Decision: Application for leave to appeal
Applicant: Ronald Kasrils
Respondent: Sunday Times & The Times
Matter No: 12/09/2014
DECISION: APPLICATION FOR LEAVE TO APPEAL TO THE APPEALS PANEL
 Both the Sunday Times and The Times seek leave to appeal the Ruling of the Press Ombudsman dated 28 October 2014. Mr Ronald Kasrils, for his part, seeks leave to cross-appeal the sanction. I must confess that I found the papers confusing, and had to read again and again; for example at one stage the papers spoke of the “second edition” and then of the “second story” in a manner that confused one, especially when the “story” (the “second”?) in The Times also featured! The fact that the papers were voluminous, including the transcripts, did not help either.
 Against the Sunday Times: The Ruling followed a complaint by Mr Kasrils against an article published by the Sunday Times on 7 September 2014. The headline read “Spy tapes ‘illegal’ and expose Kasrils”. In the second edition the headline read “Tapes illegal and expose role of Kasrils.”
 The Ombudsman ruled that both headlines in the Sunday Times were in breach of article 10.1 of the Press Code in that they stated as fact, rather than as an allegation attributable to sources, that Mr Kasrils had been exposed. They did not, therefore, reasonably reflect the contents of the articles: whereas the latter (correctly) presented contents as mere allegations, the headlines did not. I do not find any fault with the Ombudsman’s finding in this respect. While it may be true, as The Sunday Times argues, that headlines may not contain various qualifications and explanations, they cannot simply go about stating mere allegations as facts. It is not good argument to say the headline will be redeemed by the contents of the story; not everyone who takes a look at the headlines reads the story itself.
 As against The Times, the compliant was in relation to its article of 8 September 2014, with the headline “I discussed NPA investigations – Kasrils”.
 The story in The Times was found to have stated allegations as facts to the extent that it stated that Mr Kasrils had been the mastermind in the manipulation of the National Director of Prosecutions (breach of articles 2.1 and 2.2 of the Code). Again, I see no misdirection on the part of the Ombudsman.
 The Ombudsman found that Mr Kasrils reputation had been damaged.
 The Ombudsman also found that the Sunday Times did not give Mr Kasrils adequate time to respond in relation to the first story, or to state that there was no time to get his views. According to Mr Kasrils, he was approached around 18h00 the day before the publication; I don’t think this was reasonable. It should be borne in mind that Mr Kasrils was the Minister of Intelligence at the time the tapes were made, and was dealing with the murky world of espionage. I think, in arguing that his views should not be elevated above those of anyone else’s, the Sunday Times is missing this important consideration. The need to afford him adequate time was heightened. The Ombudsman was therefore correct in his finding.
 The sanction imposed on the Sunday Times included:
· an apology for stating in the headlines that the spy tapes exposed Mr Kasrils; as the mastermind behind the manipulation of the NPA;
· retraction of the mastermind label;
· apology and retraction to be on the first page, above the fold.
 The sanction against The Times included:
· Apology to Mr Kasrils for stating as fact allegations that the spy tapes did identify him as the mastermind behind the manipulation of the NPA;
· Retraction of the statement
· Publication of the apology and retraction on page 4 above the fold.
 In light of the aforegoing, I find no fault with the Ombudsman’s findings. The application for leave to appeal by both newspapers is dismissed as having no reasonable prospects of success before the Appeals Panel. I do mention also, that the Ombudsman has listened to the tapes and was well placed to adjudge the contents thereof.
Mr Kasril’s Application for leave to cross-appeal against the sanction imposed on The Sunday Times
 The Sunday Times, it is common cause, distributed street posters carrying the offending headlines. It will be noted from the sanctions imposed that, when it came to the publication of the apology and retraction, the Ombudsman did not specifically determine whether same should also be carried on posters. It should therefore be accepted that the Ombudsman declined to make a directive of that nature. This is confirmed by the note written by the Ombudsman to Mr Kasrils on 30 October 2014. In it, he states that he had on several occasions in the past considered a poster sanction, but had consistently decided against it.
 Mr Kasrils contends that the sanction should also have been carried on the street posters. He argues that a large number of posters, carrying the offending headlines, were widely distributed, including in big cities such as Johannesburg and Cape Town. Therefore, he argues, the apology and retractions should likewise appear in the street posters; accordingly, he wants leave to appeal the Ombudsman’s Ruling inasmuch it failed to so order.
 Mr Kasrils’s application for leave to cross-appeal is being opposed. It is argued, inter alia, that the posters did not, in the first place, breach the Code. Article 10.2 of the Code provides that posters “shall not mislead the public and shall give a reasonable reflection of the contents of the reports in question”. Of course, the Ombudsman has, as already mentioned, correctly found that the headlines were offensive. Where, as the Ombudsman has found, the headline displayed on street posters is offensive but the content of the article is not, and an apology is ordered in relation to the offensive headline, shouldn’t the apology likewise be carried on street posters? This is the question raised by the application for leave to cross-appeal. The Sunday Times submits that to order that the correction be carried on street posters would be unprecedented. The logic of this argument is that, no matter how offensive and how widely the posters were distributed, a complainant should just be content that an apology is placed on say the first page. On the face of it, the remedy granted to redress the harm is disproportionate to the magnitude of the harm caused by the posters; after all, it is not in dispute that the posters were widely distributed. For this reason, I would grant leave to Mr Kasrils to appeal to the Appeals Panel; there are reasonable prospects of him succeeding in causing the apology to likewise be on street posters, alternatively, to obtain some other measure to better address the harmful publicity caused by street posters. In his note of 30 October 2014 referred to above, the Ombudsman says two considerations weigh with him in deciding against a poster sanction. Firstly, that, what is required is merely “appropriate sanction—not necessarily in the same place and space.” Secondly, because posters “sell newspapers, and given the harsh times the industry finds itself nowadays,” he needs “to be extra careful in this regard.” While I dully take note of what the Ombudsman says, I am nevertheless of the view that the Appeals Panel may adopt the view that each case should depend on its own facts and circumstances; moreover, the Panel may come up with a remedy between the two.The application should therefore succeed.
 For the reasons mentioned above:
13.1 The applications by the Sunday Times and The Times are dismissed.
13.2 The application by Mr Kasrils to appeal to the Appeals Panel against the Ombudsman’s Ruling not to order that the publication of the apology and retraction be on the street posters, is granted.
Dated this 15th day of December 2014
Judge B M Ngoepe: Chair, Appeals Panel