Appeal Decision: Nikesh Dhanlal vs Sunday Times Extra

SUMMARY

The headline to the story in dispute read, Well-loved bakery forced to down tools (published on 17 Marach 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 story was about a court case in which the Top Hat Bakery in Durban had been ordered to vacate its premises as a result of overdue rent.

The owner of the bakery, Nikesh Dhanlal, complained inter alia that the:

• reporter did not contact him for comment;
• journalist had used the magistrate’s court papers to write about the High Court case;
• matter was unopposed, yet the story said that it was argued in court;
• story inaccurately stated that an order was served requesting him to move out of the Phoenix store – he said no such order had been served;; and
• headline was misleading.

The Ombud dismissed the bulk of the complaint, mainly because:

• it was not normal journalistic practice to ask people for comment when reporting on a case in court;
• the papers that had been filed in the magistrate’s court were included in the papers filed in the High Court;
• the court had indeed ordered Dhanlal to vacate the property – therefore the matter had not been withdrawn; and
• the headline reasonably reflected the content of the story.

Sunday Times Extra was cautioned for creating the false impression that the matter had been argued in court. The newspaper offered to publish the following (which was accepted by the Ombud): “… we incorrectly stated that…Dhanlal opposed an eviction application in the Durban High Court. In fact, the matter was unopposed. Dhanlal has (also) since told us that his Top Hat Bakery had already vacated the premises at White House Shopping Centre in Phoenix, Durban, at the time of the case.”

Dhanlal then applied for leave to appeal.

Judge Ngoepe agreed with the Ombud’s ruling, except for the latter’s opinion that the complaint was that the order was not served – not that it did not exist.

THR RULING ITSELF

Matter Number                                                                89/2013

Nikesh Dhanlal                                                                  Applicant

Vs

Sunday Times Extra                                                          Respondent

1.The applicant was the owner of a bakery. He lodged a complaint with the office of the Ombudsman against the Sunday Times Extra, the respondent, following a story which appeared in the Sunday Times Extra of 17 May 2013. The headline read: “Well-loved bakery forced to down tools.”  Applicant’s complains are set out, and dealt with, below.

– The headline was misleading. Respondent argued that the headline was not misleading as there was a court order in terms of which the applicant had to leave the rented premises due to overdue rental. This complaint was dismissed by the Ombudsman. As there was indeed such an order, the headline could not have been misleading.

– He was not contacted prior to publication. The Ombudsman has held that it is not normal journalistic practice to do so. I add that, in any event, as the respondent correctly says, it was reporting on a matter which was already before court and they were relying on court papers.

-Court papers in the magistrate court were used by the respondent in reporting on a High Court case. It turned out though that these papers were made part of the proceedings in the High Court. The Ombudsman correctly dismissed this complaint.

-The story did not mention that by the time the order was issued, applicant had already vacated the premises. Apparently the Ombudsman has made no formal finding on this as respondent has already offered to mention this in a corrective story. I mention in passing though, that, prima facie, this would be justified.

-The story inaccurately stated that an order of eviction was served on the applicant to vacate the premises; no such order was served. Respondent contents that there was in any event such an order, and the Ombudsman found in favour of respondent and dismissed the complaint. But, with respect, the complaint is that the order was not served (not that it did not exist), thereby implying that the evacuation could not have been prompted by the order; by insisting on the fact that the order was not served, applicant ties this up with the undenied fact that by the time the order was made, he had already evacuated the premises in question. I therefore would hold a different view from the Ombudsman. This notwithstanding, given the offer by respondent to correct this, my conclusion on prospects of success, or lack of it, will not be affected by this.

-The story gave a wrong impression that the matter was opposed and argued in court. Respondent admitted making an error in this respect, and offered to make a correction

-The story did not mention that the matter was withdrawn. Correctly, the Ombudsman dismissed this complaint, as court papers showed the contrary.

2.The applicant rejected respondent’s offer to publish a corrective story. He is also not satisfied with the corrective version crafted by the Ombudsman. The reason is that applicant wants nothing less than an apology and a retraction of the story. For this reason, he seeks leave to appeal the Ombudsman’s Ruling.

3. For the reasons I have already given above, I hold that the applicant has no reasonable prospects of success against the Ombudsman’s Ruling. Although I have indicated a prima facie different view from that of the Ombudsman with regard to one of the complaints, I find that, regard being had to the offer made by respondent, as well as the terms of the corrective story drafted by the Ombudsman, applicant has no reasonable prospects to overturn the Ombudsman’s Ruling, or to achieve any better remedy than those afforded in the Ruling.

4. In the circumstances, the application is turned down.

Judge B M Ngoepe, Chair, Appeals Panel

23 August 2013.