Appeal Hearing Decision: Patriotic Alliance vs News24

Mon, Jun 5, 2023

in the appeals panel of THE press council of south africa

In the matter between:

PATRIOTIC ALLIANCE                                                                                        APPELLANT

and

NEWS24                                                                                                             RESPONDENT

Introduction

1. This appeal concerns the elusive line between statements of fact and expressions of opinion or comment.
2. The respondent, News24, published an opinion piece by its editor-in-chief, Adriaan Basson, entitled “Welcome to the City of Clowns”.  In it, Mr Basson criticizes all of the political parties involved in the coalition developments in the City of Johannesburg.  As for the Patriotic Alliance (“PA”) and its leader Mr Gayton McKenzie, Mr Basson had this to say:

By bringing in McKenzie's PA, the ANC-EFF coalition will ensure they have a majority in these cities. But it will come at a price.

McKenzie and the PA have been blunt about the fact they are in it for the tenders. Their aim will be squarely to capture departments with the highest budgets and opportunities for rent-seeking.” (Own underlining).

3. As the matter unfolded, it became clear that the underlined sentence was the real subject of the complaint to the Press Ombud.  The PA contended that Mr Basson was stating, as a fact, that Mr McKenzie and the PA had bluntly stated that they were “in it [i.e. in the governing coalition] for the tenders”, which the PA contended was not true.  They insisted that they had never said any such thing.
4. In response, News24 contended that the sentence complained of was a protected comment under Clause 7 of the Press Code, which states as follows:

“7.    Protected Comment

7.1    The media shall be entitled to comment upon or criticise any actions or events of public interest; and

7.2    Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all material facts that are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.”

5. News24 contended that the sentence was clearly presented as a comment, and it was Mr Basson’s honestly-held opinion based on statements Mr McKenzie himself had made.  Five examples were given:

5.1 On 25 October 2020, the Sunday Times reported:

“Riverlea, let me show you power. I do not play with power,” he [Mr McKenzie] told a crowd, adding that when he joined the city's governing coalition he had said he “wanted the department of economic development”.  “I prayed.  I said God, if we could just get the department of economic development, because all the jobs for our people are there.”  He added: “All this vacant land and all these buildings that you see are with me now.”

5.2 On 18 November 2021, Herald Live quoted Mr McKenzie as saying:

“Die mense wat vir my gestem het, hulle kan nie wag vir 5 jaar vir werke nie, hulle sit al klaar 15 jaar sonder werk.  Hy weet nie waar sy volgende bord kos gaan af kom nie, hulle het nie geld in die bank nie.  Ek kan vir hulle niks beteken in die opposisiebanke nie ...  Ek praat met Corné Mulder en hy sê vir my hy was 33 jaar in die opposisiebanke en hy't niks vir sy mense beteken nie ...  Dit worry my, ek het nie tyd vir dit nie, ek worry nie oor mense se waardes nie, want onse waardes verskil.”

5.3 On 27 June 2022, eNCA reported as follows:

[SACP spokesperson]: “Is he not violating now procurement processes even before they happen?  How are these people that are opening the factory related to him?  As a mayor, the legislation does not allow you as an office bearer to go around and to recruit for businesses, because

who are you recruiting?” 

[eNCA journalist]: “McKenzie erken hy volg nie normale tender-prosedures nie.”

[Mr McKenzie]: “Elke ding met 'n tender, as iemand op die toneel kom, soos ek, wat nie nag worry oor dit nie, dan sien hulle fout, want ek mors nou met hulle pap en melk wat hulle mee van lewe.”

5.4 On 12 August 2022, News24 reported that a political rival “claimed McKenzie hired contractors without consulting the municipality or getting authorisation from the council”, and that these contractors had caused a sewage spill.  The article quoted Mr McKenzie responding as follows:

“You have no shame, absolutely no shame.  I am here now, and indeed the pipe burst, and it's being fixed.  You left people with bucket toilets for 80 years.  The contractor is on site, the work was done by members of the community and shall continue to be done by members of the community.”

