Appeal Decision: Peter L Fryer vs Daily Maverick

SUMMARY

The headline to the story in dispute read, Have SITA and SAPS been captured? Scopa to ask questions about R6.1bn expenditure – Editor’s Note (published on 29 November 2017).

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 story said, “The State Information and Technology Agency (SITA) appears to have become a site of capture by private interests, two investigations – by IPID and SITA itself – have revealed.”

The reply of Peter Fryer, director of Risk Diversion Digital (RDD), to this article was then published, with a note by the editor which said that Daily Maverick had verified its information and that it stood by its story.

Fryer’s complaint was about this note. He argued that the editor’s note had in fact nullified his response – upon which he lodged an application for leave to appeal.

Judge Ngoepe said that, initially, the RDD did not get a right of reply. However, the RDD’s reply was consequently published. He noted that the reply was headlined, Right of Reply: ‘Every instance where Risk Diversion Digital was appointed as the preferred bidder by SAPS was lawful’.

Rejecting the RDD’s argument, the judge said the publication’s sources not only stood their ground but they produced even more damning evidence.

Ngoepe said the Ombud had correctly dealt with the correction.

The application for leave to appeal failed.

THE RULING ITSELF

In the matter between

PETER L FRYER /RISK DIVERSION DIGITAL                                            APPLICANT

AND

1.         Mr Peter L Fryer is the director of a company known as Risk Diversion Digital (RDD).  He is acting herein on behalf of RDD; but, for the purpose of convenience, he will be referred to as the “applicant”.  He lodged a complaint against the Daily Maverick (“respondent”) in connection with a story which appeared in the respondent’s edition of 29 November 2017, with the headline: “Have SITA and SAPS been captured? Scopa to ask questions about R6.1bn expenditure”. The content of the story was that RDD had secured lucrative contracts with SAPS and SITA amounting to billions, running over a long period of time.  The gist of the complaint about the story appeared to be that the story conveyed that

(a)       RDD was the focus of IPID and SITA initiated investigations into these contracts;

(b)        the applicant had entered into evergreen contracts with SAPS and SITA;

(c)        a certain Mr Keating became involved with RDD much earlier than was the case.

2.         The above complaints begged the question whether or not the applicant was given the opportunity to put his version before publication. The applicant says RDD was not given such an opportunity. From the Ombud’s finding, the answer is that indeed no such opportunity was given.  But the Ombud makes a further important finding; namely, that shortly after the story, the respondent published applicant’s reply. The reply is headed: “Right of Reply: ‘Every instance where Risk Diversion Digital was appointed as the preferred bidder by SAPS was lawful’.” This was a powerful headline, contesting any allegations of improprietary on the part of RDD. The respondent says that applicant’s reply was published without any amendments, barring some minor editorials.  This is admitted by the applicant.  His displeasure is with an editor’s note which, after publishing the applicant’s reply, said that the respondent stood by its story.  Applicant says this  was a contradictory stance.  It was not.  It presented applicant’s version, and its own version, leaving the matter to the reader to make up their own mind.

3.         The applicant also argued that the journalist should have, upon receipt of his queries, gone back to her sources and that, had she done so, she would have been disillisioned of the truth of the information the sources had given her.  This complaint is couched as follows in the applicant’s application for leave to appeal: “The prejudice lies therein that absent Thamm having revisited and confronted her sources with the disputes as aforesaid, the Daily Maverick simply could not have ‘stuck to its story’ that RDD is the focus of an IPID or SITA-initiated investigation, and that FDA, RDD or any company wherein Keating has an interest have evergreen contract with SAPS and/or SITA; the Appellant asserts that those statements are not true.”  For one thing, this submission is overly optimistic in favour of applicant’s case, presumptuous or  speculative: the sources might have not only stood their ground, but produced even more damning evidence. The above argument by the applicant cannot therefore form the basis of any finding or censure against the respondent.

4.         As far as the correction regarding the position of Mr Keating is concerned, the Ombud has correctly dealt with that.

5.         In light of the aforegoing, I find no fault with the Ombud’s Ruling. I therefore rule that the applicant has no reasonable prospects of success before the Appeals Panel; that being the case, the application is dismissed.

Dated this 13^th day of March 2018

Judge B M Ngoepe, Chair, Appeals Panel