Appeal Decision: Zakhele Mbhele vs The New Age

Decision: Application for leave to appeal

Applicant: Zakhele Mbhele

Repondent: The New Age

                                                   DECISION

1.This appeal is solely against the sanction imposed by the Ombudsman in his Ruling of 16 July 2013, following a complaint which had been lodged against respondent by the appellant as a result of the story published by the respondent on 18 April 2013. When the appellant lodged the complaint, he did so in his capacity as spokesperson for the Premier of the Western Cape, Mrs Helen Zille, as also for the Government of the Western Cape Province.

2. Some of the complaints were dismissed by the Ombudsman. He, however, did find that the journalist did not state that “he did not or could not verify his information” and that he therefore breached section 2.4 of the Press Code. Secondly, the Ombudsman found that respondent breached sections 2.1 and 2.2 in that, while the story said it had relied on “sources,” this was in fact not the case because it had relied on only one source. Thirdly, the headline and sub-headline were in breach of section 10.2 in that they were misleading.

3. In light of the above findings against the respondent, the Ombudsman drafted a statement to be published on either page 2 or 3 of the respondent. However, according to the draft, the apology was to the “DA and to its leader, Mrs Helen Zille.” This did not satisfy the appellant. He contended that the apology was misdirected: it should instead have been to the “Premier of the Western Cape, Mrs Helen Zille” and to  “the Government of the Western Cape” because when he lodged the complaint, the appellant did so in his capacity as the spokesperson, and thus on behalf of, the two. Leave to appeal was granted to the appellant on that ground; this, in effect, meant that leave was granted to appeal all aspects of the sanction.

4. For a start, it is common cause that the apology was misdirected; it should have been to the Premier and the provincial government. The respondent also accepted this point. The appellant , however, further argues that there should be an apology and a retraction as well, both of which, moreover, should be published on the first page. He argues that the story itself was on page 1, and enjoyed prominence. He argues that for this reason, the damage was too large for an inside page publication of the apology.

5. For its part, respondent argues that, although the headline and sub-headline were found to be misleading, the content of the story, which was found to be correct or could not be faulted, mitigated any harm the faulted headline and sub-headline could have caused. It is also argued that it has not always been so that if the story was on the first page, the correction would likewise be on that page. In mitigation, respondent argued that the Ombudsman found that there was no reason for the journalist to doubt his source; furthermore, the story covered salient aspects of the Premier’s speech and, finally, that an apology was tendered pretty early.

6. We have approached the matter on the basis that it is common cause that the apology was misdirected, and that it should have been directed to the Premier and the provincial government. What remains to be considered is therefore the wording, and the placement of the apology and the correction. We are of the view that there is no need, as appellant asks, for a retraction, particularly in the manner he suggests. As the content of the story was found to be accurate, any harm that was caused by the misleading headline and sub-headline, would have been substantially mitigated or, as it were, “corrected.” We also take into account that an apology was offered. Given the facts and circumstances of the case and for the reasons given above, we hold that publication of the apology and the correction, placed on page 2 or 3, would be sufficient. Accordingly, we set aside the Ombudsman’s sanction, and replace it with the text below, which must be published on the second or third page:

“The New Age unconditionally apologizes to the Premier of the Western Cape, Mrs Helen Zille, and to the Government of the Western Cape, for the incorrect headline and sub-headline that did not reasonably reflect the content of a story; the headline and the sub-headline unfairly blamed the Premier and the provincial government for not employing enough black  people in top positions in the province, and in the process, caused the Premier and the provincial government some serious, unnecessary harm.

The story was headlined Zille fails race test- White males still dominate top jobs in the DA province, published on 18 April 2013. Written by Siyabonga Mkhwanazi, the story about figures that Zille had released a day before the Commission of Employment Equity (CEE) had been about to announce their statistics about the situation in the Western Cape.

The spokesperson for the Premier and the provincial government lodged a complaint with the office of the Ombudsman, who also reprimanded us for neglecting to state that we did not or could not verify our information, and for inaccurately and misleadingly reporting that we based our story on more than one source- regarding the CEE Report- while we in fact used only one source.

Ombudsman Johan Retief dismissed the largest part of the complaint which was about the content of the story, some alleged omissions, and malice.

Visit  www.presscouncil.org.za for the full finding.”

7. The New Age is directed to publish the above text on page 2 or 3.

Dated 15th day of February 2014

Judge B M Ngoepe, Chair

Ms C Mohlala, Member

Prof F Kruger, Member

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