Decision: Application for leave to appeal
Applicant: Sunday Times
Respondent: Dr Khaya Ngqula
On May 25, 2011, the Appeals Panel (the First Panel) of the Press Council of South Africa (SAPC) upheld an appeal (the first appeal) by the Sunday Times against a ruling by the Deputy Ombudsman, Johan Retief, regarding a complaint by Dr Khaya Ngqula about two articles published on 5 December 2010.
The First Panel in the absence of the Chairman was presided over by Acting Chairman of the Appeals Panel, Neville Woudberg, assisted by two appeal panellists, Peter Mann (media representative) and Brian Gibson (public representative).
Subsequent to the First Panel issuing its ruling, Mr Gundelfinger requested Retired Judge R H Zulman, the Chairman of the Press Council Appeals Panel, to re-open the appeal and set aside its finding on the basis that:
• The hearing of the first appeal was in breach of the constitution of the SAPC in that the Chairman of the First Panel, Mr Woudberg, did not “have senior experience within the field of law” as required by clause 11.3.1 of the Constitution of the SAPC; and
• The First Panel was misled into believing that that the sub judice rule was not part of South African law.
The Chairman agreed to convene a special hearing of the Appeals Panel on 25 July 2011, presided over by himself assisted by Mr Mann and Mr Gibson to consider the request and, if granted, to consider the merits of the first appeal.
The hearing by the Second Panel was duly held on 25 July 2011. This hearing will be referred to as the hearing before the Second Panel.
Representing the Sunday Times were Advocate Gilbert Marcus SC, Mr Eric van den Berg, Mr Floyd Selomo and Ms Susan Smuts. Representing Dr Ngqula were Advocate Shirley Rose and Mr Billy Gundelfinger. Dr Ngqula also joined the hearing after it started.
The parties were advised that the Second Panel would first hear the application to re-open the matter. If it decided to do so the merits of the first appeal would be considered. Counsel were invited to address argument to the Second Panel on both the question of reopening and thereafter the merits of the first appeal. If the application to reopen was unsuccessful, the ruling of the First Panel would stand.
THE APPLICATION TO RE-OPEN
Having considered the useful heads of argument presented by both parties and heard their oral arguments, the Second Panel agreed that the membership if the First Panel was fatally flawed in that Deputy Chairman of the First Panel, as was common cause, was not a person with “senior experience within the field of the law” as required by clause11.3.1 of the constitution of the SAPC.
As regards the second ground for the application to re-open the appeal, Mr van den Berg, who appeared for the Sunday Times in the first appeal, assured the Second Panel that he did not intend to mislead the First Panel by stating that the sub judice rule had been abolished in our law and conceded that he probably overstated the position. The Second Panel accepted his assurance.
In any event the whole question of the alleged application (or misapplication) of the sub judice rule by the First Panel need not be considered at this stage in any more detail in the light of the fact that the composition of the First Panel was fatally flawed.
The sub judice rule will, however, be considered further when the merits of the first appeal are dealt with.
It was argued by Advocate Marcus that the materiality of the alleged breaches of procedure was not sufficient to annul the finding of the first panel that the panel that the Panel was functus officio: it had done its work, its ruling was final and the only remedy available for the applicants was to take the ruling on review before the high Court. The Second Panel does not agree with this argument.
The Second Panel considers that notwithstanding the complexity of the legal argument surrounding the challenge, it would be inappropriate to redirect the Dr Ngqula to the High Court. The self-regulatory system adopted by the SAPC is intended to be informal and inexpensive and hopefully speedy.
Mr Marcus SC further argued that in any event the Second Panel did not have the power to set aside the ruling of the First Panel. The Second Panel does not agree. Upon a proper construction of clause 5 of the Constitution of the SACP, the Second Panel (and not only the Council itself), has the power, in an appropriate case, to set aside a decision of a Press Council Appeals Panel. The Second Panel believes that this is an appropriate case since, as already stated, the First Panel was not properly constituted. .
In all the circumstances second panel rules that the decision of the first panel should be set aside and the merits of the first be considered afresh.
THE RULING OF THE SECOND PANEL IN RESPECT OF THE FIRST APPEAL
The Sunday Times appealed against the finding of the Deputy Ombudsman in response to a complaint by Dr Ngqula that two articles published by the Sunday Times on December 5, 2010 (headed Fat-cat parastatal bosses come and go, but they get the cream and Getting paid to go away) untruthfully stated that he was sacked from his position as CEO of South African Airways and erroneously portrayed him as a failure.
The Deputy Ombudsman found there was no proof that Ngqula was sacked. He said the Sunday Times had made assumptions that were not supported by facts and that their report had also been in breach of Article 1:1 of the Code, of the SACP which states: “The press shall be obliged to report news truthfully, accurately and fairly”.
