Decision: Application for leave to appeal
Applicant: Noupoort Christian Care Centre
Matter No: 24/07/2014
DECISION: APPLICATION FOR LEAVE TO APPEAL TO THE APPEALS PANEL
 Noupoort Christian Care Centre (“Applicant”) lodged two complaints against Rapport (“Respondent”). All the complaints were dismissed by the Ombudsman in his Ruling of 4 September 2014. The Applicant now seeks leave to appeal this Ruling.
 The complaints relate to two stories published by the Respondent. The first was on 22 June 2014, under the heading “Noupoort: nou moet dit end kry.” The second story was published on 29 June 2014 under the heading “Pastoor bieg oor Noupoort se gruwels.” It was accompanied by a photograph of a young person in a foetal position. Both articles dealt with the issue of ill-treatment of inmates of the Applicant, brought in for rehabilitation. It should be stated that even before these stories were published, allegations of mistreatment of inmates had already been made in the media.
 A more detailed summary of the complaints, which include alleged failure by the Respondent to give the applicant the opportunity to respond, is contained in the Ruling of the Ombudsman, dated 4 September 2014. In e3ssence, the Applicant that the first story was not balanced; its views, though sought, were not included. The Ombudsman held that the Applicant sourced the information from court documents, to which the Applicant had failed to respond; he held that the Respondent did not in any case have to seek or publish Applicant’s views, and therefore dismissed the complaint. The second was related to a photograph published with the second story. It was a picture which depicted an inmate of the Applicant as being maltreated. The Applicant complained that although its views were sought in relation to the story, they were not sought in relation to the photograph. The ombudsman found that the Applicant had been given the chance to comment; the fact that it was not asked specifically to comment on the photo would not change the photo’s nature anyway. This complaint was also dismissed; hence this application. The Ombudsman gave his full reasons for his Ruling. I agree with them. What I need to do, is to consider the grounds of appeal advanced by the Applicant.
 The Applicant contends that the Ombudsman misdirected himself in several respect. In this connection, the Applicant merely repeats the arguments advanced before the Ombudsman. It should be mentioned that it is only when there is a reasonable prospect of a finding that the Ombudsman has misdirected himself, that leave may be granted.
 Two crucial points come to the fore in respect of the articles. Firstly, the Respondent relied on a report by the Centre for Child Law, who were amicus curiae in the matter between the Applicant and its landlord. That report was critical of the way the Applicant treated its inmates. The Applicant did not dispute the contents of the report, the matter having been settled out of court. The Respondent relied for its report on the court records. A complaint by the Applicant that it was not given the opportunity by the Respondent to comment before the publication could therefore not stand. The importance of the report is that any possible damage to the image of the Applicant was not caused by the Respondent, but by the report.
 The second point is the issue of the picture of the child in a foetal condition, which had apparently been captured by a closed circuit television camera. The picture, alone, spoke volumes. The Ombudsman was correct to wonder how any comment by the Applicant would have changed the nature of the picture. But even more problematic for the Applicant is that it did not deal fully with issues which had been put to it prior to publication. The Applicant argues that had it been given the opportunity to comment on the photo specifically, it would have done so in a manner that would have shown that its directors or management, other than the culprits themselves, were not aware of the ill-treatment. Firstly, as already said, the nature of the picture and its negative message would still stand. Secondly, it is surely not necessarily true , as the Applicant argues, that lack of knowledge (of the incident) on the part of directors or management would assist its image; on the contrary, such lack of knowledge might point to poor management and lack of ability to exercise adequate control over staff, or lack of ability to protect inmates.
 The two points set out in paragraphs 5 and 6 above were very important to the Ruling by the Ombudsman. I find no misdirection on the part of the Ombudsman in the manner in which he dealt with them in his consideration of the complaints. The responses by the Respondent to all the complaints were apposite; the same applies to its responses to the points raised against the application for leave to appeal.
 For the reasons given above, as also for those given by the Ombudsman, I hold that there are no reasonable prospects that the Applicant will succeed before the Appeals Panel; the application is therefore dismissed.
Dated this 7th day of November 2014
Judge B M Ngoepe: Chair; Appeals Panel