Appeal Decision: Huisgenoot vs Joggie Scholtz

Decision: Application for leave to appeal

Applicant: Huisgenoot

Respondent: Joggie Scholtz

Matter No: 1228/07/2018

                               DECISION: APPLICATION FOR LEAVE TO APPEAL

[1]     Joggie Scholtz (“respondent”) lodged a complaint against Huisgenoot (“applicant”) with the office of the Press Ombudsman in connection with an article published on 15 March 2015.  The headline to the story read: “EK’S NIE KLAAR MET DIE SKOOL NIE”.  The article was about a conflict that existed between the principal of the Malmesbury High School, Dirk Marais, on the one hand, and, on the other hand, the respondent who was the chair of the schools governing body.  In the story, the principal was reported as complaining about, amongst others, email intimidation and threats by the respondent.  Also reported was the fact that the principal had obtained an interim protection order against the respondent in the local magistrate court.  Some four months later, that is 29 July 2015, the court made adverse findings against the principal in discharging the interim order, after the principal had also withdrawn the application.  The adverse remarks by the magistrate against the principal, and the cost award against him, emboldened the respondent to ask the applicant to publish the court’s findings; but the applicant refused and, instead, offered to interview him, or for him to write a letter for publication.  The offer was declined  The respondent’s complaint was that applicant violated articles 2.1 and 2..2 of the Press Code in that its report was not accurate, truthful and fair, or balanced, respectively.

[2]     In his Ruling dated 16 August 2015, the Ombudsman held that applicant acted in breach of article 2.6 of the Press Code: “A publication shall make amends for publishing information or comment that is found to be inaccurate by printing, promptly and with appropriate prominence, a retraction, correction or explanation”.  He found that it was fair and just to agree to respondent’s request to report about the judgment, which absolved respondent.  He also found that applicant was under an ethical duty to so publish.  He ordered applicant to publish the material content of the judgment, and to also state that failure to do so caused damage to the respondent.  The applicant now seeks leave to appeal the Ruling.  The application is opposed by the respondent.

[3]     In its application for leave to appeal, applicant contents that the Ombudsman found against it on the basis of a complaint which did not exist.  It says the only complaints which had been submitted were based on the alleged breach of articles 2.1 and 2.2 of the Code; there was never an complaint based on the alleged violation of article 2.6.  The complaint was actually lodged before the judgment, which came out only on 29 June 2015.  The second point raised by the applicant is that it is not a newspaper and does not therefore “report on daily events”; it says that it nevertheless offered the respondent an opportunity for an interview on the judgment, which offer was rejected.  Applicant also objected to the sanction imposed and insists on an interview, which offer still stands.

[4]     I have carefully considered applicant’s contention that there was no complaint against it based on the alleged breach of article 2.6 of the Code. This seems to be quite correct.  The complaints lodged were about the alleged violation of articles 2.1 and 2.2.  These were not upheld by the Ombudsman.  I note that the applicant, through its lawyers, had asked for confirmation that the complaint was only in respect of the two articles. No response was received; instead, the Ombudsman proceeded to consider the matter and came up with a violation of 2.6. Applicant contents that the adjudication was done before applicant was given the opportunity to respond to a complaint relating to this article.  That in fact, seems to be the case.   I am inclined to grant leave to appeal because that is the only way to remedy the situation: an appeal hearing before the Appeals Panel is a so-called open appeal; therefore the applicant would be given the opportunity to deal with this alleged violation. I have also considered that as the article was written when the judgment did not exist, given the fact that applicant is not a newspaper reporting on daily events, the Appeals Panel may hold that the fact that the applicant offered an interview, absolves the applicant.  In this respect, it is important to note that the Ombudsman says of respondent’s refusal to take the offer: “Dis nie vir my duidelik waarom Scholtz Huisgenoot se aanbod om ‘n opvolg – storie van die hand gewys het nie – dit sou tog die tydskrif die gulde geleentheid gegee het om die hofuitspraak te weerspieël het”.

[5]     In light of all the above, leave is hereby granted to Huisgenoot to appeal against the Ombudsman’s Ruling of 16 August 2015, for the Appeals Panel to consider only the following issues, and to make appropriate orders:

5.1    whether Huisgenoot has acted in breach of article 2.6 of the Press Code;

5.2    what the effect is of Huisgenoot’s offer to interview Mr Joggie Scholtz, and his decline;

5.3    in the event of any breach of the Press  Code being found, what the appropriate sanction or remedy should be.

Dated this 17th day of October 2015

Judge B M Ngoepe, Chair, Appeals Panel