Decision: Application for leave to appeal
Applicant: City Press
Respondent: Integrated Capital Management
Matter No: 3885/06/20185
- This matter has a long history, into which we need not go into details. On I October 2017 City Press (“appellant”) published an article with the headline “THE CAPTURE MIND-SET”. The story was about how the country was saved from what is now popularly known as state capture. Directors of Integrated Capital Management (“ICM”), acting on behalf of ICM, had certain allegations leveled against them in connection with the allegations of state capture: Clive Angel, Marc Chipkin, and Stanley Shane. It was said that many of such negative articles were written. For the sake of convenience, the directors and ICM are hereinafter collectively referred to as the “respondents”. Subsequent to the publication of the 1 October 2017 article, the respondents communicated with the appellant, complaining that the respondents had not been given the right to respond to certain allegations. The appellant’s response was that the journalist tried to do so, but it was written prominently on the website of the respondent that, on the advice of their counsel, they were not to comment on the matter. The appellant also pointed out that its efforts to gather some information from the respondents were frustrated. After the matter reached the Ombud, he conveyed his decision to the parties on 15 August 2018 which read: “I need: 1. an undertaking by the editor to publish the right of reply on all the relevant Media24 platforms; and 2. To know if the complainants find this way forward acceptable. Please let me know what your decision is at your earliest convenience.” Dissatisfied with this, the respondents approached the Chair of the Appeals Panel for leave to appeal the decision. The application was turned down on the basis that it was premature, and the parties were directed to return to the Ombud to first respond to his 15 August 2018 directive referred to above. They did so and the matter once more fell to be adjudicated by the Ombud. This time around, he decided to deal with the merits of the complaint.
- The Ombud issued his Ruling dated 23 November 2018. He ruled that the appellant’s story had been based on a statement by only one source, namely, one Goodson. He held that the appellant should not have relied on this source alone. It transpired later that a Report of a Parliamentary Portfolio Committee on Public Enterprises could have been used to substantiate the appellant’s article; however, the appellant could not have used that report as the appellant only became aware of it after the publication of the story. The appellant now seeks leave to rely on that report. It needs to be mentioned that as a result of some interaction between the parties, a reply was published which the respondent later contested. This aspect will be dealt with later in detail.
- In his Ruling, the Ombud held that the appellant had breached a number of the provisions of the Press Code, and imposed a sanction which read: “City Press is directed to remove all references to the complainants in the articles, which should include the use of their pictures. As their right of reply would have no meaning without the articles, I am directing the newspaper to remove that as well.” The appellant was dissatisfied with the Ruling; it sought, and was granted, leave to appeal it. After heads of argument were filed by the parties, the appeal was heard on 16 April 2019.
- Apart from the merits, the appellant argues that the sanction imposed by the Ombud, namely, the permanent removal of all references in the story to the respondents as well as their right of reply, is too drastic as it effectively means erasing the entire article as the article cannot stand without those references.
- Before the hearing and in its heads of argument, the appellant raised a point in limine, namely, that the respondents were guilty of abuse of the complaint procedures; the point being that “the respondents only filed their complaint some eight months after publication (of the article complained about) and then only after City Press published their reply to the article”. It is the appellant’s case that no complaint was lodged within the period prescribed by the Complaints Procedures.
- What happened was that apparently in January 2018 the parties engaged each other about the article, in consequence of which an agreed reply was published in full by the appellant on 3 June 2018. As it will appear later, a dispute subsequently arose about the adequacy of the reply published.
- Based on a joint reading of the original article and the published reply, the respondents raised a complaint that was lodged with the Office of the Ombud on 15 June 2018. What was demanded at this point was no longer the right to reply, but the erasure of the 1 October 2017 article, as well as related ones. The respondents’ complaint was that the reply was not published in its entirety; but the appellant countered that what was published was what had eventually been agreed upon after some discussions
- The question that arises is therefore whether the complaint that the Ombud ruled upon in his Ruling of 23 November 2017 had been lodged within the prescribed period, or was lodged out of time. As said earlier, the article was published on 1 October 2017, whereas the complaint ruled upon was lodged only on 15 June 2018. The Complaints Procedures require a complaint to be lodged within 20 working days of the publication complained about. On this basis, it must follow that the complaint was filed out of time. However, the Ombud accepted the complaint on the basis that the published reply, which had to carry a hyperlink to the 1 October 2017 article in order to be meaningful, served to revive the article. He therefore reasoned that the complaint as filed on 15 June 2018 was within time.
