COMPLAINTS PROCEDURES

It shall be of the essence of the adjudication proceedings:
That complaints be considered and adjudicated upon within the shortest possible time after the publication of the matter giving rise to the complaint;
That complaints be considered and adjudicated upon in an informal manner; and,
That whenever possible the Ombudsman and SAPAP and the parties will strive for a speedy and amicable settlement.

1. Complaints

1.1 "Complainant" shall mean and include any person who or body of persons which lodges a complaint, provided that such person or body of persons has a direct, personal interest in the matter complained of.

1.2 The "respondent" in respect of a complaint shall be the proprietor of the publication, which may delegate its editor or, in his or her absence, an assistant editor or other suitable editorial representative of the member concerned, to act and appear in its stead in respect of any complaints dealt with either by the Ombudsman or the SAPAP.

1.3 A complaint shall be made as soon as possible, but not later than fourteen days after the date of the publication giving rise to the complaint. The Ombudsman may on reasonable grounds accept late complaints if in his or her opinion there is good and satisfactory explanation for the delay.

1.4 The complaint shall be made to the Ombudsman either in person, by telephone or in writing. "Writing" shall include cable, telegram, telex, e-mail and fax messages. Where a complaint is made other than in writing it shall be confirmed forthwith in writing or the Ombudsman's office shall assist the complainant to do so. Upon the receipt of a complaint by the Ombudsman, the Ombudsman shall be entitled to request from the complainant a copy of the material published giving rise to the complaint, and the complainant shall be obliged to forward such a copy to the Ombudsman forthwith.

1.5 The Ombudsman shall not accept a complaint:

1.5.1 Which is anonymous or which, in his or her opinion, is fraudulent, frivolous, malicious or vexatious and which prima facie falls outside the ambit of the Code;

1.5.2 Where at any stage of the proceedings legal action is threatened or is considered by the Ombudsman to be a possibility, unless the complainant in writing waives any right to claim civil relief of whatsoever nature directly or indirectly related to or arising out of the complaint;

1.5.3 Which is directed at a newspaper outside his or her jurisdiction.

1.6 Where the Ombudsman has accepted a complaint and the respondent offers to settle the matter complained of by way of publication or otherwise, which in the opinion of the Ombudsman constitutes a reasonable and sufficient offer of settlement of such complaint, the Ombudsman may withdraw his or her acceptance of the complaint.

1.7 Where the Ombudsman declines to accept a complaint on any of the grounds specified in rules 1.3 or 1.5 or withdraws his or her acceptance of a complaint under rule 1.6 the complainant may, within seven days, with full reasons, request the Chairperson of SAPAP to review the Ombudsman's decision. In the event of the Chairperson overruling the Ombudsman's decision, the matter shall proceed in terms of rule 2.

2. Conciliation and Adjudication Procedure by the Ombudsman

2.1 Upon acceptance of a complaint by the Ombudsman, he or she shall immediately notify the respondent in writing of the complaint, giving sufficient details to enable the respondent to investigate the matter and respond.

2.2 The Ombudsman shall forthwith endeavour to achieve a settlement.

2.3 The Ombudsman shall hold discussions with the parties on an informal basis with the object of achieving a speedy settlement. Legal representation is permitted.

2.4 If the complaint is not settled within 14 days of its notification to the respondent, the Ombudsman may, if it is reasonable not to hear the parties, decide the matter on the papers.

2.4.1 Where the Ombudsman decides to hold a hearing, the Ombudsman shall appoint a public and a press member of the Appeals Panel to adjudicate the matter with him or her at the hearing.

2.4.2 Decisions shall be by a majority vote.

2.4.3 Legal representation shall be permitted at hearings.

2.5 Within 7 days of receipt of the decision, any one of the parties may apply for leave to appeal to the Chairperson of the SAPAP and the grounds of appeal shall be fully set.

