Martin Wingate-Pearse vs Daily Maverick

SUMMARY

The headline to the story in dispute read, High Court judgment bolsters Pravin Gordhan’s case against Public Protector (published on 19 July 2019).

This ruling by Press Ombud Pippa Green was based on the Press Code that was in effect before 30 September 2022.

 

The article reported on aspects of a High Court application brought by Martin Wingate-Pearse and presided over by Judge P A Meyer. The introduction read, “The Nugent Commission into tax administration and governance at SARS has been affirmed as the authority on the revenue service – as well as longstanding allegations of a ‘rogue unit’ in its midst – when Judge Pieter Meyer on Wednesday in the Gauteng High Court ruled against local businessman and tax dodger Martin Wingate-Pearse in a more than decade-old tax squabble.”

Wingate-Pearse complained that:

• it had been inaccurate or unfair to describe him as a “tax dodger”;
• he had been denied the right of reply; and
• his dignity and reputation had been impaired.

Green upheld the complaint about Wingate-Pearse having been a “tax dodger”. She said that matter had still been before the Tax Court. It was only this court that could make the final determination of whether that was the case. “Until then, it would be pre-emptive to describe him as a ‘tax dodger’,” she argued.

The publication was directed to apologise for this breach of the Press Code.

On the lack of the right of reply, the Ombud noted that the article relied largely on the outcome of court proceedings. “Those who bring applications to court have a fair expectation that their arguments will be heard in the court. It is not expected that a journalist would approach them for comment on a case before court. The DM is quite correct in this point,” she opined.

Because the article reported accurately on the court case, and because Wingate-Pearse was a public figure, she also dismissed the complaint that the story impaired his dignity and reputation.

 

THE RULING ITSELF

Finding: Complaint 4509

Date of article: 19/7/19

Headline: “High Court judgment bolsters Pravin Gordhan’s case against Public Protector”

Author: Pauli van Wyk

Online: Yes

Particulars

This finding is based on a written complaint from Mr Gray Muchechetere of KWP Attorneys representing Mr Wingate-Pearse, a written response from the Daily Maverick and further written replies to queries, and a reading of the High Court judgment, Case no 29208/15 by Justice P A Meyer between Mr Wingate-Pearse (the applicant) against the Commissioner for the SA Revenue Services, Johannes Hendrikus van Loggerenberg, Ivan Visvanathan Pillay, and the Ministers of Finance, Police, and State Security, and the National Prosecuting Authority.

Complaint

Mr Muchechetere, on behalf of Mr Wingate-Pearse, complains that an article published in the Daily Maverick under the headline “High Court judgment bolsters Pravin Gordan’s case against Public Protector”, refers to Mr Wingate-Pearse as a “tax dodger”, which he says is “wrong in both fact and law”. Furthermore, he complains that his client was not contacted for comment about the article.  He also complains that the publication failed to “exercise the necessary care and consideration in matters involving his dignity and reputation. Specifically, he complains that the following clauses of the Press Code were breached:

1.1: The media shall take care to report news truthfully, accurately and fairly;

1.8 The media shall seek the views of the subject of critical reportage in advance of publication; provided that this need not be done when the institution has reasonable grounds for believing that by doing so it would be prevented from reporting; where evidence might be destroyed or sources intimidated; or because it would be impracticable to do so in the circumstances of the publication. Reasonable time should be afforded for such a response. If the media are unable to obtain such a comment, this shall be reported.

3.3 The media shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only if it is in the public interest and in the following circumstances:

3.3.1 The facts reported are substantially true; or

3.3.2 The reportage amounts to fair comment based on facts that are adequately referred to and that are true or substantially true; or

3.3.3 The reportage amounts to a fair an accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or

3.3.4 It was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.

3.3.5 The article was, or formed part of, an accurate and impartial account of a dispute to which the complainant is party.

1. Text

1.1 The article appeared under the headline, “High Court judgment bolsters Pravin Gordhan’s case against the Public Protector”.