5.5 On 12 February 2023, Rapport quoted Mr McKenzie as saying:

“Die DA sê hulle is nie hier vir mag nie.  Nou wat soek jy in die politiek?  Die politiek is ‘n magspel, moenie die mense bef*k nie!  Kerk is vir bid, ‘n netbaltoernooi vir netball, politiek vir mag!  Corné Mulder sé vir my hy was 25 jaar in die opposisie en hy doen niks vir die mense nie.  My mense werk vandag in die Johannesburg in!"

6. News24 concluded that Mr McKenzie was “saying he will use his political power in coalitions to enrich his supporters through employment and contracts / tenders”.
7. In reply, the PA did not deny that Mr McKenzie had been accurately quoted in the five articles cited, and appeared to acknowledge that Mr Basson’s interpretation of Mr McKenzie’s quoted statements was “honestly-held”.  But the PA persisted with the complaint on the basis that Mr Basson’s comment was presented as a fact.

The Ombud’s Ruling

8. The Ombud considered that, because the sentence complained of appeared within a clearly labelled opinion piece, it should be tested against Clause 7 of the Code (as opposed to Clause 1, which concerns news reporting).  The Ombud accepted, however, that “not every sentence within an opinion piece is always an opinion”.
9. The Ombud found that the sentence complained of – “McKenzie and the PA have been blunt about the fact they are in it for the tenders” – was indeed a comment, not a statement of fact. He gave four reasons, to which we return later in more detail.

9.1 First, he said that in its complaint, the PA seemed to have placed a great deal of emphasis on the word “fact”. He opined that nothing hinged on the inclusion of the word as it “was often used as part of expressions without conveying a literal meaning”.

9.2 Second, the sentence “does not make any specific claims of what McKenzie and the PA have said”. As we say, there is an issue about the way the sentence is couched.

9.3 Third, “the author wrote the piece not in his capacity as a journalist reporting news, but as a journalist writing an opinion piece.  A reasonable reader knows the difference … [and] is therefore already primed to read commentary and opinions rather than expecting news reporting.” While this may be a valid point, it does not, as we show later by reference to precedent, detract from the fact that non-opinion statements may be embedded in an article which is an opinion piece. The manner in which the statement complained about is couched, is also important.

9.4 Fourth, “for the reasonable reader, it must be unfathomable that any politician would use the words, ‘I’m in it for the tenders’, and would therefore not attach a literal meaning to the sentence.  A reasonable reader will know that it is an interpretation of the author.” We do not agree that this would necessarily be the case; we deal with this later.

10. Unlike the common law (concerning defamation), the Press Code does not require, for comment to be protected, “that the facts relied upon must either be stated in the opinion piece or be so notorious that a reasonable reader would know them”.  All the Code requires “is for the author to take fair account of all material facts that are either true or reasonably true’”.
11. The next question, therefore, was whether Mr Basson indeed did so.  The Ombud found that Mr Basson “expressed his opinion that those (undisputed) quotations bluntly show the motives of the PA”, and thus that opinion was “not devoid of any factual basis”.
12. The Ombud accordingly found that the impugned sentence constituted protected comment under Clause 7 of the Code, and dismissed the complaint.

