Appeal Decision: Independent News vs Gill Moodie

SUMMARY

The headline to the story in dispute read, Exposé: The dirty tricks campaign against Independent (published on 23 and 24 August 2016).

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 text was about a “staggering” picture of negative reporting against Independent, its owner, Iqbal Survé, and his company, Sekunjalo. It accused several journalists of being part of a largely white, orchestrated propaganda scheme whose goal was the protection of white privilege at media houses. The piece was carried inter alia in the Cape Times, The Star, Cape Argus, Pretoria News, Daily News and IOL.

Journalist Gill Moodie, who was mentioned in the story, complained inter alia that the:

• article falsely labelled her as a propaganda journalist, a racist, etc.; and
• journalist did not give her a right of reply; and
• reportage case her reputation harm.

The Ombud noted that Independent Newspapers did not provide a single shred of evidence to substantiate its allegations against Moodie – except, of course, the fact that she has committed the ultimate crime by having been critical of the media house.

He directed Independent Newspapers to apologise to Moodie for the above-mentioned complaints.

Independent News applied for leave to appeal only about the sanction that the Ombud had imposed.

Judge Ngoepe said there was a reasonable chance that the sanction would be overturned, and therefore that application for leave to appeal was granted.

THE RULING ITSELF

INDEPENDENT NEWS                                                                              APPLICANT

AND

[1]     A complaint was lodged against Independent News (“applicant”) by Ms Gill Moodie (“respondent”), a journalist.  The complaint was triggered by an article published by the appellant in its various newspapers on 23 August 2016 with the headline:

“Expose: the dirty tricks campaign against Independent”. Briefly, the core of the story was that a number of journalists, including respondent, were bent on publishing a series of articles critical of the applicant and its chairperson, Dr Iqbal Surve; that their main objective was to sabotage the applicant; that they undermined the reputation of a black-owned media business and its chairperson; that they were with all their articles against media transformation in its various facets.  The article said, inter alia, that all these journalists belonged to a “white boys’ club”, and put into question their professional objectivity.

[2]     In his Ruling dated 28 September 2016, the Ombud summarized both the respondent’s complaints, as well as the applicant’s response.  The complaint was related to the core of the article as set out above.  In particular, that the respondent was not given the opportunity to respond; that she was labelled as being part of a “white boys club” and of being racist; that the allegations tarnished her professional reputation (she had been a journalist for at least 20 years); and that she was a plant of the Democratic Alliance. The respondent denied the allegations, and argued inter alia that the content of the article was  the product of research.

[3]     In his Ruling, the Ombud dismissed some of the complaints; but found that the applicant had violated articles 1.1, 1.8 and 3.3 of the Press Code.  The Ombud classified the violations as Tier 2, and ordered an apology, the substance and elements of which he prescribed.

[4]     The applicant felt that the sanction was too severe in terms of the prescribed substance and elements; it argued that the transgression should be a Tier 1 transgression; hence this application for leave to appeal.

[5]     Before considering the application, one has to first deal with the preliminary objection raised by the respondent; namely, that the application is out of time.  The applicant’s explanation is that it spent some time trying to resolve the content and elements of the apology with the Ombud, only to find that he could not help as he was fuctus officio. I do not think that it was unreasonable of the applicant to first seek to resolve the matter, especially as it was not altogether refusing to publish an apology.  I therefore grant the application for the condonation of the late noting of the application.

[6]     In considering whether or not to grant leave to appeal, the applicant must show reasonable prospects of success before the Appeals Panel. I am of the view that the applicant has shown such prospects, taking into account inter alia the following:

6.1    The appeal is merely against the severity of the sanction, not really the merits as such.

6.2    The substance and elements of the apology to be published are based on certain findings by the Ombud which are arguable; and which, depending on the determination thereof, may affect the nature of the substance and elements of the sanction.

As I am inclined to grant leave to appeal, it would not be appropriate for me to delve further into the matter.

[7]     For the reasons given above, the application succeeds and leave is granted to the applicant to appeal only against the severity of the sanction imposed by the Ombudsman in his Ruling of 28 September 2016.

Dated this 8^th day of November 2016

Judge B M Ngoepe, Chair, Appeals Panel