Appeal Decision: Business Day vs Department of Small Business Development

In the matter between

BUSINESS DAY                                                                       APPLICANT

AND

1. This is an application by Business Day (“applicant”) against the Ruling of the Press Ombud issued 31 August 2018, upholding a complaint by Dr T Mawai on behalf of the Department of Small Business Development (“respondent”).  The complaint was about a story published by the applicant on 25 July 2018, with the headline “SA ‘completely out of step’ with global SME growth trends”. In brief, the story, relying on initial findings by the Small Business Institute (“SBI”) and the Small Business Project (“SBJ”), reported that compared with other countries in the world,  small businesses in the country employed far less people. The story was repeated in the editorial of the respondent’s edition of 26 July 2018: “Lip service paid to SME sector.”   The respondent complained that the report was inaccurate; the responded was not afforded the opportunity to respond and that the applicant refused to publish its response in print, unless it be in the form of a letter reduced to 400 words, or only online. The respondent declined this offer and insisted on the publication of its “op-ed” piece.
2. In his Ruling, the Ombud summed up the compaint as follows:

“The complaint is that BD has:

• published the defamatory content of a media statement without asking the department to respond (first article);
• found the department guilty of gross under-performance (editorial); and
• repeated damaging allegations (in a follow-up article).”

3. After considering the case, the Ombud rejected the argument that the article did not specifically mention the respondent.  He ruled that the applicant breached article 1.8 of the Press Code in that it did not give the respondent the right to respond. The complaint relating to the editorial was, however, dismissed. The Ombud imposed a sanction, ordering the applicant to publish respondent’s text as an op-ed article. I agree with him that it is sufficiently known that the department responsible for the policy as well as the administration of that category of industry (Small and Medium Enterprises) is the respondent. As the Ombud says, the article constitutes critical reportage.
4. In its application for leave to appeal, the applicant persists with the argument that the article does not specifically refer to the respondent, but to the government; an argument which, for the reason stated above, the Ombud correctly rejected. It is not, as the applicant says, about the government having or not having a thick skin; it is about conveying balanced information to the public; that is the idea behind article 1.8. Notably, it is not the applicant’s case that it approached any government department for comment. The department must be open to scrutiny; but it is charged with the obligation to spend taxpayers money correctly. If there is an allegation that they are not doing so, they should at least be given the opportunity to respond. Much as the story was said to be preliminary, I think strongly critical words were used; for example: “Preliminary findings show a lack of consistency in the government’s definitions of SME’s in  70 laws, regualtions and key strategies reviewed;” again, this country is described as a “complete outlier”  internationally. The Ombud, in his consideration of the facts, found that the reportage was critical. There are no prospects that the Appeals Panel will interfere with this finding. This also applies to the sanction imposed by him. Sanction is a matter of discretion by the Ombud; the Appeals Panel would only interfere in the event of a misdirection or if the sanction is shockingly inappropriate. The present is not such a case.
5. For the reasons given by the Ombud and those added above, the application is dismissed.

Dated this 6^th day of December  2018

Judge B M Ngoepe, Chair, Appeals Panel