1.2 The “blurb” states: “Businessman Martin Wingate-Pearse lost in the High Court on Wednesday in a case that may not only have a dire effect on his own taxpaying purse, but will have a direct influence on any court challenges arguing that SARS had a ‘rogue unit’, which illegally spied on taxpayers. This included the pending review applications by Minister of Public Enterprises Pravin Gordhan emanating from Public Protector Busisiwe Mkhwebane’s findings in her second adverse Gordhan report.”

1.3 The article reports on particular aspects of a High Court application brought by Mr Wingate-Pearse and presided over by Judge P A Meyer.

The introduction states: “The Nugent Commission into tax administration and governance at SARS has been affirmed as the authority on the revenue service – as well as longstanding allegations of a ‘rogue unit’ in its midst – when Judge Pieter Meyer on Wednesday in the Gauteng High Court ruled against local businessman and tax dodger Martin Wingate-Pearse in a more than decade-old tax squabble.”

1.4 It goes on to say that Judge Meyer relied “entirely” on the Nugent Commission, saying it “made findings in its final report that support SARS’s stance that Mr Wingate-Pearse’s allegations about the existence of a rogue unit within the ranks of SARS are without sound factual basis.”

1.5 It then recaps the findings of the Nugent Commission, among  which were that SARS’ High Risk Investigation Unit (the HRIU) – referred to in newspaper articles later found to be erroneous as the “Rogue Unit” – was lawful.

The article states that Judge Meyer’s ruling will be taken into consideration by “all other courts considering any similar matter before it.” This would include review proceedings against the Public Protector in relation to her findings against Minister Pravin Gordhan.

1.6 It  goes into more details of the court judgment, saying it had its roots in 2002 when SARS began “investigating the businessman for income tax evasion.”

It explains he is a shareholder in Carnilinx, “a tobacco manufacturing business managed and partly owned by Johannesburg businessman Adriano Mazzotti. Both Mazzotti and Carnilinx were found to be on the wrong side of local tax laws before.” Mr Mazzotti and Mr Wingate-Pearse were business partners, says the article.

1.7 It then goes into more details of the matters before the court, including that SARS had found that Mr Wingate-Pearse had “grossly” under-declared his income. An assessment of R41.7 million was eventually revised downwards to R9 million.

1.8 It outlines the various matters Mr Wingate-Pearse has brought to court. In 2015, he had complained that the SARS “’rogue unit’ were behind his tax woes” and asked the court for a “declaratory order” that the investigative unit “was without statutory authority, unlawful, inconsistent with the Constitution and invalid”, and that it had “infringed on his constitutionally protected rights.” The article says: “He struggled to provide any evidence.”

1.9 In the judgment, Judge Meyer said the allegations could not be true because the HRIU was established only in 2007, after SARS had raised additional tax assessments for Mr Wingate-Pearse. The report says the judge found that Mr Wingate-Pearse “strongly relies” on an affidavit by “triple spy and attorney Belinda Walter” to support the allegations about illegal intelligence gathering methods. It says: “Walter’s affidavit is, however, high on conspiracy and low on proof”. [The article does not attribute this statement directly.]

1.10 It reports that Judge Meyer dismissed the application with costs, as well as an interlocutory application relating to SARS’s additional estimated tax assessments “while berating Wingate-Pearse for giving SARS the run-around for over a decade.”

1.11 He came to the “stinging conclusion” that he is “unable to hold that the litigation was undertaken to assert constitutional rights. It was undertaken rather to assert the financial interest of Mr Wingate-Pearse” and the proceedings were “vexatious”.

1.12 The article says the judgment can only be reconsidered by the Supreme Court of Appeal. It comments that Minister Gordhan and Mr Pillay’s “cases will most probably be greatly aided by Judge Meyer’s ratification of the Nugent Commission”.

