SKG Africa (Pty) LTD, Nontutuzelo Mbiza & Jean du Plessis
BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between:
SKG Africa (Pty) LTD, Nontutuzelo Mbiza & Jean du Plessis Applicants
And
SUNDAY WORLD Respondent
Matter No: 32042/10/2024
DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
- SKG Africa (Pty) LTD, Ms Nontutuzelo Mbiza and Mr Jean du Plessis (the applicants) lodged several complaints against Sunday World (respondent). The Public Advocate initially accepted the complaints but later withdrew his acceptance. This was on the ground that the complainants did at the same time issue summons in the High Court against the respondent in respect of the same complaints he had accepted. Article 1.7.3 of the Complaints Procedures says that the two processes cannot be pursued together.
- After the Public Advocate withdrew his acceptance of the complaints, the applicants took the matter to the Press Ombud. The latter, in his Ruling of 14 April 2025, upheld the decision of the Public Advocate. The applicants now seek leave to appeal the Ruling.
- For the application to succeed, the applicants must show reasonable prospects of success on appeal; this is what I must now access.
- Article 1.7.3 is very clear:
“1.7.3 Where at any stage of the proceedings it emerges that proceedings before a court are pending on a matter related to the material complained about, the Public Advocate, the Ombud or the Chair of Appeals, depending on (the) status of the complaint at that stage, shall forthwith stop the proceedings and set aside the acceptance of the complaint by the Public Advocate, unless it is shown that the issue complained about is not among those that the court is adjudicating.”
The first question is therefore whether the proceedings before the Court are on a matter related to the material complained about; the Ombud answered the question in the affirmative. The second question is whether the issue complained about is not among those that the court is adjudicating. The Ombud’s answer was that the issues complained about were indeed amongst those before the Court.
- In my view, the Ombud’s answers to the above two questions were correct, and I also agree with the reasons he gave: Firstly, that it is immaterial that the article quoted in the summons was written by a different journalist; secondly, that the articles followed each other as a series; in other words, they dealt with substantially the same subject matter. Thirdly, many complaints submitted fall squarely within the ambit of what the applicants seek to prove in their claim for special damages before the Court.
- What cannot be used as a distinguishing factor between the Court and the Press Council processes, is the nature of the remedy sought in them. That would render article 1.7.3 nugatory because some relief, such as damages, could never as a matter of law be sought in the Press Council process. In other words, one cannot simply look at the nature of the relief sought before the Court, such as damages, in comparison with the relief sought before the Ombud (e.g. withdrawal or correction) and then declare that on that basis, there are no parallel proceedings; one has to look at the substance of what is before both processes. In their application for leave to appeal, the applicants seek to go into a hair-splitting exercise in order to go past this point; but the subject matter is the same. It would not be feasible to divide into water tight compartments the complaints before the Court on the one hand, and on the other hand, those before the Press Council. As the respondent correctly submitted, they are intertwined. Furthermore, it is not correct, as the applicants contend, that the “same issues” should be before the Court and the Press Council in order for article 1.7.3 to kick in; it is sufficient if the proceedings before the Court are on a “matter related” to the material complained about. The concept “related” is more elastic than “the same”.
- Argument is raised in the application about the issue of prejudice. The Ombud dealt with that aspect sufficiently. In any case, it is my view that it does not avail the applicant to challenge the Ruling on that aspect because prejudice would be presumed once a complaint is accepted in contravention of the express provisions of article 1.7.3. Furthermore, the Public Advocate has no discretion to accept a complaint in the face of the article; he would be obliged to withdraw the acceptance of the complaint , without having to consider the issue of prejudice.
- In the circumstances, there are no reasonable prospects of success; the application for leave to appeal is therefore dismissed.
Dated this 10th day of June 2025
B M Ngoepe, Chair, Appeals Panel
