Appeal Decision: Mail & Guardian vs. Duarte Jessie

MAIL & GUARDIAN                                                                                     APPLICANT

VERSUS

[1]     The Mail & Guardian (“applicant”) published a story on 24 March 2016 entitled “The ‘Gupta owned’ state enterprises”. Then the following: “More than a dozen people linked directly or indirectly to the (Gupta) family and its closest allies can exercise extraordinary influence over the parastatals and related government policy …. The links are indisputable in some cases, and circumstantial or minor in others, and there is no evidence of the named directors and advisers doing anything untoward.  But the power this network could wield adds significant weight to concerns about so-called state capture”. Several names were mentioned and alleged connections mentioned, with a graphic network presentation of these connections. Ms Jessie Duarte (“respondent”) was also mentioned and depicted on the graphic presentation.  She is the Deputy-Secretary of the African National Congress (ANC).  The applicant says that the “article is about how the Gupta family, with the assistance of certain individuals, has captured state enterprises and presumably are doing a fair volume of business with the state enterprises.”

[2]     The respondent lodged a complaint with the Press Ombudsman, complaining that the article damaged her reputation and that of the ANC. She was particularly irked by the allegation that her family was intertwined in business with one Mabaso who was in turn alleged to have had links with the Guptas. The complaints were summed up by the Ombudsman in his Ruling dated 15 April 2016: that she was depicted as a business person who had links with the Gupta family”;  and that there are several irrelevant references to her.

[3]     The applicant disputed the complaints.  The following statements are really the pillar of the defence:

3.1    “In general the complainant misrepresents the article and seeks to impute meanings or interpretations that are not contained in the article or are not accurate summaries of the contents or disregarded the distinctions and caveats contained in the article….

3.2    … this article is about the relationships that exist which have the POTENTIAL to exercise influence, without asserting that this potential was in fact realised in any untoward manner”.

[4]     The Ombudsman dismissed the rest of the complaints but held that the applicant had acted in breach of section 1.1 and 3.3 of the Press Code, and imposed a sanction.  The applicant then launched this application which is being opposed by the respondent. In the body of his Ruling, the Ombudsman said that the dignity of the respondent and that of the ANC were harmed; accordingly, in its notice of appeal, the applicant argued that the finding in favour of the ANC was in any event not justified as the ANC was not the complainant.  Of course this argument is true, but I don’t think there was a substantive order in respect of the ANC; the apology ordered was only to the respondent.  The ANC is therefore not really in the picture and nothing turns on what the Ombudsman said about it.

[5]     The respondent is correct, in her papers opposing the application for leave to appeal, that such an application must show reasonable prospects of success for leave to be granted. In assessing such prospects, I must contrast the basis of the Ombudsman’s finding, with the gist of the applicant’s defence.

The basis of the Ombudsman’s finding

[6]     The following is the basis of the Ombudsman’s Ruling: “The Mail & Guardian has created the impression that Duarte had links with the Guptas that facilitated the potential use of her influence to the benefit of that family – without the necessary substantiation of such an impression.” This, says the Ombudsman, is in breach of section 1.1 and 1.3 of the Code.

The gist of the applicant’s defence

[7]     I refer back to paragraph 3 above, which I need not repeat.  In its application, the applicant quotes the article, reproduced in paragraph 1 above (again which I need not repeat here) and argues that there are caveats and qualifications in the article which contradict the basis of the Ombudsman’s Ruling (see paragraph 6 above).

My conclusion

[8]     After contrasting the basis of the Ombudsman’s Ruling (paragraph 6 above) and the applicant’s argument paraphrased in the previous paragraph, I am of the view that there are reasonable prospects that the Appeals Panel may find that the Ombudsman’s basis for his Ruling is too strongly put, or that it was wrong in light of the applicant’s defence. As I am inclined to grant leave, I will not go further into the merits or demerits of the matter.

[9]     For the reasons given in paragraph 8 above, the applicant is hereby granted leave to appeal the Ombudsman’s Ruling of 15 April 2016, that the Mail & Guardian has acted in breach of sections 1.1 and 3.3 of the Press Code.

Dated at Pretoria this 18^th day of May 2016

Judge B M Ngoepe, Chair, Appeals Panel