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Judge Lindiwe Rusi vs City Press


Thu, Aug 29, 2024

 Ruling by the Press Ombud

Date of article:                    17 March 2024

Headline of publication:   “Ray Hartle ? Judiciary is not above criticism: Who judges the judges?”

Author:                                  Ray Hartle                                                                                      

  1. Judge Lindiwe Rusi (“Rusi”) complains about a piece written by Ray Hartle (“Hartle”) for City Press.
  1. Rusi and Hartle both made written submissions, which form the basis of this ruling.

Background

  1. Rusi is a Judge of the Eastern Cape Division of the High Court based in Mthatha. This division is home to an ongoing controversy involving its Judge President, Selby Mbenenge.
  1. In short, a court official is accusing Mbenenge of harassment. Mbenenge denies the allegations and the matter is currently being dealt with by the structures of the Judicial Service Commission (JSC).
  1. Hartle has been covering the controversy for a considerable period and for more than one publication.
  1. Of relevance for this complaint is that Hartle reported on the matter for the Sunday Times and TimesLive during March 2023.  Rusi, through the Office of the Chief Justice (OCJ), took exception to the Sunday Times article. That publication subsequently published a follow-up article and updated the online version to include Rusi’s version of events, amongst other updates.
  1. Forwarding to this year, Hartle wrote the piece in question for City Press bemoaning what is very loosely restated to be a perceived oversensitivity in the legal profession. He writes: “It never occurred to me that there was anything unusual in asserting my right to ask difficult questions of these very powerful individuals. However, there is currently a sense among some on the bench and in the legal profession that questioning or criticising judges – or even lawyers – can only ever be due to a critic’s nefarious, even racist, agenda.”
  1. In the City Press piece, Hartle sets out numerous experiences he has had as a journalist reporting on the judiciary and lawyers. A not insignificant part of the piece relates to Rusi, his reportage on the Mbenenge controversy, and Rusi’s response to his earlier reportage on the matter.
  1. These statements about Rusi form the subject of the complaint.

The complaint

  1. Rusi says Hartle “rehashes the background to the sexual harassment complaint he previously reported on in the article of 05 March 2023 [for Sunday Times]”. The parts Rusi focuses on, are the following:

“Rusi allegedly also acted as a ‘middle person’ in calling [the complainant] and confronting her about her complaint against ‘uTata’.

“In reporting on this incident, I referenced the support Rusi enjoyed, during her JSC interview for permanent appointment to the bench, from Mbenenge and JSC member and Mthatha attorney Mvuzo Notyesi.

“Neither [another judge] nor Rusi offered an explanation of why they would regard it as appropriate to engage informally with an official whose complaint was the subject of a formal investigation by the judicial conduct committee.”

And,

“…[L]et us put into context Rusi’s actions on which I reported: she called a complainant who had already made a formal complaint against Mbenenge. She has never denied calling the complainant.

“Unless the call was entirely and unequivocally benign, unless Rusi’s statements during the call were agnostic to the complainant’s claim, Rusi interposed herself into a formal process in which she had no role, as far as I know.”

  1. Rusi complains that Hartle “pursues” a narrative that she inappropriately “interposed” herself in the process despite her “emphatic rebuttal of these claims”. She says Hartle completely discounted the information and facts placed at his disposal in 2023 when she complained about the Sunday Times article he wrote, and which has subsequently been updated.
  1. Rusi references clause 7 of the Press Code which reads:

“7.1. The media shall be entitled to comment upon or criticise any actions or events of the public interest; and

7.2. Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all material facts that are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.”

  1. She claims Hartle acted with malice and omitted material facts, thereby rendering the comment unfair.

Analysis

  1. The Appeals Panel, in Goss Marlon vs News24 (complaint 4555), explained the nature of clause 7 of the Press Code to afford a “safe harbour” for the media against allegations of contraventions of other clauses of the Press Code. This approach has since been adopted by this Office. (See: Referendum Party vs Daily Maverick (complaint 4697); Embassy and Ambassador to South Africa vs Daily Maverick (complaint 4677).)
  1. The first question is therefore whether the piece, and the statements complained of, fall within the “safe harbour” of clause 7. To be in the safe harbour, the following conditions need to be met:

15.1 The subject matter has to be in the public interest.

15.2 The comment must, in fact, be comment and clearly appear to be comment.

15.3 The comment must have taken fair account of all material facts that are either true or reasonably true. 

15.4 There must be an absence of malice.

  1.    The first two requirements are, in my view, uncontroversial in this matter.
  1. There was some disagreement in the submissions about the nature of the statements as Hartle referred to “some new reporting in the article in City Press” while Rusi viewed the entire piece as an opinion piece.
  1. However, on a proper reading of the submissions, there is no real dispute that the statements in question formed part of an opinion piece and the statements were opinions expressed. Hartle says as much in his response: “This is my view: That Judge Rusi interposed herself in a formal process – in other words, she interfered with a process when she had no official or lawful reason to do so. I hold that view, based on information which I have sourced, and which has not been discredited or discounted.”
  1. I am satisfied that a reasonable reader would also have clearly identified the statements in question as Hartle’s view or comment.
  1. There is also no challenge to the requirement of public interest. Public policy demands that the judiciary and lawyers are not immune to scrutiny and criticism.

