BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between:
SIYAYA TV Applicant
Matter No: 9691
DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
4.1 Regarding the headline “How Siyaya TV took advantage of Bakgatla Ba Kgafela’s fortune”: The applicant complained that the headline was in contravention of clause 10.1 of the Press Code in that it did not accurately reflect the contents of the article. The applicant says that the statement “portrays a picture of the complainant exploiting BBKSIC, whereas in actual fact BBKSIC is significantly benefiting from its relationship with the Complainant”.
4.2 Regarding reference to BBKSIC being the applicant’s “ATM”: This complainant is based on the following statement in the article: “But instead (the applicant) turned the traditional council, which is supposed to safeguard the community’s financial interest, into what amounted to the TV station’s personal ATM.” The applicant says that there was an arm’s length loan agreement concluded with BBKSIC; and therefore that the statement is false. The applicant argues that the respondent has violated clauses 1.1, 1.2 and 1.3 of the Press Code which require truthful, accurate, fair and balanced reporting.
4.3 There was another category of complaints which were related to each other and which the applicant said were also based on clauses 1.1, 1.2 and 1.3. They related to the terms regarding the repayment of the money advanced, absence of the community mandate and the actual amount repaid at a particular time (which amount is in dispute between the applicant and the respondent).
5. In its defence, the respondent argued mainly that its article was based on the report of the commission. Regarding the first complaint (the headline), it argued that the applicant did in fact take advantage of the BBKSIC, rejecting applicant’s argument that it should have only referred to Kgosi John Pilane as the one who had taken advantage of the Bakgatla Ba Kgafela’s fortune. Regarding the issue of turning the traditional council into what amounted to the applicant’s personal ATM, the respondent contended that it was using a metaphor, based on certain undisputed facts to which I will refer later.
6. As said earlier, the Ombud dismissed the entire complaint. The applicant now seeks leave to appeal the Ruling. However, leave is sought only in respect of the dismissal of the complaints set out in paragraphs 4.1 and 4.2 above. I will therefore restrict myself to the two. In doing so, I will be trying to establish whether or not the applicant has reasonable prospects of success before the Appeals Panel.
Regarding the Headline
The transaction was a matter of huge public interest, given the complaints often heard from communities whose tribal lands are exploited for minerals, with many of them not benefitting. In going into this kind of transaction with the council, the applicant ought to have been aware of challenges in dealing with a tribe. It brought the story onto itself. The fact that it had made the leader of the tribe its director did not help either.
The content of the article was focused on the applicant as the beneficiary of the loan, the terms of which, and the circumstances under which it was obtained, were criticized by the commission. The headline was therefore in line with the contents of the article and thus not in violation of clause 10.1 of the Code.
Regarding Reference to the “ATM”
In its defence, the respondent said it was using a metaphor. The applicant argued that an ordinary reader would attach a literal meaning to an ATM (automated teller machine) outside a bank from which one gets one’s own money. It can safely be stated that no reasonable reader can attach such a literal meaning to what the respondent stated. They would understand the statement as conveying that it was easy for the applicant to get money from the tribal council. In fact, a literal meaning would be nonsensical: how can a tribal council be mounted into a wall outside the bank for the withdrawal of its money? The metaphor was justified because of the favourable terms of the loan, such as the fact that the date for the commencement of the repayment was not determined; secondly, at least for a certain period, there was to be no interest; thirdly the loan, running into several millions, was not secured. On the face of it, the loan did not make commercial sense. Secondly, in any case, the phrase “amounted to” which I have taken the liberty of underlining above, clearly conveys the notion of a metaphor. The applicant reads the disputed statement as if the underlined phrase does not exist at all; that would be wrong. Finally, contrary to the applicant’s reasoning, even in the case of an actual ATM, one may withdraw money which does not belong to one, but to the bank, which one would have to repay; for example, a withdrawal on an overdraft or credit card facility. The fact that the applicant would refund the money would therefore not necessarily mean that it was not using the council as an “ATM”.
Dated this 15th day of March 2023
Judge B M Ngoepe; Chair: Appeals Panel