TimesLive vs GroundUp

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between

TimesLive (Mr Sefara) Applicant

And

GroundUp (Mr Geffen) Respondent
Matter NO 30710/02/2024
Decision on an Application for Leave to Appeal
1. ¬¬¬This is an application by TimesLive/Mr Sefara (the applicant) for leave to appeal a Ruling by the Press Ombud, dated 6 September 2024. The Ruling was on a complaint that had been lodged by GroundUp/Mr Geffen (the respondent) in respect of what was published on 6 February 2024 by the respondent under the headline “Ray Joseph and GroundUp’s unethical pursuits and the journalism of suppositions.” Mr Geffen is the editor of GroundUp while Mr Sefara is the editor of TimesLive. For the purpose of this application, it is not necessary to go into the article or all its aspects; suffice to state that the applicant used to carry copies of stories from the respondent. After some time, as the Press Ombud says, some bad blood developed between the two editors, and the applicant ceased publishing stories from the respondent. It seems at least part of the explanation is in the following statement that appeared in the applicant’s 6 February 2024 article, which statement is the subject of the respondent’s complaint under consideration:
“In December of 2020, I was asked to unpublish a story that was supplied by GroundUp which was false. I asked, why did they send a false court story? Was their reporter not in court? Naturally, I wanted to know what went wrong so this was not repeated.
The response was flippant: ‘The reporter is on holiday; we will revert in January’ is the summary. I believe this to be reasonable. I had not asked for the reporter’s leave to be cancelled. All they had to do was to ask the reporter to take five minutes to explain, so they could explain to us. But no, TimesLive must just unpublish the falsity and wait until after December 2020 holidays.”
2. The respondent complained that the above statement was in breach of clauses 1.1, 1.2 and 7.2 of the Press Code. The respondent was amongst others irked by the statement that the response was “flippant.” The Ombud dismissed other complaints and upheld the one regarding the breach of clause 1.1. In essence, he disagreed with the applicant that the response or explanation by the respondent was flippant; he therefore upheld the complaint, and imposed a sanction. The applicant now wants leave to appeal the Ruling, and I must determine whether there are reasonable prospects of success on appeal.
3. In arguing that the explanation it gave for the false reporting was not flippant, the respondent revisited the following explanation it had given to the applicant, on 18 January 2021 already, as the reason for the false report: “It was a combination of end of year lack of editing staff and an inexperienced reporter completely misunderstanding court processes. She misunderstood Heads of Argument to be a court finding, and the editors didn’t check the court documents ourselves, which we should have. There was no way to correct the story hence the retraction.”
The respondent also argues that there was no mention of the reporter having gone away on holiday as alleged in the article in dispute. Referring to the above explanation by the respondent, the Press Ombud says the “objective fact is that Geffen did provide a detailed response to TimesLive on 18 January 2021.” He went on to say that stating to readers, as the applicant did, that no explanation was given, amounted to a breach of clause 1.1; he then imposed a sanction. I agree with this finding.
4. In its application for leave to appeal, the applicant argues that the Ombud acted irregularly by adding, and adjudicating, a complaint that was never before him and to which the applicant was not given the opportunity to respond. He says the Ombud, in finding a breach of clause 1.1, relied on the following statement which appeared in the article but was not complained against by the respondent: “I told the news editors that we should stop publishing GroundUp until we get the explanation. Instead of bringing an explanation, GroundUp approached Sunday Times editor S’thembiso Msomi to get him to override my decision.” I beg to differ with this argument raised by the applicant. The Ombud said the above statement was a troubling aspect in the piece, and that it constituted an entirely different scenario. The Ombud was merely expressing his concern that many years later (in 2024), Mr Sefara was still maintaining the position that no explanation was given (whereas it had already been given on 18 January 2021); after all, early in his Ruling, the Ombud expressed his concern that two major publications and two senior media people were at loggerhead! But, contrary to the applicant’s submission, the Ombud did not base his finding of the breach of clause 1.1 on that statement. Earlier on, I took the liberty of stating, in full, the statement the respondent was complaining about. The respondent clearly took issue with the claim that the explanation given for the false reporting was flippant, and, amongst the clauses allegedly breached, clause 1.1 was mentioned. The finding of the breach was therefore based on the complaint as was formulated and adjudicated, and not on the statement the Ombud said was troubling.
5. For the reasons given above, my finding is that the application has no reasonable prospects of success on appeal, and it is therefore dismissed.

Dated this 9th day of October 2024.

Judge B M Ngoepe (Retired Judge President), Chair, Appeals Panel