Appeal Decision: Siyaya TV vs amaBhungane

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between:

SIYAYA TV                                                                                                               Applicant

And

AMABHUNGANE                                                                                               Respondent

1. This is an application by SIYAYA TV (applicant) for leave to appeal the Ruling by the Press Ombud dismissing its complaint against AMABHUNGANE  (respondent). The complaint was against an article authored by the respondent’s journalists and published by News24 on 20 November 2022. News24 indicated that it would abide the decision of the Ombud.
2. The article was headlined: “How Siyaya TV took advantage of Bakgatla Ba Kgafela’s fortune”. The crux of the story was that the Bakgatla Ba Kgafela tribe under Chief John Pilane, had, through its investment company, invested millions of rands in the applicant. The investment entity was known as the Bakgatla Ba Kgafela Investment Company (Pty) Ltd (BBKSIC). The investment was in the form of an investor loan; the amount advanced to the applicant was R78,400,000.00. I refer later to some of the relevant terms of the loan; suffice to state that it was unsecured and apparently at least at some stage interest free. Also relevant to mention at this stage is the fact that Kgosi John Pilane was at the time the money was advanced, already a director of the applicant. The above amount was later increased. The tribe derives its wealth from some mineral reserves on its land. The applicant needed the money to start up its television business, once it had obtained the required licence from ICASA.
3. Presumably as a result of complaints by other members of the community, the North West Government appointed a commission of inquiry into this venture between the applicant and the BBKSIC. One of the relevant issues here is that when the venture needed more millions later, only the BBKSIC advanced more money; other investors did not. After investigations, the commission of inquiry issued a report. Amongst others, the report said that there was no evidence that the community had been consulted; it also stated that some details were not completed into the documents.
4. The Ombud summarized the complaints in his Ruling, dated 7 February 2023, as set out below.

4.1 Regarding the headline “How Siyaya TV took advantage of Bakgatla Ba Kgafela’s fortune”: The applicant complained that the headline was in contravention of clause 10.1 of the Press Code in that it did not accurately reflect the contents of the article. The applicant says that the statement “portrays a picture of the complainant exploiting BBKSIC, whereas in actual fact BBKSIC is significantly benefiting from its relationship with the Complainant”.

4.2 Regarding reference to BBKSIC being the applicant’s “ATM”: This complainant is based on the following statement in the article: “But instead (the applicant) turned the traditional council, which is supposed to safeguard the community’s financial interest, into what amounted to the TV station’s personal ATM.”  The applicant says that  there  was an arm’s length loan agreement concluded with BBKSIC; and therefore that the statement is false. The applicant argues that the respondent has violated clauses 1.1, 1.2 and 1.3 of the Press Code which require truthful, accurate, fair and balanced reporting.

4.3 There was another category of complaints which were related to each other and which the applicant said were also based on clauses 1.1, 1.2 and 1.3. They related to the terms regarding the repayment of the money advanced, absence of the community mandate and the actual amount repaid at a particular time (which amount is in dispute between the applicant and the respondent).

       5. In its defence, the respondent argued mainly that its article was based on the report of the commission. Regarding the first complaint (the headline), it argued that the applicant did in             fact take advantage of the BBKSIC, rejecting applicant’s argument that it should have only referred to Kgosi John Pilane as the one who had taken advantage of the Bakgatla Ba                   Kgafela’s fortune. Regarding the issue of turning the traditional council into what amounted to the applicant’s personal ATM, the respondent contended that it was using a metaphor,               based on certain undisputed facts to which I will refer later.

       6. As said earlier, the Ombud dismissed the entire complaint. The applicant now seeks leave to appeal the Ruling. However, leave is sought only in respect of the dismissal of the                      complaints set out in paragraphs 4.1 and 4.2 above. I will therefore restrict myself to the two. In doing so, I will be trying to establish whether or not the applicant has reasonable                    prospects of success before the Appeals Panel.

Regarding the Headline

7. The applicant argues that the headline should have rather stated that it was Kgosi John Pilane who took advantage of Bakgatla Ba Kgafela’s fortune. Here again the respondent was relying on the findings of the commission and also on certain facts which the applicant could not dispute; for example, that Kgosi Pilane was already a director of the applicant when the loan was given, and clearly conflicted; the commission found the transaction to be prejudicial to the community; that there was no evidence that the community was consulted; and, as already mentioned, the terms of the loan were favourable to the applicant, including the extension time for the repayment. The applicant cannot hide behind Kgosi Pilane, who was its director. People would in fact be justified to wonder why he was appointed a director and then low and behold, a loan comes with favourable terms! It is hard to see how the applicant can reasonably argue that it did not benefit financially from the fact that Kgosi Pilane, the head of the tribe, was at the same time its director.

The transaction was a matter of huge public interest, given the complaints often heard from communities whose tribal lands are exploited for minerals, with many of them not benefitting. In going into this kind of transaction with the council, the applicant ought to have been aware of challenges in dealing with a tribe. It brought the story onto itself. The fact that it had made the leader of the tribe its director did not help either.

The content of the article was focused on the applicant as the beneficiary of the loan, the terms of which, and the circumstances under which it was obtained, were criticized by the commission. The headline was therefore in line with the contents of the article and thus not in violation of clause 10.1 of the Code.

Regarding Reference to the “ATM”

8. As mentioned already, the basis of the complaint is the statement that the applicant “turned the traditional council … into what amounted to the TV station’s personal ATM”. Own emphasis ( and respondent’s).

In its defence, the respondent said it was using a metaphor. The applicant argued that an ordinary reader would attach a literal meaning to an ATM (automated teller machine) outside a bank from which one gets one’s own money. It can safely be stated that no reasonable reader can attach such a literal meaning to what the respondent stated. They would understand the statement as conveying that it was easy for the applicant to get money from the tribal council. In fact, a literal meaning would be nonsensical: how can a tribal council be mounted into a wall outside the bank for the withdrawal of its money? The metaphor was justified because of the favourable terms of the loan, such as the fact that the date for the commencement of the repayment was not determined; secondly, at least for a certain period, there was to be no interest; thirdly the loan, running into several millions, was not secured. On the face of it, the loan did not make commercial sense. Secondly, in any case, the phrase “amounted to” which I have taken the liberty of underlining above, clearly conveys the notion of a metaphor. The applicant reads the disputed statement as if the underlined phrase does not exist at all; that would be wrong. Finally, contrary to the applicant’s reasoning, even in the case of an actual ATM, one may withdraw money which does not belong to one, but to the bank, which one would have to repay; for example, a withdrawal on an overdraft or credit card facility. The fact that the applicant would refund the money would therefore not necessarily mean that it was not using the council as an “ATM”.

9. For the reasons given above, the Ombud’s Ruling cannot be faulted. I therefore find no reasonable prospects of success before the Appeals Panel; the application is therefore dismissed.

Dated this 15^th day of March 2023

Judge B M Ngoepe; Chair: Appeals Panel