Appeal: Daily Maverick & Marianne Merten vs Parliament/Mothapo

Decision: Application for leave to appeal

Applicant: Daily Maverick & Marianne Merten

Respondent: Parliament/Mothapo

Matter No: 4248/02/2019

PART 1

  1. Yet again part of this matter deals with complaints that were lodged in matter 4187/01/2019 in as much as it deals with the complaints by Parliament/Mr Moloto Mothapo (“respondents”) in respect of the publications of 11 December 2018 by Notes from the House, and by Daily Maverick on 12 December 2018 (“applicants”)
  2. The complaints, and the consideration and examination of the comprehensive analysis of the Ombud’s reasoning in his Ruling of 27 March 2019 relating thereto, need not be repeated here.
  3. There is one point I need to make. Perhaps encouraged by the generous approach on the part of the Ombud, almost everyone associated with Daily Maverick or who was previously associated within it, now seek to present them as individual and separate appellants, thereby giving an impression of a plurality of potential “appellants”. I refuse to see a plurality of separate individual appellants for, in truth, the real applicant or prospective “appellant” is Daily Maverick. There are reasons for saying so.

3.1    This is consistent with the very manner in which Ms Janet Heard, the Managing Editor of Daily Maverick conducted the matter.  On 3 April 2019, Ms Heard sent me the following e-mail: “Please find here the appeal against two rulings as lodged by Marianne Merten, which Daily Maverick supports. I will also submit additional grounds for appeal on behalf of Maverick.” (Own emphasis, which speaks for itself).  Ms Heard made good her above promise and sent me a document dated 9 April 2019 entitled: “ADDITIONAL RESPONSE FROM DAILY MAVERICK IN SUPPORT OF THE APPEAL APPLICATION LODGED BY MARIANNE MERTEN.”

3.2    In her 3April 2018 email to me, Ms Heard concluded as follows:

“Daily Maverick once again reiterates that in the interest of fairness and due process, it would like to settle these two complaints professionally and without delays.”  It is clear from this and the emphasized portions that Daily Maverick make common cause with Ms Merten for obvious reasons: she is their journalist.

3.3    In any case, neither Ms Merten nor Ms Heard are subscribers to the Press Code; Daily Maverick is.

  1. Furthermore, the submissions they seek to make in an attempt to present Ms Merten as an independent applicant for leave to appeal amount to some hair splitting exercise and, frivolity aside, are substantially the same. I have made this point in my Decision of even date in  matter 4187/01/2019.
  2. For an application to succeed, an application must show reasonable prospects of success before the Appeals Panel. For the reasons stated above as also more fully canvassed in Matter 4187/01/2019, the applicants, whether jointly or severally, have no such prospects.  Their applications are therefore dismissed.
  3. To the extent that Ms Moria Levy of Notes from the House was made a party, the Ombud’s Ruling, as well as his sanctions in respect of her, were justified. It is important to note that Daily Maverick published what Ms Levy had published. She falls together with the daily Maverick.

PART II

  1. As I understand the papers, in particular, the Ombud’s Ruling of 27 March 2019, there was another complaint lodged by Parliament/Mr Mathopo, which the Ombud described in his Ruling as the first complaint. He says the complaint was about an article published on 2 October 2018, while the complaint was lodge only on December 23. He therefore correctly held that the complaint was lodged out of time.  As there was no explanation for the delay, he declined to entertain the complaint. I have not received adequate explanation for the delay, and, secondly, it is high time this confusing saga was closed.

Dated this 20th day of June 2019

Judge B M Ngoepe, Chair, Appeals Panel

APOLOGY: https://www.dailymaverick.co.za/article/2019-06-28-apology-to-secretary-of-parliament-gengezi-mgidlana-and-to-parliament/