City Press vs Judge L Rusi
Before the Appeals Panel of the Press Council of South Africa
In the matter between:
Complaint 30743
City Press Appellant
and
Judge L Rusi Respondent
Decision on the Application for Leave to Appeal
Background and Context
- A court official (the complainant) accused Judge S Mbenenge, the Judge President of the Eastern Cape Division of the High Court in Mthatha, of sexual harassment and lodged a complaint with the Office of the Chief Justice (OCJ). Mbenenge JP denies the allegations and the matter is scheduled to be dealt with by a tribunal chaired by Judge B Ngoepe, the current chair of the Appeals Panel of the Press Council. After the complaint was lodged with the OCJ, Judge Rusi, who is a judge based in the High Court in Mthatha, contacted the complainant. She asserts that she contacted the complaint to offer her support. Mr R Hartle who has covered these events for a number of publications, contended that Judge Rusi ‘’ acted as a ‘middle person’ in calling the complainant and confronting her about her complaint against ‘uTata’ ’’. Mr Hartle wrote an article for the Sunday Times and TimesLive in March 2023. Judge Rusi, with the assistance of officials of the OCJ, interacted with the Sunday Times on the contents of the article. Subsequently the Sunday Times published a follow-up article which included some of Judge Rusi’s explanation.
- Mr Hartle published a piece in the City Press in March 2024 that dealt with what he perceived to be oversensitivity to criticism on the part of the judiciary. This comment piece is the subject of this complaint. Part of the piece focused on the allegations against Mbenenge JP and on Judge Rusi’s interactions with the complainant. Judge Rusi complained to the Press Council about aspects of the piece that related to her and City Press replied. In findings dated 29 August 2024, the Press Ombud found that the publication breached Clause 3.3 of the Press Code and ordered that City Press apologise to Judge Rusi for omitting her version of events that she had denied acting improperly when she contacted the complainant. He dismissed the assertion that either the author or the publication was motivated by malice. City Press lodged an application for leave to appeal against the findings. Judge Rusi opposed the application and lodged a cross-appeal against the findings that there was no indication of malice on the part of Mr Hartle or the publication.
Some preliminary issues
- City Press submitted that as Judge Ngoepe has been assigned as the chairperson of the judicial tribunal that has been set up to deal with the complaint of sexual harassment against Mbenenge JP, an alternative chairperson should be appointed to consider this application for leave to appeal. This request was opposed by Judge Rusi who submitted that there was no basis for Judge Ngoepe to recuse himself. However, Judge Ngoepe himself decided that, given his chairing of the tribunal, it would be prudent for a different chairperson to be appointed to consider this application. He requested that I consider this application for leave to appeal.
- Both the application for leave to appeal and the cross-appeal contained applications for condonation. While the explanation from Judge Rusi has much more detail than that provided by City Press, it is clear that neither party was prejudiced by any delays. I am satisfied that the inconsequential delay in submitting both the appeal and the cross appeal should be condoned.
The merits of the application and the cross-appeal
- The issue is whether the ‘Chair of Appeals is of the view that there are reasonable prospects that the Appeals Panel may come to a decision different from that of the Ombud …’[1] The Ombud correctly commenced his analysis by considering whether the criteria listed in Clause 7 of the Code of Ethics had been met. Both the Appeals Panel and the Office of the Ombud have consistently adopted the approach that if the requirements listed in Clause 7 of the Code are met, the comments are deemed to be protected comment.[2] Once it is deemed to be protected comment, it cannot simultaneously amount to a breach of another clause of the Code. Thus Clause 7 affords a ‘safe harbour’ for the media. Clause 7.2 provides:
Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all material facts that are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.