It quotes from the judgment saying that the Nugent Commission “found there was an onslaught upon allegations once peddled by the Sunday Times to a beguiled public for a year or more, about a ‘rogue unit’ that was alleged to have existed in SARS.”  It also notes that Judge Kroon, who had chaired the SARS Advisory Board, had apologised for his initial acceptance of the Sikhakhane report (which found the HRIU unlawful), and that he had told the Nugent Commission that he supported the “re-establishment of capacity to investigate the illicit trades.”

2. The arguments

Mr Gray Muchechetere for Mr Martin Wingate-Pearse

2.1 Mr Muchechetere from KWP Attorneys made a submission on behalf of Mr Wingate-Pearse.

2.2 He has three main objections to the article:

2.2.1 The first is the description of Mr Wingate-Pearse as a “tax dodger”. He quotes the Oxford English dictionary as defining “dodger” as a “person who dishonestly avoids doing something”: “the article conveys that our client is dishonestly trying to avoid paying his taxes.” (emphasis in original)

This is wrong “in both law and fact”. He argues the Tax Court is still “to determine the extent of our client’s liability towards SARS, if any.” He says this was made “very clear in the judgment, which is the subject matter of the article”. In fact the first paragraph of the judgment says: “The dispute before the tax court has not been finalised.” Thus the statement is “inaccurate and unfair” and breached clause 1.1 of the Press Code.

2.2.2 He also complains that Mr Wingate-Pearse was “not afforded an opportunity to reply to the comments” in Ms van Wyk’s article, breaching clause 1.8 of the Press Code (he mentioned clause 1.9 but this may be an error). Neither the reporter nor the publication contacted him “to afford him a reasonable opportunity to respond to which he is entitled.”

He also refers to a previous case before the Ombudsman that involved his client and the Daily Maverick, in which the Ombudsman found against the publication. [1]

The Ombudsman and a panel of adjudicators ruled then that it was “not reasonable or fair” to label Mr Wingate-Pearse as a “tax offender while the process is still underway.” He argues that the description of “tax dodger” is incorrect for the same reason the Ombudsman ruled then: “the process will establish whether or not such a comment is true or not.” In that case the Ombudsman ruled against the Daily Maverick.

2.2.3 This showed that the publication had “once again…not exercised the necessary care and consideration for our client’s dignity and reputation, (the third complaint), nor that of his family and, particularly his children.” The writer of the piece in 2017, Ms Marianne Thamm, did not attend the 2017 hearing. “She consequently did not hear from our client of the distress such careless reporting causes to our client, his wife and his children..”

2.3 Mr Muchechetere in a letter to the Daily Maverick forwarded to the Press Council demanded from the publication an apology for stating that Mr Martin Wingate-Pearse is a “tax dodger”, for not verifying information critical of him, neglecting to give him the right of reply prior to publication, and for neglecting to “exercise the necessary care and consideration in matter (sic) involving his dignity and reputation.”

Daily Maverick

2.4 In response, the publication argues that there are other definitions of the phrase “tax dodger”. Although Mr Wingate-Pearse quotes the Oxford English dictionary, the DM cites Lexico.com, which it describes as a “free online collaboration between dictionary.com and Oxford University Press”. It calls Mr Wingate-Pearse “extremely economical with the truth.”

Among the Lexixo.com definition of a “dodger” is:

“1. informal “A person who engages in cunning tricks or dishonest practices to evade a debt or obligation.” (their emphasis)

A “tax dodger” is defined as:

informal “A person who practices tax avoidance or tax evasion” (their emphasis)[2]

Lexico.com therefore defines the act of being a “dodger”, and even a “tax dodger”, to be a tactic of employing cunning tricks or dishonest practices.”

2.5 The publication argues that the word “dodger” has a very different meaning from the word “offender” (the word in dispute in the previous case before the Ombudsman). “The dictionary leaves the reader with no possible interpretation than that an illegal or wrong act has been committed.”

