Decision: Application for leave to appeal
Applicant: Rael Levitt
Respondent: Weekend Argus and Saturday Star
Matter No: 202/2012 The applicant seeks leave to appeal against the Ombudsman’s decision. The Applicant, Mr Levitt, complained against certain articles which appeared in the Argus Newspapaper and its sister newspaper, the Saturday Star. It is not necessary to go into the details of the complaint as the necessary correction and apology have already been made.  What irked the Applicant was that the Respondent refused to removed the offending article from the internet. The applicant approached the Ombudsman for the appropriate order, that the article be removed . The Ombdudsman took the view that that he did not have the power to do so. He held that at the time of the alleged publication, which was in August 2012, he did not have the authority to deal with on-line publications; such power having only recently been given to him with effect from February 2013. In effect therefore, the Ombudsman raised lack of jurisdiction.  The Applicant does not dispute the fact that the Press Code as it was then (August 2012) did not expressly cover on-line publications; Applicant contents though that there was no express prohibition either. The problem is that jurisdiction cannot be inferred, especially in the manner contended for by the Applicant. As further indication that the Ombudsman did not have that kind of jurisdiction, is the fact that, as Applicant himself correctly points out, such jurisdiction has only recently been expressly conferred. Clearly, this was because it was felt that there was a lacuna.  The other arguments raised by the Applicant, however fascinating they may be or even compelling, cannot avail the Applicant once it is found that the Ombudsman lacked jurisdiction; those arguments cannot be used to justify the conferment of a jurisdiction which is otherwise not there. It is therefore not necessary to go into them. However meritorious a case may be, lack of jurisdiction is, sadly, always an impediment.  For the reasons given above, I find no fault with the decision of the Ombudsman. I therefore find that there are no reasonable prospects of success against the decision of the Ombudsman. The application is accordingly dismissed.
Dated on this 13th day of May 2013
Judge B M Ngoepe, Chairperson, Appeal Panel of the Press Council of South Africa.