Appeal Decision: Johannes Hendrick De Lange vs Sunday Times

Fri, Dec 8, 2017

 In the matter between

JOHANNES HENDRIK DE LANGE                                                                APPLICANT


SUNDAY TIMES                                                                                            RESPONDENT

MATTER NO: 3717/09/2017


1.         Mr Johannes Hendrik de Lange (“applicant”) worked at all relevant times as an estate agent within the firm Re/Max Advance (“Re/Max”).  He lodged a complaint with the office of the Press Ombud of the Press Council in connection with an article which appeared in the Sunday Times (“respondent”) on 29 September 2017, with the headline “Gran alleges sin of commission”, and the sub-headline reading “Re/Max agent takes R92,000 out of buyer’s money – even though the seller pulled out”. The complaint was that the applicant was not given the right to reply. I take it that the applicant complained not only in his personal capacity, but also on behalf  of Re/Max.

2.         The facts, issues and circumstances in this matter are exactly the same as in matter no 3515/2017, namely, McNaught & CO/Mark Leathers vs Sunday Times, in which I have already given a Decision dated 4 December 2017.  The complaints arise out of the same article, are vertually one and the same and could easily have been dealt with together; however their applications for leave came seperately.  But as the matters are the same, I take the liberty of restating what I say in the McNaught & Co Decision.

3.         The article complained of made for a sorry read.  One Mrs Ellis, a widow, wanted to buy a certain property through the applicant. She then paid to the transferring conveyanvcers (“attorneys”) a full purchase price. Suddenly, the seller revoked the power of attorney she had given to the attorneys to transfer the property.  Notwithstanding demand from the attorneys, the seller refused to restore the power.  The attorneys then cancelled the agreement of sale on behalf of Mrs Ellis, refunded her her money but less the agent’s commission, a whopping R92,055.00; this amount was paid over to the applicant, a franchisee of Re/Max South Africa (“the franchisor”).

4.         Holding Mrs Ellis liable for the commission was said to be on the basis of a term in the agreement of sale which provided that in the event the sale failed, the seller and the purchaser would be liable to pay it to the agency.  Mrs Ellis complained that her attention was never drawn to that term; she said she was made to sign the agreement on the boot of a car, the agent assuring her that the agreement contained standard terms.  The article referred to some correspondence between Mrs Ellis’s lawyers and the transferring attorneys. It also appeared that the respondent took up the matter with the franchisor, whose response was that such a clause was not standard, but that a franchisee had the authority to put in their own terms.  Eventually, Mrs Ellis’s money was refunded.

5.         The applicant’s complaint was that neither it nor the conveyancers were contacted by the journalist for comment; as a result, the article was one-sided and caused harm to the applicant.

6.         After analysing the facts, the Ombud came to the conclusion that while it would have been better for the journalist to have spoken to the applicant, he found no breach of the Press Code.  His view is that the journalist did speak to Mr Goslet, Re/Max South Africa’s Chief Executive Officer, who told the journalist that he had spoken to the applicant (Re/Max Advance).  The Ombud also relied on correspondence between the conveyancers and Mrs Ellis’s attorneys. He dismissed the complaint.  I agree with the Ombud’s Ruling, for the reasons he gives.  I also wish to add what follows below. There is much to be said for the respondent’s argument that strictly speaking the applicant was, on the basis of the controversial term in the agreement, etiltled to the commission. It is also noteworthy that the applicant says that had it been contacted, it would have refunded the money. This is incomprehensible: why would the applicant need some propmting to do what it believed was the right thing to do? That is not the objective of the provision ( section 1.8 of the Press Code) granting the right of reply; the objective is to counter-balance a critical raportage.

7.         The application has no reasonable of success before the Appelas Panel; it is therefore dismissed

Dated this 7th day of December 2017

Judge B M Ngoepe, Chair, Appeals Panel