A ruling by the Press Ombud has helped clarify clauses about fact versus opinion in the Press Code
On 9 June 2011, South Sudan seceded from Sudan to become the world's youngest independent state. Just five months earlier, following decades of civil war, a landslide majority of 99% voted in favour of independence in a referendum held pursuant to an agreement between the Sudanese government and the then Sudan People's Liberation Army. South Sudan is today one of the poorest countries on earth, ranking last in the Human Development Index; Sudan isn't doing much better.
At the southern tip of Africa, "CapeXit" advocates are calling for a referendum on Western Cape independence, effectively seeking to replace South Sudan as the new kid on the block, albeit a much healthier and more prosperous one. A geographical area first defined in law by the interim Constitution of 1993, which came into force on 27 April 1994, the Province of the Western Cape now owes its existence to the "new" Constitution of 1996, with its territory being defined in Schedule 1A of the Constitution.
One of the loudest voices advocating for a province-wide referendum on secession is the newly-formed Referendum Party (RP), which is on the ballot to contest both the national and the Western Cape provincial elections later this month. Led by Phil Craig, who relocated to South Africa from the UK in the early 2000s, the RP has one aim: to compel the premier of the Western Cape to call a referendum on "Cape Independence". The "Cape" in question quite obviously excludes both the Northern and Eastern Cape.
Unsurprisingly, the very thought of South Africa being broken up once again raises the collective temperature. What makes matters worse for many is that Craig, an outspoken Western Cape secessionist, was not born in this country, but became a citizen - as an adult - by naturalisation. Instead of engaging with the merits or demerits of the issue, social media responses are often driven by anger, with frequent demands for him to go back home.
It was in this context, of an often acrimonious and unhelpful public screaming match, that Daily Maverick published a piece authored by Rebecca Davis titled Fact check - Is it likely the Western Cape could become an independent state?
In the piece, Davis considered the promise of the Cape Independence Party and RP "that a vote for their parties can lead to a referendum which may ultimately trigger the Western Cape province leaving the rest of the country."
Davis pulled no punches in her conclusion:
"It is simply impossible to imagine a world in which South African law and politics line up to allow one of the nine provinces to assert itself as a separate country -- especially since even parties like the DA do not support the idea. As such, the CapeXit parties appear to be selling voters pipe dreams."
Aggrieved by the publication, Craig lodged a complaint with the Press Ombud. He alleged multiple breaches of the Press Code: that opinion was presented as fact; that the coverage was not fair and accurate; that RP's views were not sought before publication; that clause 6 dealing with advocacy was breached; and that the coverage "was influenced by political considerations". Ruling in favour of Daily Maverick on each alleged breach, the Press Ombud dismissed the complaint.
After setting out the relevant background and grounds of complaint, the ruling first considers the nature of Davis's piece, finding that it "has the overall nature of an opinion piece". But having done so, it goes on to caution that such a classification cannot result, on its own, in a publication finding protection in the "safe harbour" of clause 7 of the Code. That clause recognises that comment or criticism may be protected "even if it is extreme, unjust, unbalanced, exaggerated and prejudiced".
Rather, the Press Ombud explains, "the question is whether a particular statement under scrutiny is a comment or a factual assertion". And as clause 7.2 makes clear, comment or criticism is only protected "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."
One does not have to say, expressly, that what is being presented is comment.
In dealing with the first complaint, the Press Ombud highlights that certain clauses of the Code on which Craig sought to rely only apply to the gathering and reporting of news. That meant that all that was before him to decide was "whether commentary was presented as fact". In dismissing the first complaint, the Press Ombud noted that "[w]hat was under scrutiny, was the likelihood of Cape secession", and that "[t]he concluding opinion was that it is unlikely in the extreme".
Central to the second complaint was Craig's unhappiness with the accuracy of two statements: first, that referendums are not binding in any way, and can simply be ignored; and second, that only the national executive and Parliament may legally bring about secession, primarily by way of a constitutional amendment. The second statement was not considered in any meaningful way, because it was correctly characterised as the expert opinion of a legal academic.
Central to the Press Ombud's consideration of the first statement, which was also recognised as constituting expert legal opinion, was his refusal even to consider the soundness of Craig's legal submissions on whether a referendum, if held, would be binding. According to the Press Ombud, RP "itself cannot state as fact that secession is possible or likely". For as long as the issues remain untested in our courts, the "facts" will remain as "opinions and untested legal hypotheses".
The third complaint, which concerned RP's alleged right of reply, was dismissed on three bases: first, that clause 1.8, which requires the subject of critical reportage to be given the opportunity to be heard (where practicable), does not apply to commentary; second, that there was no critical reportage of RP; and third, that it would ordinarily not be practicable in the context of a fact-check feature "to include the subjective views of the entity or person whose claims are under scrutiny".
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The final complaints, dealing with advocacy and undue political interference, were dismissed easily. In noting that clause 6 allows the media to advocate their views strongly, the Press Ombud nevertheless found that Davis's piece did not amount to advocacy by Daily Maverick. As to the allegation that the piece was influenced by political considerations - put simply - no evidence was put up to support this allegation.
In a more recent Daily Maverick piece, Stephen Grootes looks at "a growing list of groups pushing for secession", including RP, the KZN-based Abantu Batho Congress of businessman-turned-politician (and royal adviser) Philani Mavundla, and the "Joint Afrikaner Declaration" signed by groups such as Solidarity and AfriForum.
Grootes sees "a real risk that by the time of our next elections in 2029, these [separatist] groups will hold sway over some of the parties desperate for power."
Only time will tell.
