Appeal Decision: South African Jewish Report vs Lorgat Hassen

In the matter of

SOUTH AFRICAN JEWISH REPORT                                                              APPLICANT

AND

1. South African Jewish Report (“applicant) seeks leave to appeal a Ruling by the Press Ombud dated 28 January 2021. It was a Ruling on a complaint lodged by Mr Hassen Lorgat (“respondent”) of the Palestine Solidarity Alliance on behalf of the South African Boycott Division and Sanction (BDS) Coalition and  a labour union GIWUSA.
2. The Competition Commission and the Department of Trade and Industry gave approval for the taking over of Clover by the Israeli Central Bottling Company which was in turn owned by another Israeli company known as Milco. SA BDS and GIWUSA were opposed to the takeover. There was a long strike by members of GIWUSA and, in response to the approval of the takeover, GIWUSA came up with a cartoon which accompanied a Facebook text of SA BDS. The cartoon depicted the head of an apparently huge person stuffing his mouth with banknotes with the picture of a small person sitting next thereto with an empty plate. The message was obvious. To briefly contextualize the dispute: SA BDS runs a campaign against the occupation by Israel of areas that SA BDS believes belong to the Palestinians; as a result, it runs amongst others a campaign to boycott Israeli produce from such areas. In their view Milco operated in occupied territories. GIWUSA too also opposed the proposed take-over which it felt would not be in the interest of the workers; hence the cartoon. The rest of the cartoon was filled with a Clover product.
3. In response to the cartoon, the applicant published an article on 22 October 2020 with the headline “Anti-Semitic Clover cartoon is BDS’s sour ‘last grapes’”. The accompanying article said amongst others that the cartoon was posted to encourage South Africans to boycott Clover Industries. It also disputed the fact that Milco operated in occupied territories. After the publication of the article, the respondent and GIWUSA lodged a complaint against the applicant about the headline and the article. They argued that both the headline and the article accused them of being anti-Semitic, and alleged that several articles of the Code were breached. In his Ruling, the Ombud accurately summarized the complaints as follows:

“1.1      The SA BDS and Giwusa complain that the:

                                      1.1.1 article wrongly labelled them as anti-Semites, following the publication of an ‘anti-Semitic’ cartoon on the                                                  former’s Facebook;

                                     1.1.2 statement that Milco SA, Clover’s holding company, did not operate in the occupied territories was false and                                             unverified;

                                    1.1.3 journalist showed her bias by not seeking Giwusa’s views;

                                   1.1.4 headline was misleading; and

                                   1.1.5 publication has not supplemented the article once new information became available.

            1.2 Lorgat asks for a harsh reprimand, a retraction of the headline from both the print and online version, and for an apology to Giwusa and the BDS….”

4. As the Ombud correctly puts it, anti-Semitism “is widely accepted to mean hostility to, prejudice, or discrimination against Jews”. The ultimate question was always going to be whether the applicant’s article with or without the headline, correctly labelled the cartoon as anti-Semitic, or whether the headline alone did so. The Ombud was of the view that the cartoon should not be viewed in isolation but with reference to the context of the respondent’s Facebook as well as the applicant’s article. But the applicant’s description of the cartoon does not go anywhere near connecting the cartoon to either Jews or Israel. Turning to the respondent’s Facebook text, the high watermark of the applicant’s case are the words in the caption which read “Greedy bosses connected to apartheid Israel”. The focus is indeed on “greedy bosses”. But they may not necessarily be Jews; they may be anybody else. The description “connected to Israel” is also non-specific; a non-Jew may be connected to Israel. The problem is that the applicant presented it as a fact that the cartoon and the text were anti-Semitic, not as an opinion. It must be patently obvious that the cartoon alone does not necessarily denote Jewish people or Israel. Well, respondent’s Facebook does not take the matter any further, nor does the reading of applicant’s article. That must be the end of the matter.
5. Submissions by the applicant in its application do not take the matter any further. The contents of the respondent’s Facebook text, as well as those of the applicant’s article, speak for themselves; so too the cartoon.
6. In coining its grounds of appeal, the applicant embarked on a hair splitting exercise. It  argued that the Ruling found breach of certain clauses that had not been relied upon by the respondent. Related to this argument, is the one that the applicant was not given the opportunity to respond to those charges, which, it claims, constituted a new case. The respondents contest the two arguments. They have no merit. The office of the Ombud receives complaints from complaints most of who are not lawyers and who sometimes do not even quote individual or relevant sections of the Code, yet convey the substance of the complaint in a clear manner. They need not cite precise sections of the Code in correlation to their complaints; all they need to do is to present a clear complaint. Would one dismiss a case for lack of citation of a specific section of the Code, or a wrong citation, despite the facts relied upon being clear? At any rate in the present case, who, reading the complaint, can be in doubt as to what the complaint is, namely, that both the headline to its article and the article itself wrongly accused the complainants of being anti-Semitic? This was the charge the applicant was aware of at all times, and this was the charge to which it devoted time and energy to contest, and, let it be added, vehemently so. Substantive and comprehensive submissions were made in support of, and against, the charge by the parties, followed by a thorough analysis and consideration by the Ombud. At no stage did the Ombud wonder out of the facts placed before him, nor is any finding of breach based on any such (extraneous) facts. At all material times the applicant knew not only the substance of the complaint, but its nature and ambit. Ample opportunity was given to the applicant to make representations which, as already mentioned, did so comprehensively. The two grounds of appeal have no substance. The third ground has already been disposed of above, namely, that the applicant did state as a fact that the complainants were anti-Semitic. What is stated as a fact cannot be turned into an opinion, or anything else, by views expressed by so-called experts’, even less so if they are not category in their views, and worse still contradicted by others – all of which was the case in the present matter. The Ombud’s view that the charge was stated as a fact was therefore correct.
7. For the reasons given above as well as those by the Ombud, I am of the view that the applicant has no reasonable prospects of success on appeal. Regarding an appeal against the sanction imposed by the Ombud, there are also no reasonable prospects that the Appeals Panel would consider it to be so severe as to warrant interference. The accusation of anti-Semitism is a serious one, and may not be taken lightly. The application for leave to appeal is therefore dismissed.

Dated this 8th day of March 2021

Judge B M Ngoepe, Chair, Appeals Panel