Appeal Decision: Daily Maverick vs Oupa Segalwe

SUMMARY

The headline to the story in dispute read, Busisiwe Mkhwebane: How to ruin a Chapter Nine institution in 28 months (published on 4 March 2019).

This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.

The bottom line of the article was that Public Protector (PP) Busisiwe Mkhwebane was diminishing the status of the office and, in the process, causing loss of confidence in it as she was not doing her work properly.

The PP sent a response to the story (note: after the story had been published). The Daily Maverick refused to publish this comment as it took a “cheap shot” at the journalist.

The PP then lodged a complaint with the Press Council.

The Ombud said her ruling was not about the merits of the article, but whether the PP had a right to reply. She ruled that the Daily Maverick was in breach of the Press Code for refusing to publish the PP’s comments and ordered the publication to publish a response.

DM then sought leave to appeal both her finding and her sanction.

Judge Ngoepe said he believed that the DM misunderstood the sanction imposed on it by the Ombud – the sanction did not demand the publication of the reply in full.

He opined that the source of the misunderstanding was the way the finding of a breach was formulated. The Ombud used the phrase “right of reply”, while that section of the Press Code pertained to comment prior to publication. In this case, it was about publishing comment after publication.

He said the DM should not have been found guilty of denying the PP “the right of reply”.  There is no mention of such a right in in the Code.

The judge ruled that the PP’s reply was to be submitted to the DM and to the Director of the Press Council for consideration and approval for the purpose of publication. “If the parties fail to agree on the version for publication, the Director (in this case the Ombud) has the final word as to what version should be published,” he ruled.