- The argument that the hyperlink revived the complaint and somehow made it fresh, as reasoned by the Ombud, cannot stand. Firstly, the publication of the reply was at the instance and insistence of the respondent. Respondents therefore knew, and accepted, that the connection to the old article would be made. Secondly, the publication of the reply was on the basis that the matter would be settled. This is clear from the letter written by Kobela Media on behalf of the respondents, as to which, see paragraph 20 below. Indeed, as it will be shown later, the published version had been agreed upon.
- In light of the aforegoing, we are of the view that the complaint against the article was lodged way out of time; in fact some many months too late.
- At the hearing of the appeal, both the point in limine and the merits were argued. The respondents were directed to submit an application for the condonation of the late filing of the complaint, in the event the Appeals Panel found that the complaint was out of time. We have now so found, and, having received written submissions by both parties on the condonation application, we now proceed to consider it, vehemently opposed by the appellant.
- The following are the important developments material to the consideration of the application. At the outset, one important point has to be made: the demand that was made by the respondents was to have their reply published as they complained that they had not been given the opportunity to respond. The demand to erase the entire article only came up many months after the publication. The application should, therefore, be considered against that background.
- As already said, the article complained about was published on 1 October 2017. The complaint was supposed to be lodged within 20 working days thereof, but was not. It was only lodged on 15 June 2018, more than 8 months after the publication.
- Attorney Gundlefinger, acting for the respondents, says he informed the Press Ombud that he would be lodging a complaint after the December break as a certain Mr Shane (one of the directors) had recently undergone a major heart surgery.
- On 9 January 2018 a certain Mr Sebulela said he would, on behalf of the respondents (in particular ICM), speak to Mr Makhanya, appellant’s editor, about the matter. He also introduced the respondents to a Mr Molele at Kobela Media who was also an acquaintance of Mr Makhanya, the idea being to try to resolve the matter amicably. According to the respondent, Mr Makhanya refused to meet with them. A question arises why at that stage a complaint was not lodged, as Attorney Gundelfinger indicated in December 2017 that it would be filed.
- On 30 January 2018 Tshivhase & Kinster Inc attorneys, acting for the respondents, wrote a letter to Mr Makhanya. After raising a few issues, the letter reads in part: “We are instructed that the Press Ombud has already been contacted and a complaint is pending”, and then went on to ask for a meeting for an amicable discussion. If, by “pending”, the letter meant that a complaint had already been lodged, it would be incorrect because by then Attorney Gundlefinger had not yet made good his promise to lodge the complaint after the December 2017 break.
- On 29 March 2018 Willem de Klerk Attorneys for the appellant replied to the letter by Tshivhase & Kinster to say that they were taking instructions from their client (the appellant). They followed with a letter dated 10 April 2018, which dealt with two issues. Firstly, with the complaint that no right of comment was given (which, until then, was of course the complaint). The letter explained that respondent could not be contacted because it was prominently displayed on their website that “on advice from counsel we will, for the time being, refrain from making further media statements”. The letter went on to say that City Press was frustrated in obtaining some information, “yet four months after publication you ‘demand’ a right of reply and accuse City Press of malicious and reckless behavior …”. The second point made in the letter is very important: “Our clients mention that its reportage of 1 October 2017 was lawful. Your demands for immediate removal of the material and publication of an apology are rejected”. It could not have been clearer, from this letter, that both the complaint about lack of the opportunity to comment and the demand to remove the material were rejected by the appellant. Notwithstanding this categorical rejection of the two demands, no complaint was lodged with the Office of the Press Ombud. Instead, in their response letter of 24 April 2018, Tshivhase & Kinster Attorneys remonstrated with appellant’s attorneys, reminding the latter of their client’s obligations in terms of the provisions of the Code.
