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Appeal Decision: Peter Moss vs Bhekisisa

Sat, Apr 29, 2023


In the matter between:

PETER MOSS                                                                                                           Applicant


BHEKISISA                                                                                                           Respondent

Matter No: 9622


  1. This is an application by Mr Peter Moss (applicant) for leave to appeal a Ruling of the Deputy Press Ombud dated 17 February 2023 which dismissed the applicant’s complaint lodged against Bhekisisa (respondent). The respondent was the author of the article complained about, published on 2 September 2022 in a number of publications, namely, News24, the Mail & Guardian, The Daily Maverick and Financial Mail. The complaint was initially declined by the Public Advocate on the basis that there was no prima facie breach of the Code.
  2. The article was about the contentious issue of the licencing of the possession of firearms, and its possible connection or lack of connection to especially crimes such as murder. It referred to a number of articles and researches. It would be fair to say that the article was more biased in favour of a more strict control of the possession of firearms. It would also be fair to say that the applicant was not supportive of a strict control or restriction of the possession of firearms at least not to the extent contended for by the respondent.
  3. The complaint as summed up in the Ruling: The article is factually incorrect in many respects such as that “firearms have special powers … other objects do not have;” that the article’s techniques of persuasion are based on emotional pleas; that the article is not balanced and does not point out consequences to those without firearms to defend themselves.
  4. In its response (again as summed up in the Ruling), the respondent denies the above allegations. It contends that the findings it quoted in support of its article were from sound academic studies. It said there were two main claims in the article. Firstly, that gun murders declined after the Firearms Control Act 60 of 2000 was passed. Secondly, that there was an indication that weaker gun control laws increased murder incidents in various states in the USA while, by contrast, stricter control reduced murder in Colombia. Respondent referred to various publications.
  5. I refer only in passing, briefly, to the question whether the article was an opinion piece or not; I say only in passing because, for the reasons I give later, that issue per se is not germane to my determination of the application before me. The heading to the article was: ANALYSIS / These gun laws saved 30 lives a month in two big cities. Here is what it could mean for SA” (Own emphases). Yes, not what it means, but what it could mean! Other headlines do not differ materially, all wondering as to what could work or be done. Therefore, apart from the contents of the article, regard being had to the emphasis in the headline, a reader would expect to find an opinion, with which to agree or disagree; however, I leave this point there.
  6. The applicant seeks leave to appeal the dismissal of his complaint by the Deputy Ombud. I must now determine whether the applicant has reasonable prospects of success before the Appeals Panel. In doing so, I need not deal with the reasons given by the Deputy Ombud, given the fact that an appeal before the Appeal Panel is an open appeal and therefore that the panel can dismiss an appeal for reasons other than those given by the Ombud or Deputy Ombud.  For reasons different to those given by the Deputy Ombud, I am convinced the applicant has no prospects of success whatsoever before the Appeals Panel. This takes me to the exchange between the Public Advocate and the applicant (complainant). Apart from stating that in his view the article was an opinion piece – something I leave aside – the Public Advocate went on to say the following: “I fully appreciate that you have a different view on the topic. The pro-gun and anti-gun debate (is) an on-going one”. After a few observations, the Public Advocate went on: “I cannot find a prima facie breach of the Press Code in the article. The Press Council’s complaints mechanism is not the forum to decide which side in the debate is correct. I suggest you and/or organizations you are a member of, write letters/opinion pieces to the editors of the publications, to be published in their letter/opinion sections.” In my view, this should have ended the matter right there! That this should have been the case was subsequently vindicated by the applicant himself also seeking to rely on certain researches or reports to advance his contrary view; in other words, this was clearly a matter for debate. I agree entirely with the Public Advocate that our complaints procedure is not a forum to adjudicate debates; it cannot be used to silence, or help prove right or wrong, a particular view in a debate. The complaint procedure cannot – as it is now fashionably colloquially put – be “weaponized” to silence a particular view in a public debate. An attempt to use the procedure that way, coming in the guise of a “complaint”, cannot be entertained.  As the Public Advocate indicated, it was open to the complainant to submit his contrary views to the same publishers with the researches and publications (which it turned out he had) that supported his view or that of his organization. That is where debates about such issues should be taken to.
  7. For the reasons given above or those by the Deputy Ombud, the application is dismissed for lack of prospects of success.

Dated this 29th day of April 2023

Judge B M Ngoepe, Chair, Appeals Panel