Appeal Decision: Lehlogonolo Masoga vs City Press

Decision: Application for leave to appeal

Applicant: Lehlogonolo Masoga

Respondent: City Press

Matter No: 1056/03/2015

DECISION: APPLICATION FOR LEAVE TO APPEAL

[1]     In its edition of 29 March 2015 City Press (“respondent”) published a story about Mr Lehlogonolo Masoga (“applicant”).  The headline read “Limpopo Official Racks up R100k Porn Bill”.  It is common cause that the person referred to was the applicant.  The sub-heading read: “Deputy Speaker allegedly ran up the X-rated tab while on a trip to the US.  The official who raised questions has been suspended.  But now the Public Protector is investigating.”  Again, it is common cause that the the Deputy Speaker (of the Limpopo Provincial Legislature) is the applicant.

[2]     The story, as appears from the headline, was that the applicant incurred a bill of about R125,000.00 on offloading pornograhic material while he was on an official trip to the United States; this was on his official cellular telephone.  The story went on to mention that this matter was well known within the Legislature.

[3]     The applicant lodged a complaint against the story with the office of the Ombudsman.  He denied the allegations. He complained that the article was damaging to him; it was not truthful and has violated the Press Code.  He argued that the allegations border “on a political smear campaign to rubbish my name” and demanded proof of the allegations.

[4]     In its response, the respondent listed a number of sources from whom it got the information, amongst them a member of the Provincial Legislature “together with two others.  All of them knew about the bill and the porn allegations.  They put (the journalist) in touch with an official working in the finance department, whom (the journalist) spoke to.  This person confirmed that she had personally seen the bill on her computer screen and that many of the live items on the bill were marked ‘x-rated’”.  The journalist also spoke to members of the union, namely, Nehawu, who told him that they were aware of the so-called porn bill.  Respondent went on: “Two others who work in the provincial legislature also claimed to be aware of allegations about Masoga’s phone bill and that it was because he was watching porn”. Two other members of Nehawu, working outside the legislature, confirmed the allegation, as also some members of the Democratic Alliance.  Respondent also set out steps taken to obtain comments from the applicant and to give him the opportunity to comment, to the extent that applicant postponed the publishing of the story for a week.  Relevant questions had been e-mailed to the applicant.

[5]     Of importance is the fact that the above allegations against the applicant have been referred to the office of the Public Protector for investigation.  Not only is this stated by the respondent, but also by the Provincial legislature in its media statement dated 28 March 2015, the heading of which read: “Political smear campaign against the Deputy Speaker of the Limpopo Legislature”.    Significantly, after confirming that the matter is with the Public Protector, the statement says: that “being the case, we therefore consider this matter (sic) sub judice and unable to elaborate on it.”

[6]     In his Ruling sent to the parties on 22 April 2015, the Ombudsman informed the applicant that as the largest part of his complaint related to the accuracy of the story, i.e. the merits, he could not deal with it as the matter was under investigation by the Public Protector.  From what I have said in the preceding paragraph, the matter is indeed under investigation by the Public Protector and it would have been inappropriate for the Ombudsman to go into the merits of the allegations.

[7]     The Ombudsman dealt with, and dismissed, the only complaint he considered a journalistic one, namely, that “the newspaper has published the story despite denials”.  As the Ombudsman correctly points out, a denial does not mean that the story should not be published.  But if the newspaper has received a response denying the allegations, the denial must also be published or mentioned. This is exactly what happened in the present case.  Mr Masoga’s denial was published; indeed, as I said, publication was postponed for a week to secure his response.

[8]     I have noted carefully what the applicant says in his application for leave to appeal. The points which he says the Ombudsman erred in that he did not consider them, do in fact touch on the merits and may not be gone into given the fact that the matter is in the hands of the Public Protector, to whom we should defer.

[9]     From a journalistic point of view, and without affirming the truth of the allegations, it seems to me that the journalist went out of his way to investigate the existence of the allegations.  In this respect, I refer to paragraph 4 above, contents of which I need not repeat here.

[10]   To sum up:

10.1    The truth of the allegations is being investigated by the Public Protector, and we cannot therefore adjudicate thereon.

10.2    The journalist spoke to several sources, listed in paragraph 4 above.

10.3    The denial of an allegation does not mean that the allegation cannot be published; however, the denial, if given, must also be published;

10.4    Applicant’s denial was obtained and published, and, to this end, the publication of the story was even withheld for a week.

[11]   For the reasons given above, I am afraid the applicant would have no reasonable prospects of success before the Appeals Committee; the application is therefore dismissed.

Dated this 1st day of June 2015

Judge B M Ngoepe, Chair, Appeals Panel