MATTER NO: 790/2014
In the matter between:
COETZEE APPLICANT
versus
FINWEEK RESPONDENT
DECISION: APPLICATION FOR LEAVE TO APPEAL TO THE APPEALS PANEL
[1] The applicant wants leave to appeal to the Appeals Panel, a Ruling of the Ombudsman dated 11 July 2014 which dismissed applicant’s complaint against the respondent.
[2] The complaint followed an article published by the respondent on 5 June 2014, captioned “Controversial Treo rides again, or does it?” The article referred to past activities if the applicant and his company, of which he was a director. The applicant had been caused to appear before an insolvency inquiry to be examined by the commissioner. A report was later produced by the commissioner. It was common cause that the article reported on the contents of this report, and even quoted from it.
[3] The applicant complaint was twofold. Firstly, he complained that the articled violated article 1.1 of the Press Code in that it “reports on and quotes from the commissioners report in the (sic) private and confidential inquiry”. Secondly, he contents such a publication was illegal, in contravention of section 417(7) of the Companies Act.
[4] Respondent’s defence was that the information was “derived from public sources and information in the public domain” (respondent’s own emphasis). To support its argument, the respondent attached copy of an article freely available on the website of Moneyweb since July 2012; it also contents that the very report by the commissioner has been in the public domain since 2012 too. Regarding illegality, respondent argues that the purpose of section 417(7) is not to protect the person examined, but rather to protect information from the knowledge of such person to ensure the integrity of the process (the inquiry).
[5] It must be noted, at the outset, that the accuracy of the contents is not in dispute, even though, in his replication, the applicant says that the respondent “does not take all the facts into consideration. It takes the onesided (sic) finding of a paid liquidator and distort (sic) it to put me and my company in the worse possible light. Newsweek had the real facts but ignored them for the sake of the sensation.”
[6] I agree with the Ombudsman that the first part of the complaint cannot stand. Even if the contents of the commissioner’s report were confidential, they had been in the public domain for too long. I do not, however, think that the opinion of the commissioner necessarily settles the issue as to whether or not the contents were confidential, as argued by the respondent.
[7] Regarding the second leg of the complaint, given allegations of a pyramid scheme, the matter was of public interest and, therefore, there cant have been any violation of article 1.1 of the Code as contended for by the applicant, even if the contents of the report were “illegally” published. Here again it must be noted that the issue of illegality is highly questionable; it is, however, not necessary to resolve it. In any event, to some extent, the applicant himself does acknowledge this difficult, and argues that, even if the publication was not illegal, it was unethical. This alternative argument would, however, be trumped by the issue of public interest and the fact that the content had been in the public domain for too long. The consent by the commissioner that the content of the report could be published, could also count in favour of the respondent on this issue of ethics.
[8] For the above reasons, as also those furnished by the Ombudsman, the applicant has no reasonable prospects of success before the Appeals Panel; the application is therefore dismissed.
Dated this 8th day of August 2014
Judge B M Ngoepe: Chair; Appeals Panel