Decision to Adjudicate - Roux vs News24


Mon, May 16, 2022

Complaint 9507                                           

Date of articles:                  14 March 2022

Headline of publication:   “Has Jurie Roux captured SA Rugby?”

 

 

Author:                                  Adriaan Basson

Particulars

  1. This is a request from the complainant, Mr Jurie Roux (“Roux”), to adjudicate his complaint against News24 despite the Public Advocate’s rejection of the complaint.
  1. As the complaint was not accepted by the Public Advocate, the publication was not requested to comment on the complaint. It must therefore be stressed that this ruling does not concern the merits of the complaint in any way.
  1. The only question is whether the Public Advocate was correct in not accepting the complaint.

The rejected complaint

  1. Roux, represented by his attorney, Mr Frikkie Erasmus, lodged a complaint on 30 April 2022 about the opinion piece that appeared on News24.
  1. For current purposes, it suffices to state that Roux is aggrieved by a statement of Basson that Roux was “found by a series of legal heavyweights to have stolen money,” amongst other statements. Roux says this is factually incorrect and defamatory.
  1. The complaint was filed 30 business days after publication.
  1. Paragraph 1.3. of the Complaints Procedure reads:

“A complaint shall be made as soon as possible, but not later than 20 working days after the date of publication giving rise to the complaint. The Public Advocate, who throughout the entire process (also at the Ombudsman and the Appeals Panel) will advise and assist the complainant if the complainant agrees, may on reasonable grounds accept late complaints if, in his or her opinion, there is a good and satisfactory explanation for the delay.”

  1. The Public Advocate requested reasons from the complainant for the lateness of the complaint.
  1. Erasmus says on this score:

“(Roux) instituted proceedings in the Western Cape High Court on 3 March 2022 in which he seeks to review and set aside the awards of Adv Sholto-Douglas SC and the Appeal Tribunal. It was appropriate for him to wait until all papers were filed in the application (namely the University’s answering affidavit and his replying affidavit) before addressing Mr Basson’s article.”

  1. The Public Advocate was sceptical about the explanation. He said he fails to understand why it was “appropriate for him to wait until all papers were filed in the application” before complaining with the Press Ombudsman. I share the Public Advocate’s confusion.
  1. Absent a “reasonable explanation” required by the Complaints Procedure, the Public Advocate felt duty-bound to reject the complaint.
  1. However, there are in my view other relevant considerations the Public Advocate must consider in matters such as the present.

Analysis

  1. The Complaints Procedure sets out two routes for a complainant who failed to meet the timeframes set out in the procedure:

13.1 The first is paragraph 1.3. which empowers the Public Advocate to accept a complaint despite the non-compliance with the          procedures. This procedure is a discretion vested in the Public Advocate in the spirit of creating a non-technical and efficient complaints procedure for members of the public. Even if the Public Advocate accepts the complaint, there is nothing in my view that would prohibit a respondent publication from objecting to the late filing of the application. Where the Public Advocate declines to exercise this discretion, the complainant may still in terms of paragraph 1.8. of the Complaints Procedure call upon the Ombudsman or Deputy Ombudsmen to intervene.

13.2 The second route is paragraph 6.1.1. that empowers the Ombudsman and Chair of Appeals, depending on the context, to extend any time period contemplated in the rules. This provides for condonation to be granted.

  1.  The first route is a mechanism that allows the Public Advocate to sift through complaints. For reasons that follows, I am of the view that this process to outright reject the acceptance of the complaint should be exercised sparingly.
  1. The second route usually comes to the fore where one of the parties to a dispute raises non-compliance with the procedure. This was the case in the Appeals Panel decision of Spotlight Publicatons vs Sadmon Projects and Consulting CC[1]. The Chair of the Appeals Panel said:

“As we have repeatedly said in the past, and indeed as the Code says, there must be an adequate explanation for a delay. The longer the delay, the more cogent the explanation should be.”

  1. The Appeals Panel held that a delay of 20 business days was not adequately explained and therefore condonation was refused.
  1. It must, however, be born in mind that the Appeals Panel considered the condonation application within the context of:

17.1 The publication raising the issue (as opposed to the Public Advocate); and

17.2 The appellant already having had an opportunity for the case to be ventilated through an adjudication process.

  1. In my view, the Public Advocate and Ombudsman should be loathe to close the door on complainants in prima facie valid complaints.
  1. This view is motivated by the following considerations:

19.1 The preamble of the Code declares that “the media exist to serve society”. The preamble proceeds to state how the media, and their voluntary submission to the Press Code, aims to realise this ideal: “As journalist we commit ourselves to the highest standards, to maintain crediblility and keep the trust of the public.” The commitment is espoused in the activities in the Press Council of South Africa.

19.2 Independent co-regulation of the media has as its premise the need for an efficient, simple, credible, alternative dispute resolution process. The spirit of the Code is not to place unnecessary and technical restrictions on complainants. The previous Ombud, in the matter of SA BDS Coalition vs SA Jewish Report, also held that the Council’s “objectives of efficient, effective, informal and inexpensive dispute resolution” is a weighty consideration when considering what could be termed as technical restrictions in the complaints procedure. In Mathys vs EWN[2] I held that the Press Council’s procedures should not be applied in an overly technical or strict way. To do so would serve as an unjustified tool of exclusion of seemingly valid complaints.

