Appeal Decision: Athol Trollip vs Daily Dispatch

IN THE MATTER OF:

TROLLIP R A P                                                                                                             APPLICANT

VS

DAILY  DISPATCH                                                                                                        RESPONDENT

            MATTER NO: 1689/04/2016

[1]     This is an application by Mr Ronald Athol Prince Trollip (“applicant”) for leave to appeal the decision of the Press Ombud as per his email of 6 May 2016 that he has no jurisdiction to adjudicate applicant’s complaint against the Daily Dispatch (“respondent”). The applicant is the Democratic Alliance’s mayoral candidate for the Nelson Mandela Bay Metro in the forthcoming local government elections.

[2]     The complaint was lodged by the applicant in connection with a story published in the respondent’s edition of 25 March 2016, with the headline “Trollip trips over bribe claim: DA councillor claims cash offer to ‘dig up dirt’”. The gist of the story was that it was alleged by one Ms Jack that applicant had offered her some money and a position on the councillor’s list in exchange for her “digging up dirt” on a fellow DA member, one Ms Mvenya.

[3]     The complaint was that the “article and its publication have contravened various provisions of the Code of Ethics and Conduct for South African print and online media.”  The respondent disputed the allegation on various grounds.

[4]     It transpired that applicant had also laid charges of crimen iniuria and perjury against Ms Jack, on the ground that she was lying in making the above allegations. The Ombud, relying on article 1.7 of the Code, decided that for that reason, he had no jurisdiction to hear the matter.

[5]     The applicant argues that the Ombud was wrong, and therefore seeks leave to appeal the decision.  The respondent, for its part, and clearly believing in the strength of its case on the merits, does not oppose this application and actually welcomes it. I must at the outset indicate that even by mutual consent, the parties cannot confer on the Ombud the jurisdiction denied him by the Code; therefore, for the purpose of my consideration, the fact that the respondent does not oppose the application and even welcomes it, is neither here nor there. As the applicant must show reasonable prospects of success before the Appeals Panel before leave to appeal is granted, I must now proceed to assess such prospects, bearing in mind applicants submissions in that regard.

[6]     The letter of complaint says:

“It is noteworthy to mention that Mr Trollip has laid a charge of Crimen Iniuria and perjury against Ms Jack, on whose allegations the Daily Dispatch had relied and which formed the subject matter of the published article.” (Own emphasis).

The relevant portions of the article 1.7 reads:

“Where at any stage of the proceedings it emerges that proceedings before a court of law are pending on a matter related to the material complained about, the Ombud … shall forthwith stop the proceedings and set aside the acceptance of the complaint … unless it is shown that the issue complained about is not among those that the court is adjudicating.” (Own emphasis).

What is required in terms of article 1.7 is that the proceedings pending before court must be “related to the material” complained about.  Both words are broad; all it requires is for the matter to be related; “material” is likewise a broad concept.  The aim was to keep the Ombud away, once the matter is pending before court; the Press Code must show deference to the law of the country.  The words I have underlined above from the letter of complaint, which I need not repeat, indicate that the allegations forming the substance of the complaint are the same as those forming the basis of the criminal charges; at least, to a major extent.  It is the same Ms Jack who made the same (allegedly false) allegations to the respondent and to the police, namely, that applicant offered a bribe to her to “dig up dirt”, in both instances on the same Ms Mvenya.  The allegations forming the bases of both the complaint and the criminal charges, could hardly be more related!  The court would be adjudicating on the same allegations.  The applicant cannot shoot the same object with two guns; that is precisely what article 1.7 aims to avoid.  That the applicant has no control over criminal prosecutions,  is immaterial.  Finally, regard must also be had to the following:

In his affidavit to the police attested to on 7 April 2016, applicant says inter alia: “I feel strongly that this (allegation by Ms Jack) is a serious violation of my dignity, privacy and reputation and … has made a serious and intentional attempt to defame me.” He goes on to repeat: “I respectfully submit that this is a very serious violence of my dignity, reputation and privacy.” These are the very same attributes the applicant seeks to vindicate in his complaint to the Ombud.  The letter of complaint says inter alia, that the article “overrode the dignity and reputation of Mr Trollip …”   The applicant is seeking to fight the same thing (the allegations) on all fronts and at the same time.

[7]     For the reasons above, I agree with the Ombud’s decision and I see no prospects of success.  The application is therefore refused.

Dated this 24^nd day of June 2016

Judge B M Ngoepe, Chair, Appeals Panel