Appeal Decision: Minister of Public Service vs Mail & Guardian

In the matter between

MINISTER OF PUBLIC SERVICE                                           APPLICANT

AND

1. On 10 August 2018 the Mail & Guardian(“respondent”) published a story with the headline “Bombshell plan to lay off 30,000 public servants.”  As foreshadowed in the headline, it was reported that the government was planning to retrench a number of civil servants in order to reduce the salary bill, to an estimated amount of some R20billion.  A complaint was lodged on behalf of Minister of Public Service, Ms Ayanda Dlodlo (“the applicant”) that the respondent was not given the opportunity to put in her comments; a similar complaint was registered on bahalf of National Treasury. The applicant immediately raised this concern with the respondent, after which the latter  carried the response in a subsequent edition. That notwithstanding, the applicant pursued her complaint to the Press Ombud.
2. In his Ruling dated 25 September 2018 the Ombud upheld applicant’s complaint, holding that the respondent had acted in breach of article 1.8 of the Press Code.  He however, did not impose a sanction as the respondent had already published the applicant’s response.  The applicant is now asking for leave to appeal the Ombud’s decision not to impose a sanction.  The complaint in respect of Treasury was dismissed as it transpired that their comment was sought but did not respond.
3. The applicantion for leave to appeal is opposed by the respondent. For the application to succeed, the appellant must show reasonable prospects of success before the Appeals Panel.  It is my considered view that there are no such prospects.  I say so for the following reasons:
   1. sanction is essentially a matter of discretion by the tryer of facts.  That being the case, an appeal tribunal will only interfere if the sanction is shockingly inappropriate; the present is not such a case, given the fact that applicant’s response to the allegations was subsequently published.
   2. The other problem is this: there was a genuine mistaken belief by the respondent that National Treasury was an appropriate department to comment, and, acting on this impression, sought comment from the latter department.  This is hugely mitigating, in that it shows good faith.  This is not an appropriate case for teaching anybody a lesson, as it is contended for on behalf of the applicant. It is important, in this respect, to note that it is not the applicant’s complaint that her department’s response was not adequately carried.
4. For the reasons given above, the application is dismissed.

Dated this 8^th day of November 2018

Judge B M Ngoepe, Chair, Appeals Panel