Decision: Application for leave to appeal
Applicant: Today’s Trustee
Respondent: Zamani Letjane
Decision: Application for Leave to appeal to the Appeals Panel
1. The respondent, in his capacity as the Chief Executive Officer of the company mentioned below, lodged a complaint against the applicant following a box which was published in the applicant’s edition of March- May 2013.
2. The complaint was upheld by the Ombudsman, who ordered correction and apology in the form in which he had crafted. The applicant now seeks leave to appeal to the Appeals Panel against the Ombudsman’s Ruling and Sanction.
3. The Ombudsman restates the complaint as follows: “Letjane complains that the statement that he and/or Akani Retirement Fund Administrators (ARFA) was/were under investigation in Swaziland was factually incorrect and misleading. He says that the company in question was in fact Akani Swaziland Retirement Fund Administrators, and adds that neither he nor the ARFA was the subject of an investigation.” He found that the report was incorrect; it failed to distinguish between the company in Swaziland, which was the subject of investigation there, on the one hand, and the South African company on the other hand. The Ombudsman further found that the purported subsequent correction was nothing more that the publication of the complainant’s letter, together with some comments by the respondent. I agree with the Ombudsman’s findings and reasons and have nothing to add except to comment on some of the grounds for the proposed appeal.
4. Firstly, applicant takes issue with the Ombudsman’s finding that harm was caused to the complainant. Applicant argues that complainant never mentioned that he had been harmed. There is no merit in this argument. The fact of the matter is that there was a complaint filed; that complainant did not specifically plead “harm” is neither here nor there. It must follow that if he complains that the statement was false, it means he felt harmed.
5. Secondly, applicant says it was not given the opportunity to answer fully. I do not agree. In its reply applicant said that it would elaborate if the need arose; that is, it reserved to itself the right to do so in its own discretion and wisdom and it would be its fault that it did not do so. In fact the applicant, in the same letter, concluded as follows: “I suggest that sufficient grounds have now been presented for this matter to be closed.” This statement can hardly come from somebody who does not feel they have presented their case fully or strongly; after all, it is not the length of argument that matters, but the substance thereof. The Ombudsman could hardly have thought that the applicant still wanted to say more. Furthermore, the applicant, to this day, steadfastly refuses to change attitude even though it can hardly be in dispute that the report was factually incorrect; nothing would have changed this bottomline. I agree entirely with the Ombudsman that the subsequent mere publication of the complainant’s views does not amount to accepting that the paper had made a mistake, and also that not questioning the veracity of those views does not amount to accepting the truth thereof.
6. For the reasons given above, I hold the view that the applicant has no reasonable prospects of success on appeal, and the application for leave to appeal is therefore dismissed.
Given on this 15th day of December 2013
Judge B M Ngoepe, Chair, Appeals Panel