Ombudsman findings on EWN cartoon

The internal ombudsman reports back on EWN's controversial cartoon.

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JOHANNESBURG - Last week Eyewitness News (EWN) referred the matter of a cartoon entitled 'A Congress of Clowns' (drawn by Dr Jack & Curtis) to Primedia Broadcasting's internal ombudsman advocate George Bizos.

Below are his findings:

In the cartoon annexed hereto a number of Ministers of the newly formed Government are satirised as well as a group of voters. On its publication a tumultuous response has occurred accusing the broadcaster of defaming the ministers and voters, accusing it of racism and threatening action in a letter from Attorney van der Merwe which has been handed to the broadcaster's attorneys.

Primedia has apologised for the publication of the cartoon. Nevertheless the African National Congress, the party that won the election and appointed the ministers held a protest meeting at the entrance of the broadcaster.

The allegations of racism have been against the broadcaster have been repeated by others.

I am of the view that there is no basis for the allegation for racism and cannot understand on what basis Mr van der Merwe and others could have made such an allegation. The ANC correctly claims that it has the support of the majority of voters in South Africa from all the racial groups.

The contents of the cartoon may have been in bad taste. I believe that the almost immediate apology was a good response to the allegation but it is certainly not defamatory. Mr van der Merwe's clients and others that he may be representing are not named in the publication.

There is clear authority that where a class of person is referred to individual members of that class cannot sue for defamation. In the case of South African Associated Newspapers Limited & Another v Estate Pelser [1975] 4 ALL SA 683 (A) Wessels JA in a unanimous judgment of the Appellate Division said at page 691:

I revert to the question of so-called class or group libel. I have considered the various authorities referred to by counsel. In the result, as I understand those authorities, there are no special rules of law which apply to cases of class or group libel where an individual member of the class or group institutes a defamation action grounded on defamatory matter which in terms refers to the class or group in question. In every defamation action the plaintiff must allege, and prove, that the defamatory words were published of and concerning him. So too, in a case of so-called class or group libel, the plaintiff can only succeed if it is proved at the trial that the matter complained of, though expressed to be in respect of the class or group of which he is a member, is in fact a publication thereof of and concerning him personally. In my opinion, the law was correctly stated by Lord Atkin in his judgment in the case of Knupffer v London Express Newspaper Ltd., (1944) 1 All E>R> 495 at p. 497H-498C. The passage in question reads as follows:

""I venture to think that it is a mistake to lay down a rule as to libel on a class, and then qualify t with exceptions. The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff. It is irrelevant that the words are published of two or more persons if they are proved to be published of him: and it is irrelevant that the two or more persons are called by some generic or class name. There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a particular building is not actionable, if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant. The reason why a libel published of a large or indeterminable number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was in fact included in the defamatory statement: for the habit of making unfounded generalisations is ingrained in ill-educated or vulgar minds: or the words are occasionally intended to be a facetious exaggeration . Even in such cases words may be used which enable the plaintiff to prove that the words complained of were intended to be published of each member of the group, or at any rate of himself. Too much attention has been paid, I venture to think, in the text books and elsewhere to the decision of Willes, J, in 1958, in Eastwood v Holmes. It is a nisi prius decision in which the Judge non-suited the plaintiff both because he thought there was no evidence that the words were published of the plaintiff and for other reasons, and so far as the first ground is concerned, it appears to me on the facts to be of doubtful correctness. His words, "It only reflects on a class of persons", are irrelevant unless they mean it does not reflect on the plaintiff: and in this instance "all lawyers are thieves" is an excellent instance of the vulgar generalisations to which I referred. It will be as well for the future for lawyers to concentrate on the question whether the words were published of the plaintiff rather than on the question whether they were spoken of a class"

Cartoonists, comedians and satirists use hyperbole once being facetious and humorous, as necessary tools of their profession.

Their right to use them is guaranteed by Section 16 of the Constitution which provides:

"16. Freedom of Expression

_(1) _Everyone has the right to freedom of expression, which includes -

_(a) _Freedom of the press and other media;

_(b) _Freedom to receive or impact information or ideas;

_(c) _Freedom of artistic creativity; and

_(d) _Academic freedom and freedom of scientific research.

_(2) _The right in subsection (1) does not extend to -

_(a) _Propaganda for war;

_(b) __Incitement of imminent violence; or _

_(c) _Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."

It is my opinion none of the exceptions set out in subparagraph (2) are applicable to the conduct of the cartoonists. I would however request them to be less facetious in the future.

I am of the view that Roger Jardine and Katy Katopodis did well to apologise and politely receive the protestors and put an end to the matter.