THE CITIZEN APPLICANT
AND
BRENDA WARDLE RESPONDENT
MATTER NO: 1238/07/2014
DECISION: APPLICATION FOR LEAVE TO APPEAL
[1] This is an application by the Citizen (“applicant”) against a Ruling by the Press Ombudsman dated 26 August 2015, to the extent that it went in favour of Ms Brenda Wardle (“respondent”).
[2] The Ruling was on complaints lodged with the Office of the Press Ombudsman by respondent against the applicant in the wake of three stories published by the applicant about respondent. The first one was on 10 July 2015, headlined: “Wardle up for fraud charges again. Convicted: Legal analyst faces three new accusations”. At the same time a second, similar but not identical, story appeared on the applicant’s website headlined: “Brenda fingered in alleged fraud spree”. The third appeared on 14 July 2015, headlined “Bank moves on Wardle accounts – In court tomorrow: Brenda’s money frozen”. As it can be gleaned from the headline, the stories were reporting on certain alleged criminal activities by the respondent.
[3] In his Ruling, the Press Ombud summarized respondent’s complaints as follows:
· that false and inconsistent accounts (relating to the alleged crimes) were mentioned;
· she was named before being formally charged;
· publishing of witness statements from a docket respondent had not yet seen;
· was not asked for comment;
· breaking the sub judice rule.
“Wardle concludes that her fair trial rights have been violated”.
[4] The Ombudsman found that the applicant violated the following articles of the Press Code:
“2.1 The press shall take care to report news truthfully, accurately and fairly.
4.1 The press shall exercise care and consideration in matters involving the private lives and concerns of individuals.....”.
A sanction was then imposed. He dismissed some of the complaints, which he found to be new and to which applicant had therefore not had the opportunity to respond to.
[5] In response to the application for leave to appeal, respondent restates her complaints as follows:
5.1 “The violation of my right to be presumed innocent in that the citizen reported on a matter for which I had neither been charged not arrested”.
5.2 complaint that the journalist asked her in an email why she would argue her innocence given the seriousness of the allegations.
5.3 that her “response was not fully covered”.
5.4 that the journalist had access to the docket when, as the accused, had not had it.
[6] The reason respondent restated her complaint was that, on some points, she too, like the applicant, contents that the Ombudsman based his Ruling on a wrong premise, namely, that respondent should not have been named until she had pleaded to the charges. As it can be seen above, as also from the Ombudsman’s own summary of complaints, this was not respondent’s complaint; her complaint was that she was named before she was charged or arrested. For this reason alone, I am inclined to give leave to appeal. Moreover, a finding that an accused person sholu not be named until they have pleaded, is itself contentious and worthy of being considered by the Appeals Panel, which may have a different view to that of the Ombudsman. For these two reasons, leave to application must succeed.
[7] In respondent’s letter of complaint, as per 16 July 2015 e-mail which she sent to the Office of the Ombudsman. Not all the complaints set out in paragraph 5 above were there. Reference to docket (5.4) is framed in such a way that the matter would not fall within the jurisdiction of the Press Council. The complaint as per paragraph 5.2 was not upheld; the one as per para 5.3 was also not upheld. The complaint as per paragraph 5.1 was misunderstood by the Ombudsman. Applicant’s conviction for contravening both articles 2.1 and 4.1 was based thereon. It follows that it must be the only complaint to be argued in the event leave is granted.
[8] For the reasons given above, leave is granted to the applicant to appeal against the Ombudsman’s Ruling of 26 August 2015 that the applicant breached articles 2.1 and 4.1 of the Press Code by naming respondent before she pleaded before court.
Dated this 21st day of October 2015
Judge B M Ngoepe, Chair, Appeals Panel