Appeal Decision: Umhlaba Wethu Development vs GroundUp


Wed, Apr 3, 2019

In the matter between

UMHLABA WETHU DEVELOPMENT                                      APPLICANT

AND

GROUNDUP                                                                         RESPONDENT

MATTER NO: 4062/10/2018

DECISION ON APPLICATION FOR LEAVE TO APPEAL

1.        On 29 August 2018 Groundup (“respondent”) published a story about Umhlaba Wethu Development (“applicant”) with the headline: “Dirty tricks: the battle to control the Helen Bowden and the Woodstock Hospital occupations.”  The title indicates what the story was about.  The applicant lodged a complaint not only in relation to this article, but also in respect of a previous related one. In his Ruling dated 26 November 2018, the Ombud summarized the complaints as follows:

UWD complains that GroundUp:

·               published untruthful, inaccurate, unfair and unbalanced/biased (‘defamatory’)  statements in both stories, especially with reference to the allegation that it was a front for the ANC;

·               did not afford it a right of reply and did not publish its response to allegations made against it;

·               was involved in a conflict of interest; and

·               contradicted itself in the two articles (with reference to Dr Lucy Graham’s alleged position in the organisation).”

I single out the complaint by the applicant that the respondent “did not afford it a right of reply and did not publish its response to allegations made against it” as it is the one that is the main subject of the application.  While some of the complaints were upheld and a sanction imposed, this particular one was one of those dismissed by the Ombud. I will not refer to the upheld complaints as there is no counter-application by the respondent.

2.        The basis of the complaint singled out above was that the respondent did not base its story on an interview with applicant’s directors, but with especially one Dugmore and Graham; none of whom were the applicant’s directors.  However, the Ombud ruled that the two were part of the applicant and therefore that respondent was entitled to accept that it could rely on their interviews for the story.

3.        The point that Graham and Dugmore were not directors is noted.  But the Ombud could not be faulted for describing them as being part of the respondent.  Of importance in the context of this case, is the nature and extent of their involvement with Umhlaba Wethu.  Their assistance and involvement was quite material.  Dugmore even appeared on Umhlaba’s website photo with other members, and, as the respondent says, spoke in the first-person plural when talking about the activities of Umhlaba.  It also appeared that the journalist had spoken to one of the directors (Tuku). Regarding Graham, it appeared that she was so close to the applicant that she had in fact been involved in the establishment of the applicant.  The Ombud has stated in full the grounds on which he concluded that the two reasonably gave the impression that they could speak for the applicant; I need not refer further to those reasons.

4.        It appears that one of the issues raised in the application is that the respondent’s tender to amend the article and include an additional comment from a representative chosen by the applicant, should have been made an Order by the Ombud.  Apparently, in the applicant’s view, that would have countered what it perceived to be an impression created by the article that the applicant was a front for the ANC. There was no need for the Ombud to make the tender an Order as the tender stood and was not withdrawn.  Three issues are also relevant. Firstly, the offer to publish a reply was rejected. Secondly, the Ombud asked for but was not given a copy of a response the applicant said it had sent to respondent to refute the allegation or impression (of a front). Thirdly, this allegation was in any case denied by Dugmore, and the denial was carried. Furthermore, for these reasons, the complaint that the applicant was defamed in that it was associated with the ANC cannot stand.

5.        In light of the above, the applicant has no reasonable prospects of success before the Appeals Panel; the application is therefore dismissed.  One point that bothered me was that no adequate explanation was given why the application for leave was launched out of time.

Dated this 25th day of March 2019.

Judge B M Ngoepe, Chair, Appeals Panel