19.3 The Ombudsman’s activities are to the benefit of both complainants and respondent publications. It offers a credible alternative to litigation. It affords both parties an opportunity to be vindicated. Where a publication is not raising an objection to the late filing of a complaint, it could deprive them of an opportunity to be vindicated through a hearing of the merits instead of a technicality.

  1. With that said, the aim of paragraph 1.3. of the Complaints Procedure undoubtedly seeks to aid the efficient and expedited handling of complaints. It would defeat this aim if complainants could file complaints long after publication. A deadline for complaints is necessary and should not be disregarded lightly.
  1. Erasmus, in his submissions, urged me to apply the common law test applied in considering condonation applications. The factors to be considered are:

21.1 The extent of the delay

21.2 The explanation for the delay

21.3 The prejudice to be suffered by the complainant and the publication if the condonation is granted or refused

21.4 The importance of the issues raised and the complainant’s reasonable prospects of success (or lack thereof) in the complaint. In general, condonation should be more readily granted where there are strong merits in a complaint.

  1. The Press Ombud is not a court of law. It applies the Press Code, which is a code of ethics. Legal principles, rules, and legislation dealing with procedure, matters of evidence, and interpretation do not automatically apply to the Press Ombud proceedings.
  1. However, in a long line of rulings on diverse subjects, the Press Ombud and the Appeals Panel have applied common law principles in the proceedings.
  1. Common law principles can, in appropriate circumstances, be useful to ensure consistency, rationality, and clear reasoning in rulings. This is not because the Press Ombud is attempting to mimic court proceedings. Those principles are useful as they have the benefit of having been developed and crystalised over centuries of careful analysis and consideration.
  1. I am in agreement with Erasmus that the common law principles on condonation applications are useful tools to consider condonation applications in circumstances where condonation is sought or opposed by parties (i.e. the “second route” referred to above).
  1. However, the principles cannot be applied in the current circumstances (the “first route” referred to above) for the simple reason that none of those factors are properly ventilated. How am I to consider the prospects of success of the complaint if the respondent has not even had sight of the complaint? Or the possible prejudice to the respondent publication if the latter has not been afforded an opportunity to raise any potential prejudice.
  1. The Public Advocate, when exercising the discretion he has in terms of paragraph 1.3. of the Complaints Procedure, would also not necessarily have the necessary information to his disposal to apply those principles.
  1. In my view, the exercising of the discretion of the Public Advocate in terms of paragraph 1.3. should strike a balance between the following:

28.1 The need for speedy resolution of complaints. The longer the delay, the less likely the Public Advocate ought to be to accept the complaint.

28.2 The nature of the complaint. The allegations by the complainant, if found to be true, must at least constitute a breach of the Press Code. The more serious the allegations are on face value, the more inclined he should be to accept it.

28.3 The reasonableness of the explanation for the delay. While an explanation is imperative (see Spotlight Publications cited above), a reasonable, well-motivated explanation for the delay carries far more weight than a sketchy reason.

28.4 The consideration that a rejection of the complaint effectively closes the door on a complainant without having had the opportunity to state their case.

  1. Whilst considering the above, it must be borne in mind that a respondent publication may still raise an objection to the late filing of the complaint when answering the accepted complaint. The dispute then becomes one of an opposed application for condonation where all the relevant factors will be considered.

Application of principles

  1. I have already noted my uncertainty of the merits of the explanation for the delay offered by Erasmus.
  1. However, I also consider that the application was not filed extraordinary late (10 days). The delay is not of such a nature that it clearly frustrates the process. In this regard, I also consider paragraph 1.9. of the Complaints Procedure that affords the Public Advocate the discretion to file a complaint himself if there was no complaint within 30 working days of the publication of an article he believes might have contravened the Press Code.
  1. It cannot be said that a complaint filed by an interested complainant after 30 business days of publication is unreasonably long while the same Complaints Procedure would have enabled the Public Advocate to submit the complaint himself after 30 business days.
  1. Without commenting at all on the merits of the matter, I note that Erasmus raises serious allegations about the article in question. In fairness to both the complainant and the respondent publication, I am of the view that the allegations should be ventilated.
  1. In closing, the following clarification is appropriate:

34.1 I have not granted condonation to the complainant in terms of paragraph 6.1.1. of the Complaints Procedure. The respondent publication is at liberty to raise an objection to the late filing of the complaint, in which event the relevant submissions of the parties will be considered in a condonation application. The publication may also choose not to object to the late filing of the complaint and to address only the merits of the complaint.

34.2 What I have done, is to set aside the Public Advocate’s decision to reject the complaint in terms of paragraph 1.8. of the Complaints Procedure.

Conclusion

  1. The Public Advocate is directed to accept the complaint and follow the normal complaints procedure. The complaint, as well as the submissions on the late filing of the application, must be referred to the respondent publication for a response and the complainant for a reply.
  1. The matter may then be adjudicated.

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 Khanyim@ombudsman.org.za.

Herman Scholtz

Deputy Press Ombud

16 May 2022


[1] Matter 4257/02/2019, 12 March 2020.

[2] Complaint 8980, 7 July 2021