Request to reopen case - Sedzani Mudau vs City Press
Thu, Jan 13, 2022
30 December 2021
Request to reopen case
Article headline: Sisulu orders forensic audit of EAAB
Date of publication: 7 March 2021
Author: Abram Mashego
Ms Sedzani Mudau submitted a written complaint on 26 March 2021 about an article published by City Press. She argued that this article was in violation of clauses 1.1, 1.2, 1.3, 1.4 and 3.3 of the Press Code.
When Mudau did not contact the Public Advocate for several months, he tacitly withdrew the case. The complainant then lodged an appeal against this decision.
This finding does not interrogate the merits of Mudau’s complaint against City Press. It is confined to the Public Advocate’s decision to withdraw the case, and is based on correspondence between the Public Advocate and Mudau.
1. Background to appeal
1.1. The Public Advocate accepted Mudau’s complaint on 26 March 2021, the same day that she submitted it, and duly proceeded to attend to it.
1.2. He informed her on 23 April 2021 that he was awaiting a response from City Press to her complaint. When there was no response by 15 May 2021, Mudau contacted the Public Advocate and requested an update.
1.3. He informed her on 18 May 2021 that City Press was prepared to “either interview [you] or give [you] space in our Voices section”, and requested her to advise him whether or not she accepted its offer.
1.4. On the same day, the complainant informed the Public Advocate that she rejected the newspaper’s offer and, furthermore, insisted that her complaint should also deal with a City Press article published on 29 March 2020.
1.4.1. In response to this demand, the Public Advocate informed Mudau on 20 May 2021 of the Press Council stipulation that complaints should not be submitted “later than 20 working days after the date of publication giving rise to the complaint”.
1.4.2. He informed her that he could not condone such a late complaint, and stated that such a condonation – a year after the article was published – would be unprecedented.
1.5. In the same email to Mudau on 20 May 2021, the Public Advocate offered to negotiate with City Press to publish an apology and correction regarding the article published on 7 March 2021.
1.5.1. He provided the complainant with a draft of the proposed apology and correction, and requested her to inform him of her response.
1.5.2. In an email on 21 May 2021, she said it would be “highly unfortunate” if the lateness of her complaint regarding the 29 March 2020 article was not condoned in light of all the circumstances she had related and in view of the impact of the article.
1.5.3. She went on to inform the Public Advocate that she would submit the correction requested and provide it during the following week.
1.6. However, she did not do so, and informed the Public Advocate on 2 July 2021 that she would provide the correction during the course of that week.
1.6.1. Once again, though, she did not do so, and only emailed the proposed correction to the Public Advocate on 2 December 2021.
1.7. In the meantime, due to the fact that there was no communication from Mudau after 2 July 2021, the Public Advocate had tacitly withdrawn the case and he informed her of this decision on 3 December 2021.
1.7.1. In addition, he informed her that he would be unable to persuade City Press to publish the correction that she had provided, and told her that he regarded its wording as unreasonable.
1.7.2. As an alternative, he suggested that she contact City Press directly to enquire whether its offer to run an interview with her still stood.
1.7.3. He declined to reopen the case.
1.8. The complainant informed the Public Advocate on the same day that she was not interested in an interview with City Press.
1.8.1. She also objected to the fact that he did not inform her of any “timeline”, and informed him of her intention to lodge an appeal against his decision not to reopen the case.
1.8.2. The Public Advocate then provided her with details on how to appeal his decision in an email dated 8 December 2021.
2. Complainant’s appeal
2.1. The complainant “fully acknowledge[d]” on 20 December 2021 that there was a delay on her side in responding to the Public Advocate’s request to her to reply to the proposed correction and apology. Nevertheless, she proceeded to appeal against his tacit withdrawal of her case.
2.2. Firstly, the complainant stated that she initially requested a correction of the City Press article and an apology. When the newspaper declined to grant her request, the Public Advocate asked her to draft a correction.
2.2.1. She said that she struggled to draft the correction due to her lack of journalistic experience, and added that she regretted that she did not inform the Public Advocate of this difficulty.
2.2.2. She further stated that she failed to understand why City Press was never asked to draft a correction instead based on the evidence that she had provided.
2.3. Secondly, the complainant submitted that, on the basis of her knowledge of the Press Code, she was not aware that there was “a timeline” to her response.
2.3.1. She said she did not receive any correspondence from the Public Advocate giving her a “timeline” of when her response was expected, and was therefore surprised to learn that her case was closed due to her delay in responding.
2.3.2. Furthermore, she added that City Press was indulged when it failed to respond timeously to her complaint, with the result that the matter was not finalised within the 15 days specified in the Complaints Procedure.
2.4. Thirdly, the complainant argued that City Press violated the Press Code by failing to verify damaging allegations against her despite being given evidence to the contrary.
2.4.1. She submitted that City Press first reported inaccurately on her resignation as chairperson of the Audit and Risk Committee (ARC) of the Estate Agency Affairs Board (EAAB) in the 29 March 2020 article.
