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Peach vs City Press


Tue, Apr 2, 2024

Ruling by the Press Ombud

Date of article:                    17 December 2023

Headline of publication:   “North West Gambling Board appoints ‘lying chair’, found guilty of perjury”

Author:                                  Abram Mashego                                                                                     

  1. Professor Vuyo Peach (“Peach”) complains about an article published by City Press on its online platform and, presumably, in its print publication. Peach is represented by Rishaban Moodley of Cliffe Dekker Hofmeyr Inc.
  1. Rapule Thabane responded to the complaint on behalf of City Press.
  1. This ruling is based on written representations by both parties. In essence, the complaint revolves around the interpretation of, and portrayal of, a judgment of the Labour Court, Johannesburg. I have been provided with the judgment, Peach’s application for leave to appeal and an order of the Labour Appeals Court, amongst other documents.

Background

  1. Peach is the acting executive director of legal services at the University of South Africa (Unisa). He has also been appointed by the North West MEC for Economic Development, the Environment, Conservation and Tourism as chairperson of that province’s gambling board.
  1. City Press described Peach as a “controversial lawyer” and the article in question effectively questioned Peach’s appointment to a public office such as chairperson of the North West gambling board.
  1. The controversy stemmed from comments and findings made by the Labour Court in separate litigation involving Unisa. In short: Unisa approached the Labour Court on an urgent basis to stop the execution of a writ against the university at the instance of a former employee. Unisa’s case in the urgent application was that there was a pending review of the CCMA award in favour of the ex-employee and the execution had to be halted pending the finalisation of the review proceedings.
  1. As head of legal services of Unisa, Peach deposed to the founding affidavit in Unisa’s urgent application. According to the Labour Court judgment, Peach stated under oath that Unisa launched the review proceedings on 5 May 2023. It later emerged that Unisa’s review application was, in fact, launched on 26 October 2022 already.
  1. The discrepancy in dates was extremely material due to certain legalities, technicalities, and rules of the Labour Court that are not of particular importance for this complaint. It will suffice to state that Unisa’s review application lapsed and there was therefore no “pending” review application by the time the urgent application was launched. The absence of a “pending” review destroyed the basis for Unisa’s urgent application.
  1. Another observation made by the Labour Court is that Peach was also the deponent to the founding affidavit in the (lapsed) review application. Consequently, the Labour Court was critical, to put it lightly, that Peach gave evidence under oath that the review application was instituted on 5 May 2023 when he ought to have known he signed an affidavit instituting the review in October of the previous year already.
  1. Acting Judge Sethene of the Labour Court made several comments about the conduct of Unisa’s lawyers (which were not Cliffe Dekker Hofmeyr Inc. at the time) and Peach. The Labour Court ordered that Unisa’s then lawyers were barred from charging legal fees for the application, Unisa was ordered to pay the opposing party’s costs on a punitive scale, and the Legal Practice Council was “ordered to investigate the conduct of Prof Vuyo Ntsangane Peach as to whether he sought to mislead the court in respect of the date of the filing to the review application by Unisa”.
  1. Unisa and Peach sought leave to appeal parts of the Labour Court judgment, which was refused. They then petitioned the Labour Appeal Court for leave to appeal parts of the judgment. I have been provided with an order of the Labour Appeal Court, dated 29 November 2023, in terms of which Unisa and Peach were granted leave to appeal to portions of the Labour Court judgment. This appeal appears to be pending.
  1. Prior to publication, City Press approached Peach for comment and addressed three questions to him, namely: 1) Whether he is challenging the Labour court judgment, 2) his response to the Acting Judge’s comments, and 3) whether Peach has been “cleared” by the Legal Practice Council.
  1. Peach and Unisa responded by informing City Press about the pending appeal, providing the publication with the petition to the Labour Appeal Court, and indicating that the Legal Practice Council has made no finding against Peach.

The complaint

  1. The attack on the article is three-pronged:

14.1 The accuracy of the report is challenged. (Clause 1.1.)

14.2 Peach says there was a breach of Clause 1.2. in that the article was not presented in context and in a balanced manner, without any intentional or negligent departure from the facts by distortion, exaggeration, misrepresentation, material omissions, or summarisation.

14.3 The headline is said to be in breach of Clause 10.1. as it misled the public and/or did not provide a reasonable reflection of the contents of the report.

  1. City Press denied any breaches of the Press Code for reasons set out below.

Accuracy

  1. Peach takes issue with the word ‘lying’, presented in inverted commas in the headline, and the statement that he was found guilty of perjury.
  1. City Press says it merely reported on the Labour Court judgment. Says Thabane: “We contend that there is no clearer case where the judge, with extremely harsh words, pointed out that the complainant was a liar.”
  1. Some of the relevant portions of the judgment, which was also referred to by City Press in the article, read:

18.1. “…Prof Peach is the deponent to Unisa’s founding affidavit (in the “pending” review) and yet he states in this urgent application that the review application was only instituted on 5 May 2023. In clear terms, Prof Peach in Unisa’s founding affidavit in this application elected to be a stranger to the truth. Or perhaps, Prof Peach deliberately meandered into amnesia as a tactic to deceive the court.”