- As an explanation for not lodging a complaint in time after the 1 October 2017 publication, the respondents say that they were at all times trying to settle the matter amicably. Firstly, the discussions were, at best for them, about the publication of their reply. Secondly, the explanation cannot stand given the categorical rejection of their demands by attorneys Willem de Klerk referred to above.
- The Ombud did not entertain the complaint on the basis that the complaint was filed within the prescribed time after the publication on 1 October 2017, but on the basis that the published reply provided a link to the offending story, thereby reviving it. This was how he reasoned:
“1. The offending story was published on 1 October 2017;
- Because the publication of a new article provided a link to the offending story, the latter became (again) part of the news – and therefore could be complained about; …”
- With respect, the Ombud erred in at least two respects.
20.1 He failed to take into account the fact that the publication of the reply was at the request and insistence of the respondents themselves. How does one publish a meaningful reply without cross-referencing to the original article?
20.2 He also erred in not taking into account the fact that the version had been agreed upon. A meeting was held at which a version of the respondent’s reply was agreed upon. After the publication, the following correspondence was exchanged between Kobela Media (acting for the respondents) and Mr Dumisani Lubisi of the appellant:
5 June 2018 email by Kobela Media:
“Dear Mr Dumisani,
Thank you very much about (sic) the publication of Right of Reply”. (Own emphasis)
9 June 2018 email by Dumisani in response:
“You are welcome”.
Yet a few days later, a complaint is lodged based on the inadequacy of the published reply!
These two points distinguish this case from others on which the respondents sought to rely. They also make it unnecessary to consider any possible argument based on the revival of a story through a hyperlink. The basis on which the Ombud concluded that the complaint of 15 June 2017 was within time, was therefore misconceived. In this respect, we take the liberty of quoting rather liberally from the appellant’s heads of argument as they aptly put the point:
“16 City Press submits that the respondents should have been barred from complaining about the article eight months later. The respondents knew that the publication of their reply would inevitably refer back to the original article and that there would be link between the article and the reply online. In fact, City Press would have been remiss in its duties if the reply and the article was not linked to each other.
17 The respondents therefore demanded the publication of a reply with full knowledge of the inevitable result. Moreover, they presented their reply for publication on the clear understanding that such publication would serve to settle the dispute. In the email to the editor of City Press, Kobela Media, acting on behalf of the respondents, included correspondence from the respondents, reading as follows:
‘As you are aware, much discussion has taken place and many letters have gone back and forth in respect of the article titled ‘The Capture Mind-set’. The article was also written and published without seeking comment from ICM or its directors …. We thus request a right of reply in order to set the record straight – in line with the Press Code of SA …. We attach hereto our response to the article and request that same is dealt with appropriately.’ (our underlining).
- City Press published the attached reply unredacted and in full on the understanding that it would finally settle the matter. Great were their surprise when the respondents then complained about not only the reply, but the original story too. What the respondents did was to engineer an opportunity to belatedly complain against the article, using the publication of their own reply as a Trojan horse. This is an abuse of the process and should be disallowed.”
In any event, an editor is not obliged to reproduce an entire reply word for word; all that needs to be done is to cover essential features.
- Finally, the complaint was lodged too long after the 1 October 2017 publication.
- For all the above reasons, the application for condonation is dismissed as no adequate explanation has been given for not lodging the complaint against the 1 October 2017 article in time. That being the case, it is not necessary to consider the merits of the case.
- In the circumstances, the following Order is made:
- The appeal is upheld;
- The Ruling of the Press Ombud dated 23 November 2018, is hereby set aside.
Dated this 24th day of June 2019.
Judge B M Ngoepe, Chair, Appeals Panel
Mr Tshamano Makhadi, Media Representative,
Mr Mpho Chaka, Public Representative