Appeal Decision: City Press vs Mncedisi and Sedumedi Attorneys

Tue, Aug 25, 2020

In the matter of

CITY PRESS                                                                                                         APPLICANT

AND

1. This application is made by City Press and a Mr Lubisi of the paper. For the sake of convenience, I will refer to them collectively as the “applicant”. The applicant seeks leave to appeal the Ruling of the Acting Assistant Press Ombud (“Ombud”) dated 29 June 2020. The Ruling was on a complaint filed by Mncedisi Ndlovu and Sedumedi Attorneys through Mr M Ndlovu who was doing so on his own behalf as well. For the sake of convenience, I will refer to both of them collectively as the (“respondent”). The complaint was against an article which appeared in the applicant’s publication of 5 January 2020 under the headline “Transnet lawyers ‘bribery scandal’”. The same story with the same content appeared on the same date on respondent’s website under the headline “State capture: Top law firm linked to Transnet ‘bribery’ scandal”. Respondent’s 4 January 2020 Twitter account read: “In City Press tomorrow / Transnet lawyers ‘bribery scandal’ ...”
2. The essence of the story was that the respondent, which had been engaged to investigate corruption at Transnet, was linked to some kickbacks from a former member of the Board, a certain Mr Radebe. The journalist was in possession of a recorded conversation between Mr Ndlovu and Mr Radebe; a recording of an apparently suspicious conversation casting doubt on the lawfulness of the law firm’s appointment to assist Transnet. The recorded conversation also deals with the alleged unexplained payment of some R2.2m by the respondent to Mr Radebe.
3. The respondent complained about the headlines, and of course the content of the story. It complained that the text and the tweet linked it to alleged kickbacks. It contended that there was nothing unlawful about its appointment; that the alleged “unexplained” payment of R2.2m by it to Mr Radebe was false. The Ombud went into the details of the complaint in his Ruling. It is sufficient to state that the text and the contents of the story, did, according to the respondent, give an impression that its appointment to assist Transnet was tainted with corruption and thus irregular. In its response, the applicant stuck to its story and argued that it was relying on a tape recording.
4. In his Ruling, the Ombud dismissed some of the complaints, but upheld the following:

 

1. 1 Re the statements in dispute:

                                   4.1.1 “Top law firm Mncedisi Ndlovu Sedumedi (MNS) which is investigating state capture at Transnet, has been linked                                      to alleged kickbacks involving a former board member of the parastatal in an audio recording ...”. The Ombud found                                          that the statement was in breach of clauses 1.1, 1.2 and 1.3 of the Code.

                                   4.1.2 “The recording appears to be of a suspicious conversation that casts doubt on the lawfulness of appointing MNS                                        to assist Transnet….” This statement was found by the Ombud to be in breach of clauses 1.1, 1.2 and 1.3.

                                   4.1.3 “The discussion also deals with an unexplained payment of R2.2 million by MNS to Radebe, who allegedly                                                initiated the appointment of MNS at the parastatal.” The Ombud held that the use of the word “payment” and the                                                mentioning of the MNS’s name in that regard were in breach of clauses 1.1, 1.2 and 1.3.

1. 2 Re headlines: The Ombud held that both the headlines and the Twitter text reflected that the respondent was implicated in alleged acts of corruption and bribery, thus breaching clauses 1.1, 1.2 and 1.3.
2. 3 Reputation: That the above breaches resulted in reputational damage to the respondent, thus breaching clause 3.3 of the Code.

A sanction was then imposed, which included an apology. The applicant now seeks leave to appeal. The application is opposed by the respondent.

5. The resolution of the dispute depended largely on the interpretation of what was said in the tape and also of the story itself. The Ombud analysed the story in detail and, on the basis of his interpretation of what was said, came to certain conclusions, including the findings of guilt as set out in the preceding paragraph. 
6. In his grounds of appeal, the applicant likewise goes into details in setting out, dissecting and criticizing the Ombud’s interpretation of what was said. For example, the applicant refers to certain words which are not being denied. The Ombud’s interpretation goes one way, while the applicant’s goes the opposite direction. The applicant criticizes the Ombud’s interpretation, inter alia, as follows:

“1.     City Press submits that the golden rule to the interpretation of any text is that the literal meaning must be adopted if the words are clear and unambiguous.

2.      The Press Ombudsman does not tell us why the literal meaning of (a statement taken from the tape) on its own, is so unclear and ambiguous such that its literal meaning could not be accepted.

3.      We agree that where words are unclear and ambiguous context would have to considered in order to come to a reasonable interpretation, but the foreground to that is that a compelling case must be made why the words on their own are unclear and ambiguous. The Press Ombudsman never even used the words unclear or ambiguous in the ruling, or even any word with a similar meaning”.

Apart from the issue of literal interpretation, there is also the issue of context.

7. What also makes the matter complex, is that some of the complaints were dismissed. The question then arises what impact this should or should not have on the construction of the context within which some statements, which cannot be denied, were made. One example would be sufficient. The applicant refers to the following statements by the Ombud: “I therefore stand by my provisional analysis, which is that the ... conversation between Ndlovu and Radebe could justifiably have been described as ‘suspicious’; and ... suspicion did not point to the law firm’s alleged illicit appointment to assist Transnet with its investigations.”

The applicants says the following in reaction to the above statement:

“1.   We submit here that the Press Ombudsman is inconsistent. On the one hand he demands context, but when City Press points out that at the time of writing the publication had in its possession a response from Mr Ndlovu, in which he confirmed that it was ‘common knowledge’ that the appointment of MNS was doubted by some, the Press Ombudsman finds this context irrelevant.

2.    The Press Ombudsman cannot cherry pick which context suits his interpretation. The fact that City Press had the response form Mr Ndlovu at the time of writing is sufficient to establish the context within which the newspaper finalised its report.

3.    More so, this comment from MNS is included in the story and it cannot be excluded from the contextual analysis simply because it doesn’t suit the interpretation of the Press Ombud.”

The issue is not, at this stage, whether or not the applicant is correct; but whether or not it has reasonable prospects of success – not whether it will succeed.

8.  In its submissions opposing the application for leave to appeal, the respondent says that the issue is “not whether the Ombud’s interpretation of the recording is the only possible one, but whether it is the more plausible or probable one”. This statement may very well be correct; but it again demonstrates the fact that a lot depends on the interpretation of what was heard and written. As the respondent also points out, the issue was “whether the words in the article were a correct and fair reflection of the audio recording relied upon”. From all that is said above, it is clear that this was a difficult matter for the Ombud to resolve; it still is.
9. For an application for leave to appeal to succeed, an applicant must show reasonable prospects of success. In light of what I say above, I am of the view that the application should be granted; this is a highly arguable matter. That being my view, it would not be appropriate for me to deal here with the merits of the case. The applicant is granted leave only in respect of the Ombud’s findings set out in paragraphs 4.1, 4.2 and 4.3 above.
10. There is an application for condonation as the appeal was noted out of time. It too is opposed by the respondent. That application will also be heard by the full panel. To avoid hearing the matter piecemeal, the application will be heard together with the merits. The parties must therefore prepare to argue both at the hearing.
11. The applicant is therefore granted leave to appeal the Ombud’s Ruling, but only in respect of the findings set out in paragraph 9 above.

Dated this 24^th day of August 2020

Judge B M Ngoepe, Chair, Appeals Panel