18.2. “It would be remiss of this court not to pronounce on the conduct of Prof Peach, the deponent to Unisa’s founding affidavit. Prof Peach deliberately concealed to this court that Unisa’s review application was filed and served on 26 October 2022.”

18.3. “For someone in charge of the Legal Services at Unisa, albeit in an acting stead, to commit such elementary error warrants the investigation of the Legal Practice Council to establish if Prof Peach deliberately concealed material facts to this court in respect of when the review application was actually filed and served.”

  1. The Labour Court had further criticism for Unisa’s then lawyers for bringing an “absolutely hopeless urgent application” and the “pervasiveness of ineptitude within the organs of state” that the court held to be “a brazen assault on the rule of law and a travesty of justice to the citizens.”
  1. It is not City Press who accused Peach of “lying”. It is made abundantly clear that it was, in fact, the gist of a finding by a court. It is for this reason that the word “lying” was placed in inverted commas in the headline, which is a standard journalistic practice of indicating to readers that the word or statement is attributed to someone. In this case, to a Judge of the Labour Court.
  1. Peach takes issue with the accuracy of the statement that the Labour Court has “found [Peach] to be dishonest”. Says Moodley: “On a simple reading of the judgment the statement is inaccurate. The sting of the statement is that [Peach] was found by the Labour Court to be generally dishonest in the sense of this being a trait or characteristic of him.”
  1. The arguments pose some difficulties.
  1. Moodley states: “The Labour Court made prima facie findings that the Complainant’s evidence in the application before it was not true. This is not the same as finding [Peach] to be dishonest.”
  1. That the Acting Judge did not use the words “lie”, “lying”, or “dishonest” is not, in my view, determinative of the accuracy of the article. To “cho[os]e to be a stranger to the truth”, to “deliberately conceal” facts, “lying” and being “dishonest” are children of the same mother.
  1. After all, the Labour Court’s “prima facie” findings that the evidence given under oath by Peach was “not true” went further than that. It also found – rightly or wrongly – that Peach “deliberately concealed” facts. To “deliberately conceal” facts by stating things that are “not true” under oath, is a finding of dishonesty. The Court felt so strongly about the matter that it ordered the Legal Practice Council to investigate the conduct of Peach. 
  1. This office has held, in National Lotteries Commission vs GroundUp (Complaint 8942), that journalists cannot be constrained to report only verbatim words used during privileged proceedings (except, of course, if such words are presented as verbatim quotes). It was said:

“…[A] journalist’s role can never be to mechanically report what was said during proceedings or published in a public document without interpreting it for his or her readers. There is bound to be a measure of logical inference and subjective observations in the reportage of privileged proceedings that would not make it an unfair or inaccurate account of the proceedings.”

  1. I would add to the above that there is also bound to be a measure of paraphrasing, as long as it is not presented as verbatim quotes. 
  1. The distinction sought to be drawn between “prima facie findings” and “findings”, is without merit. The heart of Peach’s (successful) application for leave to appeal is the opposite of what is being argued before me. The appeal was launched exactly because these findings were indeed made. Peach is aggrieved that the findings were made without affording him an opportunity to state his case and because he contends the findings lacked merit. Disagreement with the findings of the Labour Court, and a pending challenge to the findings, do not erase the fact that the findings have been made.
  1. I am also not persuaded by the argument that the reporting intimated a finding by the Labour Court that Peach is “generally dishonest in the sense of this being a trait or characteristic of him”. A reasonable reader would not seek to draw inferences beyond what is stated in the report and would read the article as a whole (See: Hasina Kathrada vs Times Live [Complaint 92393]) The article is very clear what the scope of, and the reasons for the Labour Court’s findings were. It was about Peach’s affidavits. Moreover, as will be dealt with below, Peach’s’ version of events and his challenge of the findings were extensively addressed in the article, which would also have been read by the reasonable reader.
  1. I therefore find no breach of the Press Code in using the quoted word “lying” or reporting that the Labour Court made a finding of dishonesty against Peach.
  1. However, the statement in the headline that Peach was “found guilty of perjury” stands on a different footing altogether.
  1. Moodley argues: “It is elementary that, to have been found guilty of perjury, [Peach] would have to have been charged and tried and found guilty of wilfully making a misrepresentation under oath. This never happened.”
  1. Thabane attempts to explain the sentence by referencing the dictionary definition of perjury. However, Moodley is entirely correct. Perjury is a criminal offence.
  1. To state that a court of law has found someone guilty of perjury can only mean that a court found Peach guilty of the crime of perjury, which is glaringly incorrect and unfair. The crime of perjury goes much further than a finding that evidence given was untrue or that a witness lacked honesty.   
  1. This part of the headline was in breach of clause 1.1. of the Press Code.

