Appeal Decision: Mbalula N vs Sunday Times


Tue, Aug 29, 2017

In the matter of

MBALULA N                                                                                                 APPLICANT

AND

SUNDAY TIMES                                                                                          RESPONDENT

MATTER NO: 3209/03/2017

DECISION ON AN APPLICATION FOR LEAVE TO APPEAL

[1]     Mrs N Mbalula (“applicant”) lodged a complaint against the Sunday Times (“respondent”) in respect of two articles which appeared in the respondent on 15 January 2017 (“first story”) and on 29 January 2017 (“second story”).  The complaint was out of time.  The Ombud refused to grant condonation in respect of the second story, but did so in respect of the first.  Before he could proceed to adjudicate the matter on the merits, the respondent lodged an application for leave to appeal the decision granting the condonation. In my Decision dated 7 June 2017, I declined the application as being premature, and referred the matter back to the Ombud to adjudicate the merits.  As I have already said, this was only in respect of the first story.

[2]     Consequent to the referral, the Ombud, in order to adjudicate the matter properly, directed certain questions to the applicant.  No response was received.  The Ombud then dismissed the complaint. The applicant now seeks leave to appeal the dismissal.  The application is vehemently opposed by the respondent.

[3]     The explanation given by the applicant’s attorneys for not responding to the questions raised by the Ombud, was firstly, that he was on recess and secondly, that he had a backlog of work. This explanation cannot be accepted.  The underlying principle behind this process for the adjudication of disputes is that matters be disposed of as expeditiously as possible.  The attorneys also argue that, in any event, the questions asked, or the information sought, was not material to the resolution of the matter; the Ombud, so goes the argument, could and should have resolved the matter without the information sought.  I have looked at the information sought.  I think it was material to the resolution of the dispute.  I should not be lightly supposed that the Ombud could have asked for information which was not, in his discretion, material.  In fact, on the face of it, the information sought would be both relevant and material for a proper resolution of the matter.

[4]     The Ombud’s reasoning that the applicant lost interest in the matter must be understood against the principle referred to above, namely, that finality in the resolution of disputes be reached as expeditiously as possible.  It is also important to note that the applicant is in effect asking for a second condonation in respect of the same complaint.

[5]     I find no fault with the manner in which the Ombud dealt with the matter, and the reasons given by him.

[6]     For the reasons given above, including those given by the Ombud, the application is dismissed.

Dated this 29th day of August 2017

Judge B M Ngoepe, Chair, Appeals Panel