Appeal Decision: Mail & Guardian vs Fazel Imtiaz

SUMMARY

The headlines to the stories in dispute read, De Lille unfazed by acting DG’s baggage (published on 8 October 2020); and, Toxic power struggle hits public works (published on 23 October 2020).

This ruling by the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

The Mail & Guardian applied for leave to appeal the ruling of the Ombud, dated 22 April 2021.

Imtiaz Fazel, the then acting Director-General, Department of Public Works and Infrastructure, complained that the M&G had not given him a right of reply prior to publication; that this led to some false, misleading and deliberately out of context allegations; and that the articles unnecessarily tarnished his and his department’s reputation.

The Ombud dismissed some complaints, but found that the M&G:

• did not afford Fazel the opportunity to comment prior to publication; and
• stated as a fact that he was on the verge of being suspended.

Judge Ngoepe said the appeal against the sanction was “really not a point for appeal” – it rather sought clarification to the sanction. “That being the case,” he argued, “it is a matter to be taken up with the Director of the Press Council because it relates to the execution of the sanction.”

He also agreed with the Ombud’s finding that the M&G was in breach of the Press Code by stating as a fact that the respondent was on the verge of being suspended.

The application for leave to appeal was dismissed.

THE RULING ITSELF

In the matter of

MAIL & GUARDIAN                                                                                              APPLICANT

AND

1. The applicant is Mail and Guardian, and the respondent, opposing the application, is Mr Fazel Imtiaz. The application is for leave to appeal the Ruling of the Ombud, dated 22 April 2021. It was a Ruling on the complaint that had been lodged by the respondent against the applicant following two articles published by the applicant. The first article, headed “De Lille unfazed by acting DG’s baggage” was published on 8 October 202. The second one was published on 23 October 2020 headlined “Toxic power struggle hits public works”.
2. The Ombud summed the complaints:

• with regard to the first article, that the respondent was not given the right to reply prior to publication;
• this led to the false, misleading and deliberately out of context allegations and
• the articles unnecessarily tarnished respondent’s reputation and that of public works.

3. The respondent asked for an apology, a retraction or a correction in a rerun of the story. One of the things said of the respondent was that the Minister of Public Works, Ms De Lille, appointed him while there was a cloud hanging over his head; it was also said that he was on the verge of being suspended, allegedly on the ground that he had falsified a report about one of his juniors who had, according to the alleged report, knowingly received benefits she was not entitled to over many years. There were accusations and counter-accusations within the triangular relationship between the Minister, the respondent (appointed Acting Director-General) and the suspended Director-General (Mr Savuka).
4. In his Ruling, the Ombud dismissed some complaints, but found that the applicant acted in breach of the Code by not affording the respondent the opportunity to comment prior to publication. He also found that the applicant acted in breach of the Code by stating as a fact that the respondent was on the verge of being suspended. A sanction was imposed. The applicant now seeks leave to appeal.
5. For the application to succeed, the applicant must show that it has reasonable prospects of success on appeal. This is what I must now determine.
6. The first issue raised by the applicant relates to the sanction. Frankly, the point is not quite comprehensible to me; it relates, apparently, to the sanction in relation to the failure to afford the respondent the right to respond. It is really not a point for appeal; it seeks clarification to the sanction. That being the case, it is a matter to be taken up with the Director of the Press Council because it relates to the execution of the sanction.
7. The second issue relates to the Ombud’s finding that the applicant, by stating as a fact that the respondent was on the verge of being suspended, breached the Code. I have gone through the Ombud’s analysis. I do not think it can be faulted, nor the conclusion. The basis on which the applicant’s argument is based is problematic. The issue is not whether or not there were issues at the Department. The applicant’s argument that the respondent was on the “verge” of a suspension is premised on the assumption that a series of prior events would eventuate, yet  all of which are, on the applicant’s own version, uncertain:

“Had the Minister actioned the request from the DG, what would have followed is a letter asking Fazel to state reasons why he should not be charged. That would have likely been followed by a letter informing him of his suspension pending disciplinary charges – and that we contend is enough to state that he was on the verge of being suspended.” (Own emphasis). The emphasis is to make the point that the applicant is in effecting sketching out a chain of events which would have to materialize first before the suspension would be effected. What if one of the links in the chain happened to miss? There would have been no suspension; it is therefore absurd to say the respondent was on the “verge” of being suspended. The suspension of employees does not happen mechanically; for example, after the employee’s counter submissions – which may be strong – someone must still exercise some discretion as to whether or not the suspension should be effected. The finding of reputational damage was justified. Yes, the respondent was a public servant, but even so the reportage must be within limits.

8. In the circumstances, I see no prospects of success. I must make the observation though that I do not understand why the respondent, both in his complaint and in opposing the application, was so unnecessarily prolific. In fact, when he filed his application, he again unnecessarily attached prolific documentation. He should have submitted no more than three to four pages in response to the application; neither did he have to write so many pages in presenting his complaint.
9. For the reasons given by the Ombud, and those I mention above, the application for leave to appeal is dismissed.

Dated this 29^th day of May 2021

Judge B M Ngoepe, Chair, Appeals Panel