Appeal Decision: Action Plus Gym/V Moodley vs Chartsworth Rising Sun

THE SUMMARY

The headline to the story in dispute read, Gym not pulling its weight (published on 2 March 2020).

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 general theme of the story was that the facilities and services at Action Plus Gym (APG) had deteriorated.

APG said that, prior to the publication of the article, several complaints that had been raised against it had been addressed. It added that the journalist had visited the gym and that he had been shown by the manager that none of the complaints raised were true.

One of the complaints against the article was that it wrongly portrayed a certain Mr Naidoo as the owner of the gym, while he was just a minority shareholder. APG also said it was not contacted for comment. Several statements in the article were said to be incorrect, misleading and unfair; and the journalist omitted to mention that he had visited the gym, APG added.

In his ruling, dated 10 July 2020, the Acting Assistant Ombud said documentation presented to him confirmed that there were problems at the gym. He dismissed large parts of the complaint but upheld the complaint about the omission of the manager’s statement (that it was unlikely that the gymnasium had been mismanaged). He imposed a reprimand.

APG applied for leave to appeal. It was specifically unhappy with the Ombud’s sanction, saying it was too lenient.

Judge Ngoepe agreed with the Ombud. He said the article was accurate; at the very least, substantially so. He found that the journalist had no reason to doubt the information he had obtained, and that the reportage was therefore justified.

The application was dismissed.

BEFORE THE APPEAL PANEL OF THE SOUTH AFRICAN PRESS COUNCIL

In the matter between

ACTION PLUS GYM/ V MOODLEY                                                                 APPLICANT

AND

1. In its complaint dated 6 March 2020, Action Plus Gym (“applicant”) lodged a complaint with the Press Council against Chartsworth Rising Sun Newspaper (“respondent”) in respect of an article published by the respondent on 2 March 2020 with the headline “Gym not pulling its weight”. The general theme of the story was that the facilities at the applicant’s gymnasium had deteriorated; and so too the services. The applicant stated that prior to the publication of the article, a number of complaints that had been raised against it had been addressed, and that, prior to the publication, the journalist visited the gym and was shown by the applicant’s manager that none of the complaints raised were true. One of the complaints was that the article wrongly portrayed a certain Mr Naidoo as the owner of the applicant, whereas he was just a minority shareholder. He was also not contacted for comment or given the opportunity to do so. The applicant complained that several statements in the article were incorrect, misleading and unfair; and that the journalist omitted to mention that he had visited the gym. The applicant asked for, amongst others, an apology and a retraction. The allegations in the story included the following: that the aircon and geysers were not working; that some shower doors were broken; broken lockers and a bad stench. In its letter to one of the patrons, the applicant’s manager pointed out that these problems were fixed.
2. The respondent insisted that its report was accurate, including the fact that applicant’s manager told the journalist that Mr Naidoo was the applicant’s owner. The respondent, nevertheless, offered Mr Naidoo the opportunity to respond. During the journalist’s visit to the gym, applicant’s manager took the journalist (editor) on tour of the gym, and admitted to some of the problems; the manager also admitted that some of the patrons did complain.
3. In his Ruling dated 10 July 2020, the Acting Assistant Ombud found that the manager’s letter referred to above to one of the patrons, confirmed the existence of the problems. The Ombud was right. It is therefore clear that the article was accurate; at the very least, substantially so. It is also not clear how failure by the respondent to mention that the journalist (editor) had visited the gym prior to the article could be material; if anything it possibly could have made the applicant’s case worse. The Ombud ruled that by omitting the manager’s “statement that it was unlikely that the gymnasium had been mismanaged, was in breach of Section 1.2 of the Press Code.” The section provides that news shall be presented in context and in a balanced manner. The sanction imposed was a reprimand; which had to be published, and which had to reference Mr Naidoo’s response.
4. The applicant now seeks leave to appeal the dismissal of the rest of the complaint. Regarding the sanction for the breach of Section 1.2 of the Code, the applicant says it is too lenient. For an application for leave to succeed, the applicant must show reasonable prospects of success. The applicant argues that the Ombud was wrong in his finding that the fact that Mr Naidoo was described as the owner of the applicant was not the respondent’s fault. I do not agree. It was the applicant’s manager, Mr Jogie, who told the journalist that Mr Naidoo was the owner. The manager gave an impression that he had the authority to speak on behalf of the applicant. There was no basis for the journalist to doubt this; this is very important. A newspaper cannot go to investigate the truth of information when there is no basis to doubt its correctness, particularly when it comes from a manager. The applicant also argues: “The majority of the issues raised by the complainant were attended to prior to publication, and the outstanding repairs were in the process of being attended to upon the article being published.” (Own emphasis). The emphasized portions are an admission that there were problems even as at the time of the article. That was the starting point of the Ombud. From there, he dealt with the issues correctly. I find no fault with the way he dealt with the matter. A sanction is a matter of discretion; it can only be interfered with when it is shockingly inappropriate. I don’t think this is the case.
5. I am satisfied that the applicant has no reasonable prospects of success; the application is therefore dismissed.

Dated this 11^th day of August 2020

Judge B M Ngoepe, Chair, Appeals Panel