        Issues on appeal

13. The appellant challenges both the Ombud’s finding that the sentence complained of was not a statement of fact, and the finding that it had a factual basis.  In addition, the complainant complained that the sentence breached not only Clause 7.2, but also Clause 1.1,[1] Clause 1.2,[2] Clause 3.3,[3] and Clause 6.[4]
14. An appeal before this Panel is an “open appeal”, in the sense that the Panel is not bound to consider only the clauses of the Code that were invoked in the complaint (indeed, most complaints to the Press Council come from laypersons, who often do not invoke any specific clause of the Code), nor only those clauses considered by the Ombud.  What is required of us is to consider the substance of the complaint and determine whether any part of the Code has been breached.
15. Having said that, we agree with the Ombud that the sentence complained of does not fall to be tested against Clauses 1.1 and 1.2, as (whether it is a comment or a statement of fact) it does not purport to be news reportage. It appears in a clearly labelled opinion piece.
16. Clause 3.3 of the Code, which requires certain standards of care when a person’s dignity or reputation may be harmed, is applicable to both news reports and opinion pieces.  It is important to note that, when it comes to protected comment, Clause 3.3.2 imposes more onerous requirements on the press, precisely because dignity and reputations are at stake.  This requirement is that not only must it match the elements of protected comment under Clause 7.2 – the facts on which it is based must also be “adequately referred to”.  This is in line with the common law relating to defamation.  The word “adequately” implies that the facts need not be expressly stated alongside the comment if they are notorious.
17. It is conceivable that a case could be made that Clause 3.3.2 was breached in this case.  But, in our view, it would not be in the interests of justice to consider this, as the complaint did not raise any issue of reputational harm.  The complainant, being a layperson, was not expected to invoke Clause 3.3.2 specifically but in substance needed to complain of reputational harm if this was to be considered by the Ombud and by this Panel.  While this is an “open appeal”, the PA did not even raise harm to its reputation as an issue in its application for leave to appeal.[5]  It did so for the first time in its heads of argument.  
18. It would thus, in our view, not be fair to News24 – and would amount to an ambush on our part, if we were to consider a breach of Clause 3.3.2 when News24 was not afforded an adequate opportunity to answer to this charge.
19. That leaves us with Clause 6. As seen already, this clause allows for strongly held own views on controversial topics provided there is a clear distinction between fact and opinion, there is no misrepresentation, suppression or distortion of relevant facts. There is a strong connection between Clauses 6 and 7, in particular 7.2. This is not only apparent from the near common language used in both of them, but also from their sequential arrangement. As the respondent’s defence against not only Clause 6, but any clause, is that its comments are protected by Clause 7.2, it would be more convenient to deal with that clause first; once that defence is established, it would be the end of the matter. But if the defence fails, the respondent could potentially be exposed to a possible breach of Clause 6, for the reasons mentioned above.
20. There are therefore two main points in this appeal. First, whether or not respondent is covered by Clause 7; if not covered, the second point would then be whether or not respondent has contravened Clause 6.

Clause 7: Protected Comment

21. There are in particular two requirements in Clause 7.2 which must be met for a comment to be protected. Because they are joined by a cumulative conjunction “and”, they must both be met; that is, it is not enough to meet only one of them (we take the liberty of dealing with them not in the order they come in that Clause). The author must ensure that the comment:
    1. “is presented in a manner that it appears clearly to be comment”; and
    2. “has taken fair account of all material facts that are either true or reasonably true”.[6]

         First requirement: Did the sentence appear clearly to be comment?

