Appeal Decision: Mark Povey vs Cape Times

MARK POVEY                                                                                              APPELLANT

AND

[1]     Mark Povey (“appellant”) complained to the Ombudsman about a number of articles which had appeared in the articles by the Cape Times (“respondent”) over a period of time; the last of which, that finally triggered the complaint, was on 29 June 2015.  The various articles had been appearing since 26 November 2014.

[2]     The articles were basically about an alleged assault by some five young men, apparently all students, on an elderly cleaner at the implicated premises, and her 17 year old son.  She laid criminal charges against them, that she was brutally assaulted. Although there were five suspects, the complaint seems to be in relation to the first three to be arrested. Eventually, the case was withdrawn against all of them.  Their legal representative informed the court that the complainant had herself been the aggressor against the accused; even though it was not disputed that she had a cut, from which she did bleed (there was apparently a dispute about the severity of the bleeding).

[3]     The final story, published on 29 June 2015, which prompted the complaint, was headline “Dropping of charges incenses victim”.  Applicant complaints are summarized in the Ruling of the Ombudsman, dated 18 August 2015. Some of the important complaint were that the article was biased against the accused; that it omitted some material (especially the statement by the legal representative of the accused that the alleged victim was in fact the aggressor); why the charges were withdrawn; that the accused were portrayed as racist attackers and potential murderers, and that the complainant was described as a “victim” in the headline. It was after the charges were withdrawn, that the respondent’s story of 29 June 2015 appeared.  In it, it carried the reactions of the alleged victim of the assault, Adonis. The respondent’s response to the applicant’s complaints was that the story was a reaction piece, reporting on Adonis’s reaction to the withdrawal of the charges; the respondent argued that it was, as it were, giving a voice to Adonis.

[4]     Firstly, regarding previous articles, the Ombudsman held that the complaints relative thereto were out of time as they were not brought within the prescribed period of the publications.  As regards the 29 June 2015 publication, he found that the respondent breached article 2.1, 2.2, 2.5 and 10.1 of the Press Code. The rest of the complaints were dismissed.  The Ombudsman found that all the breaches were a Tier 2 offences. He ordered an apology to both the appellant and the boys. A kicker had to be on the front page, with the apology on either page 2 or 3.

[6]     The applicant now seeks leave to appeal against the dismissal of complaints relating to older stories; as well as against the sanction, which he considers insufficient.  He says the reason he did not bring complaints against earlier stories was the injunction in article 1.7 of the Complaints Procedures against bringing complaints in respect of matters pending before court.  Respondent is correct to say that applicant misinterpreted the article: the court was to deal with the criminal case, and not with the kind of complaints the appellant is levelling against the respondent.  The Ombudsman would never have to consider the guilt or otherwise of the accused; that was what was before the court.  One point should also be raised in passing.  Article 1.1 of the Complaints Procedures requires the aggrieved person to be the complainant herself/himself, but allows another person to do so on their behalf.  In the present case, none of the boys accused is the complainant. Mr Povey is bringing the complaint on the basis that he is a relative to one of the boys. This is a very thin statement; nobody knows what the nature of the relationship is, or why the boy or boys could not complaint themselves.  The Ombudsman, in the spirit of trying to resolve the matter, did not raise this issue; but a person purporting to be a complainant on behalf of another needs to substantiate the basis of such acquired capacity.

[7]     As far as the sanction is concerned, I don’t think it is inappropriate.  To get leave to appeal, the applicant would need to show that there are reasonable prospects of success that the Appeals Panel would interfere with the sentence.  This the Appeals Panel would only do where the sentence is shockingly lenient; the present would not be such a case. I think the applicant has an exaggerated view of the severity and nature of what he sees as a sustained attack by the respondent. Firstly, in imposing the sanction, regard cannot be had to the complaints brought out of time. I am of the view that the applicant has an exaggerated perception of the severity of respondent’s misdemeanour. He keeps on repeating that respondent cast the boys as racists, proven attackers, potential murderers, etc. I am afraid these are pretty strong statements.  I do not think what appeared in the story was anything near that. I also don’t think there was any malice as alleged.

[8]     I do appreciate that the applicant has some concerns about certain provisions of the Code.  For my part, I merely apply them as I find them.

[9]     For the reasons given above, the application for leave to appeal cannot succeed, and it is therefore dismissed.

Dated this 14th day of October 2015

Judge B M Ngoepe, Chair, Appeals Panel