Appeal Decision: Mbalula N vs Sunday Times

SUMMARY

The headline to the story in dispute read, Hlaudi, Mrs Nozuko Mbalula off house-fraud hook (published on 15 January 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.

This adjudication was about the late filing of a complaint about two stories.

The Ombud said Section 1.3 of the Complaints Procedures stated that a complaint shall be made as soon as possible, but not later than 20 working days after the date of publication which gave rise to the complaint. It also gave his office discretion in deciding if there was a satisfactory reason for the delay.

The complaint about the first story was 14 days out of time. The Ombud considered that the complainant first contacted the newspaper directly. “Such action always points to possible mitigating circumstances, potentially counting in favour of the complainant,” he opined – upon which he decided to adjudicate that matter. The second article was 23 working days late. The Ombud refused to adjudicate this complaint, saying there had to be a border, somewhere.

Sunday Times then applied for leave to appeal regarding his decision to adjudicate the complaint about the first story.

Judge Ngoepe dismissed the application for leave to appeal on the basis that it was premature. He said the Ombud was at liberty to consider the merits of the complaint relating to the article, in respect of which the condonation for its late lodging was granted.

THE RULING ITSELF

In the matter of

MBALULA N                                                                                                 APPLICANT

AND

[1]     Mrs N Mbalula (“applicant”) lodged a complaint against the Sunday Times (“respondent”) in respect of two articles which appeared in the respondent on 15 January 2017 (“first story”) and on 29 January 2017 (“second story”).  The complaint was out of time.  The Ombud refused to grant condonation in respect of the second story, but did so in respect of the first.  Before he could proceed to adjudicate the matter on the merits, the respondent lodged an application for leave to appeal the decision granting the condonation. In my Decision dated 7 June 2017, I declined the application as being premature, and referred the matter back to the Ombud to adjudicate the merits.  As I have already said, this was only in respect of the first story.

[2]     Consequent to the referral, the Ombud, in order to adjudicate the matter properly, directed certain questions to the applicant.  No response was received.  The Ombud then dismissed the complaint. The applicant now seeks leave to appeal the dismissal.  The application is vehemently opposed by the respondent.

[3]     The explanation given by the applicant’s attorneys for not responding to the questions raised by the Ombud, was firstly, that he was on recess and secondly, that he had a backlog of work. This explanation cannot be accepted.  The underlying principle behind this process for the adjudication of disputes is that matters be disposed of as expeditiously as possible.  The attorneys also argue that, in any event, the questions asked, or the information sought, was not material to the resolution of the matter; the Ombud, so goes the argument, could and should have resolved the matter without the information sought.  I have looked at the information sought.  I think it was material to the resolution of the dispute.  I should not be lightly supposed that the Ombud could have asked for information which was not, in his discretion, material.  In fact, on the face of it, the information sought would be both relevant and material for a proper resolution of the matter.

[4]     The Ombud’s reasoning that the applicant lost interest in the matter must be understood against the principle referred to above, namely, that finality in the resolution of disputes be reached as expeditiously as possible.  It is also important to note that the applicant is in effect asking for a second condonation in respect of the same complaint.

[5]     I find no fault with the manner in which the Ombud dealt with the matter, and the reasons given by him.

[6]     For the reasons given above, including those given by the Ombud, the application is dismissed.

Dated this 29^th day of August 2017

Judge B M Ngoepe, Chair, Appeals Panel