Appeal Hearing Decision: Daily Maverick vs Oupa Segalwe

SUMMARY

The headline to the story in dispute read, Busisiwe Mkhwebane: How to ruin a Chapter 9 institution in 28 months (published on 12 March 2019).

This ruling by the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

The article in dispute was essentially a commentary on the Public Protector (PP), Busisiwe Mkhwebane. It began by referencing a report in the Sunday Times quoting from court papers filed by Finance minister Tito Mboweni in which he challenged the PP’s finding that Treasury director-general, Dondo Mogajane “had been dishonest by not disclosing that he had a criminal conviction for speeding.” Quoting some sources, it was alleged that the PP’s finding might have been part of a bigger campaign to weaken the Treasury, and that the PP had “a problem”.

Oupa Segalwe, who acted on behalf of the PP, complained that the newspaper refused to give him a right of reply as the PP was a subject of critical reportage. The Ombud agreed and imposed a sanction.

The Panel said Segalwe correctly indicated that he did not oppose the appeal. His main problem was still the publication’s refusal to publish his reply with at least certain content. On the other hand, the publication was steadfast that it would not publish the reply as it stood because it saw this as an attack on the person of the journalist.

The panel allowed the appeal and sat aside the Ombud’s ruling. Segalwe had to submit his reply to the publication. If there still was disagreement, the Director of the Press Council would determine the final version for publication on a date determined by her.

THE RULING ITSELF

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter of

DAILY MAVERICK                                                                                              APPELLANT

AND

1. This is an appeal by Daily Maverick (“appellant”) against a Ruling by the Press Ombud dated 11 December 2019. Mr Oupa Segalwe (“respondent”), acting on behalf of the Public Protector Ms B Mkhwebane as her spokesperson, had lodged a complaint with the office of the Press Ombud against an article written by Steven Grootes which was published by the appellant on 4 March 2019 with the Headline “Busiswe Mkhwebane: How to ruin a Chapter Nine institution in 28 months.” The article was very critical of Ms Mkhwebane. Shortly after the publication, the respondent submitted a reply for publication by the appellant. The latter refused to publish the reply because the article was seen as launching a personal attack on Mr Grootes instead of dealing with the issues.
2. In her Ruling, the Ombud held that the appellant breached clause 1.8 of the Press Code; that is, appellant failed to seek the respondent’s comment in advance of the publication, which was clearly critical of the Public Protector. The appellant sought leave to appeal on the ground that there never was a complaint filed in terms of clause 1.8, the only complaint by the respondent being that the appellant refused to publish the reply as it was. After I had dismissed the application for leave to appeal on the basis that it had no reasonable prospects of appeal, it was brought to my attention by the appellant that there never was a complaint filed in terms of clause 1.8 as had been suggested by the Ombud in her Ruling. After revisiting the papers, it became clear that both the Ombud and myself were wrong: there never was such a complaint; accordingly, I revised my decision as it was based on a patently erroneous set of facts. The result was that I granted the appellant leave to appeal; hence this appeal.
3. As the appeal process unfolded, it became clear that the only issue is whether or not the finding by the Ombud that there was a breach of clause 1.8 was correct. This is indeed the issue before us. Mr Segalwe, correctly indicated that he did not oppose the appeal. His main problem is still the appellant’s refusal to publish his reply with at least certain content. On the other hand, the appellant is steadfast that it will not publish the reply as it stands.
4. From the above, it is clear that the appeal should succeed; there never was a complaint in terms of clause 1.8. in the first place. What remains therefore is the issue of the content of the reply to be published. As said earlier, the appellant does not refuse to publish the respondent’s reply, but objects publishing it as it is because the appellant sees it as an attack on the person of Mr Grootes instead of responding to the issues he raised. This is not an area for the Appeal Panel. There is a process to be followed when there is a disagreement on the content of a reply for publication; we set out the procedure below in our Orders.
5. For the reasons given above, the following Order is made:
   1. 1 The appeal is allowed.
   2. 2 The Ombud’s Ruling dated 11 December 2019, that the appellant breached clause 1.8 of the Press Code, as well as the sanction imposed, are hereby set aside.
   3. 3 The respondent to submit his reply to the appellant within 3 days of receipt of this Decision, and, upon the parties agreeing on the content thereof for publication, immediately advise the Director of the Press Council accordingly who will then determine the date for the publication.
   4. 4 In the event the parties do not agree on the content of the reply, they must each within 3 days after the expiration of the 3 days referred to in 5.3 above, submit their respective proposed versions to the Director of the Press Council to determine the final version for publication on a date determined by her.
   5. 5 The Director is hereby authorised to act as directed in paragraphs 5.2, 5.3 and 5.4

Dated this 25^th day of August 2020

Judge B M Ngoepe, Chair, Appeals Panel

Prof M Chaka; Member, Public Representative

Mr T Makhadi: Member, Media Representative