Appeal Decision: Pillay Verashni vs AfriForum

In the matter of

 PILLAY VERASHNI                                                                                   APPLICANT

AND

[1]     Ms VerashNi Pillay (“applicant”) was at all times material hereto the editor-in-chief of The Huffington Post South Africa. In its edition of 13 April 2017 Huffington posted a blog with the headline “Could it be time to deny white men the franchise?” The following day the applicant published an editorial headlined “This blog on white men is going viral. Here is my response”; she defended the article of the previous day. For the purpose of this application it is not necessary to go into the content of the blog.  In any case the headline speaks for itself; the contents merely sought to motivate why.

[2]     A number of people lodged complaints with the Ombud against the article, including Dr Christopher McCreanor, Shean King and Afriforum.  As the complaints were the same, the Ombud adjudicate them together, handing down a Ruling on 22 April 2017.  Afriforum has since indicated its desire to contest the appeal and I will therefore refer to it as the “respondent”; in any case, as said above, the complaints  submitted by the responendt nd other people are the same.

[3]     Complaints in summary: McCreanor complained that The Huffington Post failed to verify the identity of the blogger before the posting, the contents of which he saw as inciting discrimination against white males both in the country and abroad.  King had the same complaint, but also complained about applicant’s defence of the blog.  Respondent also complained about applicant’s defence of the blog, as also its publication. Respondent also asked for an apology to white men, and to all those offended. It also asked for a recommendation by the Ombud that the applicant resigned as editor-in-chief.  Mr Hlongwane, the blog’s editor, made some remarks about the intensive reaction to the blog.  He later tweeted that as they could not verify the identity of the blogger, the posting had been taken down.

[4]    In response, the applicant apologized and said that the blog was taken down as the identity of the blogger could not be identified.  She said in future their processes would be strengthened.  The complainants, including the respondents, were not pacified.  It was irked by what it saw as the applican’s defence of some of the unaaceptable contents of the article, and therefore insisted that its complaint had not been resolved.

[5]    The Ombud identified the main issues for determination as follows:

“?       The content of the blog;

?        the publication of the text without verifying the identity of the writer; and

?        Pillay’s public responses (which represent the official view of The Huffington Post).”

The Ombud then dealt with all those issues.  He then made the following findings:

5.1    The content of the blog amounted to discrimination (against all white men) hate speech, thus contravening articles 5.1 and 5.2 of the Press Code.

5.2    The comment by the blogger was not protected and therefore contravened parts of article 7 of the Code.

5.3    Applicant’s response: article 3.3 of the Code was breached.  ( For my part, I must say that it is not clear to me as to what exactly breached article 3.3:  was it applicant’s response or the publication of the offensive blog?).

The Ombud then ordered an unreserved apology, the terms of which were drafted in detail.

[6]     What I need to determine is whether the applicant has reasonable prospects of success before the Appeals Committee.  Her appeal was noted out of time, by some 3 days or so.  She has proffered some explanation in her papers, asking for condonation.  There is so far no indication of any opposition to the request for condonation; should it emerge later, it would be dealt with at an appropriate stage.  I speak of an appropriate stage because on the basis of the applicant’s application, I am of the view that she has demonstrated reasonable prospects of success before the Appeals Panel; the application should therefore be granted.

[7]     I should add that the Ombud’s Ruling has aroused a huge public interest. The reaction has been around the remits of the freedom of speech, etc.

[7.1] I therefore urge that a copy of this my Decision be transmitted to all the other original complainants, mentioned in paragraph 2 above; for them to submit heads of argument and if so advised, participate in the hearing of the appeal.

[7.2]  As I was finalizing my Decision, a request by the South African National Editors Forum (SANEF) to join in the application as amicus curiae was brought to my attention.

[7.2.1] a copy of their request should forthwith be served on all the original complainants, the respondent and the applicant, together with this Decision;

[7.2.2] any party wishing to oppose the request, must serve their opposing     papers on all other parties and the office of the Director of the Press Council, within 5 days of receipt of the  request;

[7.2.3] in the event of any response by SANEF, such response to be served on all the parties and the office of the Director within 5 days of receipt of the opposing papers;

[7.2.4] any opposition to the request by SANEF will be heard at the time of the hearing of the appeal.

Dated this 6^th day of June 2017

Judge B M Ngoepe, Chair, Appeals Panel