Balance/context/omission

  1. Moodley advances several arguments to substantiate a breach of clause 1.2. of the Press Code. Chief amongst them is an argument that an alleged “fatal flaw” in the Labour Court’s judgment rendered the “judgment unsafe and unreliable”.
  1. Says Moodley: “City Press should not in the circumstances have treated the judgment as making definitive and justifiable findings against the Complainant. To have done so is [a] breach of its duty to report the news fairly and to present news in context and in a balanced manner.”
  1. Later in the complaint, Moodley states that “no reliance could fairly have been placed on the Labour Court’s findings regarding the Complainant.”
  1. Unsurprisingly, Thabane disputes this: “The fact that Prof Peach is appealing the judgment does not render the judgment non-existent, a nullity, and not worthy of being reported on. It stands until it is overturned by a higher court. Moreover, in line with fairness, City Press reflected the fact he was appealing the ruling and outlined his reasons for doing so.”
  1. The publication’s stance cannot be faulted.
  1. It would be unheard of for a journalist to second-guess a judgment of a court of law or to decide which judgments can be “safely relied upon” and which not. It would invite chaos in journalism and undermine the media’s role in the country’s constitutional democracy, which includes respect for the rule of law.
  1. In a long line of decisions of this office, and the Appeals Panel, it has been emphasised that there is no duty on a journalist to verify any statement made during privileged occasions. The duty of a journalist is to report on privileged occasions in an accurate and balanced manner. (See: Forensic Data Analysts, Keith Keating vs Daily Maverick [1 June 2018]; Ramagaga vs Business Day [13 August 2015]; Siyabonga Gama vs Sunday Times [16 June 2021])
  1. City Press deserves credit for seeking comment prior to publication. So does Peach and Unisa for answering the media queries comprehensively and alerting the journalist about the pending appeal.
  1. City Press gave a fair reflection of the responses received:

44.1 The fact that Peach is appealing the decision is highlighted to readers through the use of a sub-heading in bold, “Peach’s appeal”.

44.2 It is stated that the matter is now with the Labour Appeal Court.

44.3 The bases for Peach’s appeal are adequately quoted. So is his explanation for the discrepancy in the affidavit, i.e. why he denies deliberately misleading the court. He attributes the discrepancy to a drafting error.

44.4 The gambling board’s input, that it received no objections against the appointment of Peach, is also reflected.  

  1. In respect of the complaint against the use of the words, “controversial lawyer”, Peach argues that the phrase was unjustifiable and unfair. This is, again, because the Labour Court judgment had to be “treated with circumspection”. He also argues that the phrase imputed that there are “other controversies” involving Peach over and above the Labour Court matter.
  1. The controversy is spelled out for readers. Peach holds one of the most senior positions at a public university. He is an officer of the court as a lawyer. He just took office as chairperson of a public body, being the North West gambling board. The “controversial” label is justified.
  1. The last two paragraphs of the article are also raised in the complaint. These paragraphs stated, “it is not the first time the gambling board has made headlines for the wrong reasons”. City Press recounted a report it carried in the preceding year about “millions of rands [that] had been squandered through misconduct, fraud and gross negligence by board members” and the fact that a disbandment of the gambling board was recommended.
  1. Moodley says it was unfair and unjustified to “compare the appointment of the Complainant with alleged squandering of money, fraud, misconduct and gross negligence by members of the Gambling Board.”
  1. I do not understand the article to have compared or equated Peach’s appointment with the alleged squandering of money, fraud, misconduct and gross negligence by members of the gambling board.
  1. The point made in the City Press article is that the previous board of the gambling board was disbanded amidst controversies, only to be replaced by a new board headed by someone who is also subject to recent controversy. The issue is clearly in the public interest.
  1. There is nothing unfair or unbalanced about the above-mentioned paragraphs.

Headline

  1. The headline does contain a gross inaccuracy about Peach being “found guilty of perjury”.
  1. A pragmatic approach is required where a single phrase or sentence could amount to a breach of more than one clause of the Press Code by confining the issues to the most appropriate – often the most serious -- transgressions. (See: Modise vs Daily Maverick, 7 August 2023)
  1. The inaccuracy is, in my view, is adequately dealt with above through a finding of a breach of clause 1.1. (accuracy and fairness) and will be reflected in the sanction.

Conclusion

  1. City Press breached clause 1.1. of the Press Code by reporting that Prof Vuyo Peach was “found guilty of perjury”. This was inaccurate and unfair.
  1. The breach is a Tier 2 (serious) breach.
  1. The remainder of the complaint is dismissed.
  1. The publication is directed to:

58.1 Apologise to Peach for the inaccurate and unfair statement.

58.2 Publish the apology at the top of the online article and, if the article appeared in print, in the next edition.

58.3 Remove the offending statement from the headline of the online article and indicate to readers that the article has been updated. 

  1. The wording of the apology and the proposed updates shall be approved by the Press Ombud prior to publication.

Appeal

The Complaints Procedure lays down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Herman Scholtz

Press Ombud

2 April 2024