Decision to Adjudicate: SA BDS Coalition vs SA Jewish Report

SUMMARY

The headline to the story in dispute read, BDS attack on Unterhalter ‘defamatory and shameful’, says SAJBD (published on 15 April 2021).

This ruling by Press Ombud Carmel Rickard was based on the Press Code that was in effect before 30 September 2022.

 

Hassen Lorgat complained on behalf of SA Boycott, Divestment and Sanctions Movement Coalition, an international pressure group working for, among others, the withdrawal of Israel from the occupied territories.

The Public Advocate accepted the complaint, but the publication questioned this decision and asked for a ruling by the Press Ombud on this matter. The issue was whether Lorgat and the Coalition had any standing to lodge this compliant because:

• Lorgat was not a party to the matter and had no direct or substantial interest in it; and
• the Coalition was not a legal entity having “the capacity to sue and be sued”.

Rickard noted that Lorgat had written authority to make the complaint from SA BDS Coalition, via a confirmatory letter dated 3 May 2021. The only remaining question was whether the Coalition could lodge a complaint.

The Ombud opined that that Coalition itself indeed had standing to refer a complaint against SAJR. “The reference of the complaint  complies with the Press Council’s conditions for such complaints, and it should be accepted by the Public Advocate for adjudication,” she decided.

 

THE RULING ITSELF

Date of article: 15 April 2021

Complainant: Hassen Lorgat on behalf of SA BDS Coalition

Respondent: SA Jewish Report

Headline of publication: BDS attack on Unterhalter ‘defamatory and shameful’, says SAJBD

Author: Nicola Miltz

Background

1. This finding relates to a preliminary matter in the complaint raised by SA Boycott, Divestment and Sanctions Movement Coalition (‘SA BDS Coalition’), an international pressure group working for, among others, the withdrawal of Israel from the occupied territories. SA BDS Coalition complained about an article which appeared in the SA Jewish Report (‘SAJR’), under the headline, BDS attack on Unterhalter ‘defamatory and shameful’.

2. SAJR argues that

• Mr Hassen Lorgat (‘Lorgat’) has no standing to bring the complaint on behalf of SA BDS Coalition; and
• the SA BDS Coalition itself has no standing to make such a complaint in the first place.

3.  Lorgat has written authority to make the complaint from SA BDS Coalition, via a confirmatory letter dated 3 May 2021. The letter confirms that Lorgat ‘is authorised by the Committee of the Coalition’ to lodge the complaint with the Press Council on behalf of the committee. The letter is signed (electronically) by Ms Roshan Dadoo, Convenor, SA BDS Coalition. According to Lorgat, the complaint should be accepted.

4. The Public Advocate accepted the complaint from SA BDS Coalition against SAJR, but SAJR questions this decision and has asked for a ruling on the matter by the Press Ombud.

Submissions

          SAJR

5. SAJR’s editor, Ms Peta Krost Maunder (‘Maunder’), argues that the decision to accept the matter is ‘bad in law’ and ‘not in accordance with the provisions of the rules of the Press Council Statutes’, for the following reasons:

• Lorgat is not himself a party to the matter and has ‘no direct or substantial interest’ in it. According to the definition of ‘complainant’ contained in the Press Council’s complaints procedures, Lorgat did not qualify.

• SA BDS Coalition was not a legal entity having ‘the capacity to sue and be sued’. In this regard, she said that she had raised a number of issues with the Public Advocate concerning the legal status of SA BDS Coalition, where it was registered, who its office bearers were, what its registered address was, and where the coalition’s memorandum of incorporation and founding documents were. SAJR said none of these issues was answered by the Public Advocate yet they were crucial, ‘in South African law’, to the question of whether a group had capacity to bring such a complaint for adjudication. SA BDS Coalition ‘has none of these’ attributes, and is thus ‘neither legally constituted nor capable of being sued.’

6. According to Maunder, there was, for these reasons, ‘no complaint’ before the Ombud. No order of withdrawal and apology could herefore be made, and the complaint should be dismissed on jurisdictional grounds without considering the merits of the matter.

SA BDS Coalition

7.  On behalf of SA BDS Coalition, Lorgat argues that

• SA BDS Coalition is a ‘duly constituted civil society organisation’. He does not give further details of how it is ‘duly constituted’. However, in view of the decision I have reached, it is not necessary to ask for more information on this question.

• SA BDS Coalition ‘operates within the law and values’ of South Africa and in particular, the values and principles of the SA Constitution and its Chapter 2, the Bill of Rights. He cites Section 38 of the Constitution (Enforcement of Rights) as the basis of his argument that SA BDS Coalition has standing in the matter, arguing that this section gives ‘all persons’ the right to take up matters where the Bill of Rights has been infringed or threatened and this ‘this tribunal’ – a reference to the Ombud panel – ‘has the right to grant appropriate relief’.

• The SAJR’s objection to the complaint being heard is ‘an abuse of rules, regulations and the processes of the Press Council’, whose aim is to ‘silence legitimate speech’.

8. Lorgat quotes the Press Council’s aims and objectives, stressing the ‘spirit of independent co-regulation’ in which disputes are to be resolved. He argues that the Council’s Ombud system was not meant to ‘weaponise law’ against ‘citizens who feel aggrieved by how the media has portrayed them,’ and that the complaint should be accepted for adjudication.

Analysis and discussion

9. The two questions I have to answer are whether

• Lorgat has standing to refer the complaint on behalf of SA BDS Coalition, and whether
• SA BDS Coalition has standing to refer the complaint.

10.  I note that the wording of Section 38 of the Constitution is virtually identical to the wording on standing in the Press Council’s complaints procedures. The only difference between the two sections relates to action in the public interest: while Section 38 allows anyone acting in the public interest to bring a matter to court, the Press Council says the Public Advocate may, if no member of the public brings a complaint, and the Public Advocate considers the matter to be in the public interest, bring an application him- or herself.

11. The definition of ‘complainant’ in Section 1.1 of the Press Council’s Complaints Procedure is as follows:

‘Complainant’ shall mean and include any person who, or body of persons which, lodges a complaint and has standing to complain in terms of the following rule:

anyone acting in their own interest;

anyone acting on behalf of another person who cannot act in her or her own name;

anyone acting as a member of, or in the interest of, a group or class of persons; and

an association acting in the interest of its members.

12. Only two earlier decisions by the Ombud have dealt, in any detail, with the question of the standing required for a complaint to be accepted from a particular complainant. In Phumelela Dhlomo v Sunday Times, the publication submitted that the complainant, as an executive of the Road Accident Fund (‘RAF’), had no mandate from the RAF board to lodge the complaint on its behalf and thus had no standing to do so in a matter where the RAF itself was listed as the complainant. The publication, however, merely asked that the matter be deferred pending a proper mandate being obtained from the RAF board showing that the person who lodged the complaint was duly authorised to do so.

13. In the Dhlomo case, the Ombud decided to accept the complaint as one ‘not by the board, but by her as a RAF executive, as she herself was sufficiently involved in the RAF, and occupied a senior position in that institution.’

14. In the case of Jane Barnard v M&G, the complaint was that the publication carried a story about poor conditions on a farm in Franschhoek without obtaining comment from the farmer or farmers concerned, and that this had resulted in an unfair and unbalanced article. Responding, the Public Advocate decided to dismiss the complaint because Barnard did not have standing as a complainant.

15. The Public Advocate’s decision was upheld in a ruling by the Ombud, who found that, while the complainant was a farmer, and while she farmed in the Western Cape, she was not herself implicated in the article, nor was she acting on behalf of the farmer at the centre of the article. Quoting from the Press Council’s definition of a complainant, the Ombud asked, ‘Is she, though, acting “as a member of, or in the interest of a group or class of persons [or] association acting in the interest of its members?”’  The Ombud said that while the complaint may be well argued and substantiated, ‘there was no evidence that she is acting on behalf of “farmers” in a specific area or in the Western Cape.’

