Appeal Decision: Matshego Ramagaga vs Business Day

MATSHEGO RAMAGAGA                                                                  APPLICANT

versus

BUSINESS DAY                                                                                   RESPONDENT

MATTER NO: 1032/03/2015

[1]     Attorney Matshego Ramagaga (“applicant”) brings an application for leave to appeal against the Ruling of the Ombudsman, dated 16 April 2015, which dismissed complaints the applicant had lodged with the Office of the Ombudsman against Business Day (“respondent”).  The complaints followed an article published by the respondent on 11 February 2015, with the heading “Tribunal leaders inflated claims.”  The applicant was the deputy chair of the tribunal concerned.  The story was essentially about the claims, for fees and travelling, made by the chair of the tribunal, and the applicant. It claimed that it was based on a forensic report submitted to the relevant portfolio committee of Parliament, compiled by the firm Grant Thornton.

[2]     The following were applicant’s complaints.

2.1    Respondent wrongly reported that the applicant (and her chairperson) inflated their fees and travelling expenses by more than R180,000.00 and that the amount could be more.  Respondent claimed that its article was based on the forensic report.  The applicant says that the forensic report did not say so; she says it stated that the matter was not finalized and when that happened, the outcome could be different.

2.2    In its article, respondent said that the forensic report stated that senior members of the tribunal, which would include applicant, did not co-operate when forensic investigations were conducted.  Again, the applicant contents that that was not what the forensic report says.  While it says there were times when some senior members of the tribunal were not available, it does say there were interviewed.

2.3    Respondent did not contact applicant for comment.

2.4    The article did not mention that the applicant (and her chairperson) were exonerated of any wrongdoing (in relation to the allegedly inflated claims) by the Minister and the Department of Trade and Industry.

2.5    The respondent, incorrectly, said seven months into their appointment, the applicant (and her chairperson) asked for an increase of their remuneration.  Applicant says quite apart from the fact that the forensic report did not say so, it was not them who asked for their increase, but some senior official who felt that in order to attract people of adequate skill, remuneration had to be increased.

[3]     In its defence, respondent raised a few points. Firstly, that the applicant was not singled out, but was mentioned within the context of proceedings before a committee of Parliament. Secondly, that for a long period of time after the article was published, the applicant did not contacted them to complain; respondent only heard about this complaint a month after the publication.  Thirdly, as already mentioned, respondent also argues that the article was based on the forensic report by Grant Thornton.  Regarding the alleged failure to contact applicant, respondent says they tried but were denied her cellular telephone number and were also told that the chairperson would comment. Respondent also says it had no way of knowing that the report was not final.

[4]     In his Ruling, the Ombudsman dismissed all the complaints, after which the applicant applied for leave to appeal; respondent opposes the application.

[5]     There are a few issues which concern me.

5.1    The opening sentence of the article says a forensic report was tabled before Parliament which was said “to have prima facie evidence of wrongdoing on the part of Companies Tribunal Chairman Simmy Lebala SC and deputy chairperson Matshego Ramagaga…”   The question is, does the report say so?  If it does not say so, it may be immaterial whether applicant’s name was mentioned within the context of a document placed before Parliament.

5.2    Again, is it correct to say the “report suggested that the officials (clearly the chair and the deputy) … had inflated their claims for fees and travel by at least R180,000.00 and “did rule out that the amount may be bigger.”?

5.3    No mention is made in the article of the fact that the applicant was cleared by the Minister.  It only mentioned that the chair says he himself has been cleared.  This ties up with applicant’s complaint that at respondent should have at least mentioned that she could not be contacted; otherwise, where does the mentioning of the exoneration of only the chair leave her?  5.3 To say members “of the tribunal had not responded to queries” as opposed to specifically mentioning that the applicant could not be contacted for comment, compounds the problem.

5.4 As a general observation: the actual content of the forensic report is vital; it is not clear whether the Ombudsman had access to all relevant parts of the report.  If they were all to be placed before another tribunal, that tribunal might have a different view.

[6]     I have also noted what the Ombudsman says, in conclusion: “Ramagaga concludes that the allegations were unfair, inaccurate, a negligent departure from the facts, an omission and a failure to exercise exceptional care and consideration …”. And then: “Based on all the above, I have to agree – at least partially – with this part of the complaint.” (own emphasis).  Secondly, I have noted, as the Ombudsman did, that the respondent did not respond to some of the complaints.

[7]     It would not be appropriate for me to go further into the matter. For all the reasons given above, I am of the view that the applicant has reasonable prospects of success on appeal before the Appeals Panel; the application is therefore granted.

Dated this 29^th day of June 2015

Judge B M Ngoepe, Chair, Appeals Panel