22. We agree with the Ombud that a statement does not appear clearly to be comment purely by virtue of the fact that it appears in an opinion piece.  As the Ombud noted, this is consistent with the Appeals Panel’s decision in Goss Marlon v News24.[7]  It is also consistent with the Constitutional Court judgment in The Citizen v McBride, where an opinion piece included a factual assertion that Mr Robert McBride was not contrite for having killed several civilians in a bombing aimed at furthering the struggle against apartheid.[8]  The statement was found not to be true, and thus wrongful, as Mr McBride had expressed contrition at the Truth and Reconciliation Commission, and his testimony at the trial (that he was contrite) was not seriously challenged by The Citizen in cross-examination.[9]
23. We also agree with the Ombud that the inclusion of the word “fact” in the impugned sentence is not decisive.  It can be used figuratively, without elevating an opinion to a factual assertion. That said though, it is doubtful that the complaint was because the complainant necessarily placed a great deal of emphasis on the use of the word “fact.”  Even if the word had not been used and the sentence for example read “McKenzie and the PA have been blunt….that they are in it for the tenders” it is very likely that the complaint would still have been raised. So, in the case before us, it is not just about the use of the word “fact’ but about the manner in which the sentenced is couched – as we show later.
24. We part ways with the Ombud, however, where he found that the sentence “does not make any specific claims of what McKenzie and the PA have said”. As we said earlier, there is an issue about the manner in which the sentence is couched. For example, during his argument before us, Mr Cilliers, for the appellant, argued, not surprisingly, that the sentence conveyed that it was Mr McKenzie and the PA themselves who had bluntly stated that they were “in it for the tenders.” This was why, in his exchange with the Public Advocate, Mr Cilliers challenged Mr Basson to produce statements by Mr McKenzie bluntly stating that they were “in it for the tenders.”  We view the sentence as indeed making a bold and unambiguous claim that Mr McKenzie and the PA had themselves bluntly said that they were “in it for the tenders”, not in those words, of course, but in substance.  It is true that a ‘claim’ may still constitute a comment. In Democratic Alliance v African National Congress,[10] the Constitutional Court was confronted with a claim by the DA that the Public Protector’s report on upgrades to then President Jacob Zuma’s private residence at Nkandla “shows how Zuma stole your money to build his R246m home”.  The majority found that it was an opinion, not a statement of fact.[11]
25. Like the Ombud, we are attracted to the argument by the concurring minority in DA v ANC, that there is “no clear line” between statements of fact and comments, but that an expression lies somewhere on a “fact/opinion continuum”.[12]  But the courts are expected to draw a line.  And, much like the Court in that case, Mr Basson’s statement, at best for him, leaves us “in an invidious position where it is not clear on which side of the line the words fall”.[13]
26. But is that not precisely the problem with the impugned statement?  Clause 7.2 of the Code requires that a comment be “presented in a manner that it appears clearly to be comment” (our emphasis).  The Code requires us to draw a “line”, as difficult as that might be.
27. In our view, Mr Basson’s claim, that “McKenzie and the PA have been blunt about the fact they are in it for the tenders”, crossed the fine line between comment and factual assertion. The article, despite its exaggerated language, was not a work of satire or lampoon, but of political analysis. We do not agree with the Ombud that the fact that the impugned sentence appeared in an opinion piece, would have primed the reader to clearly see the sentence as an opinion and indeed saw it as such. We say so because of the manner in which the statement is couched. The reasonable reader would have understood the statement to mean that Mr McKenzie and the PA had, in fact, themselves stated at some stage (not expressly of course, but in essence) that they were “in it for the tenders”. We also disagree with the Ombud that “for the reasonable reader, it must be unfathomable that any politician would use the words, ‘I’m in it for the tenders’, and would therefore not attach a literal meaning to the sentence. A reasonable reader will know that it is an interpretation of the author.” We do not agree that this would necessarily be the case because, sadly, it is a matter of public knowledge in the country that some politicians have been quite brazen about corruption. This is a context that cannot be ignored, which is why the PA, a political party, is so peeved. Therefore, contrary to what the Ombud says, many people would find the statement hardly surprising. In his argument, Mr Cilliers brought another sensitive angle into the mix, namely, Mr McKenzie’s known criminal past; no need to say anything further about this.
28. We do not suggest that News24 or Mr Basson intended to mislead the reader, nor did the PA suggest that to be the case.  We find only that they should have chosen their words more carefully, to make it “clear” that the statement was not a recordal or paraphrasing but an interpretation of what Mr McKenzie had said.
29. We accordingly find that the comment was not  presented in a manner that it appears clearly to be a comment. On this point alone, the impugned sentence loses the protection offered by Clause 7.2.

        Second requirement: Did the sentence take fair account of all material facts?

30. If we are wrong that the impugned sentence did not appear clearly to be comment, we would still find that it is not protected by Clause 7.2 as it does not meet the second requirement set out in the Clause; that is, we are not persuaded that it took “fair account of all material facts that are either true or reasonably true”.  We say so for the reasons stated below.
31. The five statements by Mr McKenzie, which News24 quoted as the facts supporting the impugned sentence, say nothing about being “in it for the tenders”.  They speak about wanting political power, and wanting to control key municipal departments, in order to create jobs for their people.  On their face, there is nothing sinister about these statements.  And, importantly, nothing is said or implied about “tenders”.  We are not persuaded that “jobs for our people” (a perfectly innocent political campaign promise”) is code for “tenders”.  To read such a meaning into Mr McKenzie’s words would require something more, such as a known history of tender cronyism on his or the PA’s part, which News24 did not allege.[14]
32. It is true that Clause 7.2 permits comments that are “extreme, unjust, unbalanced, exaggerated and prejudiced”.  But the requirement to take fair account of true facts entails a reasonable degree of fidelity to the truth.   
33. In ascertaining whether this line has been crossed, we again find guidance from the concurring minority in DA v ANC:[15]

