Appeal Decision: Anton and Adri van Zyl

In  Matter                                                             156/2013

Anton and Adri van Zyl                                                     Applicants

Media24 t/a Sondag                                                       Respondent

          Application for leave to appeal to the Appeals Panel

1. Applicants are husband and wife. The complaint filed followed  story which appears in the Sondag on 26 May 2013.The gist of the complaint was that the story conveyed that the wife had an affair, in the form of a sexual relationship with the pastor (“dominee”) of their church. The truth of the matter though was that, after the internal investigation by the church, it was found that the pastor ‘s conduct had gone beyond the acceptable limits.
2. The complait was lodged by the husband (hereinafter referred to as the “applicant”). The applicant, himself the owner of a local newspaper, published in his paper a story about respondent and the journalist concerned. In respondent’s view, the story was defamatory. Both sides accused each other of violating the Press Code.
3. As result of the story published by the applicant, which respondent viewed as defamatory, respondent instructed its lawyers who wrote letter to the applicant threatening legal action. In response, applicant also took to his own lawyers who responded that they would oppose any action taken against their client. In the light of these developments, the Public Advocate held the view that the matter is pending before the court and, acting in terms of article 1.6 of the Complaints Procedure, set aside the acceptance of the complaint. The appeal to the Ombudsman was dismissed for the same reason; hence this application for leave.
4. Article 1.6 provides for the setting aside of the acceptance of a complaint if it “emerges that proceedings before a court are pending on a matter related to the material complained about…” (own emphasis). A question arises whether the mere exchange of letters threatening court action renders the matter to be pending before a court. On the face of it, the answer should be in the negative. As applicant’s wife asks, what happens if the threat of going to court does not materialize? As the application in any case falls to be dismissed on another ground, I refrain from making a finding on this point. The matter may not be a simple one, because it is about the interpretation of the article; a host of factors may have to be taken into consideration, not least of which is the purpose behind the article.
5. The complaint was lodged by the applicant in his name and on his own account. It is true that under certain circumstances, one may act on behalf of someone else or a group of people, etc. But if that be the case, one must specifically so state right from the beginning. The complaint accepted by the Public Advocate was the applicant’s; so too was the appeal which served before the Ombudsman. On the other hand, the application before me purports to be by applicant’s wife, and indeed seeks to pursue and prosecute the appeal on the basis that she is the complainant. She argues that applicant was all the time complaining on her behalf. This argument is not supported by the papers filed with the Public Advocate or the Ombudsman. In all of these, no mention was made of the fact that applicant was acting on behalf of his wife. We cannot substitute one complainant for the other at this stage. That being my view, there is no need to go into the merits of the complaint.
6. In the circumstances, the application, which is in fact by the wife, is dismissed.

           Judge B M Ngoepe

          Chair, Appeals Panel

          Dated 10 September 2013