Fair account of all facts

  1. The difficulty with the City Press piece is that it ignored Rusi’s version, which has been in the public domain since 2023.
  1. Rusi provided this office with her letter she sent to the OCJ in 2023, the complaint forwarded by the OCJ to Sunday Times in 2023, and other documents such as WhatsApp screenshots between herself and the complainant.
  1. The OCJ complaint to the Sunday Times was addressed to the editor with Hartle copied in. In this letter, the OCJ conveyed Rusi’s response to the Sunday Times and Hartle as follows:

“It is incorrect that I interposed myself in the matter, and also confronted [the complainant], as the [Sunday Times] article suggests. The correct state of affairs is as follows:

  • When I reached out to [the complainant] on 03 December 2022, it was on the premise of her being a young woman that I have had good relations with in the course of my interactions with her since I came to know her. During my telephone conversation with her, I offered her comfort which she was grateful for at the end of the call.…
  • I did not confront [the complainant], let alone about her complaint. In a confounding turn of events after my conversation with [the complainant] on 03 December 2022, I learned that she was disparaging of my Judicial Service Commission (JSC) interview on the WhatsApp social media through her status messages. The interaction I had with her when I made this discovery was unrelated to her complaint. I asked her what had happened for her to make a mockery of my JSC interview on social media, and also told her that I found it inappropriate that she did so
  • …I advised her to be cautious of the dangers of the rumour mill. This was resolved amicably between [the complainant] and I in a telephone conversation we had. She confirmed that there was indeed a distortion of my conversation with her on 03 December 2022.”
  1. In short, Rusi gave an explanation for her conversation with the young woman. She denies that she confronted the woman, but rather comforted her. The interaction was apparently also about the woman’s WhatsApp status message “mocking” Rusi’s JSC interview.
  1. None of this is hinted at in the City Press piece. In fact, there is not even a bare denial from Rusi recorded in the piece. To the contrary, Hartle states in the piece that Rusi has not “offered an explanation of why [she] would regard it appropriate” to contact the complainant. She did.
  1. In his submissions, Hartle says he was not part of the editorial decision-making at Sunday Times to update the article following the OCJ complaint. He says this issue is not relevant as it has been dealt with in 2023 already. Moreover, he says the update by Sunday Times did not detract from the veracity of his earlier reportage and the information he gathered independently. “It could be argued that all Judge Rusi got from the intervention of [the OCJ] was a partial right of reply…”
  1. That is the point. Her version was recorded in the public domain through the update while the City Press piece insists that she has never given an explanation.    
  1. Hartle does not have to blindly accept the exculpatory version of Rusi. He is even entitled to contradict her version with other facts and/or to opine why he finds such a version unlikely. He remains entitled to his opinion that the conversation was inappropriate, Rusi’s explanation notwithstanding, as long as he also provides the relevant facts and context for readers. 
  1. What a publication is not entitled to do, is to omit the very material fact that there is indeed an explanation from Rusi and that she denies any impropriety.
  1. For this reason, the piece cannot be held to be in the “safe harbour” of clause 7.

Malice

  1. Rusi further alleges malice from the author. Hartle denies it.
  1. As was noted in the ruling of Prof Shabir Moosa v SA Jewish Report (complainant 8974), an allegation of malice Is invariably raised in complaints about opinion pieces as complainants feel aggrieved by the tone or contents of such pieces.
  1. However, this Office has been following the definition of malice set out by the Constitutional Court in The Citizen 1978 (Pty) Ltd and Others v McBride[1]. A publication would be acting with malice if there is a demonstrable ulterior motive.
  1. In this case, there is no indication of malice from Hartle or the publication. Hartle raises genuine issues in the public interest and nothing suggests an ulterior motive.

Reputation

  1. As the statement does not fall within the “safe harbour” of clause 7, the remaining question is whether the statements contravened any clause of the Press Code.
  1. In Patriotic Alliance vs News24, the Appeals Panel confirmed that clause 3.3. of the Code is applicable to news reports and opinion pieces alike. That clause demands that publications exercise care and consideration in matters involving dignity and reputation, which may only be overridden if it is in the public interest and, amongst others exceptions set out in the Code, the statements are protected comment based on facts that are adequately referred to and that are either true or reasonably true (clause 3.3.1).
  1. I have already found that the statements did not adequately refer to the facts by omitting Rusi’s denial and version.
  1. An allegation that a judge improperly “interposed” herself in a complaint about sexual harassment affects the reputation of such judge in the eyes of a reasonable reader.

Conclusion

  1. The publication breached clause 3.3. of the Press Code. It is a Tier 2 (serious) breach of the Press Code.
  1. The publication is directed to publish an apology on its online landing page on Sunday like any other news report:
  • The headline should include “apology” and “Judge Rusi”.
  • It must refer to the article published on 17 March 2024 (also with a link) and the fact that Rusi had lodged a complaint with the Press Council.
  • The publication must apologise to Rusi for not exercising care and consideration regarding her reputation by omitting her version.
  • It must refer readers to the full finding at www.presscouncil.org.za.
  • It must be published with the Press Council’s logo.
  1. The publication is further directed to publish an update to the online version of the article to include a reference to Rusi’s version and her denial of impropriety.
  • A link to the apology referred to above must be published below the headline.
  • A note should also be published at the beginning of the article – but below the headline – that the piece has been updated following a finding by the Press Ombud.
  • The update itself, together with the Press Council’s logo and referral to the full finding, may appear at the end of the article.   
  • The update should include Rusi’s explanation for her interaction with the complainant and her denial of impropriety.
  1. For the print edition, City Press is to publish an apology as directed in paragraph 40, together with her denial of impropriety.  
  1. The wording of the update and apologies will be approved by the Press Ombud prior to publication.

Appeal

The Complaints Procedure lays down 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].

Herman Scholtz

Press Ombud

29 August 2024

[1] 2011 (4) SA 181 (CC) at para 105