2.4.2. She further said that the newspaper “exacerbated their non-compliance” with the Press Code by failing to interview her for the article published on 7 March 2021 despite her complaints to the newspaper’s editor about its previous article.
2.4.3. She complained that the Public Advocate did not question these actions by City Press and, instead, closed the case without dealing with her complaints about the newspaper’s non-compliance with the Press Code.
2.4.4. She believes that the Public Advocate’s failure to address these issues, and to close her case, will serve to empower City Press to report unfairly and to ignore complaints by citizens.
2.5. The complainant further referred to various personal issues which made 2021 a challenging year for her, namely the deaths of family members, the difficulties experienced by her business and her status as a single parent with two young children. These factors, she argued, contributed to her delay in responding to the request from the Public Advocate.
2.5.1. In light of the above, she appealed for her case to be reopened and finalised.
3.1. The crux of the matter is whether or not there is sufficient justification for the six-month delay in the complainant’s response to the Public Advocate’s offer to negotiate with City Press to publish an apology and correction for its 26 March 2021 article, and for which he provided a draft for her consideration on 20 May 2021.
3.2. The complainant informed the Public Advocate in an email on 21 May 2021 that she would provide a response to his request, and that she would send it to him the following week.
3.2.1. However, she failed to meet this commitment.
3.3. The complainant emailed the Public Advocate on 2 July 2021 and apologised for the “undue delay”, and informed him that she would submit the “correction” within the next week.
3.3.1. Once again, though, she did not adhere to this commitment.
3.4. The complainant only contacted the Public Advocate again on 2 December 2021, and provided him with a proposed correction.
3.4.1. In this email, she also informed him that she was experiencing “a lot of unfair professional judgment due to those articles”, and that the two articles published by City Press were impacting negatively on her.
3.4.2. She further stated that the past year was “very challenging and distressing”.
3.4.3. However, she did not elaborate on this statement and did not provide any details of how or why this situation prevented her from responding earlier to the Public Advocate’s offer in May to negotiate with City Press to publish an apology and correction for its 7 March 2021 article.
3.4.4. She only gave some indication – for the first time – of her personal and professional circumstances in her appeal on 20 December 2021 against the Public Advocate’s tacit withdrawal of the case.
3.4.5. While these circumstances may well have played a role in the exceptionally long delay in her response, this does not adequately explain why she was unable to contact the Public Advocate at all – either verbally or in writing – after 2 July 2021.
3.5. The complainant refers more than once to the negative impact of the City Press reports on her career. This is all the more reason why it was in her own interest to attempt to resolve her complaint as soon as possible.
3.5.1. She already acknowledged in her email on 2 July 2021 that there was an undue delay on her part in responding to the Public Advocate’s proposed correction and apology.
3.5.2. This makes it all the more difficult to understand, never mind excuse, her delayed response on 2 December 2021.
3.6. The complainant’s defence that she struggled to compose a correction in view of her lack of journalistic experience does not hold water.
3.6.1. Firstly, the Public Advocate drafted a correction and apology for her consideration.
3.6.2. Secondly, the Complaints Procedure states quite clearly in Clause 1.3 that the Public Advocate “throughout the entire process (also at the Ombud and the Appeals Panel) will advise and assist the complainant if the complainant agrees …”
3.6.3. She was therefore not without any recourse; she could have made use of the option offered to her in the Complaints Procedure and approached the Public Advocate for assistance.
3.7. While the Complaints Procedure does make provision in Clause 6.1.1 for the Ombud to “[e]xtend any time period contemplated in these rules”, the complainant does not provide any compelling reasons to justify the inordinate delay in responding to the Public Advocate’s proposal to resolve the complaint.
3.7.1. As stated above in 3.4.5, the personal and professional reasons provided in the complainant’s appeal may well have played a role in the long delay. However, she failed to explain why these factors were not communicated to the Public Advocate during the previous six months.
3.7.2. Secondly, the applicant’s attempt to resuscitate the complaint after being silent during the period from early July to early December cannot be regarded as reasonable.
3.7.3. A key objective of the Press Council and the Ombud office is to provide a mechanism through which complaints can be addressed expeditiously. Initiating a complaint, and then failing to pursue it timeously and conscientiously, seriously hinders this process.
3.7.4. While the Ombud is allowed some latitude on time periods in certain circumstances, a situation cannot be allowed where time limits are entirely disregarded. Attending to a complaint over an unreasonably extended period, with unexplained periods of non-communication in between, will almost certainly lead to a backlog of unresolved complaints.
3.7.5. This is clearly not in the interests of the complainant, and would also place an unfair obligation on the publication at which a complaint is directed.
For the reasons outlined above, I decline to reopen this complaint.
The Complaints Procedure stipulates that within seven working days of receipt of this decision, the complainant 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
Deputy Press Ombudsman
December 30 2021