Appeal Decision: Oasis Group Holdings vs Weekend Argus

SUMMARY

The headline to the story in dispute read, Crunch time for Hlophe (published on 20 October 2012).

This ruling by a Member of the Appeals Panel, Philip van der Merwe, was based on the Press Code that was in effect before 30 September 2022.

The story was about information that the “ongoing controversy around whether Cape Judge President Johan Hlophe attempted to influence Constitutional Court judges in favour of President Jacob Zuma in 2008” would now finally be investigated.

Oasis Group Holdings complained that the:

• reference that Judge Hlophe had reportedly moonlighted for the Group was incorrect;
• reporter did not verify her information; and
• newspaper never contacted it for comment.

The Ombud dismissed the complaint, mainly because:

• documents provided to him by the newspaper proved that it was justified to publish the “moonlighting” statement;
• an internet search confirmed this decision – for example, many publications reported that Hlope had claimed to have received permission to moonlight at Oasis from former justice minister, the late Dullah Omar – this “reported” moonlighting had been in the public domain;
• he was satisfied that the journalist did verify her information; and
• the newspaper did not have to contact Oasis as it was not the subject of the story.

Oasis then applied for leave to appeal.

Van der Merwe refused the application as there were “no reasonable prospects that the Appeals Panel may come to a decision different from that of the Ombudsman”.

He inter alia added that he did not believe that an ordinary, reasonable reader would assume, on reading the statement complained about, that Oasis had done anything wrong – moonlighting referred to the person undertaking the work, not to the body for which it was done.

THE RULING ITSELF

The Press Council’s Chair of Appeals, Judge Bernard Ngoepe, could not deal with this application as he had previously dealt with part of the matter in issue when he was still serving as Judge President. He accordingly asked me, as a member of the Panel of Adjudicators, to deputise for him as provided for in sub-section 5.7.8. of the Press Council’s Constitution.

Oasis Group Holdings (OGH) lodged a complaint about an article published in Weekend Argus (WA) on 20 October 2012, ‘Crunch Time for Hlophe’, reporting that the Chief Justice was about to appoint a Judicial Conduct Tribunal to investigate allegations that Western Cape Judge President John Hlophe had in 2008 attempted to influence Constitutional Court judges in favour of Jacob Zuma, the future President.

The complaint was in respect of the penultimate sentence of the article which stated that ‘In 2006 it was also reported that Judge Hlophe gave the Oasis Asset Management Group permission to sue Justice Seraj Desai at a time he was moonlighting for the group.’ OGH said that this statement, which was one of three instances given in the article to justify a statement that ‘Judge Hlophe is no stranger to controversy’, was false and injurious of its reputation.

In a ruling based on written submissions from both parties the Press Ombudsman dismissed the complaint in its entirety on 28 February 2013. OGH seeks leave to appeal against this finding. The application for leave to appeal is opposed by WA.

Leave to appeal is refused as there are no reasonable prospects that the Appeals Panel may come to a decision different from that of the Ombudsman.

My ruling is fortified by the following consideration. I do not believe that an ordinary, reasonable reader would assume, on reading the statement complained about, that OGH had done anything wrong. ‘Moonlighting’ refers to the person undertaking the work, not the body for which it is done. The reader would assume that the onus would have been on the judge to obtain whatever permission he required and to disclose his relationship with OGH when giving OGH permission to sue another judge in a separate matter. Any pejorative implication in the word would likewise be taken by that reader to appertain to the worker; for instance, in this case, the judge’s failure to disclose his status as a stipendiary trustee of an OGH-administered retirement fund in appropriate circumstances as described above.

In the circumstances, neither verification nor comment was required. While the incorrect citation in the report of the Oasis Asset Management Group, instead of Oasis Group Holdings, is regrettable, nothing turns on it as the Oasis Group is in the business of asset management, among other things.

PHILIP VAN DER MERWE