Association of Regional Magistrates of Southern Africa vs. The Times

SUMMARY

The headline to a letter to the editor in dispute read, Not fit to judge, sentence (published on 3 September 2013).

This ruling by Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.

The letter said that the real reason for most complaints against magistrates was that they were not suitably qualified and, in certain instances, also not fit and proper to hold office. “It follows that their judgments (and sentences) will be flawed.” This came in response to reportage that magistrates countrywide were under fire for breaking, instead of applying, the law. Cases cited varied from sexual harassment, drunken driving, assault, gambling, fraud, theft and even murder.

Delize Smith, president of the Association of Regional Magistrates (Armsa), complained that the text constituted an unfounded generalisation, and demonstrated a deliberate disregard of the context in which the statement of a spokesman of the Justice Department was made which reflected negatively on the professional integrity of judicial officers and revealed a total ignorance of the process of judicial appointments.

The newspaper pointed out that the text was a letter to the editor, and that it was clearly marked as such. It cited two judges regarding the criteria for fair comment and concluded, “We submit that our publication of the letter is amply protected by this definition [and] … that there has been no breach of the Press Code.”

Retief agreed with the newspaper. Dismissing the complaint, he said, “It will be a sad day for our democracy in general and our press in particular if this office finds against a newspaper that publishes people’s opinions that are indeed protected by the Code. The mere fact that Armsa complained about this issue is worrying.”

THE RULING ITSELF

This ruling is based on the written submissions of Ms Delize Smith, president of the Association of Regional Magistrates (Armsa), and The Times newspaper.

Complaint

Armsa complains that the content of a letter published in The Times on 3 September 2013, headlined Not fit to judge, sentence, constituted an unfounded generalization, and demonstrated a deliberate disregard of the context in which the statement of a spokesman of the Justice Department was made which reflected negatively on the professional integrity of judicial officers and revealed a total ignorance of the process of judicial appointments.

Analysis

The letter, authored by Nathan Cheiman, said that the real reason for most complaints against magistrates was that they were not suitably qualified and, in certain instances, also not fit and proper to hold office. “It follows that their judgments (and sentences) will be flawed.”

This followed a story in Sunday Times, headlined Magistrates: drunks, thieves and killers – Four have been kicked out this year alone as the credibility of the courts suffer (published two days earlier). The story said that magistrates countrywide were under fire for breaking (instead of applying) the law. Cases cited varied from sexual harassment, drunken driving, assault, gambling, fraud, theft and even murder.

Unfounded

Armsa complains that the “article” (as it calls the text) by Nathan Cheiman added salt to the wounds as it demonstrated “deliberate disregard” for the context in which Mthunzi Mahaga, spokesman of the Justice Department, had commented on related matters. “The contents of this article also constitute an unfounded generalisation reflecting negatively on the professional integrity of judicial officers and reveal a total ignorance of the process of judicial appointments.”

The Times says that the “article” was in fact a letter, and that it was clearly marked as such. The newspaper adds that:

• South African courts have repeatedly endorsed a ruling by Chief Justice Innes, almost 100 years ago, that fair comment does not have to be impartial or well-balanced in order to be protected as fair comment; and
• Justice Cameron pointed out in the McBride case (vs. The Citizen): “In fact, fair…means merely that the opinion must be one that a fair person, however extreme, might honestly hold, even if the views are extravagant, exaggerated, or even prejudiced. The comment need be fair only in the sense that objectively speaking it qualifies as an honest, genuine (though possibly exaggerated or prejudiced) expression of opinion relevant to the facts upon which it was based, and not disclosing malice.”

The publication concludes: “We submit that our publication of the letter is amply protected by this definition [and] … that there has been no breach of the Press Code.”

Armsa’s reference to Mahaga stems from the story in Sunday Times, where he is quoted as saying the following regarding delays in finalising complaints against magistrates: “Each misconduct complaint is investigated on its own unique set of facts. The complexity … and the availability of evidential material will have an impact.” The article added that he said many complaints stemmed from unhappiness with a judgment of sentence.

I note that the letter included the statement about “unhappiness with a judgment or sentence”, and that it omitted the part in inverted commas. However, I do not believe that this omission can reasonably be construed as material.

The argument by The Times regarding fair comment is flawless. Let me emphasise, though, that the Press Code indeed amply supports the sentiments voiced in both the above-mentioned judgments by our courts (as implied by the publication).

It will be a sad day for our democracy in general and our press in particular if this office finds against a newspaper that publishes people’s opinions that are indeed protected by the Code. The mere fact that Armsa complained about this issue is worrying.

Finding

The complaint is dismissed.

Appeal

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman