Appeal Decision: Dladla Thato and Josta Dladla vs Sunday World
Wed, Aug 30, 2017
In the matter of
DLADLA THATO FIRST APPLICANT
JOSTA DLADLA SECOND APPLICANT
SUNDAY WORLD RESPONDENT
MATTER NO: 3401/06/2017
DECISION: APPLICATION FOR LEAVE TO APPEAL
 This is an unusual matter. On a certain date, a journalist of the Sunday World (“respondent”) telephoned Ms Thato Dladla, (“first respondent”), who is the wife of Mr Josta Dladla (“second applicant”). Amongst other wuestions, the jornalist asked first applicant a very crued question: “Is it true that you had unprotected sex with ...”. The journalist wanted to write a story based on the interview. Not surprisingly, first applicant was miffed, and dropped the phone on the journalist. No story was written. This was because certain legal steps were taken against the respondent with the objective of interdicting the intended story. I must point out at the outset that the issue of pending legal action is of no moment insofar as this application is concerned, or indeed the adjudication of the complaint subsequently lodged with the Press Council.
 The complaint lodged with the Office of the Ombud, on behalf of both applicants, was with regard to the question asked by the journalist to the first applicant.
The applicants’ attorneys formulated the complaint in part as follows:
“9. Mrs Dladla is a mother of three minor children and has been married to Mr Dladla for ten years. Our client believes that the above allegation is uncouth, insensitive and that such a question should not have been asked in the manner that (the journalit) did so (if at all), least of all by a male journalist to a woman.
10. Our client is of the belief that (the journalist) lacked integrity, gender sensititvity and ethical boundaries when asking the question that he did, in the manner that he did.
11. Our Client believes that (the journalist) showed complete disrespect for her and she felt that her dignity and privacy was being attacked.
CONTRAVENTIONS OF THE PRESS CODE
12. Our clients are of the belief that the aforementioned complained of conduct, constitutes a contravention of the Code of Ethics and Conduct for South African Print and Online Media (effective 1 January 2016)….. In particular, the following codes have been contravened:-
12.1 (Code 1.4) (the journalist) was not attempting to gather “news” fairly;
12.2 (Code 3.1 and Code 3.3) the complained of conduct amounts to a violation of Mrs Dladla’s privacy, dignity and reputation and the line of questioning of (the journalist) was not conducted with any care and consideration for her;
12.3 (Code 5.1 and 5.2) Our client, being a woman in a male dominated society in which woman are constatnly abused and ridiculed, believes that (the journalist’s) conduct amounts to discrimination towards her, on the grounds of her gender”.
The applicants also argued that the journalist breached article 2.1 of the Code, “in that he has inter alia solicited information without stating the usage of such information (i.e that will be used in reportage) or that he is a reporter”. The applicants asked for a reprimand and an apology to first applicant.
 The respondent’s defence was firstly, that there was an ongoing legal process going on. This defence fell out of the picture or took the back stage. Secondly, the respondent argued that the Ombud had no jurisdiction to hear the complaint because there was no publication of the story. The respondent referred to certain articles in the Code which could possibly have been contravened, namely, articles 1, 1.5 and 1.6, but argued, as yet another defence, that the articles were not cited or relied upon by the applicants.
 After initially ruling that he had jurisdiction, the Press Ombud, on the basis of submissions made by the respondent, changed his view and ruled that he had no jurisdiction as there had been no publication of the story; i.e. he would have jurisdiction only post publication. One of the basic arguments raised by the respondent was that jurisdiction over pre-publication conduct may result in the limitation of the freedom of the press.
 In light of the Ombud’s ruling that he had no jurisdiction and therefore dismissing the complaint, the applicants brought this application, which is being opposed by the respondent essentially on the same grounds as were raised before the Ombud. In further support of their application, the applicants also refer to the Preamble of the Code, which, on their interpretation, would bring the pre-publication conduct within the purview of the Code. The applicants argue that the Code does not restrict itself only to post publication complaints. They also argue that it “would not be in the interest of the Media, the Office of the Press Ombud and the Press Council if journalists were allowed to disregard the Code unless they published some sort of content. This would set a tragic precedent which would condone unprofessional conduct of journalists, who can now get away with causing harm to their subjects by simply deciding not to publish ...”.
 I do not want to discuss the merits of the case, because I am inclined to give leave to appeal the Ombuds Ruling. Suffice it to say that the very fact that the Ombud changed his mind, indicates that this is not such a straight forward matter. I have considered carefully the above submissions by the applicants. While the Appeals Panel may not necessarily agree with them, they are not entirely without merit. The test is, after all, whether there are reasonable prospects of success.Their case is such that, given the facts of the case, there are such prospects that the Appeals Panel may differ with the Ombud’s ruling that the Press Council has no jurisdiction. Secondly, I am not comfortable with the thought that the Ombud coud simply change his mind, after a formal ruling that he had jurisdiction. I am not sure whether an adjudicator is competent to change his/her own decision. Should he/she rather not stick to the initial decision, and, if doubt of the corretness thereof, rather encourage the dissatisfied party to appeal? Would the adjudicator not have been functus officio? This thought is, however, not necessarily the basis of my decision; the basis has been set out above.
 For all the above reasons, the application is granted and the applicants are hereby given leave to appeal
Dated this 30th day of August 2017
Judge B M Ngoepe, Chair, Appeals Panel