Appeal Decision: Association of Regional Magistrates of South Africa vs Sunday Times.

Decision: Application for leave to appeal

Applicant: Sunday Times

Respondent: Association of Regional Magistrates of South Africa

Decision:  Application for Leave to Appeal to the Appeals Panel

1. Respondent and several magistrates lodged a complaint against applicant as a result of the following front page headline in its edition of 1 September 2013: “Magistrates: drunks, thieves and killers-Four have been kicked out this year alone as the credibility of the courts suffer.”  The by-line read: “Magistrates around the country are under fire for breaking-rather than applying- the law.”  The complaint was that both the headline and the story were, amongst others, misleading, out of context, defamatory, and a generalization.

2.The Ombudsman dismissed the complaint against the story that it was an unfair reporting. Regarding the complaint against the headline , the Ombudsman found that the applicant was  not justified to use the words “murders” and “drunks”. He found that applicant was justified to say magistrates were “thieves.” He then drafted, as sanction, a corrective statement and an apology. The applicant now wants leave to appeal against both the Ombudsman’s Ruling and Sanction. For their part, the respondent and other complainants want to appeal against the Ruling with regard to the story and the use of the word “thieves.” Of course if they were to succeed, the sanction would be affected.

3. Basically, the Ombudsman’s Ruling regarding the use of the words “murderers” and “drunks” was that applicant was not able to cite more than one case in support of the plural used with regard to each of the two words. The applicants argue, amongst others, that, regard being head to the context of the story and the headline, as well as to other factors (which I prefer at this stage neither to mention nor to go into) there are reasonable prospects that the appeal to the Appeals Panel would succeed. I have considered the Ombudsman’s Ruling carefully, as well as the submissions by the parties. Having done so, I am of the view that there are reasonable prospects that, if leave is granted, the applicants may succeed before the Appeals Panel. At the same time, I do find that the respondent and other complainants have no reasonable prospects of success that they would succeed before the Appeals Panel. When leave is granted, it is not appropriate to go into reasons why as this may prejudice one of the parties; I am therefore not doing so now. Similarly, given the fact that the application for a counter-appeal by the respondent and other complainants is to some extent linked to the applicant’s application for leave, I will not go into my reasons for my decision on the application for a counter-appeal;  reasons will, if the need arises, be given at an appropriate stage. I do not wish to unwittingly give undue advantage to the applicant.

4. Accordingly, applicant’s application for leave to appeal against the Ombudsman’s Ruling and Sanction to the Appeals Panel, is granted; and the counter-appeal is refused.

                  Dated this 23rd day of December 2013.

                          Judge B M Ngoepe, Chair, Appeals Panel.