“The point on the fact/opinion continuum where a statement lies will dictate the level of scrutiny that ought to be applied in determining its veracity or accuracy.  The more the statement tends to be a judgment, opinion, or comment, the less strictly we ought to evaluate its accuracy.  If it is purely an opinion or rhetorical tool, there is more room for exaggeration or provocative paraphrasing.  If it purports to convey a straightforward fact, such as “the polling stations will be closed”, there is little room for reasonable interpretation or cajoling of the exact wording of the message before it becomes undeniably false.”

34. For the reasons that led us to conclude that Mr Basson’s sentence was not clearly presented as a comment, it follows that even if we are wrong and it was a comment, it is very, very close to the line, and thus a higher standard of accuracy is required when we determine whether it has taken fair account of all material facts.  In other words, the more a comment resembles a factual assertion, the less leeway can be allowed for exaggeration, before it becomes a distortion or misrepresentation.
35. In our view, Mr Basson’s statement – “McKenzie and the PA have been blunt about the fact they are in it for the tenders” – indeed crossed the line from exaggeration to a distortion of Mr McKenzie’s words.  It thus did not take fair account, considering the assertive nature of the statement, of all material facts on which it was based.
36. For this reason, too, we would find that Clause 7.2 offers no protection to the impugned sentence.  

Clause 6: Breach of

37. The consequence of the loss of the protection offered by Clause 7.2 is that the respondent finds itself exposed to the danger of being in breach of Clause 6, as earlier indicated. We have already referred to the nexus between the two clauses. The issue of coalition governments as well as corruption through tenders, are topical and people have different views about their desirability; some see them as unworkable and driven by ulterior motives. People are entitled to express or advocate their own views about the participation and/or participants in such governments (be it the PA or Mr  McKenzie) but, says Clause 6, “provided that they clearly distinguish between fact and opinion, and not misrepresent or suppress or distort relevant facts.”  Mr Basson pulled no punches. He spoke of the City of clowns, and said the election of the mayor from a party with one seat was one of the craziest stunts ever pulled off in South African political history. He was of course entitled to make his views known about the coalition government or any participating party including the PA, subject, however, to the above provisos. We have already held, when discussing the requirements for the protection under Clause 7.2, that there has been failure to clearly distinguish between fact and opinion, and also that there was a misrepresentation of what Mr McKenzie had said and thus a distortion. We need not repeat ourselves. The bases on which we came to those findings also apply in respect of Clause 6. In the circumstances, we find that the impugned statement is in breach of Clause 6; it failed to comply with the above provisos.

         Sanction

38. We consider News24’s breach of Clause 6 to be a Tier 2 serious breach, for which an apology is warranted.

      Order

39. For the reasons set out above, the following Order is made:

39.1 The appeal succeeds.

39.2 The Ombud’s Ruling is hereby set aside and replaced by the following: News24 breached Clause 6 of the Code.

39.3 News24 must publish an apology to the Patriotic Alliance.

39.4 News24 must, within 7 days of receipt of this Decision, submit to the Executive Director of the Press Council a draft apology for her approval prior to publication.  The Executive Director shall determine the date of the publication.

Dated this 5^th day of June 2023.

Judge Bernard Ngoepe, Chair of the Appeals Panel

Adv Ben Winks, Public Representative

Mr Tshamano Makhadi, Media Representative

For the appellant:     Mr Charles Cilliers of the Patriotic Alliance

For the respondent: Adv Jabu Chanza, instructed by Willem de Klerk Attorneys