Decision: Application for leave to appeal
Applicant: City Press
Respondent: Thamsanqa Jiyane
Matter No: 388
Decision on application for leave to appeal
- I was asked by Judge B Ngoepe to consider this application for leave to appeal on his behalf. The respondent, in its complaint to the Press Council, alleged that an article published by the respondent on the 13th of May 2018 titled ‘Transnet: Brian Helped to Loot’ transgressed various provisions of the Press Code. The article discussed the contents of a report prepared by Werkmans, a firm of attorneys, for Transnet regarding the purchase of 1064 electric and diesel locomotives. The article stated that the report recommended that the conduct of various officials together with that of the respondent be investigated. There is a further reference to the respondent when the article stated that ‘the report found that with the assistance of Gupta lieutenants Molefe, former chief Financial officer Anoj Singh, board tender committee chairperson Iqbal Sharma, and Jiyane, the contract ballooned to R54.5bn.’
- In essence, the respondent complained that it was defamatory to be labelled a ‘Gupta lieutenant’ and that he was not afforded an opportunity to comment prior to this critical reporting. He further contended that a proper investigation would have revealed that the allegations against him were false. The respondent complained that the description of him as a ‘Gupta Lieutenant’ and reference to the costs ballooning to R54.5 billion from the initial cost of R 38.6 billion suggested that the respondent was involved in the wrongful and intentional inflation of the original tender price. The respondent contended that as he had no decision-making authority, he could not have corruptly manipulated the process.
- The Press Ombud had access to the Werkmans report and it is not disputed that the report recommended that the conduct of the respondent and others be investigated. The applicant pointed out that it was in the public interest that the findings of the report be widely disseminated and that it was engaging in fair comment. Further it argued that it had sought the views of the Transnet spokesperson and contended that the generic response received expressly covered all the persons mentioned including the respondent.
- The Press Ombud dismissed some of the complaints of the respondent and made other findings in his favour. Amongst his findings in favour of the respondent were the following:
- He found that given the allegation that the respondent was a ‘Gupta Lieutenant’, he should have been asked for comment on this specific issue;
- He also found that that the story had falsely stated as a fact that the Werkmans report found that the respondent was a ‘Gupta lieutenant’; and
- He found further that the publication failed to put the various statements into perspective and context by failing to mention adequately that the report was inconclusive and had not been accepted by the Transnet Board.
- The applicant has appealed against the findings of the Press Ombud on what are termed ‘procedural grounds’. However, in their grounds of appeal, the appellant indicates their response to the merits of the findings against it. The applicant contends that it was invited to a ‘clarification meeting’ by the Press Ombud but that the meeting turned into a hearing which heard legal argument from the respondent’s legal representative. The appellant contends that had it been informed that the meeting was in fact a hearing, it would have secured the attendance of its legal representative. They contend that the failure of the Press Ombud to inform them that this was a hearing as contemplated in terms of Section 3.3 of the Complaints Procedures and the failure to inform them of their right to legal representation prejudiced them from properly arguing their case before the Press Ombud. The appellant then details its reasons for arguing that the Press Ombud erred by finding that as it neglected to mention that the report was not accepted by the Transnet Board, this may have caused unnecessary harm to the respondent’s reputation. It appears from their application for leave to appeal that the appellant was not in a position to make these submissions to the Press Ombud at the meeting.
- The respondent contends that the application for leave to appeal should be dismissed. The respondent argues that it is not for the Press Council to ‘babysit’ the appellant. It was submitted that the appellant could have arrived at the meeting with its legal representative but chose not to do so. The respondent also argues that the term representative in the e-mail should be given a wide interpretation to include legal representative. The respondent also denies that the meeting was ever a hearing and was of the view that it remained a clarification meeting. He also asserts that the meeting was not a hearing as envisaged in Section 3(3) of the Complaints Procedures.
- The issue is whether there are reasonable prospects that the Appeals Panel may come to a decision different from that of the Ombud. Procedural fairness is important as it ensures that all parties are treated fairly and that proper outcomes or decisions are reached. In terms of Section 3 of the Complaints Procedures, the Ombud can either convene a hearing or hold an informal hearing. It is accepted that the meeting was not a formal hearing. If an informal hearing was convened in terms of Section 3(3), the issue is whether the appellant was given adequate and proper notice of the purpose of the informal hearing so as to enable it to prepare adequately and engage meaningfully in the process. There are also issues of whether the legal representative of the respondent, Ms N Galaktiou, was given the opportunity to argue before the Ombud at the meeting. If Ms Galaktiou was given an opportunity to make arguments on behalf of the respondent then it would appear that the meeting may have been more than a clarification meeting.
- If the meeting that was convened was not an informal hearing as contemplated in Section 3.3 of the Complaints Procedures, then one needs to know under what authority or section of the Complaints Procedures, the meeting was convened. It does appear that there is a reasonable prospect that the Appeals Panel may come to the conclusion that an informal hearing was held and that the appellant may not have been given adequate and proper notice of the purpose of the meeting and was prejudiced as a consequence. It is inappropriate for me to go into any greater detail into the merits of the application for leave to appeal. The matter will be considered and detailed reasons given by the Appeal Panel for its conclusions. At this stage, it suffices to state that there is a reasonable prospect that the Appeals Panel may come to a decision different from that of the Ombud. In the circumstances the following order is made:
- The application for leave to appeal to the Appeal Panel is granted
Prof K Govender
Member, Adjudication Panel.
Dated at Durban on the 18th of December 2018.