Appeal Decision: Khumalo Zakhele vs Ilanga

In the matter of

KHUMALO ZAKHELE                                                                                         APPLICANT

AND

1. Mr Zakhele Khumalo (“applicant”) lodged a complaint against Ilanga newspaper (“respondent”) in connection with a story published on 13 February 2020. The story was in isiZulu. The applicant said he was complaining on behalf of himself and other occupants of the building in question; which he described as being located at 247 Sarnia Road, Rossburgh, Durban. He says the headline on the first page read “Inthukuthelo ngemindeni ezitika ngocansi esikoleni”. He translated the heading as meaning: “Anger about families indulging in sexual intercourse at school”. He complained that the headline portrayed them as people who indulge in sexual intercourse at the school; he said this amounted to a contravention of clause 3.3 of the Press Code; that is, violation of their dignity.

He said the sub-headline read “Kuxoshwa asebephendule amagumbi okufunda imizi yabo” which he himself translated into English as “those who have turned classrooms into their homes are being chased away”. He says the heading and the sub-headline are in violation of article 10.1 of the Code as they are not a reasonable reflection of the content of the story. The applicant argues that nowhere in the story is it state that they were chased away; that happened only after the publication. He also argues that the sub-headline incorrectly stated that they had turned the classrooms into their homes. He also complained about the heading on page 5: “Bakhala ngocansi ‘oluphazamisa abantundi’” which he translated as “They are complaining about sexual intercourse ‘disturbing learners’”. The allegations is also denied.

As the headlines indicate, the issue was the occupation of a building which some people believed belonged to the government, being part of a school. Some families occupied the building and lived there. All other complaints revolved on that issue. Notably, there are contentions that the building had been donated to a certain woman prior to 1994 who in turn rented it out to the families living there. The school governing body, the principal and students wanted those families to leave as the building was part of the school; they wanted more classrooms. The Ombud, in her Ruling dated 18 August 2020, summed up the complaints accurately.

2. The respondent contended that it was clear that the applicant – and other occupants – were not wanted at the school; that the respondent was convinced of the truth of the allegations and that in any case converted commas were used, as shown above; the publication was also in the public interest. The respondent said it had no obligation to speak to the applicant as the story did not mention him; comments were obtained from family members who occupied the building, as also from government officials who contended that the property belonged to the government. The respondent added that it had attached a copy of the “title deed, supporting the school’s contention that the property in question belongs to the provincial government”. There were a few follow-up articles on the story. The respondent denied any breach of the Code.
3. The Ombud analysed in detail the arguments for and against. Reference was also made to court papers in an application brought by the government to evict the families. As far as the issue of ownership is concerned, it has been settled by the title deed and the pronouncement of the Court. What is sad though is the fact that part of the school was not used at all as such. In fact some occupants stated that they had been living in there for more than 20 years and that their children had come to regard the school as their home! This could be regarded as a classic case of building high-jacking, even as the matter served at Court! The Ombud was correct to say that the adjudication was not whether the eviction was just or not, “but only on whether the newspaper’s reporting was reasonable and within the parameters of the Code.” The Ombud correctly pointed out that the headline was an allegation and not stated as a fact. It is clear that the building belonged to the government. The journalist did in fact interview some of the occupants of the building, who do not deny occupying it. Given that it is indeed part of the school, the matter was of public interest. Once the reporting is within the parameters of the Code, as the Ombud has correctly held, there would be no prospects of success before the Appeals Panel. Submissions in the application for leave to appeal do not take the matter any further.
4. In light of the finding that there are no reasonable prospects of success, the following Order is made:

The application is dismissed.

Dated this 7^th day of September 2020

Judge B M Ngoepe, Chair, Appeals Panel