Appeal Decision: Baleka Mbete vs M&G

Decision: Application for leave to appeal

Applicant: Baleka Mbete

Respondent: Mail & Guardian

DECISION: Application for Leave to Appeal to the Appeals Panel

1.Applicant, Ms B Mbete, applies for leave to appeal to the Appeals Panel, the Ruling handed down by the Ombudsman on 29 November 2013. The applicant had complained to the Ombudsman following the story published by the Respondent, the Mail & Guardian, on 6 September 2013. According to the Applicant, she complained in respect of both the headline and the contents of the story. The headline read: “Gold Fields bribe Mbete-US investigators have concluded that a R25million share handout to Baleka Mbete constituted corruption by Gold Fields, which then buried the findings.”

3.According to the Omdudsman, the only complaint which had been lodged by the Applicant was about the headline; the complaint being that the headline was not supported by the contents of the story itself. The Applicant complained that the headline was deliberately misleading and defamatory. In the Ombudsman’s view, there was no complaint made against the story itself, contrary to what the Applicant contents. In line with his view that the complaint was only against the headline, the Ombudsman considered only that complaint and did not consider any complaint relating to the content of the story itself. The Ombudsman then dismissed the complaint against the headline.

4. The Appellant’s application for leave to appeal to the Appeals Panel is in fact twofold. Firstly, she wants to appeal against the Ombudsman’s dismissal of the complaint against the headline. Secondly, she wants to appeal the Ombudsman’s decision that she never lodged any complaint in respect of the contents of the story itself. For the reasons that will appear later, it would be convenient to first deal with the latter.

5. I have looked at the submissions by both parties. Having looked at Applicant’s submissions, in particular at certain portions of her letter of complaint quoted in the submissions (which I do not wish to repeat her), I am of the view that the Applicant may well persuade the Appeals Panel that, right from the beginning, she also complained about the contents of the story itself. Were that to be the case, it would mean that the Ombudsman erred in his view and, consequently, erred in not considering the Applicant’s complaint. Should leave to appeal be granted only in respect of the Ombudsman’s alleged error or also in respect of his decision dismissing the complaint relating to the headline? I don’t think these complaints can be divided into water tight compartments; I do think that, in the event it is found that there was indeed a complained against the story itself, it would be desirable to hear the two complaints simultaneously. One does not know for sure what conclusion the Ombudsman would have come reached had he considered both complaints; it would not be appropriate to speculate. In reasoning this way, I am not unmindful of the fact that the two complaints are separate; however, there is some connection between the two. Furthermore, reference must be made to the other matter between the parties, in which the applicant is the present Respondent, and vice-versa. Leave to appeal is being granted also in that matter. As I say in that other application, these two matters have, at least on the face of it in some respects, a few things in common. It is desirable to have both matters fully ventilated.

6. I conclude that the Applicant has reasonable prospects of success to persuade the Appeals Panel that the Ombudsman erred in holding that the Applicant did not lodge a complaint in respect of the contents of the story published by the Respondent on 6 September 2013. For the reasons given, the Applicant is hereby granted leave to appeal to the Appeals Panel against the Ombudsman’s said decision, as well as his dismissal of the Applicant’s complaint in respect of the headline to that story.

Dated this 22n day of February 2014

Judge B M Ngoepe, Chair, Appeals Panel