Appeal Decision: Nikesh Dhanlal vs Sunday Times Extra

Decision: Application for leave to appeal

Applicant: Nikesh Dhanlal

Respondent: Sunday Times Extra

Matter No: 89/2013

Application for leave to appeal to the Appeals Panel: Decision

1.The applicant was the owner of a bakery. He lodged a complaint with the office of the Ombudsman against the Sunday Times Extra, the respondent, following a story which appeared in the Sunday Times Extra of 17 May 2013. The headline read: “Well-loved bakery forced to down tools.”  Applicant’s complains are set out, and dealt with, below.

– The headline was misleading. Respondent argued that the headline was not misleading as there was a court order in terms of which the applicant had to leave the rented premises due to overdue rental. This complaint was dismissed by the Ombudsman. As there was indeed such an order, the headline could not have been misleading.

– He was not contacted prior to publication. The Ombudsman has held that it is not normal journalistic practice to do so. I add that, in any event, as the respondent correctly says, it was reporting on a matter which was already before court and they were relying on court papers.

-Court papers in the magistrate court were used by the respondent in reporting on a High Court case. It turned out though that these papers were made part of the proceedings in the High Court. The Ombudsman correctly dismissed this complaint.

-The story did not mention that by the time the order was issued, applicant had already vacated the premises. Apparently the Ombudsman has made no formal finding on this as respondent has already offered to mention this in a corrective story. I mention in passing though, that, prima facie, this would be justified.

-The story inaccurately stated that an order of eviction was served on the applicant to vacate the premises; no such order was served. Respondent contents that there was in any event such an order, and the Ombudsman found in favour of respondent and dismissed the complaint. But, with respect, the complaint is that the order was not served (not that it did not exist), thereby implying that the evacuation could not have been prompted by the order; by insisting on the fact that the order was not served, applicant ties this up with the undenied fact that by the time the order was made, he had already evacuated the premises in question. I therefore would hold a different view from the Ombudsman. This notwithstanding, given the offer by respondent to correct this, my conclusion on prospects of success, or lack of it, will not be affected by this.

-The story gave a wrong impression that the matter was opposed and argued in court. Respondent admitted making an error in this respect, and offered to make a correction

-The story did not mention that the matter was withdrawn. Correctly, the Ombudsman dismissed this complaint, as court papers showed the contrary.

2.The applicant rejected respondent’s offer to publish a corrective story. He is also not satisfied with the corrective version crafted by the Ombudsman. The reason is that applicant wants nothing less than an apology and a retraction of the story. For this reason, he seeks leave to appeal the Ombudsman’s Ruling.

3. For the reasons I have already given above, I hold that the applicant has no reasonable prospects of success against the Ombudsman’s Ruling. Although I have indicated a prima facie different view from that of the Ombudsman with regard to one of the complaints, I find that, regard being had to the offer made by respondent, as well as the terms of the corrective story drafted by the Ombudsman, applicant has no reasonable prospects to overturn the Ombudsman’s Ruling, or to achieve any better remedy than those afforded in the Ruling.

4. In the circumstances, the application is turned down.

Judge B M Ngoepe, Chair, Appeals Panel

23 August 2013.