2.6 The application and grounds must be filed at the Ombudsman's office.

2.7 The Ombudsman shall inform the other party of the application for leave to appeal and shall advise the party that he or she may file a response to the application for leave to appeal within 7 days of receipt thereof.

2.8 If the Chairperson is of the view that there are reasonable prospects that the SAPAP may come to a decision different from that of the Ombudsman or the Ombudsman with members, as the case may be, the Chairperson shall grant leave to appeal.

3. Adjudication Procedure of SAPAP

3.1 Where leave to appeal is granted in terms of rule 2.8, the Ombudsman shall place before SAPAP all the documentation that he or she had before him or her and the Ombudsman shall also inform both parties of the date and venue of the hearing before the SAPAP.

3.2 The Chairperson of SAPAP shall appoint one press member and one public member from the persons appointed in terms of clause 10 of the Constitution to hear the appeal with him.

3.3 The Chairperson shall determine a date, time and venue for adjudication of the appeal, which shall be heard as soon as possible after receipt by him or her of the documents referred to in rule 3.1.

3.4 It shall not be obligatory for either party to appear personally before the SAPAP, but they are entitled to attend and to address the SAPAP which is, in any case, entitled to question them on the matter: provided that a respondent is not under a duty to disclose the identity of an informant.

3.5 The Chairperson may request the parties to appear personally. The Chairperson may advise parties that, in the circumstances, an adverse inference may be drawn from failure to comply with such request without good cause.

3.6 The parties shall be entitled to legal representation when appearing before the SAPAP.

3.7 If the SAPAP finds against a respondent who is present, the respondent shall be given an opportunity to address the Tribunal in mitigation of any order that may be made.

3.8 The hearings of the SAPAP shall be open to the public unless the identity of a rape or sexual victim or a child or a victim of extortion is at issue.

4. Variation of Procedure

4.1 The Ombudsman or Chairperson of the SAPAP may, if satisfied that no injustice will result, and upon such conditions as he or she may impose:

4.1.1 Extend any time period contemplated in these rules;

4.1.2 At any stage require any allegation of fact to be verified on oath;

4.1.3 Call upon the parties to a dispute to furnish such further information as he or she may consider necessary.

5. Findings of SAPOM or SAPAP

5.1 The SAPOM or SAPAP may uphold or dismiss a complaint or appeal, as the case may be.

5.2 If a finding is made against a member of PMSA or a publication that has voluntarily become subject to the jurisdiction of the SAPOM and SAPAP, the SAPOM or the SAPAP, as the case may be, may make any one or more of the following orders against the proprietor of the publication:

5.2.1Caution or reprimand a respondent;

5.2.2 Direct that a correction, retraction or explanation and, where appropriate, an apology and/or the findings of the SAPOM or SAPAP be published by the respondent in such manner as may be determined by the SAPOM or the SAPAP, as the case may be.

5.2.3 Order that a complainant's reply to a published article, comment or letter be published by the respondent;

5.2.4 Make any supplementary or ancillary orders or issue directives that are considered necessary for carrying into effect the orders or directives made in terms of this clause and, more particularly, issue directives as to the publication of the findings of SAPOM and/or SAPAP.

5.3 In the reasons for the decision and/or sanction the SAPOM or SAPAP is entitled to criticise the conduct of the complainant in relation to the complaint, where such criticism is warranted in the view of SAPOM or SAPAP.

5.4 The Ombudsman shall cause any findings, reasons for a finding and/or requirements of a tribunal to be sent to the complainant and to the respondent who shall comply with the SAPOM or the SAPAP's orders or directives, if any.

5.5 The Ombudsman shall keep on record all findings and reasons for findings by the Ombudsman or SAPAP.

5.6 The records referred to in rule 5.5 shall be public documents except insofar as those documents are privileged in terms of the Promotion of Access to Information Act 2000 or identify a rape victim, a person who has been sexually assaulted or a child, or a victim of extortion.