Appeal Decision: Sunday Times vs Edrees Hathurani

SUMMARY

The headline to the story in dispute read, Lawyers snub SARS over bills – Billions in taxes on the line as legal firms turn off taps (published on 29 April 2018).

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 article said that at least six law firms had been struggling to secure payment from SARS for work done on high-profile tax cases that could have returned return as much as R5-billion to state coffers. According to confidential information, reportedly seen by the journalist, attorneys were reportedly fighting for R7-million that they were collectively owed. The unpaid invoices reportedly included work done by “Africa Cash & Carry’s Edrees Hathurani”.

Hathurani complained that this reference inaccurately and unfairly implied that SARS had taken him, instead of his company, to court, and that he had owned that company – adding that it was unnecessary to mention his name in the first place. He added that the article inaccurately and unfairly implied that he had owned the company, that SARS was protecting him, and that the reportage had tarnished his dignity and reputation.

The Ombud referred to an earlier ruling by him in which he said it was wrong to create the impression that Africa Cash & Carry’s belonged to Hathurani (as if he was the only owner). Sunday Times was reprimanded for creating the false and unbalanced suggestion that Hathurani was “the” owner and was directed to publish a correction in this regard. The rest of the complaint was dismissed.

The newspaper then applied for leave to appeal.

Judge Ngoepe said the publication’s prospects in challenging the Ombud’s decision were reasonable. He therefore granted leave to appeal.

THE RULING ITSELF

In the matter of

SUNDAY TIMES                                                            APPLICANT

AND

[1]  This is an application by the Sunday Times (“applicant”) to appeal a Ruling of the Ombud issued 12 June 2018 against the applicant in favour of Edrees Hathurani (“respondent”).  The latter had lodged a complaint against the applicant in respect of a story carried in the applicant’s edition of 29 April 2018, with the headline “Lawyers snub SARS over bills”. The content of the story was about claims that SARS’s lawyers were declining new work from SARS as they had not been paid for a long time.  It then went on to say that SARS’s efforts to collect money from certain taxpayers with high political profiles were in jeopardy, giving rise to allegations that SARS’s failure to settle its bills with the lawyers was deliberate and aimed at protecting those people. It appeared from the story that SARS had obtained a preservation order against Africa Cash and Carry company. The complainant was referred to as “Africa Cash & Carry’s Hathurani”. In another paragraph the story referred to “Hathurani’s African Cash & Carry.” I must immediately add that the Ombud’s Ruling is not clear to me about this latter description, because he concentrated on the first one, namely “Africa Cash & Carry’s Hathurani”; possibly, he treated them as the same.

[2]  The respondent’s complaint was summarized by the Ombud as being that:

. “ ‘Africa Cash Carry’s (ACC’s) Edrees Hathurani’, inaccurately and unfairly implied that SARS had taken  him, instead of that company, to court, and that he owned that company – adding that it was unnecessary to mention his name in the first place; and

”? that ‘R1.2-billion in assets belonging to Hathurani’s Africa Cash & Carry’, inaccurately and unfairly implied that he had owned the company and that SARS was protecting him.

He adds that the reportage has tarnished his dignity and reputation”.

The respondent’s defence was that the story did not say Mr Hathurani was the owner of Africa Cash & Carry, let alone that he was the only owner; that he became involved in the running of Cash & Carry; that he was a trustee of his family trust which had shares in Cash & Carry; that he was not the focus of the story; and that he was cited in court papers relating to a preservation order against Cash & Carry.

[3]  The Ombud referred to his previous decision in the matter between respondent and City Press. In that case City Press had referred to Mr Hathurani as the “owner” of Africa Cash & Carry.  Relying on his Ruling in the City Press matter, the Ombud upheld the complaint of unfair reporting, reprimanded Sunday Times, and ordered a correction.  It is againt this Ruling that the Sunday Times now seeks leave to appeal.

[4]  It bears mentioning that for an application of this nature to succeed, the applicant must show reasonable prospects of success before the Appeals Panel of the Press Council.  As said earlier, the Ombud’s view is that to say “Africa Cash & Carry’s Edrees Hathurani” is the same as saying Mr Hathurani is the owner of this business; to quote the Ombud:

“A difference between City Press’s reportage on this matter, and that of Sunday Times, is that the latter has not explicitly called him ‘the owner’, but in fact used the words “Africa Cash and Carry’s Edrees Hathurani.” I am of the view that the applicant’s prospects in challenging this equation are reasonable. This is a simple and narrow point. I therefore prefer not to express my views further why the application has prospects and leave the matter to the Appeals Panel.

[5]  In the circumstances, the application succeeds, and Sunday Times is given leave to appeal the Ombud’s Ruling of 12 June 2018.

Dated this 18^th day of July 2018

Judge B M Ngoepe, Chair, Appeals Panel