16. The ruling held that a complainant had to ‘show some standing’; merely being part of the farming community in the same province was not a strong enough link. She was not acting ‘on behalf of another person’ as there was no indication of any support for the complaint from the specific farmer implicated, without being named, in the report. Nor had she provided an indication of any support for her complaint from ‘anyone from the Franschhoek community’.

17. The ruling continued, ‘While it could be argued that Ms Barnard is “acting on behalf of a group or class of persons”, there is also no evidence of this. The group “farmers” seems too broad as a notion for a complainant to represent. There is also no association that has backed this complaint.’ On the basis of these findings about standing, the Ombud declined to adjudicate the complaint.

18. Past Ombud rulings, while they may be persuasive, are not binding on me. In this case, however, the Barnard ruling is significant.

19. I note the Press Council’s broad definition of those who may complain about publications. They are simply described as ‘members of the public’. Similarly, the Press Council says that the Press Code is intended to guide decisions on complaints from ‘the public’.

20. In order to fulfil its objectives of efficient, effective, informal and inexpensive dispute resolution, the Press Council does not require that complaints may be made on behalf of legal entities only. The standards proposed by Maunder – that a complainant should have legal capacity to sue, along with the other features of a legal entity such as shareholders and directors, a registration number and a memorandum of incorporation – are not those laid down by the Press Council for a complainant to meet.

21. Nothing in the Code, the complaints procedure or the cases cited above, limits complaints to entities that are legally constituted with formal legal rights and obligations. In addition, there is no requirement that complaints may only be made on behalf of an organisation that can sue or be sued.

22. I also note the stress on informality and efficiency as characteristics of the system of dispute resolution under the Press Council: it is to be flexible, informal, inexpensive, effective and efficient.

23. Of even greater significance, given SAJR’s argument that Lorgat does not have standing, is the clear and unambiguous wording of Section 1.1 of the Complaints Procedure which stipulates that a complainant shall mean ‘Anyone [my emphasis] acting as a member of, or in the interest of, a group’.

24. In his complaint, Lorgat says he is ‘a member’ of the South African BDS Coalition. Further, he identifies with this group when he says, for example, ‘The SA BDS Coalition is not antisemitic and we take this as an article of faith, it is one of our objectives to oppose racism in all its forms.’ (Emphasis added)

25. As was held in the Barnard case, what is required is that the complainant should be implicated in the article complained of, or be acting on behalf of those who were so implicated. Alternatively, the complainant should be acting ‘as a member of, or in the interest of a group or class of persons [or] association acting in the interest of its members’.

26. If this is the basis on which the complaint was made, then there is yet another question: is there ‘evidence’ that the complainant is acting on behalf of the group or class or association?

27. In Barnard, it was held that the complainant had not shown standing because the ‘link’ between herself and the farmer implicated and farmers in the Franschhoek area generally, was not ‘strong enough’. While in Barnard, the complainant had not shown support for her complaint from anyone directly implicated in the matter, and there was ‘no association that has backed the complaint’, the situation in the SA BDS Coalition complaint is quite different.

28. Here, there is ‘evidence’ that Lorgat is acting on behalf of a group; he has shown he has the support of SA BDS Coalition and that it has backed his complaint.

Finding

29. For all the above reasons, it is my view that Lorgat has standing on behalf of SA BDS Coalition to refer a complaint against SAJR and that SA BDS Coalition itself has standing to refer a complaint against SAJR. The reference of the complaint complies with the Press Council’s conditions for such complaints, and it should be accepted by the Public Advocate for adjudication.

Appeal

30. The Complaints Procedure stipulates that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected]

Carmel Rickard

Press Ombud