaizer Chiefs (“applicant”), lodged a complaint against Sunday Sun (“respondent”) in connection with the story published on 10 June 2018.

The story in brief: the article said applicant’s goalkeeper, Mr Khune, had some drinks with some people at a certain place during the evening of 28 May 2018.  According to the story, his drink was poisoned and he was taken to a doctor;. As a result, he was unable to attend an occasion on 29 May 2018 at which he was to receive an award.

2.         The applicant denies the truth of the story that Mr Khune was enjoying some alcoholic drinks on the evening of 28 May 2018. The applicant says the story is a fabrication, inaccurate and misleading. They say the reason he was not able to attend the occasion was because he had been unwell for two weeks prior to the occasion; in fact, the applicant had issued a media statement then, when Mr Khune also had to miss a game in Cape Town. The applicant had also arranged with the relevant professional body that Mr Khune’s father would accept the award on his behalf; again this was before 28 May 2018.  Applicant complained strongly about lack of verification of the allegations by anonymous sources.

3.         The Ombud dismissed part of the complaint, while upholding the other; and then imposed a sanction.  The applicant is now seeking leave to appeal the dismissed part of its complaint.  In his Ruling the Ombud summarized the compalint:

4.         To grant leave to appeal, all I need to do is to assess whether or not the applicant would have reasonable prospects of success before the Appeals Panel.  I am of the view that there are such prospects.  It would be inappropriate for me to go into details why but will point to one or two arguable issues.

5.         In his Ruling the Ombud, correctly, says that the issue is not whether the allegations are true.  But, he says, he was satisfied that the respondent “had enough grounds to believe it was justified in publishing those allegations”.  This question and related ones, must be considered, amongst others, against the following facts which are common cause. Applinant’s version:

(a)       Two weeks before the article, the applicant issued a media statement that Mr Khune was ill and would not even play in the last game of the season.

(b)       The doctors advised him against attending the occasion.

(c)       That he was not in a state to take alcohol as he was on prescription

(d)       Applicant’s spokesperson mentioned all these to the journalist.

(e)       An arrangement for his father to accept the award on his part was made before the 28th May.

(f)        Applicant  tendered medical evidence (which was not taken).

(g)       Mr Khune offered to make an affidavit to deny the allegations

(h)       Mr Khune was not contacted

                           Respondent’s version:

(a)       There are three anonymous sources; the tthird would not want to speak to the (Office of) the Ombud. There is no indication that they were independent of each other.

(b)       The place where the alleged drinking and poisoning took place: not named

(c)       Clinic or the doctor to whom Mr Khune was taken: not mentioned; the place not mentioned.

6.         The Ombud gives his reason for finding in favour of the respondent as follows: “My office spoke to the two sources and based on their testimony I am satisfied that it was reasonable for the newspaper to have believed that it was reasonable to report their allegations as allegations, Same goes for the headline …”

7.         The truth or otherwise of applicant’s version is capable of objective assessment; but not respondent’s version because the sources are unknown, the place where the drinking took place is unknown, the place where Mr Khune was taken for treatment is unknown etc. Secondly, doesn’t the sheer weight of the facts raised by the applicant and which are objectively capable of verification, as opposed to the respondent’s version, make a ringing call for the verification of the allegations by the anonymous sources, even as “allegations”? Does the use of the word “alleged” provide  enough protection irrespective of the weight of objectively verifiable facts which point to a different direction?.  In this respect, the applicant referred to a few previous Rulings by the Ombud. It cannot be that irrespective of the quality of a compelling verifiable set of facts, it is reasonable to publish any version as long as it is presented as an allegation.  It is also not clear to me whether it is the Ombud himself who interviewed the two sources or it was, as he puts it, his office.  It is also not clear on what basis, after interviewing them, the Ombud was satisfied.  Who knows the medical records would have shown in relation to Mr Khune’s physical ability to go on an alcohol drinking spree; what would he have said in his affidavit?  I am also concerned about the complaint that Mr Khune was not spoken to.

8.         For the reasons given above, leave is hereby granted to appeal to the Appeals Panel against the dismissed complaint.

Dated this 14th day of September 2018

Judge B M Ngoepe, Chair, Appeals Panel