Appeal Decision: Sekunjalo Investments vs Sunday Times
SUMMARY
The headlines to the stories in dispute read, Three damning blows for Zuma – Calls for president’s impeachment as reports paint picture of plunder, patronage and rot; and, Report slams minister’s R800m fisheries bungle – Recommends stern action against Joemat-Pettersson (published on 1 December 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 first story said that Public Protector Thuli Madonsela had delivered a searing indictment of Pres Jacob Zuma’s administration in three damning (provisional) reports that had exposed gross misconduct, deceit, unlawful acts and corruption at the highest level of government. The second article concentrated on the Tina Joemat-Pettersson report. The chairman of Sekunjalo Investments (SI), Iqbal Survé, was mentioned in this regard.
SI complained that:
- the publication had breached the Public Protector Act by prematurely publicising details of a provisional report;
- because of the above, it was not able to respond to statements contained in this report; and
- several statements in the stories were inaccurate, misleading and/or unfair.
The Ombud said SI did not have the standing to complain about issues regarding Joemat-Pettersson or the government. That left him with only one statement in each story, namely, the tender award process “showed evidence of collusive tendering and/or bid rigging by the Sekunjalo consortium” (first story), and “Iqbal Survé has close ties to Zuma” (second one).
The Ombud dismissed this complaint, mainly because:
- he was satisfied that the first sentence in question was justified – the reporter quoted Madonsela correctly from her preliminary report, and made it clear that the report was not final; and
- was justified in saying that Survé had close ties to Zuma – it did not state “close personal ties”, as the newspaper correctly pointed out. He also asked: “Why would ‘close ties to Zuma’ necessarily validate allegations of misconduct?
SI then applied for leave to appeal.
Judge Ngoepe agreed with the Ombud’s ruling and dismissed the complaint. He inter alia emphasised that the Ombud’s office could not entertain the charge by SI that the newspaper had contravened section 7(2) of the Public Protector Act of 1994 – it was for the Public Protector to take steps.
THE RULING ITSELF
Sekunjalo Investments Applicant
Vs
Sunday Times Respondent
Matter NO 526/2013
Decision: Application for Leave to Appeal to the Appeal Panel
1. The Applicant, Sekunjalo Investments, seeks leave to appeal the Ruling of the Ombudsman handed down on 13 February 2014. The Respondent, the Sunday Times, opposes the application. The Ruling followed a complaint by the Applicant filed in the wake of articles by the Respondent on 1 December 2013. The headline on the first page read: “Three damning blows for Zuma.” The first story, on the first page, was that the Public Protector had issued a blistering indictment against the government of Mr Zuma in three reports on: Nkandla, Minister Joemat-Petterson (Fisheries) and former Minister Dina Pule (Telecommunications). The second article, which was on page four, focused on Minister Joemat- Petterson, alleging inter alia that she had wasted the taxpayers’ money and that she had tried to interfere with alleged investigations against her. The articles were based on an interim report by the Public Protector. The Respondent had made it clear that the report, on which the articles were based, was an interim one.
3. The Applicant complained that the articles were in violation of articles 1.1, 2.1 and 2.2 of the Press Code. The complaint was summed up by the Ombudsman: Applicant complained that the articles were, unfair, untruthful and inaccurate in saying that the interim report exposed gross misconduct; that cabinet ministers influenced the outcome of tenders and that the chairperson of the Applicant had close ties with President Zuma. Applicant also complained that it had not been contacted for comment prior to publication. The other complaint was that the Respondent, by publishing the contents of an interim report of the Public Protector, contravened the provisions of section 7(2) of the Public Protector Act, 1994 and therefore committed an offence.
4. It is important to note, as the Ombudsman has found, that the Respondent made it clear in the articles that they were based on an interim report of the Public Protector. Inherent in that statement was that things might change, come the final report to which the affected people would have been given the opportunity to respond; a reader would know that. The fact that the Applicant did not comment therefore caused it no prejudice; in any event, the Respondent has detailed attempts it made to get some comment from Applicant, without success. I need not add anything to the reasons given by the Ombudsman for his finding that the Applicant could not bring complaints about allegations of corruption, gross misconduct, deceit etc made against the government or cabinet ministers; it had no locus standi to do so; neither could it do so with regard to allegations relating to Minister Joemat-Petterson. After consulting a copy of the interim report, the Ombudsman found that the allegations relating to the Applicant were justified. After some clarification by the Respondent on the issue of the relationship between the President and Dr Surve, the comment was fond to be justified. The charge by Applicant that Respondent contravened section 7(2) of the Public Protector Act of 1994, cannot be entertained here; it was for the Public Protector to take steps.
5. For the reasons given above, as well as those given by the Ombudsman, with which I agree, I do find that the Applicant has no reasonable prospects of success before the Appeals Panel. The application for leave to appeal the Ombudman’s Ruling is therefore refused.
Dated this 14th day of April 1014
Judge B M Ngoepe, Chair, Appeals Panel.
