Appeal Decision: Kiren Naidoo vs Sunday Times

SUMMARY

The headline to the story in dispute read, India’s cricket mafia intact (published on 13 October 2013).

This ruling by the Chair of the Appeals Panel, Judge Bernard Ngoepe, was based on the Press Code that was in effect before 30 September 2022.

 

The column was about the behaviour of crowds at the ICC’s World Cup tournament that was held in Cardiff.

Kiren Naidoo, who was of Indian origin, complained that the article was racist against people of Indian origin.

The Ombudsman dismissed the complaint as having no merits. He found that the article was not racist.

Naidoo then lodged his application for leave to appeal his ruling.

Judge Ngoepe said he was of the view that the application has placed itself outside of the appellate process and therefore not justiciable before the Appeals Panel. “This is because of the language in which the application has been couched; which is astounding, given the fact that the applicant says he has studied journalism,” he remarked.

Citing a few examples from Naidoo’s responses to the Ombud’s questions, the judge said his language was “malicious” and “vexatious” – and it was insulting of the Ombudsman and of his office.

The application was dismissed.

 

THE RULING ITSELF

Matter No 178/2013

In the matter of:

Kiren Naidoo                                                                  Applicant

Vs

Application for leave to appeal to the Appeals Panel: Decision__

1.The applicant filed a complaint of racism against respondent following an article published in the respondent’s edition of 9 June 2013. The complaint was that the article was racist against people of Indian origin; this was in relation to a cricket game played in Cardiff. There is no need to go into details. As the relevance thereof will become apparent later, it is necessary to mention that the applicant is of Indian origin.

2.The Ombudsman dismissed the complaint as having no merits. He found that the article was not racist. The applicant then lodged his application for leave to appeal the Ruling of the Ombudsman. After reading the application, I am, regrettably, of the view that the application has placed itself outside of the appellate process and therefore not justiciable before the Appeals Panel. This is because of the language in which the application has been couched; which is astounding,  given the fact that the applicant says he has studied journalism.

3.The Press Council is a voluntary association. No entity or anybody is obliged to join it. It aims to resolve differences in the most peaceful and civil manner; again, no complainant is obliged to submit their complaints against any publication to it. If they choose to do so, they should follow the procedure prescribed in the Complaints Procedures adopted by the Press Council; so too must the written complaint itself comply with the requirements set out therein. As regards the latter, article 1.5 of the Complaints Procedures provides:

“1.5 The Public Advocate shall not accept a complaint: “

      1.5.1…………………………………………………………………….

      1.5.2 Which, in his opinion, is……malicious or vexatious……”  

3. The word “malicious” is described in the Little Oxford English Dictionary as “meaning to harm other people.” The word “vexatious” is an adjective from the verb “vex”, which the same dictionary describes as to “make someone annoyed or worried.” The language used by the applicant, as will be shown later, in fact goes beyond just annoying; it is in fact insulting of the Ombudsman.  The language is inimical to, and undermines, the process of civil and peaceful dispute resolution contemplated in the Complaints Procedures. Had the complaint been couched in that language right from the beginning, the Public Advocate would, in terms of article 1.5 cited above, have been enjoined not to accept.  While basically article 1.5 was aimed at protecting a respondent, the underlying purpose remains true vis-à-vis the whole mechanism for dealing with disputes, namely, to achieve a peaceful and civil resolution. For the mechanism to work, its integrity and credibility must be protected; yet the application is couched in a language which achieves the very opposite.

4. I set out below the language used by the applicant against the Ombudsman, and indeed against the Press Council, in his application.

5. “Would you have dismissed the complaint if the offended person was Black or Jewish or Afrikaans? I think not.”

In effect, the applicant is accusing the Ombudsman of being racist.

6. “The spelling and grammatical mistakes that you made

(in the Ruling)suggest that you are an illiterate moron.”

7. In his Ruling, the Ombudsman mistook applicant’s name for

“Kiran.” Instead of pointing out the error in a civil manner, the

applicant retorts: “My name is ‘Kiren’ you idiot.”

8. The applicant went on to pick on a few wrongly spelt words,

(even though nothing turned on that), and then states: “It is

obvious that you cannot write in English, but it is also obvious

  that you cannot read English either.”  This statement is of

course untrue. He accuses the Ombudsman of failing to use

quotation marks, and then  accuses him of not knowing what

quotation marks are, and goes on to write them out to show

the Ombudsman how they look like.

9. The applicant goes further: “How on earth can you be a press ombudsman when you are barely literate? Your finding has no integrity especially when it is riddled with such grammatical mistakes.”

10. Turning his attention the Council, which had asked him to submit a copy of the allegedly offending article, the applicant says: “The Press Council has no credibility. How can the Press Council not have the relevant newspaper? What sort of Micky Mouse is the Press Council (Apologies to Micky Mouse).”

11. The integrity and credibility of proceedings before courts of law is protected through the mechanism of contempt of court; obviously, not so with proceedings before voluntary associations. For this reason, it is common practice for them to insert the kind of requirements contained in article 1.5 above to protect the integrity of their own proceedings dealing with the resolution of disputes.

12. For the reasons given above, the application for leave to appeal the Ruling of the Ombudsman is dismissed for non-compliance with section 1.5, read with section 3.7, of the Complaints Procedures. In any event, for the reasons given by the Ombudsman, to which I need not add anything, the application lacks merits and has therefore no reasonable prospects of success. I only add that to uphold the applicant’s complaint, one would need to make certain assumptions in relation to, as also to read some insinuations into, the article.

Judge B M Ngoepe, Chairperson, Appeals Panel.