Appeal Decision: Mulaudzi Tuwani vs Sunday Times

SUMMARY

The headline to the story in dispute read, Hlophe showed bias for lawyer, appeal judge finds (published on 11 June 2017).

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 article said that the Supreme Court of Appeal (SCA) had slated Western Cape Judge President John Hlophe for bias in a case in which he had failed to recuse himself and ruled in favour of his own lawyer’s client (Tuwani Mulaudzi).                     

The gist of Mulaudzi’s complaint was that he was referred to in the article as a crook or a fraudster. He also complained that he was not given an opportunity to comment.  The newspaper said it had taken steps to contact him, without success. They also argued that the story was based on a court judgment and were therefore not obliged to obtain Mulaudzi’s comment.

The Ombud dismissed the complaint mainly because the story did not call Mulaudzi a fraudster or a criminal – it merely mentioned that he had been accused of fraud; and it was not accepted journalistic practice to ask a party in a court case for comment.

Mulaudzi then applied for leave to appeal.

Dismissing the application, Judge Ngoepe said the:

• article did not call Mulaudzi a crook or a fraudster – it merely reported that he was accused of fraud;
• information was obtained from court records, in which case, no comment was needed from Mulaudzi – as long as the reporting was balanced; and
• article was not principally about Mulaudzi – he was very much in the periphery.

THE RULING ITSELF

In the matter of

MULAUDZI TUWANI MATTHEWS                                                          APPLICANT

AND

[1]     Mr Tuwani Matthews Mulaudzi (“applicant”) lodged a complaint with the Office of the Press Ombud against an article which appeared in the edition of the Sunday Times (“respondent”) on 11 June 2017, with the headline “Hlope showed bias for lawyer, appeal judge finds”. The background of the story was this: The lawyer referred to, was a certain Mr Xulu, an attorney, who was acting for the applicant in a case with Old Mutual.  Mr Xulu had in the past acted for Judge President Hlope in a certain protracted case involving the Judicial Service Commission, which matter is still not concluded.  The judge had found in favour of the applicant, but on appeal, the decision was set aside and the matter referred back before another judge; reasons were given for that.

[2]     The gist of the applicant’s complaint was that he was referred to in the article as a crook or a fraudster. He also complained that he was not given an opportunity to comment.  The respondent said it had taken steps to contact him, without success. They also argue, in this respect, that the story was based on a court judgment, and were therefore not obliged to obtain the applcant’s prior comment.  Respondent also argues that the applicant was not referred to as a crook or fraudster.

[3]     In his Ruling dated 4 July 2017, the Ombud dismissed the complaint.  Thereafter the applicant filed an application for leave to appeal the Ruling.  For the application to succeed, the applicant must show reasonable prospects of success before the Appeals Panel.

[4]     I have gone through the article.  I do not find any place where the applicant is referred to as a crook or fraudster.  What it says is that the applicant “is accused of defrauding Old Mutual …”.  Secondly, the information (such as that a provisional order of attachment was obtained against the applicant) was obtained from court records, in which case, no comment is needed from the appellant as long as the reporting is balanced.  Thirdly, as the Ombud has found, the article is not principally about the applicant; he is very much in the periphery.  For the above reasons and those given by the Ombud, I am afraid the applicant has no reasonable prospects of success before the Appeals Panel; the application is therefore dismissed.

Dated this 3^rd day of August 2017

Judge B M Ngoepe, Chair, Appeals Panel