Appeal Panel Decision: Sunday Times vs ARMSA

Decision: Application for leave to appeal

Applicant: Sunday Times

Respondent: ARMSA

Matter No: 261/2013

DECISION OF THE APPEALS PANEL

[1]    The appellant, Sunday Times, was given leave to appeal the Ruling of the Ombudsman, dated 9 October 2013.  The Ruling was on complaints filed by a number of magistrates against both the headline and the story published by the appellant in its edition of 1 September 2013.  The headline read: “Magistrates: drunks, thieves and killers”.

The sub-headline read: “Magistrates around the country are under fire for breaking – rather than upholding the law”.  The second paragraph of the story read: “The seriousness of some of the cases has raised doubt about the magistrates’ ability to mete out justice and has broad impact on the credibility of the courts.”  (Emphasis by the complainants).

[2]     Apart from the complaint filed by the Association of Regional Magistrates, a number of individual magistrates also lodged complaints. The complaints were substantially the same and were dealt with together by the Ombudsman. We adopt the same approach. The complaints were, in summary, that the headline, subhead and the second paragraph of the article were an insult to the integrity of the magistrate’s profession; that they were a generalization which painted magistrates with the same brush as drunks, thieves and killers.  The words were also viewed as defamatory.  The appellant’s response was that their story was based on Parliamentary briefing and reports submitted by the Magistrate’s Commission over the past 10 years; that the facts were accurate and that they never implied that all magistrates were guilty of the misconducts mentioned.  The headline was also an accurate reflection of the content of the story.  Appellant also denied, as alleged by the complainants, that its reporting was “sensationalized, improper and scandalous.”

[3]     The Ombudsman, after considering submissions from all the parties, ruled partly in favour of the complainants, and partly in favour of the appellant.  To the extent that he ruled in favour of the appellant, the Ombudsman ordered the latter to apologize, and to publish on the front page such an apology and a correction.  The appellant was given leave to appeal, but the respondents were not.  The respondents were not available for the first determined date of hearing and, accordingly, a new date had to be found.  After this was done, none of them was still available and, eventually, they indicated that they would not attend; the Chairperson of the panel then asked the Public Advocate to appear and argue the matter on behalf of the respondents, which she kindly did.

[4]     The Ombudsman dismissed the complaint relating to the story.  He found that the story had been a fair reporting; that the appellant could not be blamed “for its reportage in general and for stating that these matters eroded the credibility of the lower courts” and their ability to mete out justice.  His attention then shifted to the headline; namely “Magistrates: drunks, thieves and killers”.  Regarding the use of the words “drunks” and “killers”, the Ombudsman found that the appellant had not been able to mention more than one person in either case, and therefore that the use of plurals was not justified; accordingly, he held that the appellant contravened article 10.1 of the Press Code.  In an attempt to justify its use of the word “killers” in the plural, the appellant points out, as a second case, to an instance where one magistrate was convicted of attempted murder.  It argues that even though there was no actual murder, the intention to kill was there.  We do not think that that case can pass off as a case of murder.  We therefore, as already mentioned, agree with the finding of the Ombudsman that the appellant was not justified in using the plural.  With regard to the word “thieves”, the Ombudsman gave the benefit of the doubt to the appellant, given that more than one instances were mentioned, even though the conviction in the other case was overturned; the Ombudsman took into account the fact that it was stated that reports to Parliament revealed delays in finalizing such matters.

[5]     It follows that the headline was, unlike the story, not balanced because, in the words of the Ombudsman, it contained some over-statements by using the unjustified plurals referred to above.  Unlike the Ombudsman however, we do not believe that any harm could have been caused to the integrity and credibility of the magistracy.  We are of the view that, notwithstanding the unjustified plurals, a reasonable reader would not have gotten any impression that all or even the majority or sizeable number of magistrates are “drunks” or “killers”.  We therefore believe that the sanction meted out by the Ombudsman should be ameliorated. The Sunday Times should, however, admit to its readers that it exaggerated its headline and therefore gave a false impression. The Ombudsman’s sanction is therefore set aside, and The Sunday Times is directed to publish the following:

“In the report of 1 September 2013, headlined ‘Magistrates: drunks, thieves and killers,’ The Sunday Times incorrectly stated that magistrates were drunks and killers. The Appeals Panel of the Press Council of South Africa found that this created a false impression and was not supported in the body of the story. The Sunday Times regrets the error.”

Dated on this 9th day of July 2014

Judge B M Ngoepe: Chair; Appeal Panel

Mr P Mann: Member, Public Representative

Mr Moshoeshoe Monare: Member, Media Representative