Decision: Application for leave to appeal
Applicant: Gengezi Mgidlana
Respondent: Daily Maverick
Matter No: 4187/01/2019
- Once again I am called upon to deal with matter 4187/01/2019; this time a counter-application by Mr Gengezi Mgidlana for leave to appeal in the same mattter in which I have already dismissed an application for leave to appeal by Daily Maverick and Ms Levy. That decision is dated 19 June 2019 and I need not go into the history of the matter again as I merely deal with a counter-application. Mr Mgidlana complained about an online article by Mrs Moira Levy, Notes from the House, entitled “Secretary to Parliament, objects to being called ‘corrupt’,” published on 9 December 2018, and also against the same article publsihed by Daily Maverick on 12 December 2018 entitled “Gengezi Mgidlana, suspended Secretary to Parliament objects to being called ‘corrupt’.” He had raised several complaints, most of which were upheld by the Ombud who dismissed the complaint that Ms Levy, the journalist, was conflicted. The basis for the alleged conflict of interest was that Ms Levy left working for Parliament, to which Mr Mgidlana was Secretary, under unhappy circumstances. Mr Mgidlana had worked with Ms Levy who, at one point, was suspended under him.
- Mr Mgidlana says the Ombud asked certain documents of him from Parliament, but that, as he was on suspension, he was not able to furnish; however, they were furnished to the Ombud by Ms Levy. He says: “From my perspective at the time, this was another opportunity for the responded (sic) to have submitted whatever additional documents and have me respond to it before a ruling is made by the designated adjudicator of the Ombudsman. This however did not happen” and then goes on to say that the Ombud issued a Ruling dated 27 March 2019, copy of which he received. He says the same day he also received a notice from the Ombud suspending the Ruling on the ground that he had made an error as he had failed to factor in a document from Ms Levy. In this respect, Mr Mgidlana has a two-fold complaint: firstly, he objects against what he calls the re-opening of a closed case. Secondly, he says he was not given the opportunity to comment on the document concerned.
- The real issue in respect of which Mr Mgidlana wants leave to appeal is the Ombud’s dismissal of his complaint that Ms Levy was conflicted. In his own words, the Ombud found in his favour on a number of issues: “Overall the ruling of the Ombudsman accepted my assertions on the matter on a number of allegations made. However, whilst I accept that I make this appeal on the specific area dealing with conflict of interest of the journalist was dismissed.” The issue on which he seeks leave to appeal is therefore a very narrow one.
- Mr Mgidlana does not show the materiality of the document he says was factored in by the Ombud, without his prior comment, to the issue he seeks leave to appeal upon; namely, conflict of interest. One cannot reason in a mechanical fashion that simply because one was not given the opportunity to comment on a document, automatically there has been some injustice. He shows no basis for saying the “Ombudsman accepted key elements of the responses considered in this document” in relation to issue on which leave to appeal is sought. It also appears that even before the Ombud received the document, he had already dismissed the complaint on the issue of conflict of interest. I therefore do not agree, as Mr Mgidlana says, that on “the matter of conflict of interest, it is clear that the proper assessment of all the facts would have led the Ombudsman to arrive at a different decision”. Merely because Mrs Levy once worked for Parliament and left under unhappy terms does not necessarly give rise to bias or conflict of interest. The real issue is the substance of the article, with which the Ombud dealt and in large measure found for Mr Mgidlana as he himself says. This situation will not change as I have denied Daily Maverick and Ms Levy leave to appeal. In arguing his application, Mr Mgidlana has been extraordinarily prolific. He raises issues of form above substance, engaging in some hair splitting exercise. I have read the Ombud’s reasoning and I find no fault justifying a possible overturn of his decision.
- I have dealt from many angles and perspectives with the conflict between the parties, which also engulfed Parliament. I am satisfied that the Ombud dealt adequately and as best he could with these inter-related matters which were in some instances clouded by animosities. In the end, he imposed reasonable sanctions; the matter must now be allowed to rest. It is hard to see what Mr Mgidlana wants to achieve by a finding that Mrs Levy was conflicted. After all the Ombud did, amongst others, make a finding that his dignity was infringed and, as I have already said, ordered appropriate redress..
- For all the above reasons, the counter-application is dismissed as it has no reasonable prospects of success before the Appeals Panel.
Dated this 24th day of June 2019
Judge B M Ngoepe, Chair, Appeals Panel