2.6 The DM cites the court judgment and asked the Ombudsman to read it (she did). “This ensures a proper understanding of the facts of the matter, the plethora of legal action and cunning tricks Mr Wingate-Pearse employed in order to avoid paying his taxes for much more than a decade as well as the dim view Meyer J took on Mr Wingate-Pearse’s conduct.”

2.7 Judge Meyer described the proceedings initiated by Mr Wingate-Pearse as “vexatious”, some of his allegations against SARS as “wholly unfounded” or had “no merit” or were “fallacious”.  “The judge especially took issue with Mr Wingate-Pearse’s failure to explain the delay of over a decade in bringing his case before the court, stating that this was ‘unreasonable’ and ‘inordinate’”.

2.8 So questionable was Mr Wingate-Pearse’s litigation, “that a cost order on attorney and client scale was afforded against him.”

2.9 The DM quotes portions of the judgment (to which we will return later in the Analysis section) where Judge Meyer says among other things:

2.9.1 That the litigation brought was not “undertaken to assert his (Mr Wingate-Pearse’s) constitutional rights. It was undertaken rather to assert [his] financial interest..”

2.9.2 In describing the proceeding as “vexatious” he said: “SARS has been put to unnecessary trouble and expense which it ought not to bear. This conclusion is inevitable when regard is had to the manner in which Mr Wingate-Pearse elected to prosecute the review application, inter alia: in instituting it almost a decade after the alleged events had occurred and the alleged actions and decisions had been taken by Sars and in only seeking condonation for the inordinate delay almost three years after the institution of the review application, without giving an acceptable explanation for the inordinate delays, let alone one that covers the entire period of the delays, and despite him having launched a review application previously (during February 2011) in which he did not raise all the grounds of review that are presently raised and elected to abandon grounds of review relating to the lawfulness of the search and seizure, the admissibility of the evidence so obtained, the alleged infringements of his constitutional rights and the consequences thereof that he now seeks to raise again; in seeking final relief despite the material disputes of fact that have arisen on the papers; and, in claiming relief which in several respects is bad in law and not viable”.

2.9.3 He said the delay was not “reasonable” and had caused “prejudice to SARS in its ability to address [his] contentions..”

2.9.4 Mr Wingate-Pearse’s argument that the investigation into his tax affairs was wrong because the “illegal” rogue unit’” had investigated him was incorrect because SARS had initiated the investigation before the unit was established.

2.10 The DM argues: “Meyer J skilfully sketches the mosaic picture of truth to show the reader that Mr Wingate-Pearse employed every cunning tactic he could think of to delay paying his due taxes.” The DM quotes the judgment to say that Mr Wingate-Pearse’s argument seemed to be that if an “irregularity or illegality of some kind can be shown, Mr Wingate-Pearse felicitously pays no tax. Such starting premise, in my view, is patently wrong and untenable”.

2.11 The DM argues that they assume readers would have read the entire article and “the meaning of a word can only be determined with reference to the context”. Thus readers would understand he is not a tax “offender” in the sense that he has been found to have contravened a provision of tax-related law. Rather, the publication describes him as “someone who employs cunning tricks to avoid paying taxes, based on the strongly worded judgment of Meyer J.”  This had gone on for more than a decade and Meyer J “thought this patently wrong and untenable and in no uncertain words told him so.”

2.12 On the matter of dignity and reputation, the DM cites various clauses of the Press Code including clause 3.3.5 which provides one of the exceptions to the clause invoking the media to “exercise care and consideration in matters involving dignity and reputation”. The relevant exception states: “The article was or formed part of, an accurate and impartial account of a dispute to which the complainant was a party.” The article was about the effect the judgment would have on other matters before the court, and thus the focus was not on Mr Wingate-Pearse.

2.13 The writer “summarised Meyer J’s strenuous judgment – which focused largely on Mr Wingate-Pearse’s dodging tactics – by using the words ‘tax dodger’.”

2.14 The publication said it could not be expected to summarize the entire case, when the focus of the article is not on Mr Wingate-Pearse. The report is not an investigation containing new information but about a judgment delivered in “an open court.”