- It is clear that the City Press piece of 17 March 2024 is a comment piece. Mr Hartle poses the question ‘who judges the judges’ and reflects on his experience covering the various judge presidents in Makhanda and on what he perceives to be undue sensitivity on the part of some judges and lawyers to being asked critical questions. As part of his analysis, he refers to his coverage of the complaint of sexual harassment against Mbenenge JP. He reflects on his concern that ‘judges and lawyers inveigling themselves into one or another role in support of Mbenenge, outside of legislated processes.’[3] It is in this context that he deals with the interaction between Judge Rusi and the complainant. I am satisfied that this is a comment, which clearly appears as such, and is of a matter of public interest. The Ombud’s findings in this regard were not seriously challenged.
- The next issue is whether the comment piece has taken fair account of all material facts that are either true or reasonably true. The need for the comment to take fair account of all material facts that are true or reasonably true is to enable the reader to be adequately informed of the material facts and thus be in a position to evaluate the opinion or comment. Thus the comment is protected if it is based on material facts that are either true or reasonably true.
- The Ombud pointed out that the OCJ complained to the Sunday Times about the first article and conveyed Judge Rusi’s response. Mr Hartle was copied in on this correspondence. In this correspondence, Judge Rusi stated:
When I reached out to [the complainant] on the 03 December 2022, it was on the premise of her being a young woman that I have had good relations with in the course of interactions with her since I came to know her. During my telephone conversation with her, I offered her comfort which she was grateful for at the end of the call.
She also explained that a subsequent interaction with the complainant concerned the latter’s WhatsApp messages mocking Judge Rusi’s JSC interview. Thus Judge Rusi submitted that the second interaction dealt with a separate issue and was not connected to the complaint against Mbenenge JP.
Her denial of impropriety was reflected in the updated article in the Sunday Times. However, in the subsequent comment piece published in the City Press on the 17th March 2024, Mr Hartle writes:
Neither Makaula nor Rusi offered an explanation of why they would regard it as appropriate to engage informally with an official whose complaint was the subject of a formal investigation by the judicial conduct committee.
- The Ombud pointed out that Judge Rusi had given an explanation that was in the public domain. However, it was presented as a fact in the City Press article that Judge Rusi did not provide an explanation for engaging with the complainant after the latter had formally laid a complaint. The Ombud concluded that the publication omitted a very material fact that Judge Rusi denied impropriety. As a consequence, the conclusion was reached that the piece cannot be held to be in the ‘safe harbour’ of Clause 7.
- City Press argued that the Ombud erred materially in his approach. Central to City Press’s argument is that Judge Rusi’s version which was submitted to the Sunday Times and copied to Mr Hartle was ‘not verified, uncontested , reported facts.’ They point out that the original Sunday Times article contradicted Judge Rusi’s claims of cordial cellphone calls and messages between Judge Rusi and the complainant. City Press asserted that Judge Rusi’s averments were rebutted by other information which was available to Mr Hartle at the time he prepared the original Sunday Times article. It is clear that both Mr Hartle and City Press find the explanation proffered by Judge Rusi unpersuasive and lacking credibility.
- However, it is vitally important to keep issues separate. The question of whether Judge Rusi provided an explanation for interacting with the complainant after the complaint was lodged is distinct and separate from the credibility and veracity of her explanation for doing so. City Press, in their application for leave to appeal, appears to conflate these issues.
- In order to meet the requirements of Clause 7.2, it was vital that the opinion or comment had to be based on material facts that are either true or reasonably true. It was not true nor reasonably true that Judge Rusi did not offer ‘any explanation of why they would regard it as appropriate to engage informally with an official whose complaint was the subject of a formal investigation by the judicial conduct committee.’ It is correct that this was the position prior to the publication of the original Sunday Times article but was patently not the position at the time the City Press article was published in March 2024. The proper factual predicate had to state that Judge Rusi had provided an explanation thus placing readers in a properly informed position to assess the comment. By incorrectly stating that Judge Rusi had not provided any explanation, a materially incorrect factual basis was provided.
