Appeal Decision: Sunday Times vs Ms N Mbalula

In the matter of

SUNDAY TIMES                                                                                          APPLICANT

AND

[1]     This is an application by the Sunday Times (“applicant”) for leave to appeal the Decision of the Press Ombud, in which condonation for the late lodging of a complaint by Mrs Nozuko Mbalula (“respondent”) was granted.

[2]     Given the view I am taking of the matter, it is neither appropriate nor necessary for me to go into the merits of the complaint; in fact there were two complaints.  The first complaint related to the article published by the applicant on 15 January 2017, with the headline “Hlaudi, Mrs Nozuko Mbalula off house-fraud hook.” The essence of the story was that the Free State Provincial Government had decided not to proceed with its court action to recover money which had allegedly been paid irregularly to contractors in respect of certain house building projects.  The story alleged that the applicant, in her capacity as a trustee of certain two trusts, had been cited as one of the defendants, but that the government had decided not to proceed against her. There was a follow-up article on 29 January 2017, in respect of which a complaint was also lodged.

[3]     The applicant took the point that both complaints were lodged out of time.  The respondent filed a request for condonation, which was opposed by the applicant.  The Ombud granted the condonation in respect of the complaint relating to the first story, but declined it in respect of the second one.

[4]     From the documents given to me, I cannot see the date of the Ombud’s Ruling, nor of that of the applicant’s application before me. I therefore cannot tell as to how soon the application was lodged after the Ruling.  It is nevertheless clear to me, again from the appears in my possession, that the Ombud, after condoning the late lodging of the complaint in respect of the first story, did not proceed to adjudicate the merits of the complaint. This, I believe, was because the applicant did not address the merits of the case, but restricted itself to the  point in limine that the complaint was out of time. Therein lies the problem: I cannot grant leave to appeal only in respect of the granting of the condonation.  It would be inappropriate to deal with this matter in such a piece-meal manner; doing so may for example result in the matter serving before the Appeals Panel twice!  The Ombud should have been allowed to adjudicate on the merits as well; in the event the matter going against the applicant, applicant would, if so advised, appeal both against the condonation and on the merits; in the event of the complaint being dismissed, then that would be the end of the matter, with of course no need to appeal the condonation decision.

[5]     For the reasons given above, the application for leave to appeal is dismissed on the basis that it is premature. In the result, the Ombud is at liberty to consider the complaint relating to the article published on 15 January 2017, in respect of which the condonation for its late lodging was granted.

Dated this 7th day of June 2017

Judge B M Ngoepe, Chair, Appeals Panel