Appeal Decision: Mthembu Sibongiseni Jerome vs News24

DECISION ON AN APPLICATION FOR LEAVE TO APPEAL

1. This is an application by Mr Sibongiseni Jerome Mthembu (applicant) seeking leave to appeal the Ruling of the Deputy Press Ombud dated 25 August 2021. The Ruling was on a complaint launched by the applicant against News24 (respondent). The complaint was on three articles which had been published by the respondent about the applicant. The essence of the articles was that the applicant, then head of Eskom’s legal department, acting together with one Solly Ratshitangane, terminated Eskom’s mandate to Bowmans Attorneys to investigate dealings between Eskom and Eco Oil which were apparently irregular; as a result, the investigations could not continue. The journalist had directed questions to the applicant prior to the publication, which he answered.
2. The applicant denied any involvement in the involvement in the termination of the instigations into Eco oil. He said those investigations were the project of someone else, namely, Mr Hewu. The mandate he was involved in with Bowmans, in which he admitted playing  a role in terminating, was in respect of Medupi and Kusile powers stations. While the impression given by the respondent was that the applicant terminated the ECO Oil investigations with a nefarious purpose, the applicant, apart from denying stopping them, said that the reasons for the termination of the mandate in respect of Medupi and Kusile was because of budgetary constraints. In his complaint the applicant alleged that the articles breached Clauses 1.1; 1.2 and 1.3 and 2 of the Code. The respondent disputed that. The articles were published on 28 May, 29 May and 5 June 2021.
3. In his Ruling, the Deputy Ombud gives what he describes, accurately, as a very crisp summary of applicant’s complaint in applicant’s own words:

“The matter we are dealing with here is News 24’s malicious and baseless accusations-

• That I stopped the investigation of Econ Oil and Matshela Koko by terminating (law firm) Bowman’s mandate (see Article 1);
• That I terminated Bowman’s mandate in order to promote the interest of Econ Oil and ignoring the facts to the contrary (Article 2); and
• Stating, or suggesting that I told Bowmans to not investigate Econ Oil (Article 3).”

As the Deputy Ombud put it, respondent emphatically denied publishing any false, malicious or misleading information.

4. The findings of the Ruling were as follows:

• The complaint of a breach of Clause 1.1 is dismissed.
• The complaint of a breach of Clause 1.2 is upheld only for Articles 1 and 3.
• The complaint of a  breach of Clause 1.3 is dismissed.
• The complaint of a breach of Clause 2 is dismissed.
• The breaches are Tier 2 infringements.
• News24 is directed to publish an apology to Mr Mthembu. The apology had to contain certain elements.

5. I have before me applicant’s application and respondent’s counter application.
6. The applicant became unhappy with some of the findings; hence this application. For its part, the respondent also became unhappy with some of the findings, including the sanction. The question is whether anyone of the parties has any reasonable prospects of success on appeal. Before proceeding to assess any such prospects, I must clarify one or two issues. Firstly, the complaint in respect of the second article, was correctly dismissed by the Deputy Ombud as the article was based on the findings of a tribunal. A complaint based on a breach of Clause 2 was likewise correctly dismissed as it had no basis. Clause 2 and the second article shall hence forth no longer feature.
7.  In his application for leave to appeal, the applicant says the following:

“3.     This application for leave to appeal is specifically against the findings of the Ombudsman in respect of Article 1 and 3 in which the Ombudsman concluded that News24 did not breach clauses 1.1, 1.2 and 1.3 of the Code, thus dismissing the Applicant’s complaint in respect thereof”.

This statement is not entirely correct, and has since been corrected by the applicant. The  Deputy Ombud did find that there was a breach of clause 1.2 of the Code, for which he imposed a sanction. The applicant therefore wants leave to appeal the dismissal of the complaint that clauses 1.1 and 1.3 were breached. I will therefore proceed to consider the application on that basis. This will be only in relation to the first and the third articles. I must proceed to determine the application’s prospects of success on that basis.

8. I have already mentioned the applicant’s denial of his involvement in the termination of Bowman’s mandate in respect of Eco Oil and Mr Koko, which would be in relation to the first and the third articles. Apart from anything else, the applicant set out certain milestones and the unfolding of certain events including their sequence. It would not be appropriate for me to go into detail, given the fact that I am minded to grant the applicant leave to appeal. Regarding the third article, the Deputy Ombud contrasted the relevant part of the article with applicant’s version and concluded that the applicant’s version was “untenable”. This is actually a question of inference or assessment of competing versions. The question is therefore whether there are reasonable prospects that the Appeal Panel may come to a different conclusion. Here too it is not appropriate for me to go into details why I think so, save to state the following: Mr Hewu’s explanation of his own role in terminating the mandate in question, as well as the explanation given by the applicant for the termination of the Medupi and Kusile mandate, make me believe that the applicant has reasonable prospects of success.
9. For the reasons given above, I am of the view that the applicant has reasonable prospects of success, both in respect of the first and the third articles for a finding of breach of Clauses 1.1 and/or 1.3.

Respondent’s Counter-Application

10. Respondent’s counter-application is against the finding of a breach of Clause 1.2 by the first and third articles. In its application, respondent misses the point and incorrectly criticizes the Deputy Ombud’s finding. The Deputy Ombud’s Ruling is not based on whether or not Mr Mthembu’s version is correct; but that his version should have been published for the public to judge for themselves. News24 has arrogated to itself, as it were, monopoly of wisdom as to the truth or otherwise of Mr Mthembu’s version, which it persistently labels as “false.” The other thing is that the articles says Mr Mthembu, acting together with Mr Ratshitangane, terminated the mandate in dispute. In its application, News24 makes an inference: “The only matter that was not investigated or passed on for further internal investigations, was Econ Oil. It is therefore moot for Mr Mthembu to protest a lack of involvement when clearly, his actions had a direct and linked impact on the Econ Oil investigation.” (Own emphasis). It is one thing to say he terminated the Econ Oil investigations (with Ratshitangane), but a different one to say his termination of Medupi and Kusile “had a direct and linked impact”  on the Eco Oil investigation. The first scenario indicates direct intention, while in the later scenario the impact on the Eco Oil investigation might, while consequential, not have been intended even if foreseeable. The Deputy Ombud was correct to say, in effect, let the reader be the judge. The supposed objective facts or information on the basis of which News24 has turned itself into a jury and an executioner, do not make its case a shut and closed one at all; not least, as an example, Mr Hewu’s version. The complaint against the severity of the sentence is underpinned by News24’s argument that Mr Mthembu’s version was so false that it did not need to be published. It is not out of proportion with the nature and level of the breach in question. After looking at the Deputy Ombud’s analysis and reasoning, I see no reasonable prospects of success for the respondent; its application must therefore fail.
11. In the circumstances, the following Order is made:
    1. 1 Mr Sibongiseni Jerome Mthembu is granted leave to appeal the Deputy Ombud’s Ruling dismissing his complaint that the first and the third articles have breached Clauses 1.1 and/or 1.3 of the Code.
    2. 2 News24’s counter-application is dismissed.

Dated this 30^th day of September 2021

Judge B M Ngoepe, Chair, Appeals Panel