INKATHA FREEDOM PARTY & OTHERS

Transcription

1 CASE NUMBER: 14/1994 DATE OF HEARING: 14, 24 & 31 October 1994 INKATHA FREEDOM PARTY & OTHERS COMPLAINANT vs SABC RESPONDENT TRIBUNAL For the Complainant : In person : For the Respondent : PROF JCW VAN ROOYEN SC MS LAUREN JACOBSON PROF W DE KLERK MR C VAN DER MERWE DR CAROLINE WHITE ADV W HUMA MRS F PEER ADV T BRUINDERS MR C SCHOLTZ Dr GR Oriani Ambrosini Senator Dr Ruth Rabinowitz (one of the complainants) Mr Leander Gaum, Legal Consultant, SABC, Mr Ameen Akhalwaya, SABC, Mr Malan Otto, SABC 1

2 1. INTRODUCTION JUDGMENT On the evening of 25 September, Agenda, a TV1 news programme of the South African Broadcasting Corporation addressed the question whether the position of traditional prime minister of the King of the Zulus may still be said to be occupied by the leader of the Inkatha Freedom Party, Dr M Buthelezi, who had become a member of the Cabinet of the Republic after the elections on the 27 th of April Dr Buthelezi was previously the Chief Minister of KwaZulu. Mr Freek Robinson of the SABC chaired the discussion. His guests were Mr Themba Khoza, a prominent member of the IFP in the PWV province in the Johannesburg studio, and Prince Sifiso Zulu, indicated as a spokesperson of the interim committee of the Zulu royal household, in the Durban studio. Earlier that evening Dr Buthelezi had been a guest on CCV s Newsline in the Durban studios. After the conclusion of Newsline, Dr Buthelezi is said to have requested to view Agenda in one of the offices at the SABC. It is not necessary for us to go into details but before the Agenda programme was over, Dr Buthelezi left the offices and entered the studio where the studio guest was waiting to be interviewed further. Mr Robinson, while interviewing Mr Khoza, became aware of this and crossed over to the Durban studio where the camera, at that stage unmanned * *, televised what took place in that studio: men were standing around and at stages Dr Buthelezi and Prince Sifiso could be seen; voices could be heard and viewers could her Mr Robinson s voice requesting information as to what was taking place. Soon thereafter, the studio guest left, and Mr Robinson invited Dr Buthelezi back into the studio to take part in the programme. The viewers did not see Prince Sifiso Zulu on screen again. Dr Buthelezi explained to Mr Robinson why he had entered the studio and also mentioned that he had assumed that the programme was over when he entered the studio. 2. THE COMPLAINTS * The cameraman had left the camera unmanned so as to reach a telephone and make contact with Johannesburg. 2

3 A number of complaints were received by the BCCSA in regard to the treatment of this incident by the SABC TV Services. In the main, the complaints boiled down to the following: (i) that the SABC had inflated the incident beyond its significance and that, collectively viewed, the news items and discussions of the incident amounted to propaganda against Dr Buthelezi; (ii) that the SABC had not taken sufficient steps in regard to the position of Prince Sifiso Zulu in relation to the royal household; (iii) that there was an inaccuracy in the sub -titles translating the words of Dr Buthelezi, on the TV News on 26 September; and (iv) that the SABC treated Dr Buthelezi unfairly in their TV broadcasts. 3. POINT IN LIMINE The SABC responded by firstly arguing that the only rightful complainant could be Dr Buthelezi himself, and that the IFP and other complainants, who included senator Dr Ruth Rabinowitz had no standing before the BCCSA. Since Dr Buthelezi had not complained, the matter should not be entertained, the argument ran. The Chairperson postponed a decision on this interim matter, and the hearing continued. It was decided that any member of the public has the right to complain on issues such as the inaccuracy of newscasts and the absence of fairness. The viewer/listener is required to lodge his or her complaint timeously and bring it within the ambit of the Code and relate it to a specific programme. Only if such a complaint is fraudulent, frivolous, vexatious or malicious, or if it clearly does not fall within the ambit of the Code, would the complaint not be entertained. 4. THE CODE Clause 2 of the BCCSA Code provides as follows: 2.1. The electronic media shall be obliged to report news truthfully, accurately and with due impartiality. 3

4 2.2. News shall be presented in the correct context and in a balanced manner, without any intentional or negligent departure from the facts whether by: distortion, exaggeration or misrepresentation; material omission; or summarisation Only what may reasonably be true having regard to the source of the news, may be presented as facts, and such facts shall be broadcast fairly with due regard to context and importance. Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly Where there is a reason to doubt the correctness of a report and it is practicable to verify the correctness thereof, it shall be verified. Where it has not been practicable to verify the correctness of a report, this shall be mentioned in such report Where it subsequently appears that a broadcast was incorrect in a material respect, it shall be rectified spontaneously and without reservation or delay. The correction shall be presented with a degree of prominence which is adequate and fair so as readily to attract attention Reports, photographs or video material relation to matters involving indecency or obscenity shall be presented with due sensitivity toward the prevailing moral climate. In particular, the electronic media shall avoid the broadcast of indecent or obscene matter The identity of rape victims and other victims of sexual violence shall not be broadcast without the consent of the victim. 4