- The Ombud, quite correctly, stated that it was open to Mr Hartle to interrogate the explanation provided by Judge Rusi and contend that it lacked veracity and credibility. However, he was obliged to refer to the explanation in his opinion as it had been provided by Judge Rusi. I am satisfied that the Ombud was correct in concluding that City Press was not entitled to omit a very material fact and explanation from Judge Rusi that she denied any impropriety. I am satisfied that the requirements of Clause 7 of the Code have not been met. I am also satisfied that there is no reasonable prospect of the Appeals Panel coming to a different decision.
- The next question was whether the publication contravened any clause of the Press Code. The Ombud correctly, with reference to the Appeals Panel decision in Patriotic Alliance v News24, stated that Clause 3 of the Code applies to both news reports and opinion pieces. This opinion piece therefore had to be consistent with the obligations contained in Clause 3.
Clause 3 relates to Privacy, Dignity and Reputation and provides:
The media shall:
3.1 …
3.2…
3.3 exercises care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:
3.3.1 the facts reported are true or substantially true; or
3.3.2 the reportage amounts to protected comment based on facts that are adequately referred to and that are either true or reasonably true; or …
It is indisputable that assertions made against Judge Rusi in the piece adversely impacted on her dignity and reputation. This then required that care and consideration be taken. The inaccurate statement in the piece that Judge Rusi did not offer an explanation for why she engaged informally with the complainant, whose complaint was the subject of a formal investigation by the judicial conduct committee, indicates that the level of care and consideration required by Clause 3 was not taken. Mr Hartle was aware or ought reasonably to have been aware of Judge Rusi’s explanation at the time the City Press piece was published in March 2024. For the reasons stated earlier, the reportage did not amount to fair comment based on facts that are adequately referred to and that are true or reasonably true. In the circumstances, the Ombud reached the correct conclusion that the publication breached Clause 3.3 of the Code. I am also satisfied that there is no reasonable prospect that the Appeals Panel may come to a decision different from that of the Ombud.
- In summary, I am satisfied that the publication cannot be deemed to be protected comment in terms of Clause 7 and that the publication infringed Clause 3.3 of the Press Code. I am also of the view that there is no reasonable prospect of the Appeals Panel coming to a different decision. In these circumstances, the application for leave to appeal by City Press is dismissed.
The Cross- Appeal by Judge Rusi
- Judge Rusi sought to appeal the finding of the Ombud that on the facts of this case, there was no indication of malice on the part of Mr Hartle or the publication. The factual error in the comment and Mr Hartle’s trenchant criticism of Judge Rusi’s conduct in communicating with the complainant does not equate to malice.[4] The comment deals with a matter of considerable public interest and there is no basis on the evidence to conclude that either Mr Hartle or City Press were motivated by ill-will, spite, ulterior purpose or malice. It is apparent that the primary objective of the comment was to slate the undue sensitivity of some judges to criticism and to highlight examples of what Mr Hartle perceived as injudicious conduct by some judges. The Ombud correctly dismissed the contention that the comment was motivated by malice. I am satisfied that there is no reasonable prospect that the Appeals Panel would come to a different decision on this issue.
Conclusion
On the basis of the reasons provided in these findings and for the reasons provided by the Ombud, I reach the following conclusions:
- The application by City Press, for leave to appeal the ruling in this matter, handed down by the Press Ombud on 29 August 2024, has no reasonable prospect of success and is therefore dismissed.
- The cross-appeal by Judge Rusi, for leave to appeal the ruling that there was no indication of malice on the part of Mr Hartley and City Press made by the Press Ombud in this matter, has no reasonable prospect of success and is therefore dismissed.
Dated at Durban on the 9th of October 2024
K Govender
(Retired Professor of Law and member of the Panel of Adjudicators of the Press Council.)
[1] . Clause 3.10 of the Complaints Procedures
[2] . Goss Marlon v News24 (complaint 4555); Referendum Party v Daily Maverick (Complaint 4697); News 24 and Karyn Maughan v Sunday Independent(complaint 30739)
[3] . City Press comment piece of 17 March 2024
[4] . See The Citizen 1978 (Pty) Ltd and Others v McBride 2011(4) SA 181 (CC) para 105 ff
