The complainants complained that SABC3 and SAfm had not granted them a proper opportunity to televisionreply to allegations of bribery that had been made against Mr Sam Sole, and of racial bias against the Mail & Guardian newspaper. These allegations were made by businessman Mr Robert Gumede in a news insert. 

The Tribunal held as follows with regard to the SABC3 insert: 

The defence of the SABC was that the Mail & Guardian’s denial was included in the broadcast. The issue is, ultimately, whether the SABC complied with the fairness requirement in clause 34.1 of the Broadcasting Code. Looking at the number of claims made by Mr Gumede, it is clear that the response broadcast by the SABC does not address them all, and even the matter addressed in the Mail & Guardian’s reported response is addressed in such a way that it is open to conjecture as to what exactly transpired. 

Firstly the denial of the claim of a bribe or corruption is not supported by the mere statement that the price of the ticket was repaid. Even if a bribe is repaid, this does not negate the bribe – it remains a bribe, if it was one. The newspaper’s reply, as summarised by the SABC itself was, accordingly, fundamentally flawed. 

Secondly, the allegations made by Mr Gumede clearly included more than one payment (“and others”) being made and more than one air ticket being paid for. Once again, this was not addressed in the reported reply as broadcast. There was no evidence that any other amount had been paid to Mr Sole or that any other trips had been paid for. The allegation was, accordingly, clearly not supported by any evidence before the Tribunal.

 Thirdly, the accusation as to racial bias was not addressed. Had the latter been the only omission, the Tribunal might have regarded the accusation as being so sweeping that no reasonable viewer would have believed it. However, taken together with the other omissions, it adds to the unfairness and cannot, within this context, simply be discarded. The SABC was under a legal duty to have made sure that each one of these three matters was addressed in the response, and clearly so. If, however, these matters were not addressed, as was indeed the case, the interview should not have been broadcast at all. Despite the use of the word “allegation”, the effect of the accusations by Mr Gumede was, judged as a whole, one of veracity. 

The BCCSA directed the SABC to broadcast  a statement on SABC3 during the 19:00 news programme on or before Wednesday 30 March 2011. This must be done within the first twelve minutes of the broadcast.

Although a fine was considered, the Tribunal, by a majority of votes, decided that it was not appropriate in this case. The reasoning was as follows:

  The question arose whether the Tribunal should not also fine the SABC. Mr Makekete is of the view that given the serious nature of the contravention this would be appropriate. The previous matter of F v SABC

[1] was quoted as authority for imposing a heavy fine. That was a matter which concerned a serious defamation of F. The other Commissioners also considered the matter in depth.They, however, came to the conclusion  that the order to correct during a newscast, which is not often made, amounts to a serious intervention in the independence of  SABC3 to decide itself what would form part of the newscast. The order to include an item which is seriously negative of SABC3 is, accordingly, a substantial sanction which would, to our minds, overshadow even a maximum fine of R60 000. A factor which weighed in favour of this conclusion is that the Mail & Guardian and Mr Sole did not, in their complaint, ask for a fine to be imposed. In F v SABC the SABC was also, in the special circumstances of that matter, not ordered to broadcast a correction or the judgment of the BCCSA.

In so far as the SAFM complaint is concerned, the Tribunal was satisfied that, since Mr Dawes from the Mail & Guardian had been granted a an opportunity to answer all the relevant matters in an interview, the Mail & Guardian was  granted a  right to reply and that the requirement of fairness was, in this respect, substantially complied with. Mr Dawes covered the position of Mr Sole in his interview.

This complaint against SAFM was, accordingly, not upheld. 

[1] F vs SABC3, Case No: 01/2009

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