Nelson Mandela Metropolitan University vs. The Herald- 2nd Finding

Ruling by the Press Ombudsman, after a new submission by the NMMU

I hereby respond to each of the paragraphs in turn as contained in the new submission:

Add para 1

Noted.

Add para 2

Noted.

Add para 3

Noted, and agreed – provided that 3.1 (b) (iv) is understood to mean that the allegations themselves were said to be false, and not that the reporting of the allegations were factually wrong.

Add para 4

4.1:  Agreed, except that – strictly speaking – 4.1 © (the reference to Section 4.1 of the Press Code) did not form part of the original complaint. However, this is not a material issue – if and when it eventually comes to it, I decide myself which parts of the Code were breached.

4.2:  Agreed, except that the newspaper also used Section 16 of the Bill of Rights in its argument.

4.3:  Noted.

4.4  Noted.

Add para 5

5.1 (a):  Agreed, but it should be noted that the argument in question was not the only argument put forward by the newspaper.

5.1 (b):  Agreed.

5.1 ©:  Although the newspaper admittedly has not explicitly argued that freedom of expression in this case overrode the right to reputation, the whole tenure of its argument points to it. Be that as it may, it is for me to weigh up these rights – even though one party did not make a specific argument to this effect.

5.2 (a):  Partly agreed – but please note that the newspaper accepted for the sake of argument that the statements may have been defamatory.

5.2 (b – d):  Noted. But please also consider that my decision is mainly based on ethics, and not on matters of law. While it is true that I need to take cognizance of court decisions and be careful not to transgress in this regard, my compass in every matter is the Press Code. If anybody thinks that a publication has broken the law, this office is the wrong tree to bark up.

5.2 (e – f):  Noted.

5.2 (g):  See my arguments in my finding.

5.2 (h):  For the reasons set out above, I do not believe that the Bogoshi case is relevant in this instance, as the “untruths” of the allegations still need to be established.

5.2 (i):  This issue is neither here nor there – it does not really make a difference if some sentences were quoted verbatim, or if they were summarized.

5.2 (j): I have previously argued that the matter was in the public interest. I still believe that it was.

5.2 (k):  I have already argued that it was not the newspaper’s duty to verify statements that were presented in court. I therefore still do not believe that the reportage has caused the NMMU unnecessary harm.

5.2 (l – m):  I have already commented on these issues.

5.3:  “Super-injunction” falls squarely outside the borders of what I consider to be the mandate of this office, namely to ensure ethical reporting. It is none of my business what the NMMU, or any other institution for that matter, legally “should have done” – which is why I have ignored this matter in my ruling, dated 12 November 2014.

Add para 6

6.1 (a):  Not correct. See my remarks under 5.2 (a).

6.1 (b):  As I have pointed out in my ruling, it was not for the newspaper to have “verified” the ex-student’s allegations. The Herald had a right to report what the allegations were, without verifying the content thereof. If, for example, the EFF claims that vice-president Cyril Ramaphosa was mainly responsible for the Marikana massacre (which it is now doing), one cannot expect the press to “verify” if Ramaphosa was guilty before it may publish such an allegation. If there was no truth in the allegations, surely it was not the newspaper’s fault – the publication was merely the messenger in this regard.

6.1 (c – g):  No comment necessary (see my prior arguments, as well as my ruling).

6.2 – 3:  I have nothing to add to my argument, as recorded in my finding.

Add para 7

Based on all of the above, I do not believe that a hearing may lead to a different conclusion than the one I have already reached, or that the new submission necessitates any new finding on my part.

The NMMU may still apply for leave to appeal against my decision.

Johan Retief

Press Ombudsman