Decision: Application for leave to appeal
Respondent: University of Venda
Matter No: 315/2013
DECISION OF THE APPEAL PANEL
 The appellant sought, and was given leave, to appeal the Ruling of the Ombudsman dated 30 October 2013. The Ruling followed a complaint by the Vice-Chancellor of the University, Professor Mbati, prompted by an article which appeared in the appellant’s edition of 17 October 2013. The heading read: “Higher Education in a crisis – CEO”. The story was reporting on a speech which had been made by Mr Nxasana, Chief Executive Officer of First Rand Merchant Bank. Amongst others, Mr Nxasana was reported as lamenting the poor quality of graduates from previously black universities, and saying that they were unemployable. The respondent was specifically mentioned.  In its letter which was also submitted as a complaint, the Vice-Chancellor challenged Mr Nxasana’s statement. He pointed out that a lot of money had been expended in improving infrastructure at his university, complemented by funds from the private sector. He also said that a “concerted effort ensured that pass rates are increasing”, as also the number of researchers. The appellant did not publish the entire letter; in fact it left out most of the points that had been raised in the letter, prompting the respondent’s complaint.  In its response, the appellant contended that it was not obliged to publish in full the Vice-Chancellors letter, or all the points it raised; in fact, appellant argued that it was under no obligation at all to publish respondent’s letter in the first place as the story had not been generated by it (appellant); the latter was merely reporting on what Mr Nxasana had said.  The Ombudsman found for the respondent; holding that the appellant, by omitting important information, had breached articles 2.1 and 2.2 of the Press Code. As a sanction, the Ombudsman ordered an apology and also directed the respondent to publish the material points alleged to have been omitted.  We are of the view that the Ombudsman erred. There was no obligation on the appellant to publish the letter; certainly not all the points raised in it; the respondent was merely reporting on what Mr Nxasana had said. In any case, in its edition of 23 October 2013, respondent reported as follows about the letter concerned: “In a letter to the Sowetan, Mbati said Univen had produced alumni who held powerful positions both in the private and the public sector.” Given the fact that the main thrust of Mr Nxasana’s speech was that the quality of the graduates was poor, and that they were unemployable, we are of the view that what respondent published on 23 October 2013 was sufficient response. The portion of the letter published spoke directly to Mr Nxasana’s statement about the poor quality of the products and their alleged unemployability. Secondly, the points alleged to have been left out were that large sums of money had been spent on the development of infrastructure, and that effort was expended to increase pass rates. In our view, that kind of response was not, in any case, an answer to Mr Nxasana’s concern: the mere ploughing of money into infrastructure, or efforts towards the increase in pass rates, does not necessarily guarantee good and employable products. Information on these two aspects was not going to be a response to what Mr Nxasana’s had said; as already mentioned, the real response thereto was published by the appellant in its subsequent edition of 23 October 2013. In this respect, it bears mentioning that the respondent’s representatives conceded during the hearing that this subsequent report, in which respondent’s Vice-Chancellor was quoted, indeed spoke directly to the nub of Mr Nxasana’s speech.  For the reasons given above, we hold that the Ombudsman’s Ruling was wrong; and the appeal succeeds. Accordingly:
(a) The Appeal is allowed;
(b) The Ombudsman’s Ruling, and sanction, dated 30 October 2013, is set aside and replaced by the following: The complaint is dismissed.
Dated this 8th day of July 2014.
Judge B M Ngoepe: Chair; Appeal Panel
Mr Moshoeshoe Monare: Member, Media Representative
Mr Philip van der Merwe: Member, Public Representative