THE RULING ITSELF

In the matter between

DAILY MAVERICK                                                                                               APPLICANT

AND

1. Mr Oupa Segalwe (“respondent”) lodged a complaint with the Office of the Press Ombud against an article written by Stephen Grootes and published by Daily Maverick (“applicant”) on 4 March 2019. The respondent was acting on behalf of the Public Protector, for whom he is the official spokesperson. The headline read: “Busisiwe Mkhwebane: How to ruin a Chapter Nine institution in 28 months”. As the headline shows, the content of the article was not complimentary of  the Public Protector; it said, amongst others, that many of Public Protector’s reports were reviewed and overturned by the courts; that she had overreached in some instances; that she failed to defend before court some cases against her, suggesting in the process that the failure to do so indicated her lack of confidence in her own reports. The bottom line of the article was that Ms Mkhwebane was diminishing the status of the office and, in the process, causing loss of confidence in it; it suggested that she was not doing her work properly.
2. On the same day of the publication, the respondent approached Ms Janet Heard, applicant’s Managing Editor, for a right of reply; he says Ms Heard encouraged him to do so. He submitted his reply.
3. Mr Segalwe says on 6 March 2019 he received a response from Ms Heard, to say that they would not publish his response as it was, to paraphrase, a “cheap shot” at Mr Grootes; he was told that he was not playing the ball but the man. Having gone a bit into some details of the article, I think I should do the same with Mr Segalwe’s proposed response. He launched an attack on Mr Grootes; in the process, he went far beyond the parameters of the article to be replied to; for example, he referred to an incident that had happened many years ago when Mr Grootes was, at the launch of his book, criticized by Mr Mac Maharaj, the former Cabinet Minister. Mr Segalwe’s reply reminded Mr Grootes and the readers of how Mr Maharaj criticized and accused Mr Grootes of poor research. The problem is that the book or Mr Maharaj’s remarks had nothing to do with the subject of Mr Grootes’s article, namely, the Public Protector. A good part of the response aimed to show that Mr Grootes was poor in research, or was given to publishing without proper prior research. That might have indeed been so, but Mr Groote’s article did not purport to be extolling his research capabilities, or that he was a good writer. The article was about the Public Protector and her office; it was to this that the reply had to speak. The irony is that the reply otherwise contained very good information showing some good work done by the Public Protector; it had some important and substantive information.
4. On 11 March 2019, after the applicant had refused to publish respondent’s reply as it was, the respondent published it on his office’s website, with a footnote to indicate that applicant had refused to publish it. The following day, 12 March 2019, the respondent filed a complaint with the office of the Press Ombud. I have not seen the complaint itself, but accept what the Ombud says in her Ruling, dated 11 December 2019 as to what the complaint was: “Mr Segalwe … complains that when he asked for a right of reply, he was refused it. He charges that Daily Maverick has transgressed clause 1.8 of the Press Code, which allows the subject of critical reportage comment or a right of reply”.
5. In her conclusion and in line with the above reasoning, the Ombud made the following finding: “This is not a finding on whether (the respondent’s) views (or Mr Groote’s) are true or not, but on whether Mr Segalwe has a right to reply. In terms of the Press Code, clause 1.8, that enjoins the media to ‘seek, if practicable, the views of the subject of critical reportage’, Mr Segalwe should be allowed an opportunity to put facts before readers that he feels have been overlooked or misrepresented. I find that the Daily Maverick is in transgression of this clause.” The Ombud then proceeded to impose the following sanction: “Mr Segalwe must be allowed a right of reply on behalf of the Office of the Public Protector. The reply must focus on the matter at hand, and must be approved by the `ombudsman to ensure it complies with ethical standards and the Press Code” (Own emphasis); additional standard conditions were imposed. The applicant now seeks leave to appeal both the finding of transgression and the sanction.
   1. The applicant says it has all along been willing to give Mr Segalwe the right to reply and to publish his reply subject to certain conditions. Why is the dispute still continuing then? I think the dispute persists because the appellant misunderstands the sanction imposed on it by the Ombud. The applicant thinks that the sanction demands of it to publish Mr Segalwe’s reply in full and as is; or, as the applicant puts it, to publish it “warts and all.”  There is no obligation on a newspaper to publish a reply either in full or as is; that would amount to interfering with editorial discretion. I think, with respect, that the source of the misunderstanding was the way the finding of a breach was formulated. The Ombud made a finding that the applicant was guilty of denying Mr Segalwe “the right of reply”. The appellant should not have been found guilty of denying Mr Segalwe  “the right of reply”.  There is no mention of such a right in clause 1.8 – the clause which the Ombud says was breached. Clause 1.8 says: “The media shall seek the views of the subject of critical reportage in advance of publication” (thereafter follows exceptions which do not apply in this case). Own emphasis. There is no mention of “the right of reply” post publication. The right accorded by clause 1.8 is the right to an opportunity for comment before (“in advance of”) publication. The so-called right of reply after publication is merely a means of redress given to the victim of the violation of the right for comment, it is not a “right”; this is why a victim has no “right” to demand that a reply be published either in full or as is because, it being a means of redress, it must strictly speak, and be limited, to the four corners and sting of the critical reportage.
6. The fact that the finding of a breach was formulated as a breach of “the right to reply” instead of the right for comment, is however not a problem. This is because, even though the Ombud spoke of a breach of “the right to reply” post publication, it is clear that she was having in mind the denial of the right to comment in advance of the publication. This is because, for one thing, she specifically mentions breach of clause 1.8 which, as we now know, gives the right to be given the opportunity to comment in advance of the publication. It is common cause that the Public Protector was not approached in advance of the publication for comment. On its version, the applicant clearly admitted this much. It is also clear that the Public Protector was the subject of critical reportage. Therefore all the elements of the violation of the right in terms of clause 1.8 to comment before publication are there; such a finding was therefore correct and competent. The sanction imposed was also an appropriate remedy. The applicant’s argument that it was always willing to publish a reply, does not retrospectively wipe out its failure (breach of clause 1.8) to seek the respondent’s comment in advance of the publication. The sanction imposed was also an appropriate relief to the respondent, provided the reply would comply with the guidelines stipulated by the Ombud as underlined for emphasis by myself in paragraph 5 above. In light of all these, an appeal to the Appeals Panel has no prospects of success.
7. As I show below, the matter was not correctly dealt with by the parties after the Ruling was issued. Firstly, the applicant was too quick to file an application for leave to appeal, apparently as a result of the applicant’s understandable but incorrect impression that the sanction enjoined it to publish the reply “warts and all.” For his part, the respondent thought that he had the “right” to have his reply published in full and as it was. There is no such a right. As explained above, the opportunity to reply is a redress the enforcement of which must comply with the guidelines I mentioned earlier, and, in the present case, also those specified by the Ombud which I took the liberty of underlining. The parties might have gotten their respective wrong impressions as a result of the way the breach was worded. But, as apparent from the way she formulated the sanction, the Ombud never intended that the reply be published in full and as it was; this is apparent from the guidelines she formulated for the reply. Solely to assist bringing the matter to finality, I set out below how the matter should have been dealt with:
   1. Quite correctly, the respondent sent in his reply for publication. However, the reply was supposed to comply with the criteria prescribed by the Ombud, as underlined in paragraph 5 above. This is because, as I have explained, nobody has a right to have a reply published in full and word for word as it is; otherwise editorial discretion would be undermined. It is clear from my observations that some of the things Mr Segalwe said in his reply were problematic and would not comply with the guidelines; clearly, the reply could not be published in full and as it was.
   2. The reply was to be submitted to the applicant and to the Director of the Press Council (in this case the Ombud said to herself) for consideration and approval for the purpose of publication. If the parties fail to agree on the version for publication, the Director (in this case the Ombud) has the final word as to what version should be published.
   3. The above is the established practice in accordance with which this matter should be dealt with.
8. For all the above reasons, the application for leave to appeal is dismissed, and the matter should be handled as set out above.

Dated this 20th day of February 2020

Judge B M Ngoepe, Chair, Appeals Panel