Decision: Application for leave to appeal
Applicant: The Star
Respondent: City of Johannesburg
Matter No: 129/2012
On March 6 2013, the Appeals Panel of the Press Council of South Africa conducted an appeal hearing in Johannesburg between the Appellant and the Respondent after the Appellant appealed a ruling by Deputy Press Ombudsman Dr Johan Retief.
The hearing was chaired by retired Judge Ralph Zulman. He was assisted by two panelists, Peter Mann and Susan Smuts.
The appellant was represented by Greg Palmer of Webber Wentzel attorneys, by its executive editor Janet Smith and reporter Louise Flanagan, the author of the article complained of. The respondent was represented by Graeme McMaster of KRB law firm and Colin Edelstein of the City of Johannesburg.
The Appellant appealed against a ruling by Retief delivered on December 26, 2012 on the grounds of procedural unfairness and on substantive grounds.
The article reported on steps the City of Johannesburg (CoJ) had taken to sort out the billing issues it was facing at the time. The steps were announced by Finance MMC Geoffrey Makhubo during his budget speech. By way of background to the speech, the reporter included a summary of a court order following agreement between the CoJ and the Property Owners and Managers Association (POMA). Originally, this information was contained in an article by Anna Cox, also a reporter at The Star.
The summary contained the following sentences:
“The council has been badly hit by the billing crisis, which peaked with a court interdict in December, preventing the council from disconnecting residents for unpaid services unless certain legally required steps were taken first. The council is opposing this, claiming it can’t afford to abide by its own laws on disconnections, and that revenue this year is substantially down.”
The interpretation that the CoJ could not afford to abide by its own by-laws was based on a portion of the City’s answering affidavit, which referred to “The Chilling Effect of the Interdict”. The affidavit said the order had resulted in a significant decrease in the disconnection of residents who were in arrears, and said there had been a marked drop in revenue collection by the City”.
- The story falsely stated that the City of Johannesburg could not afford to abide by its own by-laws regarding the collection of revenues; causing the City of Johannesburg and its relevant officials unnecessary harm. The disputed paragraph created the false impression that the City of Johannesburg did not consider itself to be bound by its own by-laws.
- Star Reporter Anna Cox had misinterpreted the interdict granted by the court, which was an order made by agreement between the parties. Therefore, the summary of the Cox article used in the report was factually incorrect. Further, it quoted, as fact, an opinion of Ms Cox.
Retief ordered The Star to:
Ø apologise to the City of Johannesburg for misrepresenting and distorting its affidavit, falsely stating it as a fact that it acted illegally regarding a “billing crisis” by not considering itself to be bound by its own by-laws;
Ø reprimanded it for omitting to state that the court order was the product of an agreement between the parties;
Ø cautioned it not to take stories as gospel merely because they were published, but to verify information that is likely to cause somebody unnecessary harm; and
Ø ruled that it was an exaggeration to refer to a “billing crisis”.
He drafted a text for The Star to publish, which the newspaper did on the 28th December 2012.
The Appellant argued that the finding was procedurally unfair because Retief had reneged on an undertaking to give the newspaper an opportunity to obtain legal opinion before he made his ruling.
The Appellant also argued that Retief, who obtained and relied on a legal opinion on the relevant court documents, failed to grant the Appellant an opportunity to see and comment on this opinion.
The Appellant sought to have the following findings overturned:
- That the article “misrepresented” and “distorted” the City of Johannesburg’s answering affidavit to POMA’s application to stop it cutting services without fulfilling several legal requirements.
- That the article contained the opinion of the newspaper without making it clear.
- The article created the impression that the CoJ acted illegally regarding a billing crisis by not considering itself to be bound by its own by-laws.
- The article omitted to mention that the court order took the form of an undertaking by the CoJ.
- In his finding Retief ordered the newspaper to publish an opinion from a legal adviser saying that the term “billing crisis” was an “exaggeration”. This was despite the fact that no complaint about the use of the term was before him. Nor had The Star been given an opportunity to respond to the opinion.
The Appellant argued that it was reasonable to assume the CoJ agreed to the interim interdict on disconnections based on existing laws, including its own by-laws and policies, and that its need to overturn that interdict also referred to its difficulty with applying those laws and policies. It said it was reasonable to state that the CoJ could not operate under the conditions of the court order. It also argued that the omission of the fact that the court order was by agreement between the parties did not alter the substantial meaning of the article.
The Respondent said The Star did not exercise its right to legal representation when it was afforded the opportunity to do so. The Respondent said it, too, had not been given a copy of the legal opinion sought by Retief and the playing fields were therefore level. It denied that Retief placed inappropriate reliance on the opinion.
On the substantive portion of the appeal, the Respondent said “the chilling effect of the interdict” portion of the affidavit was included to demonstrate to the court that the POMA was seeking relief which would not be appropriate for the court to hand down. The main opposition to the POMA application was based on the correctness or incorrectness of the various complaints lodged by the applicants, and most of the affidavit dealt with the merits of the complaints and queries. Another leg of opposition was that residents of Johannesburg were not entitled to exercise rights allegedly flowing from the CoJ’s credit control and debt collection policy.
The Respondent said there was no suggestion in its affidavit that because of the chilling effect the CoJ could not make use of its by-laws. It also said it would not have given an undertaking in an order of court which it did not intend to abide by.
The Appeal Panel finds that the Appellant had a reasonable expectation that it would be able to submit legal opinion before Retief made his findings. On the Appellant’s version Retief indicated that he would not do so until 2013, but surprised the Appellant by producing his finding on December 26, 2012.
The Panel is also of the view that it would have been desirable for Retief to have given the Appellant and the Respondent an opportunity to comment on the legal opinion he obtained.
However, in the view of the Panel, even though the procedural irregularities have substance, they do not vitiate the findings of the Deputy Press Ombudsman in relation to the first four elements of the appeal.
The Panel finds that, although the agreement that formed the court order was based in part on the CoJ’s policies, the article went too far in saying that the CoJ could not afford to abide by its own laws.
In relation to the finding that the “billing crisis” was an exaggeration; the Panel finds that this was not a complaint before Retief and the Appellant had no opportunity to answer this opinion.
This portion of the finding of the Deputy Press Ombudsman is overturned.
The rest of the ruling is upheld. The panel was informed that, notwithstanding the appeal, The Star has published the correction called for. Nothing need be done about this.
Chairperson of the Appeals Panel of the Press Council of South Africa
Peter Mann and Susan Smuts
Members of the Appeals Panel of the Press Council of South Africa
March 6 2013