2.15 On the matter of the lack of right to reply, the DM argues that journalists have “for decades” reported on court proceedings without asking litigants for comment “with the understanding that balanced views will be provided over time as the relevant matter unfolds in court.” Moreover, journalists are not obliged to ask litigants for comment.

“The only way for Mr Wingate-Pearse to have his say in this matter is through the relevant court.” The publication argues he has the option of appealing the judgment.

2.16 In fact, if the focus of the article had been Mr Wingate-Pearse, the DM “would have quoted Meyer J more extensively, describing Mr Wingate-Pearse’s egregious litigation..” Even then, the publication would not have had to ask him for comment.

2.17 The report was not defamatory “but an accurate, brief summary of the judgment”.

2.18  On the previous case before the Ombudsman that involved the DM and Mr Wingate-Pearse, the DM argues it is not comparable. “The time is two years later. A different journalist authored the previous article. The definitions of ‘dodger’ and ‘offender are…vastly different..

“It does not follow that DM is wrong now if it was wrong two years ago.”

Further arguments

2.19 In response to the Daily Maverick arguments, Mr Muchechetere reiterated the argument that the term “tax dodger” was “wrong in law and in fact as the Tax Court is yet to determine whether our client is liable to SARS and if so, the extent of is liability.”

2.20 He asked specifically that the term describing Mr Wingate-Pearse as a “known tax dodger” be retracted, as well as an apology issued.

2.21 He argued the DM submissions on the phrase “tax dodger” “seek to deflect the complaint by adopting a wider definition of a Tax Dodger and it is this wide definition which is relied upon to justify the publishing of the article…It will be noted that the Daily Maverick’s submissions are aggressively framed, going so far as to accuse our client, in relying on the Oxford English definition of the word ‘dodger’ as being ‘extremely economical with the truth’, which itself is offensive and unwarranted.”

2.22 He says they do not agree “either that the wider definition adopted by it (the publication) is correct in the circumstances or that by widening the definition the complaint is refuted..”

The term implies that Mr Wingate-Pearse “avoids/evades his tax obligations” and “imputes dishonesty” on his part.

3. Analysis

3.1 There are three issues in this complaint: 1) whether it was accurate or fair to describe Mr Wingate-Pearse as a “tax dodger”, 2) whether he was denied the right of reply, and 3) whether his dignity and reputation were impaired.

3.2 In reply to my questions about the first, the Daily Maverick referred me to the court judgment , and provided me a different definition of a “dodger” from the one provided by Mr Wingate-Pearse’s lawyers. There are other definitions too. The online Thesaurus provides synonyms that range from ‘cheat” to “crook” to “pretender”. [3] Generally the word has denotations of cunning or trickery; in relation to payment of taxes, it denotes evasion (a criminal offence) rather than avoidance, which implies using multiple legal loopholes to avoid tax payments.

3.3 More instructive is the actual judgment.[4]

3.4 The article is not so much a report on the judgment per se but rather  a consideration of the implications of the judgment for other cases, in particular the review application brought by minister Pravin Gordhan against Public Protector Busisiwe Mkhwebane on the establishment of the so-called ‘Rogue Unit’ at SARS. It is perfectly legitimate to report a court case with an angle that extends beyond the case itself. However, it should still be careful to reflect what the judge said.

3.5 The judgment itself is excoriating of Mr Wingate-Pearse’s application brought against SARS, two of its former officials, various government ministers, and the NPA. It is lengthy and complex but I will try to summarize the main points here.

3.6 Although ostensibly about the scope and discretion of SARS under the Income Tax Act, the judgment tells an extraordinary story that begins in 2004, when SARS obtained a warrant for “search and seizure” against Mr Wingate-Pearse, of about 2000 documents after apparently being tipped off by the police’s Organised Crime Unit. These documents were scrutinized by Price Waterhouse Cooper, and a “lifestyle audit” was conducted. It was then that SARS issued Mr Wingate-Pearse with additional assessments for the years 1998-2005 and estimated an “alleged under-declared taxable income” and found “non-compliance”. It increased his tax liability from R350 000 to some R41 million.

