Appeal Decision: Adv Vuyani Ngalwana vs Ground Up

In the matter between

ADV VUYANI NGALWANA                                                                                 APPLICANT

AND

1. On the basis of an official document released by the spokesperson of the Office of the Chief Justice, Mr Mncube, Groundup (“respondent”) published an article on 27 September 2018.  The article said that a large number of judgments were outstanding in the High Courts throughout the country. This information had been asked for by the respondent from the Office of the Chief Justice.
2. Shortly after the publication, the respondent received a number of Twitters, querying the accuracy of the information. Some of these queries were from Adv V Ngalwana (“applicant”) and one Magana. The respondent says that the applicant, who at one time acted as a judge, was not mentioned in the article as one of the defaulting judges.  But Adv Ngalwana’s complaint is not just about himself; his complaint is that the inaccurate article tarnishes the image of the Judiciary in general.
3. It is common cause that the information contained in the document supplied by Mr Mncube was not up to date and therefore inaccurate. It is also common cause that the article was based on the contents of the document.  The issue, in the end, is the following:  The applicant says that it was the duty of the journalist or Groundup to ensure that the information in the article that judgments were still outstanding was correct; for example, by contacting the judges concerned or those who were acting as judges at the time.  He also says that respondent could have verified with SAFLII.  Respondent’s defence is encapsulated in the following rhetoric question: “should reporters have to fact-check an officially provided document by a reputable institution containing only information about that institution’s internal processes?  It is GroundUp’s view that the answer is definitely no, and that it would be impractical to do journalism if the answer is yes”.
4. In his Ruling dated 5 November 2018, the Press Ombud emphatically agreed with the respondent:

“Should GroundUp have verified the information it received from Mncube? The answer to this question is an emphatic ‘no’ – the publication received an official reply to its questions by a person who had been mandated to do so and therefore had no reason to doubt the accuracy of the information.  The media are not obliged to fact-check such information.”

5. The applicant now applies for leave to appeal the Ruling. The question is whether the applicant has reasonable prospects of success before the Appeals Panel.
6. One of the points made by the respondent in opposing the application for leave is the following:

“The suggestion that we should have contacted each person mentioned on the list is impossiby onerous.  If one takes the time for searching for a telephone number, calling judges and advocates who are in court or consulting during the day, and asking them about each judgment it would have taken weeks, if not months.  Furthermore, the spokesperson has insisted that all media direct questions for judges through him.  GroundUp attempted to do so in respect of the two active judges mentioned in the article, but received no further response from the spokesperson of the judges.”

What the respondent says makes sense.  Furthermore, it is clear from the respondent’s submission that the information supplied by SAFLII is itself not always up to date; an example was given to make the point.  The main issue though is accurately summed up by the respondent; namely, whether they were expected to fact-check the information contained in an official report by the Judiciary’s spokesperson.  I must agree with the Ombud; both with his approach and the reasons he gives, which I need not repeat. A point has to be made that the Office of the Chief Justice has been declared a State Department. Once it is accepted, as it must be, that the document issued by the office’s official spokesperson is indeed an official document, the respondent was entitled to rely on it without fact-checking. Once the article accurately reflects the report, the spokesperson must take responsibility for inaccuracies in the report and the article based on it. It must be borne in mind that the respondent had specifically asked for the information, which it then got in the form of the report. Unless there was something which ought to have alerted the respondent that the information was inaccurate and therefore needed further verification, the respondent did not have to do some fact-checking.  On the facts of this case, there was nothing that could have alerted the respondent that the information was inaccurate.

7. In his Ruling, the Ombud had restated the complaint as follows: “Both (another complainant) and Mr Vuyani Ngalwana complain that the publication did not verify the incorrect and inaccurate information it has obtained from a judiciary official; the latter also complains that he was not contacted for comment.”

(The latter complaint is not an issue anymore and, in any case, it woud be met by the same answer.)

One of the points raised by the applicant in his application for leave to appeal is that the Ombud misunderstood his complaint. I took another look at his complaint. He had formulated it as follows: “I ask that the Ombud or Council to make a ruling on whether it is permissible for reporters, publishing houses and media owners and platforms to publish information that is incorrect without fact-checking, and then blame the source for the damages that may ensue from that publication.”  Now, in his application for leave to appeal, the applicant says the following:” The question I asked in the complaint was whether it is permissible for a reporter or media publication or media owner to publish information without fact-checking, and then, when charged, offer as a defence that the complainant must look to the reporter’s source of information for redress.”  To me the questions do not differ in substance. In any case, they have one common problem: unlike the Ombud’s formulation, they omit a vital point, namely, that the source of the information was an official document released by the official spokesperson. Without this vital point, which should have been factored into the questions, the questions are divorced from the actual facts of the case, thus creating a completely different scenario; this therefore renders them hypothetical. The Ombud could not be expected to adjudicate a hypothetical question. He therefore, correctly, understood and considered the issue in light of the facts before him, which facts included the omitted vital point.

8.      For the reasons given by the Ombud and those above, I am of the view that the applicant has no reasonable prospects of success before the Appeals Panel; the application is therefore dismissed.

Dated this 8th day of Janaury 2019

Judge B M Ngoepe, Chair, Appeals Panel