Appeal Decision: Daily Maverick vs The Frankel Family


Wed, Oct 11, 2017

In the matter of

DAILY MAVERICK                                                                                              APPLICANT

AND

THE FRANKEL FAMILY                                                                              RESPONDENT

MATTER NO: 3442/08/2017

DECISION ON APPLICATION FOR LEAVE TO APPEAL

1.         In this case, although the application for leave presents a number applicants, the only applicant cited in the complaint and who appeared before the Press Ombud, is the Daily Maverick (the “applicant”). It is sufficient and more convenient to deal with the matter on the premise that the applicant is the Daily Maverick (the publisher). The Frankel Family, which turned out to be the widow of the late Sidney Frankel and the children, are hereinafter referred to collectively as the “respondent/family”. Sidney Frankel passed way in April this year.

2.         A complaint was lodged on behalf of the Frankel family by Attorney Gundelfinger with the Office of the Press Ombud against an article which appeared in the applicant on 3 July 2017.  The headline read: “A rape survivor never forgets”.  The opening sentence read as follows: “Abused by dead billionaire Sidney Frankel from the age of five, Marinda Smith speaks about the impact of this on her life ...” Thereafter the article mentions how one Marinda Smith herself narrates how she was sexually abused by Frankel.  Further on into the story, it is stated that the abuse took place over 40 years ago.  The complaint lodged by attorney Gundelfinger was that the “heading proclaimed and implied that Marinda Smith was raped by the late Sidney Frankel.”  As far as the body of the article was concerned, the complaint was that in both instances referred to above, it was stated as a fact that Marinda Smith was abused in that the word “alleged” was not used; to read for example “alleged abuse”. The family therefore wanted the article to be rectified. The applicant refused to do so.

3.         In refusing to rectify, the applicant argued that the word “alleged” was deliberately omitted in both instances because there was overwhelming evidence that Frankel sexually assaulted not only Marinda Smith, but a number of girls as well. The assault, as also described in detail by Marinda Smith, took the form of Frankel penetrating the girls’ vaginas with his finger.  This lead the applicant to the second defence: applicant argues that while at the time the assault took place penetration by finger was not rape, the law has recently been amended in such a way that that kind of assault would fall under the definition of rape. The applicant also raised the issue that to the extent that the complaint was said to be on behalf of the Frankel Family, the complaint was improperly lodged as no specific individuals were named, especially as some of the members of the family had also raised the same complaints of abuse against the deceased.  In answer to this, Mr Gundelfinger explained that the complaint was lodged on behalf of the widow and the children.

4.         In his Ruling dated 29 August 2017, the Ombud, after considering submissions from both sides, held that the applicant, by not using the word “alleged” to qualify the abuse, breached article 1.3 of the Press Code.  His finding reads as follows:

The complaint about the reportage where Smith was quoted, stating as a fact that Frankel had sexually abused her, is dismissed.  The statements of fact that Frankel had abused Smith which were not attributed to her (twice in the article, as well as in the headline, was (sic) in breach of Section 1.3 of the Press Code ...”. He then directed the applicant to apologise to the family for that. The applicant is now seeking leave to appeal the above ruling to the Appeals Panel.

5.         For this application to succeed, it must show reasonable prospects of success before the Appeals Panel.  Just by going through the reasoning of the Ombud, and the reasons he gives, it becomes apparent that the application has no such prospects.  I need not regurgitate what the Ombud said; but I think I should elaborate a bit.

6.         The applicant argued that the attorney could not lodge a complaint on behalf of the “family”.  This point was disposed off when Mr Gundlefinger specified that the “family” comprised the widow and the children.  Apparently the applicant wanted to link up this point with the argument that because Frankel has died, he could not be defamed.  But the complaint was never about defaming the deceased; it was about the hurt the headline and the story inflicted on the widow and the children themselves.  In the circumstances, they had the right to complain in their own right. As stated in the complaint, they were caused “great humiliation, embarrassment and distress in the general public”.  In the circumstances, it would be absurd to argue that the widow and indeed even the children, had no right to complain.

7.         What is fatal to the applicant’s argument that it was justified not to use the word “alleged”, is this: In his further submission to the office of the Ombud and in reply to the applicant’s response, Mr Gundelfinger said the following: “The allegations were denied by Frankel”.  Given the denial of the accusations by Frankel, the applicant could not simply state the accusations as a fact. What is worse is that Frankel’s denial is not recorded in the report.  It also appears that the journalist interviewed the attorney of some of Frankel’s accusers, but not his attorney (Mr Gundelfinger).  In fact, it appears that there is a civil case pending before the court in which Marinda Smith is claiming R5m and that Frankel has filed pleadings denying the allegations.  If the journalist was not aware of these denials, contained as they were in the court papers, not sufficient investigation carried out, which makes it all the more why the journalist was not competent to pass judgment on the guilt of Frankel.

8.         Mr Gundelfinger argues that even as the law stands, the conduct described by Marinda Smith would not be rape.  The Ombud did not find it necessary to resolve this issue because, apparently, in his view, either way, the word “alleged” should have been used.  This approach was correct.  In any case, the difficulty may arise with regard to the applicant’s argument about the retrospectivity of the relevant legislation.  For example, had Frankel been alive and convicted, would he be convicted of, and punished for, rape, even though, at the time the conduct complained of was not considered as rape, but indecent assault?   The argument that the use of the contemporary definition of the word “rape” in relation to what was then indecent assault, worse still without contextualization, would offend against section 1.3 of the code.

9.         In its grounds of appeal, the applicant says the Ombud misconstrued section 1.3.  The section reads:

Only what may reasonably be true, having regard to the sources of the news, may be presented as fact…..” The applicant relies on this, on the ground that a number of people had made similar allegations against Frankel. But this is problematic: we are here dealing with Marinda Smith’s matter only. Each one of the so-called “sources”  is no more than a source in respect of her own separate story, each of which is faced with a denial by Frankel (according to Mr Gundelfinger). Applicant’s best “sources” are therefore no more than individual accusers themselves! One can’t lump them together to find “overwhelming” evidence, or to see them as sufficient (“sources”), to justify omitting the use of the qualifying word (“alleged”)  in the the story of Marinda Smith. There is no objective proof of the truth of their individual allegations, other than what they themselves say; a journalist must herefore be slow to pass judgment. It is for this reason that reliance on the Holocaust example is also misplaced: with the Holocaust, there was physical (objective) proof of the suffering and deaths; corpses were found, as were visibly emaciated people.   It is not for nothing that medical evidence is required to help prove “rape”; this is because such evidence would constitute objective evidence. Applicant’s argument is frightening: should journalists be allowed to consider “evidence” or allegations, and then “convict” a person as a “rapist” simply because, in the journalist’s opinion, the “evidence” is overwhelming, and therefore no need to use the word “alleged”?  That could not have been the intention behind section 1.3.  It may well be argued that the present is a classic case of trial, and indeed conviction, by the media!  The journalist did well to recount Marinda Smith’s story, but overstepped the mark by returning a finding of guilt on Frankel.  It is comforting to see that the media routinely use the word “alleged” when they cover court cases!

10.      For the reasons given by the Ombud, as elaborated upon above, the application shows no reasonable prospects of success before the Appeals Panel; it is therefore dismissed.

Dated this 10th day of October 2017

Judge B M Ngoepe, Chair, Appeals Panel