3.7 In 2006, Mr Wingate-Pearse filed objections to the new assessments, which were partially allowed. As a result, SARS reduced his liability from R41,7 million to R22, 7 million. Then, in 2007 he filed notices of appeal in the Tax Court against this assessment and his liability was reduced to about R9 million. He also applied for a small business amnesty which was granted in 2008, but SARS said this did not include the amounts that had been assessed prior to the amnesty. In 2009, he launched an urgent application in the High Court against SARS which resulted in a written settlement agreement. In terms of this, he would make an interim payment and cede his rights and shareholding in 11 close corporations.

3.8 Eight years later, in August 2015, Mr Wingate-Pearse launched the review application that is the subject of this judgment. It was delayed for various reasons.. Among other things, he asked for a declaratory order against SARS, that the tax assessments be set aside, and an order that the onus of proof over the assessments in the (postponed) tax court appeal case rests with the revenue service not with him. Among other things, he asked the court to declare that SARS had illegally spied on him and that it infringed his constitutional rights. Both SARS and the Minister of Finance opposed the application.

3.9 As the judge noted, Mr Wingate-Pearse is, among other things, a shareholder in Carnilinx, the cigarette manufacturer, and has interests in the clothing industry, mainly in the importation of second-hand clothes.

3.10 There were numerous requests for postponements of the tax appeal initially set down for February 2013 and then for February 2015. Mr Wingate-Pearse applied for a ruling in the High Court on the “question of onus” – in other words what SARS should have to prove – which he lost, but in 2016 was granted leave to appeal.  He lost this appeal and was ordered to pay SARS’ costs. [5]

3.11 In the most recent case, he relied “heavily” on an affidavit by Ms Belinda Walter, an attorney representing Carnilinx, “in support of his allegations that SARS employed illegal intelligence gathering mechanisms against him.” [6]

3.12 Both Mr Ivan Pillay and Mr Johan van Loggerenberg filed answering affidavits, as well as SARS, who filed a new one that introduced the findings of the Nugent Commission.

3.13 Essentially, Mr Wingate-Pearse argued he was a victim of SARS’ “covert intelligence unit” or the HRIU. On the basis of information from Ms Walter, he accused Mr Van Loggerenberg of conducting “covert surveillance operations” on him and monitoring his communications. This infringed on his constitutionally protected rights.

3.14 Mr Wingate-Pearse also contended that a fallout with a previous business partner, Mr Glen Agliotti, an associate of the late police commissioner, Jackie Selebi, (convicted for corruption in 2010) resulted in “false and maliciously motivated” information about him given to the Organised Crimes Unit, which was conveyed to SARS.

He argued that SARS obtained the warrant against him unlawfully and unconstitutionally and this effectively rendered the tax appeal unfair to him.

3.15 The judge was excoriating about Mr Wingate-Pearse’s application. Among other things, he said that Ms Walter’s affidavit in which she claimed she had been told by Mr Van Loggerenberg that SARS had illegally monitored him, was “demonstrably without evidential basis”, and so was the suggestion that Mr Van Loggerenberg somehow influenced the tax appeal. As for the HRIU, it was not even in existence when Mr Wingate-Pearse’s income tax was assessed.

3.16 In his papers, Mr Wingate-Pearse relied on the findings of the panel chaired by Advocate Sikhakhane. However, the Nugent commission of inquiry, appointed by President Ramaphosa found the allegations of a “rogue unit’ in SARS were “without a sound factual basis.” [7]

3.17  Furthermore, the allegation that Mr Van Loggerenberg, who left SARS in 2015,  had  “intercepted confidential communications between Mr Wingate-Pearse and his lawyer, Ms Walter, is demonstrably without evidential basis, and so is the suggestion that he somehow influenced the tax appeal.”

