Kirith Haria vs.

City Press

Ruling by the Press Ombudsman July 12, 2013 This ruling is based on the written submissions of Mr Kirith Haria, who complains in his personal capacity, and the City Press newspaper.

COMPLAINT Mr Kirith Haria complains about a front page article in City Press Voices section on 26 May 2013, headlined City Press Debate Are we strangers in a strange land? Haria complains that the: article was defamatory and racist, and that it had no regard for the countrys Constitution; newspaper purported to support these views by publishing such statements; and publication of the article was likely to cause or further call on others to cause harm to Indians in South Africa. He initially lodged a complaint with the Human Rights Commission, who quite correctly referred it to this office.

ANALYSIS In the disputed article, Phumlani Mfeka reacted to a story reporting that Newcastle mayor Afzul Rehman had laid a complaint against a traffic official for calling him a Gupta. This official reportedly said to Rehman: You can go back to India and take offence, here in South Africa, this country belongs to us. Amongst other things, Mfeka told Rehman in his article: that South Africa is an African country (and not an Indian one); that Mahatma Gandhi once rallied Indians to fight alongside the British, where more than 7 000 African warriors fought and bled for their land; that Indians remained proud British subjects, have never been comrades, and do not vote for the ANC; Who do you think you are, asking an African whether he knows who you are in his native land? he had no constituency that warranted him to be mayor in the first place; Africans in his province do not regard Indians as their brethren; that the ticking bomb of a deadly confrontation between the two communities was inevitable; that he should perhaps begin to embrace India as his home; and that Gandhis existence, as well as that of many other Indians of the Indian Congress, in itself was an offence to Africans.

In context It is immediately clear that I have to consider this text in context the article in dispute was published alongside another one (by Kay Sexwale), which in fact was highly critical of Mfekas views. In the next edition, the editor also voiced her opinion clearly she disapproved of Mfekas article as well. This is what she wrote (in part) to justify the publication of Mfekas piece: They (the critics) say City Press was wrong to publish it, as we are a credible platform. Instead, they seem to say, we should

leave this racism to burble in the cosy worlds of consensus that are Mfekas Mayibuye African Forum, the varied Facebook groups and Twitter feeds of those who agree with him. To my mind, that is when you make it really dangerous. We published it in the cause of antiracism. Mfeka must have his views held up to the cold light of constitutional and historical scrutiny, as Kay Sexwale did in the same edition. The newspaper published another piece in that same edition that was critical of Mfeka. Here are my considerations: Constitutional Court Judge Edwin Cameron (quite correctly) noted that stories should be interpreted in context if no unreasonable period has passed between these stories a decision that applies in this case as well; Mfekas article was part of a debate (which implies, by nature, different/opposing viewpoints) I therefore believe that it was reasonable for readers to have interpreted this article as such, as his article was balanced by another one, on the same (front) page; This office should do nothing to curtail the robustness of the debate. South Africas Constitution allows its citizens freedom of speech, which gives them the right to be wrong (if they are). There is no point in burying our heads in the sand if one looks at the comments on Twitter, Mfekas views are indeed representative of at least a section of the population; and As such, City Press merely did its journalistic and democratic duty to put these views into the open. I also agree with the editors views, as quoted above. Having said that, though, I need to consider the article itself the mere fact that it formed part of a debate does not mean, by default, that anything goes.

In particular Defamatory, racist, no regard for the countrys Constitution Haria complains that Mfekas comments were defamatory and racist, and argues that he had no regard for South Africas Constitution. I do not need to decide whether or not Mfeka is a racist (as the editor alleges), as it is his right to be such. My question is whether the newspaper was justified in publishing his alleged racist remarks. Of course it was if not, what tame role do the media play in our democracy? Obfuscating the reality? There is nothing in the Press Code that prohibits a publication from publishing somebody elses remarks, even if they are racist especially in a debate such as this one. The same goes for Mfekas alleged disregard for the Constitution. Conversely, Harias allegations/complaint can also be interpreted as a disregard for the Constitution (that guarantees freedom of speech). The question if Mfekas remarks were defamatory is not for this office to decide defamation is a legal matter that should be decided upon by the courts. City Press supporting Mfekas views Haria complains that the newspaper supported Mfekas views in allowing for such statements to be published. The mere facts that City Press published Mfekas views as part of a debate, and that the editor was clearly quite critical of his comments (and published other opposing points of view), really make a mockery of this part of the complaint.

Hate speech Harias complains that the publication of the article was likely to cause or to further call on others to cause harm to Indians in South Africa he alleges that it contained threatening statements against these people and that it aimed at causing and inciting hatred, racial tensions and divisions, violence and expulsion from South Africa. I have no reason whatsoever to believe that Mfekas article was likely to incite violence (etc.), nor do I believe that it was his intention and, more importantly, the same goes for the publication of his views by City Press.

FINDING The complaint is dismissed in its entirety.

APPEAL Our Complaints Procedures lay 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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief Press Ombudsman