Appeal Decision: Gavin Davis vs The Times


Tue, Mar 6, 2018

In the matter between:

Gavin Davis                                                                                      Applicant

and

Times                                                                                                 Respondent

                                                                                                            Matter no. 3575/11/2017

 

               DECISION ON APPLICATION FOR LEAVE TO APPEAL

1.     On 30 October 2017 Times (“respondent”) published a story with the heading “Veil of secrecy as DA policy chief quits amid tensions ahead of 2019”.  Mr Gavin Davis (“applicant”) lodged a complaint with the Office of The Press Ombud against the content of the story.  In his ruling dated 29 November 2017, the Ombud dismissed the complaint in its entirety.  The applicant was at all material times a Member of Parliament representing the Democratic Alliance party (DA).

2.     Gist of the complaint:  The complaint had 3 legs.  Firstly, that the respondent relied on anonymous sources, without verifying or interrogating what was said.  Secondly, that article 1.8 of the Press code was breached in that the applicant was not given the opportunity to comment on the adverse allegation made against him.  Thirdly, that article 2.1 of the Code was breached in that the journalist was conflicted as he had previously unsuccessfully applied for a position at the DA.

3.     The applicant seeks leave to appeal against the entire ruling.  The respondent opposes the application.  For the application to succeed, the applicant must show that the application has reasonable prospects of success before the Appeals Panel.  I must now assess whether such prospects do exist.

3.1 Regarding the first complaint. The applicant says: “The core issue at stake is the reliance on anonymous sources without successfully corroborating the information or interrogating the credibility of it”.  In my view the Ombud was correct in dismissing this complaint.  The applicant, I am afraid, has misunderstood the previous rulings by the Ombud in other matters.  In the present case, the article states clearly that the information complained about was even confirmed by some members of the party. It goes so far as to reveal that some informers were members of the caucus.

          3.2 Regarding the breach of article 1.8:  As said earlier, the complaint was that the applicant was not given the opportunity to respond.   Three points need to be made in this regard.  The journalist did ask the applicant for comment; however, this was limited only to the question of the resignation per se, as opposed to the alleged reasons behind it. After the applicant said he had no comment on the issue of resignation, the journalist did not go further to put to the applicant the alleged reasons behind the resignation; for example, the alleged tension between him and a colleague or that he belonged to a particular grouping within the party. The second point raised by the applicant is that the Ombud mistakenly stated that the applicant was approached twice, and twice declined.  On its own this point may not be weighty; but it is not on its own.  The third point is that the respondent conceded the breach and offered to rectify.

3.3.  Alleged conflict of interest (breach of article 2.1):  I agree with the Ombud’s reasons for dismissing this complaint.  I only wish to add that the thrust of the article was not about the DA itself (which was the entity that had declined to appoint the journalist) but more about the applicant himself as an individual.  I therefore fail to understand how the journalist could have had an axe to grind with the applicant as an individual. To say there was a conflict of interest on the present facts would amount to overstretching the principle.

4.         For the reasons given above my view is that the applicant has no reasonable prospects of success in respect of the complaints that the journalist was conflicted, and that anonymous sources were relied upon without corroborating and interrogating the information.

5.         Regarding the complaint that the applicant was not given the opportunity to respond to critical reportage (breach of article 1.8) I am of the view that, for the reasons given above, the applicant has reasonable prospects of success before the Appeals Panel; leave to appeal is therefore granted in respect of that complaint only. 

                  Dated this 5th day of March 2018

                      Judge B M Ngoepe, Chair, Appeals Panel