3.18 The judge found that SARS had acted within “empowering legislation.”

3.19 The “premise” on which Mr Wingate-Pearse asks to have his additional estimated assessments set aside is “fatally defective and bad in law”. If the declaratory order sought by Mr Wingate-Pearse was granted that the establishment of the HRIU was “without statutory authority”, it would mean that he “felicitously pays no tax,” which was patently “wrong and untenable.”

3.20 Mr Wingate-Pearse’s argument was that his tax assessment was unsubstantiated and that the “lifestyle audit” was defective. But, and this is a crucial point, Judge Meyer ruled that to ask the court to adjudicate on this matter would have the effect of it adjudicating on “the merits of the assessment” and tax cases are exclusively preserved for the specialist tax court.

3.22 The Tax Court, a specialist tribunal, consisting of a judge, an accountant and business representative, is “best suited” to deal with the merits of the case relating to the actual assessments. “Proof of the claim that the additional estimated assessments are materially wrong and the assessed amounts materially overstated is dependent on evidence which has not been fully and adequately ventilated in the affidavits.” [8]

3.23 The judge also said it was an anomaly that a “parallel court” is asked to issue binding orders concerning pending litigation in the tax court.

3.24 Mr Wingate-Pearse was attempting to dispute the outcomes of the assessments in both the High Court and the Tax court “which cannot be countenanced.” [9]

3.25 He declared the proceedings “vexatious”: SARS had been put to unnecessary trouble and expense “which it ought not to bear” and it was unreasonable to have drawn the former finance minister into dispute. He dismissed the application with costs on attorney-client scale against Mr Wingate-Pearse.

3.26 The point relevant to this complaint is this: although Judge Meyer was highly critical of Mr Wingate-Pearse’s behaviour, expressed in some choice phrases, he did not pronounce on the merits of the assessment. That, he specifically said, was for the tax appeal court to decide. At the time of writing this appeal had not happened. Thus he did not rule on whether he was a “tax dodger” or not.

3.27 The Tax Court is yet to make a finding on whether he evaded paying tax.  It is only this court that can make the final determination of whether this is so. Until then, it would be pre-emptive to describe him as a “tax dodger”.

3.29 On the lack of the right of reply: this report relies largely on the outcome of court proceedings. Those who bring applications to court have a fair expectation that their arguments will be heard in the court. It is not expected that a journalist would approach them for comment on a case before court. The DM is quite correct in this point.

3.30 On the matter of dignity and reputation, spelled out in clause 3.3 of the Press Code, which Mr Wingate-Pearse also complains has been transgressed: it is important to note two of the exceptions to this clause. One is 3.3.3 “The reportage amounts to a fair and accurate report of court proceedings…”; the other is cited by DM: 3.3.5: “The article was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party.”

3.31 The reportage on the actual court case, notwithstanding that it was not the main focus of the article, was accurate with the exception of the throwaway description of Mr Wingate-Pearse as a “tax dodger.” It is also, with the exception noted above, an accurate account of a dispute to which he is a party.

3.32 Moreover, Mr Wingate-Pearse is undoubtedly a public figure, not least by his own design in undertaking a years-long fight with the revenue service.  There is substantial case law in South Africa and internationally that has defined public figures. In the words Justice Harms “persons who move in or close to the limelight, have to expect that their lives will be to some extent in the public domain and they must be prepared to endure somewhat more than an ordinary citizen has to endure”[10]

Finding

The Daily Maverick has transgressed Clause 1.1 of the Press Code by pre-empting the findings of the Tax Appeal court in calling Mr Wingate-Pearse a “tax dodger”. This is a Tier 2 offence. For this it should issue an apology.  The word “apology” should be carried in a headline linked to this story and with a link to this finding. It should also carry the logo of the Press Council.

The rest of the complaint, about the right to reply and the undermining of dignity and reputation is dismissed.

Appeal

The Complaints Procedures lay down that within seven (7) working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Pippa Green

Press Ombudsman

April 20, 2020