Appeal Decision: Sunday World vs Public Advocate

Decision: Application for leave to appeal

Applicant: Sunday World

Respondent: Public Advocate

Matter No: 219/2013

Application for Leave to appeal to the Appeals Panel: Decision

1.The applicant applies for leave to appeal the Ruling of the Ombudsman handed down on 20 September 2013 in favour of the respondent. This was in respect of a complaint filed against the applicant by the respondent following the publication of a photograph by the applicant in its publication of 26 May 2013. The photograph was of some school children, in school uniform, depicted in a conduct which simulated engagement in sexual intercourse. The heading and content of the story reinforced the theme conveyed by the photograph.

2. The first point on which applicant seeks leave to appeal, is a procedural one. Applicant says that the Ombudsman was wrong in accepting respondent’s complaint because it was submitted 7 days too late in terms of the Complaints Procedures. The matter is plainly of public interest and the Ombudsman has the competence to extend the period; vide article 6.1 of the Complaints Procedures. In any event, such authority would have been inherent given the nature and purpose of the process, namely, expeditious and amicable resolution of disputes. The lapse of 7 days should not be fatal to the case, given all the above considerations. On this point, the applicant has no reasonable prospects of success on appeal.

3. Regarding the merits, applicant argues that the Ombudsman erred in holding that the photograph constituted child pornography. The parties agree that the Press Code has adopted the definition of “child pornography” as given in the Film and Publications Act. That definition requires the child victim to be under the age of 18. It is not, in my view, necessarily apparent from the material submitted in support of the complaint that the photographed learners were below 18. To me, this point is arguable. It does of course form part of the argument whether or not the photograph constitutes child pornography. Applicant should therefore be granted leave to appeal, and argue its case before the Appeals Panel as to whether or not the photograph complained of constituted child pornography.

6. The applicant did not, however, specifically raise as a defence before the Ombudsman the fact that there was no evidence that the photographed learners were below 18. This specific defence was therefore not considered by the Ombudsman as a special point of defence; in fact, reading the applicant’s submissions to the Ombudsman, one gets the impression that it was common cause that the learners were below 18. A question accordingly arises whether applicant can raise this special defece at this stage for the first time. Although leave to appeal is to be granted, it is without prejudice to any finding in this regard; the parties must therefore prepare to argue whether applicant can raise this special defence for the first time at this stage.

7. For the reasons given above, and subject to what is stated in paragraph 6, leave is hereby granted to the applicant to argue whether, firstly, it can raise the special defence referred to above for the first time at this stage and, secondly, whether or not the photograph published on 26 May 2013 constituted child pornography.

Dated this 26th day of October 2013.

Judge B M Ngoepe, Chair, Appeals Panel.