The Deputy Ombudsman also found the Sunday Times had erred in portraying Dr Ngqula as a failure as the findings of a KPMG Report, on which he said the articles were based, were only allegations which had yet to be tested in court. He said the reportage was accordingly in breach of Article 1.1 of the Press Code.
In its appeal document, the Sunday Times contended the Deputy Ombudsman had erred in that:
• He had failed to read the complaints in the context of the articles as a whole.
• He had imposed “a higher standard” pertaining to the reasonableness of the publication; and
• He disregarded the appellant’s defence that the statement that the complainant was a failure amounted to fair comment.
After giving considerable consideration to the heads of argument and the oral submissions, the Second Panel agrees that:
• The matters reported on were in the public interest, as SAA is a parastatal funded by public money.
• It was not the task of the Panel to determine whether allegations contained in the KPMG report were true. That is for a court to decide.
• The allegations against Dr Ngqula are in the public domain and may be reported.
The Second Panel simply has to decide whether the Sunday Times was justified in describing Dr Ngqula’s departure from the company as a sacking and saying he was a failure as CEO of SAA. Did the Sunday Times comply with Article 1.1.of the Code and report the news “truthfully, accurately and fairly”? Was it fair comment?
The Panel considers the timeline relating to the mater to be instructive:
March 6, 2009: Dr Ngqula submits a letter of resignation to SAA (which letter emerged for the first time in papers submitted during the appeals process).
March 10, 2009: SAA issued a statement headed, “SAA chair announces termination of Khaya Ngqula’s employment” (our emphasis).
March 26, 2009: At a parliamentary Portfolio Committee inquiry into the termination of Ngqula’s contract, then chairperson of the SAA board Jakes Gerwel advised the committee that: “….the SAA board took the decision to terminate Mr Ngqula’s contract for what were thought to be very logical reasons. If the board had not decided to separate with Mr Ngqula, he would still be earning his salary and retention premium while on special leave……. The board took the decision to negotiate a termination due to the need to stabilise the company and allow operations to continue without the uncertainties of a CEO on special leave. (Our emphasis)
In August 2010: SAA launched a civil action against Dr Ngqula for the recovery of approximately R50 million of public funds allegedly misspent during his tenure as CEO of SAA. The matter is still before court.
August 31, 2010: In a presentation to Parliament’s Standing Committee on Public Accounts, SAA chairperson Cheryl Carolus was reported to have said (referring to the disputed KPMG report on the affairs of SAA under the leadership of Ngqula): … the failures were mainly in the areas of procurement and wasteful expenditure. An extensive and costly investigation had been launched which had cost approximately R20 million. The board realised that it needed to draw the line and hand over matters to the authorities. She was confident that SAA would recover enough of the money in question to recover its costs. It had to fix the failures in corporate governance. (Our emphasis)
February 13, 2011: The Sunday Times published an article spelling out in detail the claims against Dr Ngqula in the High Court, which in turn are presumably based on the KPMG Report (which has not been published). It is pertinent that Dr Ngqula’s representative, who was approached for comment, declined to do so other than to confirm he was representing Dr Ngqula. He did not argue in this instance that the matter was sub judice. Nor did Dr Ngqula contest the accuracy of the report relating to the allegations against him (although he succeeded in a complaint to the Press Ombudsman relating to a section of the article that dealt with a matter that was not before the court. The Sunday Times has appealed the ruling).
After considering the evidence, the Second Panel accepts that it was fair and reasonable for the Sunday Times to conclude that, for whatever reason, the SAA board had lost confidence in Dr Ngqula and wanted him out. Although negotiated, his departure was not voluntary. It was fair comment to say he had been sacked.
It follows that the SAA board had lost confidence in Dr Ngqula to the extent that it initiated the termination of his employment. By any standard this was a “failure” of corporate leadership and it was therefore fair and reasonable for the Sunday Times to portray his tenure as CEO of SAA as a failure.
As previously stated one of the grounds raised by Dr Ngqula for setting aside the ruling of the First Panel was that it was misled as to the sub judice rule.
The First Panel should have considered the claim by Dr Ngqula that the allegations against him were sub judice .
The Second Panel established that SAA had brought an action in court against Dr Ngqula based on the KPMG report. In the Second Panel’s view, although the sub judice rule is part of our law, contrary to what Mr van den berg told the First Panel, it has no application on the facts to appeal against the ruling of the Deputy Ombudsman. The fact that SAA (a third party) may have instituted action against Dr Ngqula and that the action is pending has no bearing on the appeal which concerned the Sunday Times and Dr Ngqula.
The second panel accordingly upholds the appeal of the Sunday Times against the ruling of the Deputy Ombudsman in favour of Dr Ngqula.
Retired Judge Ralph Zulman
Press Appeals Panel
Mr Peter Mann
August 7, 2011