5 Clause 3 of the Code provides as follows: 3.1. The electronic media shall be entitled to comment upon or criticize any actions or events of public importance provided such comments or criticisms are fairly and honestly made Comment shall be presented in such manner that it appears clearly that it is comment, and shall be made on facts truly stated or fairly indicated and referred to Comment shall be an honest expression of opinion, without malice or dishonest motives, and shall take fair and balanced account of all available facts which are material to the matter commented upon. 5. MATTERS NOT WITHIN THE BCCSA S JURISDICTION At the outset it must be stated that the following matters do not fall within the jurisdiction of the BCCSA: (i) to decide upon the propriety or legality of Dr Buthelezi s entry into the studio. Indeed, the Cabinet has dealt with the propriety thereof and Dr Buthelezi having been reprimanded, apologized. (ii) to settle the dispute concerning the traditional prime minister of the Zulu King or the position of Prince Sifiso Zulu vis-à-vis the royal household on that evening. What the BCCSA has to ascertain is whether the SABC took reasonable steps in attempting to establish whether he is a spokesperson for the interim committee: royal household. 5

6 (iii) to decide upon the charge that Prince Sifiso was in possession of a gun. the matter is sub judice at present, and it would be improper for us to express any view on that aspect. (iv) to decide upon the manner of compilation and contents of statements by the Group Chief Executive of the SABC. This is a corporate and not a newsroom matter. 6. THE MERITS OF THE COMPLAINTS Regarding the first and fourth complaints as to unfairness, it is our task to establish whether the SABC newsroom took, in terms of clause 3.3 of the Code, fair and balanced account of all available facts and opinions which are material to the matter televised. In this connection the following questions may be asked: (i) Was Dr Buthelezi given a fair opportunity to answer allegations implying deliberate intrusion in the Agenda programme? Was his explanation sufficiently covered in broadcasts? During the interviews on Agenda with Dr Buthelezi on the 25 th he already mentioned that the programme was over when he entered. SABC TV conducted an interview with Dr Buthelezi immediately after he left the Agenda studio. In this interview he explained that he had been unaware that the Agenda programme was still in progress when he entered the studio. He apologized to the viewing public. The apology and explanation were broadcast on several TV newscasts on the evening of 26 th September and the explanation and apology were repeated at the press conference held by the President, which was also televised. During a speech at Nseleni later that week, Dr Buthelezi once again offered an explanation and apology; this was broadcast on Zulu TV News. 6

7 It is therefore our conclusion that the SABC took fair and balanced account of Dr Buthelezi s views in this regard in its newscasts. The SABC has the right to decide what weight and time it should give to a news event. It would be improper for us to intervene in a matter of editorial policy, which is part of the fundamental constitutional right to freedom of expression of a broadcaster. Our task is to decide whether the broadcasts as a whole, given the time which was allocated to the matter, took reasonable and balanced account of all views and explanations. We are convinced that the SABC satisfied these requirements and accordingly there is no evidence of propaganda. (ii) Did Dr Buthelezi have an opportunity to answer allegations of breach of media freedom? The SABC broadcast several statements which accused Dr Buthelezi of having breached the constitutional guarantee of media freedom, including statements made by the African National Congress, the Democratic Party, the National Party, Media Workers Association of South Africa, the South African Union of Journalists, the South African Communist Prty and the Group Chief Executive of the SABC, Mr Sisulu. Dr Buthelezi answered these accusations in his Nseleni speech broadcast later that week. He also had the opportunity of responding to Mr Sisulu s statement to the Cabinet when, at a televised press conference, he said that he had not had the opportunity of speaking to Mr Sisulu about the matter, and that this, in his view, went against the tenets of justice. If the SABC had not broadcast these statements of Dr Buthelezi there may have been evidence of bias. Yet, they were broadcast and the public was informed as to all relevant views. After the Cabinet decision, Mr Sisulu had the opportunity to respond. 7

