Appeal Decision: Daily Maverick vs Oupa Segalwe

In the matter between

DAILY MAVERICK                                                                                               APPLICANT

AND

1. On 20 February 2020 I handed down my Decision dismissing an application by Daily Maverick (“applicant”) for leave to appeal the Ombud’s Ruling in respect of a complaint by Mr Oupa Segalwe (“respondent”), spokesperson for the Public Protector. The nature of the Ombud’s Ruling is discussed in my Decision.
2. Upon receipt of my Decision, the applicant wrote a letter to the Ombud and the Director of the Press Council, dated 27 February 2020. The letter raised two questions. The first question: “On what basis did the judge introduce this element of right of reply BEFORE publication when it was not the subject of the appeal, or the original complaint by Segalwe?” After stating that the applicant was “concerned that the invocation of (clause) 1.8  in this context may mean that subjects of critical comment…..need to be approached before publication,” a question was posed: “Could the judge please thus clarify the meaning of this ruling?” (Own underlining). The underlined part places the duty to explain squarely on me, and if I may add, the request is neither unreasonable nor trivial, as it will be apparent later.
3. After receiving the letter, the Ombud transmitted it to me. I then asked Ms Mdaweni, the case manager, to forward a copy to Mr Segalwe for comment by a certain date, if he so wished. He did so. Ms Mdaweni then sent the response to the applicant for comment. The applicant responded, expressing some unhappiness that its letter was brought to the attention of the respondent. It intimated that what was raised in the letter was a matter between itself on the one hand, and the Ombud and the Director of the Press Council on the other. It simply could not have been so. Nobody but myself could have given clarification or answers sought. If the clarifications and answers sought were not apparent from the Decision, as the letter suggests, neither the Ombud nor the Director could have known what was in my mind. The very reason for the quest for clarification or answers was that they were not apparent from the Decision! They were therefore peculiarly within my own mind, which the two officials could not read. The Ombud therefore acted correctly in referring the letter to me. Once the matter fell on my desk, I had no choice but to give the respondent the opportunity to comment; otherwise I would have committed a very basic procedural error. And, as the applicant correctly indicates in the same letter, the Decision may hold potential implications for the media. For this reason also, I elect not to treat the matter as being merely between the applicant and the two officials. I need to add that in his response, Mr Segalwe actually made some useful contributions regarding the Code. The remarks are the result of his comparative research, and are not necessarily detrimental to the applicant’s case, nor beneficial to his.
4. As I was pondering the issues raised in the letter, I realized that my Decision was based on a genuine but erroneous assumption that the complainant had actually filed a clause 1.8 complaint. In my Decision, I make the following statement in paragraph 4: “I have not seen (Mr Segalwe’s) complaint itself, but accept what the Ombud says in the Ruling, dated 11 December 2019 as to what the complaint was”. (Own underlining). This was how the Ombud had summarized the complaint, which summary I accepted: “Mr Segalwe complains that when he asked for a right of reply, he was refused it. He charged that Daily Maverick has transgressed clause 1.8 of the Press Code, which allows the subject of critical reportage comment or a right of reply”.  (Own underling). As I frankly indicated already then, I had personally not seen a clause 1.8 complaint myself but, on the basis of the underlined portions of the Ombud’s Ruling, accepted that such a complaint had indeed been filed, together with its jurisdictional facts. Thirdly, under the heading “Findings” the Ombud again referred to clause 1.8 and indeed found that the applicant had transgressed this particular clause. My Decision was therefore based on the assumption that clause 1.8 was genuinely implicated. The assumption was wrong. In fact, it appears that on both the Ombud’s side and mine, there was a conflation of clauses 1.8 and 7.1.
5. Mr Segalwe has intimated that I might be functus officio.  In my view though, I am entitled to reconsider my Decision.
   1. 1 As I say above, my Decision is based on certain set of facts, which did not exist; the true set of facts are as now disclosed to me, namely, that no clause 1.8 complaint was lodge. This is also confirmed in Mr Segalwe’s response. I have therefore not taken any decision in respect of the now known facts.
   2. 2 The above being the case, my Decision was the result of a patent error, and the Order made falls to be corrected.
   3. 3 The error is not the result of any party’s fault.
   4. 4 As the applicant’s letter correctly indicates, the Decision holds potential important implications for the media.
   5. 5 My Decision is the decision of the Chair of the final tribunal; there is no other tribunal beyond it to correct the error; nor is there any other remedy provided for in the Code.
   6. 6 No prejudice would ensue to any party.
6. In reconsidering my Decision, which, for the reasons stated above, I am entitled to do, I must determine what the real issue for the appeal would be. As the applicant states in its application for leave to appeal, the issue is a narrow one: whether the applicant was guilty of breach of the Code in refusing to publish Mr Segalwe’s reply, given the fact that the applicant had indicated at all material times that it was willing to publish it, albeit subject to certain conditions. The appeal would therefore be limited only to that point; it would not extend to whether or not the reply should be published because the appellant has repeatedly indicated that it has always been willing to publishing it, albeit subject to the guidelines set by the Ombud. An appeal tribunal does not sit to adjudicate something that is not in dispute. As far as an appeal on the above limited point is concerned, the applicant has reasonable prospects of success. Accordingly, my Order of 20 February 2020, being paragraph 8 of the Decision, is hereby substituted by the following Order:

(a)     leave to appeal is granted to the applicant only on whether or not the applicant has transgressed any clause of the Code; and

(b)     no leave is granted on whether or not the respondent’s reply, which must comply with the guidelines set out in the Ombud’s Ruling of 11 December 2019, should be published.

Dated this 13^th day of March 2020

Judge B M Ngoepe, Chair, Appeals Panel