Appeal Decision: Mvusiwekhaya Sicwetsha vs The Herald & Weekend Post

Decision: Application for leave to appeal

Applicant: Mvusiwekhaya Sicwetsha

Respondent: The Herald & Weekend Post

Matter No: 31/2014

Decision: Application for Leave to Appeal to the Appeals Panel

1. The Applicant wants leave to appeal against the findings and Ruling of the Press Ombudsman handed down on 22 February 2014. The Ruling was on a complaint which had been lodged by the Applicant in respect of an article which appeared in the Herald (‘hereinafter referred to as the Respondent”) on 11 February 2014 with the heading “ANC’S plan to campaign in newsrooms shot down.” The complaint was that the story was in breach of articles 1.1 and 11.3, of the Press Code in that it published the contents of an email communication which was confidential. The Applicant wanted a retraction and an apology. In its defence, Respondent contended that the email was not confidential, as confidentiality was not asked for. The Ombudsman dismissed the complaint; hence this application, which the Respondent opposes. Although the Weekend Post (a sister newspaper of the Respondent’s) also carried the story, there is no need to deal with it separately.

2. The facts of the case may be stated briefly. The Applicant sent an email to amongst others the Respondent on 10 February 2014 at 11h50 requesting that the ANC (African  National Congress) be allowed to carry out some campaigning in the media newsrooms. Some journalists became interested in this request, saw it as a potential story in itself and started making enquiries with the Applicant. Later that same day at 4h22 the Applicant sent out another email, saying that the contents of the earlier email were confidential and therefore not for publication; that is, the request to campaign in the newsrooms. That email notwithstanding, the Respondent proceeded to publish the story about the request to carry out the campaign.

3. In its defence, the Respondent contends that the first email did not mention that the request was confidential. It argues in effect that the Applicant sent he second email only after the papers had started making inquiries in response to the earlier one. It seems that the Respondent also implies that the claim for confidentiality came only after a negative response to the request to campaign had already come out.

4. It is clear that the first email contained no request for confidentiality. It is also true though that the Respondent did receive the second email asking confidentiality before publication of the story. The request for confidentiality was therefore ignored. The problem for the Applicant though is that the very request to canvass in the media newsrooms, in the face of oncoming elections, is a matter of huge public interest. It was something novel. I do not agree with the Applicant that canvassing journalists in the newsrooms can simply be equated to canvassing ordinary “voters.” Journalists in the newsroom are not just ordinary “voters.” If one were to see them that way, then one should be contend to meet them at the First National Stadium together with other “voters.” Canvassing them in the media newsrooms amounts to approaching them in their capacity as journalists, not just as ordinary voters; that was why the applicant had wanted to see them there. The fact that there would also be other staff does not change the situation. The importance of canvassing journalists is that in the course of their work, they help shape and influence public opinion, something important in light of the forthcoming elections. The request to canvass such people, in their very own newsrooms, was therefore a novel matter of public interest and this overrode the request for confidentiality. The Ombudsman adopted a wholistic approach towards the above articles of the Code in invoking the element of public interest as well. I agree with him. It was not a case of the Ombudsman raising a defence which the Respondent did not raise. It was the Applicant himself who had invoked and relied upon the above articles which, read in full, import the element of public interest.

6. In his application for leave to appeal, the Applicant wants the matter to be referred back to the Ombudsman. He argues that the Public Advocate referred the matter o the Ombudsman before he could make submissions. I do not agree. The following submissions were before the Ombudsman:

6.1 An email sent by the Applicant to the Public Advocate on 11 February 2014 at 11h06, setting out the complaint.

6.2 A response on behalf of the Respondent by Heather Robertson, disputing a claim of confidentiality.

6.3 Applicant’s response on 19 February 2014; a two page submission disputing what Robertson had said.

6.4 Robertson’s response, if cheeky, to the two page submissions, also on the 19th.

All these were before the Ombudsman. In any case the real issue was straightforward, and the facts on the basis of which the Ombudsman based his Ruling were either common cause or could not be disputed at all, such as the nature of the request.

7. Finally, reference should be made to the Applicant’s complaint that he only received the Ombudsman’s Ruling after it had already been released to the media. If that is true, it is a matter which the office may have to look into; there could have been communication breakdown somewhere along the line. Of course this would have no bearing on the merits of the application before me. Such other complaints as are there also fall into this category. The Applicant also says that the Public Advocate did not apply her mind to the matter properly as required by the Press Code; that she was too casual in dealing with the matter; did not give herself adequate time, etc. These allegations have not been substantiated; dereliction of duty by those charged with it may not be lightly assumed.

8. For the reasons given above, and also in light of those furnished by the Ombudsman, I am of the view that the Applicant has no reasonable prospects of success before the Appeals Panel; the application for leave to appeal is therefore refused.

Dated this 21st day of April 2014.

Judge B M Ngoepe, Chair, Appeals Panel.