Appeal Decision: Stolley G vs Sunday Times

STOLLEY G                                                                                           APPLICANT

AND

[1]     This an unusual complaint. Mr  Stolley Giordano (“applicant”) lodged a complaint against the Sunday Times (“respondent”) in relation to an article which appeared in the Sunday Times of 22 November 2015.  The headline read: “Cato Manor killing spree spreads North”. The story related to the suspension of and/or charges against Major-General Booysen, described as the “KwaZulu-Natal head of the Hawks”, in relation to certain alleged killings or assault of suspects. On the other hand, according to the applicant, the suspension was in connection with allegations of fraud, and not the killing or assaults. Because the applicant, a journalist, had in the past reported that the suspension was in relation to allegations of fraud, he feels he is entitled to complain against respondent for reporting that the suspension was for alleged killings or assault of suspects.  The respondent contended, as a preliminary issue, that applicant had no standing, which contention was upheld by the Ombudsman in his Ruling dated 13 December 2015.  The applicant now seeks leave to appeal the Ruling.

[2]     At some point it was not clear to me whether the applicant said he was acting in his own interest or not: “When I say that I am writing in my personal capacity, it does not mean that I am acting in my own interest.”  But later he says in “terms of my personal interest, I reported on court processes that are described in the (Sunday Times) article” he is complaining about.  Again, giving the impression of acting in protection of personal interest, he goes on to say: “Now if the Sunday Times are correct, then it means that I am wrong and have to issue an apology on that which I wrote.  I think we can see why I have a personal interest in this case.  It affects my credibility as a journalist, which I hold dear to me”. Again, it appears the applicant says he is also acting on behalf of a group: “I believe that the inaccuracy of this report tarnishes the media profession … I therefore also state that I make this complaint on behalf of (other) journalists … even if I am not officially appointed”.

[3]     It becomes apparent from his application for leave to appeal that the applicant is acting both in his personal capacity in the protection of his own interest, and also as acting on a group of people (journalists), even if not so appointed. But the truth of the matter is that he cannot acquire standing on the basis of either.  The Ombudsman has adequately dealt with the first: The article complained of makes no mention of the applicant or the articles he says he has written. The applicant’s argument would lead to a curious situation where journalists would take on each other once they have written contradictory stories about the same subject matter. This, at once, belies applicant’s second point, namely, that he is acting in the interests of other journalists. A version peddled by one journalist cannot bar others from reporting differently; after all, they might have conducted further investigations!  The applicant gives examples in support of his argument that he has a standing on the basis of the two legs referred to above; those examples do not assist him. The difficulty with his case, whether he acts in his own personal interest or on behalf of a group, is that, in both scenarios, he is in effect asking of the Press Ombudsman to adjudicate on the accuracy of different articles, in different publications authored by different journalist and published at different times.  It is an impossible task which, in any event, is not governed by the Press Code and therefore falls outside the jurisdiction of the process and of course the Ombudsman. Once the applicant is unsuited on the basis of the preliminary point raised by the respondent, it is not necessary to look at any other points.

[4]     An application for leave to appeal would be allowed only if it has reasonable prospects of success before the Appeals Panel. For the reasons given by the Ombudsman as well as those mentioned above, I hold that this application does not have such prospects; it is therefore refused.

Dated this 17^th day of February 2016

Judge B M Ngoepe, Chair, Appeals Panel,