Appeal Decision: Zion Christian Church vs Sunday World

Mon, Mar 12, 2018

In the matter of

Zion Christian Church                                                                                            Applicant


Sunday World                                                                                                           Respondent

                                                                                                            Matter no: 3598/11/2018



1.         This is an application by the Zion Christian Church (“ZCC”), the applicant, to appeal a decision by the Press Ombud dated 17 January 2018 dismissing its complaints against the Sunday World (“Respondent”).  The complaint followed an article in the respondent’s edition of 17 September 2017 in which it was reported that the Bishop of the church, His Grace Bishop B Lekganyane faced arrest in Botswana.  It was alleged that the Bishop and the church had violated a court order issued in that country.  For the purpose of this application it is not necessary to go into details of the court dispute or the court order.

2.         The complaint was, briefly put, that the story was damaging to the high esteem in which the Bishop was being held, his reputation and that of the Church.  The Church’s response was to call on its members not to buy the newspaper and its sister papers. The publishers issued an apology, but which was considered to be inadequate by the Church.  In the end, a complaint was lodged with the Public Advocate in the office of the Press Ombud. The Public Advocate accepted the complaint and after failing to resolve it, referred it to the Press Ombud for adjudication.

3.         The respondent took the point that the complaint was lodged with the office of the Press Ombud out of time, and therefore that the Ombud could not adjudicate it.  In his Ruling dated 17 January 2018, the Ombud held that the complaint was lodged out of time; he therefore dismissed it.

4.         The applicant now wants leave to appeal the Ombud’s Ruling; the respondent opposes the application.  The Ombud did not express himself on the merits, and I am therefore not going to do that either.  The only question arising is whether the applicant has reasonable prospects of success against the Ombud’s refusal to adjudicate the complaint on the ground that it was lodged out of time. The issue is governed by article 1.3 of the Press code, which reads:

5.         The reason for my emphasis is that the applicant has pertinently raised the point that the article gives the discretion for condonation to the Public Advocate and who, in the present case, has exercised the discretion and accepted the complaint.  It was not, goes the argument, for the Press Ombud to reject the complaint as being out of time once the Public Advocate had accepted it.  I am fully aware that I have in the past endorsed the Ombud’s rejection of late complaints on the basis of article 1.3.  But I can hardly recall a case where an argument around 1.3 was pertinently raised in the manner in which the applicant in the present case has done so.  I am not unaware of certain practical problems which, as pointed out by the respondent, may arise if applicant’s interpretation of the article is upheld; but, literally, that is how the article actually reads.  The question arises: Is it appropriate for me alone as an individual to interpret the article, or should it rather be an Appeal Panel to do so, given the fact that the applicant has pertinently raised the issue?  I am inclined to refer the matter to the Panel.

6.         The other consideration is whether, in any case, the Ombud is correct in holding that there is no satisfactory explanation for the delay in lodging the complaints.  A delay is interpreted as an acquiescence in the harm, or its acceptance. Several events were initiated by the applicant soon after the publication until the date when the complaint was lodged.  In this respect, the applicant argues that the dispute was all along kept alive.  There may be other consideration, which are common cause or which may not be disputed, which the Panel may take into account, including issues of public interest.  This is not a dispute between one individual, as it has been the case with a number of cases referred to by the respondent, and one newspaper.  I venture to say that the Church comprises millions of people, called upon to boycott the respondent.  At the same time, it is true that issues be dealt with expeditiously.  In my view, it is for the Appeals Panel to do this balancing; each case depends on its facts and circumstances.

7.         For all the above considerations, I hereby grant leave to the applicant, to appeal the Ombud’s Ruling dismissing the complaint on the ground that it was lodged out of time. 

8.          The natural consequence of this Order would be that, in the event the appeal succeeds, the matter be referred back to the Ombud as he did not deal with the merits.  The following Directive is accordingly issued to the parties: Within 7 working days of receipt of this Decision, each party must indicate, with reasons, whether, in the event the applicant’s application for condonation is upheld by the Appeals Panel,

  1. the Appeals Panel should also deal with the merits of the case  or
  2. whether the matter should be referred back to the Ombud to adjudicate the merits.

Dated this 6th day of March 2018

Judge B M Ngoepe, Chair, Appeals Panel