Appeal Decision: Road Accident Fund vs Sunday Times

SUMMARY

The headline to the story in dispute read, Broke RAF splurges millions on chairs (published on 1 July 2018).

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 essence of the story was that the Road Accident Fund (RAF) was financially broke – and yet it had entered into a contract with a company known as Gxakwes Projects, in terms of which the RAF had hired 300 chairs for its Menlyn office at a cost of R500,000 per month.  There was also a push to hire more chairs at a cost of R60m over a period of 5 years for all its national offices.  The article said the contract was irregular in that the award thereof did not follow normal tender processes and that it was not approved by the board.

Chief marketing officer Phumelela Dhlomo complained that the article falsely stated, as fact, that:

• a contract existed between the RAF and GP;
• this “contract” was for the leasing of 300 chairs;
• the “rental” for those chairs amounted to almost R500 000 per month; and
• the RAF did not timely respond to questions posed on this matter (she says the RAF did respond to questions, but the newspaper did not publish that response).

Sunday Times said that it had relied on three different sources, an audio recording, and correspondence with the applicant. Taking all these into consideration, the Ombud dismissed the complaint in its entirety.  The RAF then sought leave to appeal.

Judge Ngoepe said he could not find any fault with the Ombud’s ruling.

He said that the newspaper was entitled to publish the story as it did, which did not necessarily mean that the information was correct, mainly because the:

• newspaper’s source came from within the RAF;
• publication made use of three independent sources;
• story was in the public interest; and
• contents of the recording of the meetings were indisputable.

The application for leave to appeal was dismissed.

THE RULING ITSELF

In the matter between:

ROAD ACCIDENT FUND                                                                                  APPLICANT

AND

1. On 1 July 2018 the Sunday Times (“respondent”) published a story with the headline “Broke RAF splurges millions on chairs”. We now know that the “RAF” is an abreviation of the Road Accident Fund (“applicant”). Briefly, the essence of the story was that the applicant, was financially broke; that yet it had entered into a contract with a company known as Gxakwes Projects, in terms of which applicant hired 300 chairs for its Menlyn office at a cost of R500,000 per month.  There was also a push to hire more chairs at a costs of R60m over a period of 5 years for all applicant’s national offices.  The article said the contract was irregular in that the award thereof did not follow normal tender processes and was not approved by the board.
2. In his Ruling dated 3 August 2019, the Ombud summed up details of the complaint.  The applicant complained that the article falsely stated, as fact, that:

“l     a contract existed between the RAF and a supplier named Gxakwe Projects;

l       this ‘contract’ was for the leasing of 300 chairs;

l       the ‘rental’ for those chairs amounted to almost R500,000 per month; and

l       the RAF did not timely respond to questions posed on this matter (… the RAF did respond to questons, but the newspaper did not publish the response)”.

3. In its response, the respondent said that it had relied on three different sources, an audio recording, and correspondence with the applicant. Taking all these into considertaion, the Ombud dismissed the complaint in its entirety.  The applicant now seeks leave to appeal to the Appeals Panel.
4. For an application for leave to appeal to succeed, the applicant must show reasonable prospects of success before the Appeals Panel.
5. Upon reading the Ombud’s Ruling, I find no fault with the manner in which he dealt with the matter.  I therefore do not agree with the applicant’s submissions to the contrary in its application for leave to appeal.  After correctly setting out the detials of the complaint, the Ombud went on a detailed analysis of the facts.  He meticoulously dealt with the correspondence, the recordings of the board meeting and the sources on which the respondent relied. I agree with the reasons for his decision; nevertheless, I should, to a limited extent, deal with some of the main features of the matter.  The real issue is whether or not, in light of the information at hand, the respondent was reasonably entitled to publish the story as it did; not necessarily whether the information was correct.  In that context, I point out the following:
   1. It was always going to be difficult for the applicant to deny certain things, given the fact that by all indications, the information to the respondent was from within the applicant.
   2. Not only were three human sources relied upon; they were independent of each other and, from the respondent’s submissions, none of them was aware that there were others giving the same information to the respondent; therefore, the danger of conspiracy is eliminated, thereby enhancing the likelihood of the truth of the information. This gave justification to the respondent to believe that the information was reasonably true.
   3. As the applicant says in its application for leave to appeal, it might be true that the recording of the board meetings was illegally obtained; but as the applicant correctly states, the issue of public interest is important; which brings me to the next point.
   4. The expenditure of the applicant is a matter of huge public interest; it is funded by the public and it is on its resources that victims of car accidents depend for redress and compensation.  The prudent use of its resources is therefore a matter of pubic importance and interest.
   5. The contents of the recording of the meetings are indisputable.
   6. The applicant’s complaint that it was not given the opportunity to respond and that the Ombud erred in finding that it failed to answer specific questions, wilts upon a proper analysis of the applicant’s scanty, ambiquous and tentative answers against the very pointed questions by the respondent, as well as follow up queries to the applicant.  It is in light of the above that I agree with the Ombud’s Ruling that the respondent was entitled to write the article as it did.
6. For the above reasons, the application is dismissed.

Dated this 17^th day of September 2018

Judge B M Ngoepe, Chair, Appeals Panel