Appeal Decision: South African Jewish Report vs Lorgat Hassen

DECISION ON AN APPLICATION FOR LEAVE TO APPEAL

1. The South African Jewish Report (“applicant”) applies for leave to appeal the Ruling of the Press Ombud dated 17 June 2021. The Ruling was on a complaint brought by Mr Hassen Lorgat. He said he was bringing the complaint on behalf of the South African Chapter of the Boycott Divestment and Sanctions Movement Coalition (SABDS Coalition/respondent). The Coalition is a pressure group, international or otherwise, whose activities include attempts to get Israel out of the occupied territories. The complaint was against an article published by the applicant relating to interviews before the Judicial Service Commission (JSC).
2. The applicant raised a point in limine. It argued that Mr Lorgat had no locus standi to bring the complaint and, secondly, that the SABDS itself had no standing to make such a complaint. As far as the second point is concerned, applicant’s case was that SABDS had no capacity to act because it was not an incorporated entity clothed with legal capacity. Applicant therefore argued that the Public Advocate should not have accepted the complaint.
3. In answer to the first ground of objection Mr Lorgat filed a letter from the SABDS authorising him to act on its behalf. Regarding the second point, he argued that SABDS was a duly constituted civil society organization. He referred to section 38 of the Constitution which says all persons have the right to act where there has been an infringement of Bill of Rights or threat thereof.
4. The Public Advocate decided to accept the complaint. The applicant then took the matter up with the Ombud, who ruled against the applicant. It is against this Ruling that the applicant seeks leave to appeal.
5. With regard to the first point raised, Mr Lorgat filed a letter by SABDS confirming that it had authorised him to bring the complaint on its behalf. That, in my view, was sufficient answer to the point raised and the Ombud was correct in her Ruling.
6. The Ombud spent some time on the second point. But it too is a simple one. Section 1.1 of the Press Council’s Complaints Procedure gives an association locus standi to act in the interests of its members; it is enough just to be a mere voluntary association. SABDS falls in this category of a “complainant”, as defined therein. As it obviously had to act through somebody, it gave Mr Lorgat such authority, acting as a member thereof. The Ombud was correct in her approach that legal capacity in the form of a legal person is not the kind of capacity required by the Press Complaints Procedure. Mr Lorgat, in lodging the complaint, was acting as an authorised member of a group; moreover, he was acting on the authority of an entity which qualified as a “complainant” in terms of section 1.1.
7. I agree with the reasons given by the Ombud in her Ruling, which I need not repeat.
8. To obtain leave to appeal, an applicant has to show reasonable prospects of success. Notwithstanding submissions made by the applicant in its application, I see no such prospects. I see no basis to overturn the Ombud’s Ruling.
9. In its application, the applicant persists to argue for a stringent admission of a complaint, that is, only from an entity with juristic personality. The applicant cannot wish away SABDS as an “association” (which may be a voluntary association, good or bad) out of existence, or argue that it is not an “association”; voluntary or otherwise. The argument does not detract from the Ombud’s reasoning that the Code does not limit capacity to complain only to entities with legal capacity. She has dealt fully with this aspect.
10. The application is therefore dismissed

Dated this 3^rd day of September 2021

Judge B M Ngoepe, Chair, Appeals Panel