8 We therefore believe that the SABC took fair and balanced account of Dr Buthelezi s point of view in this respect. (iii) Did Dr Buthelezi have a fair opportunity to answer the allegations and point of view of the studio guest and, later, the view of Senior Prince Mncwayezeni in regard to the position of the traditional prime minister of the King? We have come to the conclusion that ample opportunity was given in this respect. In fact, from the time that he first appeared on the remainder of the Agenda programme the first evening, and during some subsequent repetitions thereof on TV news services, Dr Buthelezi was given the opportunity to speak about the views and position of Prince Sifiso Zulu. During the Nseleni speech he had a further opportunity to put his views, and the relevant aspects of his speech were broadcast. (iv) Did the SABC not concentrate unduly on comments that were critical of Dr Buthelezi? Although comments by the ANC, DP, NP, MWASA, SAUJ, and the SACP criticizing Dr Buthelezi were broadcast, the SABC also broadcast certain comments critical of itself which were made by the IBA, the Institute for Race Relations, and the Media Monitoring Group. In addition the SABC broadcast IFP and CP views supporting Dr Buthelezi. It is our view that this approach covered the main viewpoint and that it was accordingly fair. Although views for and against were not equal in number, the SABC saw fit to broadcast the fact that there was more than one point of view on the matter. This satisfies the test of fairness. 8

9 (v) Did Mr Freek Robinson act fairly by allowing the Agenda programme to continue? Should Mr Robinson and his producer have terminated the programme or underplayed the incident? We are of the view that it would have been contrary to a journalist s duty not to have crossed over to the Durban studios. A news event was unfolding there and Mr Robinson called on an important political leader, and a participant in the event in the studio, to report on what happened. Dr Buthelezi agreed to the request. To have abruptly ended the programme would have amounted to an unjustifiable withholding of readily available live news. Criticism of the Media Monitoring Group would therefore not seem to be justified; criticism from some of the complainants that the whole matter was unduly inflated by Mr Robinson is, accordingly, not justified. (vi) Did the SABC take reasonable steps to ascertain the relationship of Prince Sifiso in regard to the royal household before it interviewed him on the Agenda programme of 25 September? Mr Ameen Akhalwaya, Assistant Executive Editor of TV 1 Current Affairs, gave evidence on the matter and we are satisfied that he and his staff took all the steps that are reasonably required of a broadcaster in establishing the position of Prince Sifiso in regard to the royal household. If he was not speaking for the interim committee, it was, in any case, a matter for the royal household to have taken up. At the time, no such statement was issued. It is not within our jurisdiction to take the matter further. 7. INACCURACY During a replay of the incident on the TV1 News programme at 20:00 on the 26 th, a part of the scene where Dr Buthelezi and his police escort address the studio guest was 9

10 televised again. An Afrikaans translation of the Zulu appeared in the sub-titles: Die Koning is n dwaas Ek skryf alles vir die Koning Dr Ambrosini, who appeared on behalf of the IFP, argued that this translation was a gross error and that what Dr Buthelezi had in fact said was: Was the King being stupid when he, in his own free handwriting, addresses me in writing as his Prime Minister? Or are you saying that I did that myself? The SABC provided us with an expert opinion which substantially conforms with the translation handed in by Dr Ambrosini. The translation as broadcast by the SABC is derogatory in the extreme and more caution should have been exercised before broadcasting it. The very fact of Mr Robinson s voice tending to interrupt and obliterate some of Dr Buthelezi s words should have made the newsroom act with more caution. The newsroom had sufficient time to obtain a considered translation. The sensitivity of the situation should have alerted them to the need for extra caution in obtaining and verifying the translation. The BCCSA has unanimously decided to reprimand the SABC for this error. THE FINDAL FINDING WHICH THE SABC IS REQUESTED TO BROADCAST (AS TRANSLATED WHERE APPLICABLE) ON ITS THREE TV NEWS SERVICES: The Broadcasting Complaints Commission of South Africa received complaints from the public and the Inkatha Freedom Party that the SABC failed to treat the news and comment on the entry of Dr Buthelezi into an Agenda studio on the 25 th September fairly and accurately. The Commissio n, after received lengthy verbal and written submissions, handed down the following judgment today: 10

11 Firstly, that the following matters do not all within its jurisdiction: (a) the question as to the propriety of Dr Buthelezi s entry into the studio. Indeed, the Cabinet has dealt with that; (b) to settle the dispute concerning the traditional prime minister of the Zulu King or the position of Prince Sifiso Zulu vis-à-vis the royal household that evening; (c) to decide upon the charge that Prince Sifiso was in possession of a gun. The matter is sub-judice at present; (d) to decide upon the content of statements made by the Group Chief Executive of the SABC. This is a corporate and not a newsroom matter. Secondly, the BCCSA found that the SABC had given Dr Buthelezi a fair opportunity, in terms of the BCCSA s Code, to answer all the main criticisms against him, to explain that he was unaware that the programme was still in progress when he entered and to apologise. The viewers were sufficiently informed of all the material facts and opinions. Thirdly, the Commission reprimanded the SABC for failing to act with sufficient caution in the translation of the sub-titles of an edited version of the event on Agenda. As a result, a derogatory statement was attributed to Dr Buthelezi without proper inquiry into what had in fact been said. JCW VAN ROOYEN SC CHAIRPERSON 11