Roux vs News24

Sun, Aug 28, 2022

Ruling by the Press Ombud

Date of articles:                  14 March 2022

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

Author:                                  Adriaan Basson                                                                                        

Particulars

1. This complaint has meandered through several processes, having initially been rejected by the Public Advocate, accepted by myself, subjected to an appeal to the Chair of the Appeals Panel, and now for adjudication.

2. Attorney Frikkie Erasmus (“Erasmus”) made representations on behalf of Jurie Roux (“Roux”) while Adriaan Basson (“Basson”) answered on behalf of News24.

The complaint

3. The first aspect to be decided is the issue of condonation, and if successful, the merits of the complaint.

4. Roux, who is the CEO of SA Rugby and a former high-ranking official at Stellenbosch University, is aggrieved by a piece penned by Basson. In particular, he complains about the following sentences and/or aspects:

1. “How is it possible that the CEO of a multimillion-rand business is allowed to continue with his job after being found by a series of legal heavyweights to have stolen money?”

4.1 That money that should have gone to scholarships were used to pay rent and entertainment of rugby players.

4.2 That Roux used his personal bank account for the skulduggery.

4.3 That Roux’s conduct looks a lot like fraud.

4.4 That MTN and other brands cannot afford to be associated with a crooked boss.

4.5 That Roux “captured” SA Rugby.

5. Roux further complains that he was not approached for comment before publication.

6. Basson’s response, in short, is that the piece was an opinion piece clearly marked as such. He therefore did not have to approach Roux for pre-publication comment. Furthermore, that he stated the material facts upon which his opinions are based. And lastly:

“I justified the use of the word ‘stolen’ primarily based on my interpretation of a) the findings of both tribunals that Mr Roux misapplied or misappropriated R37 million of the university’s money by manipulating the university’s accounting system to transfer the money to the Maties rugby club, and b) the finding of the appeals tribunal that some of the money ended up in Mr Roux’s personal bank account.”

7. In my view, the entire complaint revolves around two aspects:

7.1 Whether the sentence about Roux having been found to have “stolen money” is a statement of fact or opinion.

7.2 Whether the use of the word “stolen” is justified in the circumstances.

8. But before any of this can be considered, the aspect of condonation must be addressed.

Condonation

9. I do not repeat the background of this issue, which is set out in detail in my decision to accept the complaint and the decision by Judge Ngoepe to refuse News24’s application for leave to appeal.

10. Both decisions made it clear that no decision has been made on the aspect of condonation. Instead, the decisions dealt with principles and matters of procedure.

11. News24 has since objected to condonation being granted. The reasons are stated as follows:

11.1 The complaints procedure of the Press Council is laid down for a reason.

11.2 Roux is legally represented.

11.3 The explanation provided for the delay is “frivolous” and “makes no sense”.  

12. The starting point in considering any request for condonation is the reason advanced for the late filing of the complaint. This has been confirmed in Spotlight Publicatons vs Sadmon Projects and Consulting CC[1] and more recently in Ramatlakane v Sunday Times/TimesLive[2] where the Chair of the Appeals Panel described the explanation as “the first hurdle” to cross.

13. It is appropriate to note that Erasmus was first probed by the Public Advocate about the reason for the delay. The complaint was lodged ten working days late. The Public Advocate’s role is to assist complainants in formulating their complaints and complying with the different procedures laid down by the Press Council.

14. The best response the Public Advocate could elicit from Erasmus, was the following:

“(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.”

15. The Public Advocate was not convinced of the merits of the explanation and therefore declined to accept the complaint. The Public Advocate recorded in his reasons to refuse to complaint:

“I am afraid I fail to see any merit in the above argument. I do not understand why it was “appropriate for him to wait until all papers were filed in the application”. Are you implying that he and you, as his lawyer, were so busy with the court papers that you could not lodge the complaint with the Press Council? I respectfully submit that to lodge a complaint of three A4 pages with the Press Council cannot be that time-consuming.”

16. I was also not convinced of the rationality of the reason provided. The warning to the complainant that the explanation is inadequate is recorded twice in the decision to accept the complaint without deciding the issue of condonation – in paragraph 10 and 30. Notwithstanding these warnings to the complainant, I accepted the complaint for the reasons stated in that decision. I stand by those reasons, which can be summarised as follows:

16.1 The Press Ombud should be loath to close the door on complainants where there has not been an opportunity for the complainant to ventilate a complaint. Refusal for condonation in an application for leave to appeal stands on a slightly different footing.

16.2 It is, in my view, undesirable for the Ombud or Public Advocate to raise issues of non-compliance with the procedures by themselves (except, perhaps, in the clearest of cases) if a publication does not raise an objection to the complaint being adjudicated.

16.3 I was, and remain, in agreement with Erasmus that other considerations such as prejudice, the merits of the matter, and the length of the delay could sway the decision on condonation despite a “weaker” explanation for the delay. The proviso is, of course, that there must be a rational explanation to start out with, as will be explained below.

17. By accepting the complaint and directing the Public Advocate to elicit responses from the publication and Roux/Erasmus, the complainant essentially got another opportunity to amplify the reasons for the late filing of the complaint. This was over and above the opportunities and guidance provided by the Public Advocate.

18. News24 has now contested the issue of condonation and Erasmus made further submissions on the aspect of condonation. Erasmus denied that the reasons are “frivolous” and said:

“Our client wished to avoid having a complaint concerning false accusations in the media being drawn into the Court papers concerning the arbitration and arbitration appeal awards.  Of course, at that stage our client did not know what to expect from the University and understandably wanted to finalise that process before turning to the character assassination by Mr Basson.

“In any event, it is a simple and straightforward matter. Our client has fully motivated his condonation application and we emphasise again that in light of the seriousness of the allegations made against him, and his prospects of success, that condonation ought to be granted.”

19. Unfortunately, I still fail to understand what the review proceedings in the High Court had to do with the published piece or the Press Ombuds complaint. Review proceedings are confined to the matters under review, i.e. the record of the arbitration proceedings and arbitration appeal process. If there were even the most tenuous link between the review proceedings and the published piece or Press Ombud complaint, it does not appear from the submissions made. 

20. If the explanation was that Roux and Erasmus were fixated on the review proceedings and work pressure prevented them from filing the complaint in time, it would have been a rational explanation. Lawyers routinely ask for condonation blaming work pressure, practical difficulties, or even miscommunications or mistakes that led to the late filing of documents. This is, however, not the complainant’s case, despite repeated attempts to solicit a rational explanation.

21. In the recent case of Ramatlakane referred to above, the applicant sought condonation for filing his application for leave to appeal 14 days late. The reason provided, as summarised by Judge Ngoepe, is that “he was awaiting some developments in a related review application which PRASA, of which the applicant was chair of the Board, had launched in the High Court’.

22. In rejecting this explanation, Judge Ngoepe said:

“There is simply no link between the two which justifies the delay; nothing prevented the applicant from filing his notice of appeal. After all, the Deputy Ombud’s Ruling was not part of the subject matter of the review proceedings. If there was any such link, the appellant has failed to adequately articulate it.”

“…The longer the period of delay, the stronger the explanation ought to be; there is none. There is no need for me to look at the merits of the appeal as the applicant fails to cross this first hurdle.” (My underlining)

23. I consider myself bound by the principles laid down by the Appeals Panel and its chairperson. In the current complaint – and despite various opportunities – there simply is no rational explanation, let alone a weak one that can be bolstered by other factors such as strong prospects of success and lack of prejudice.

24. Had there been any sort of rational explanation such as work pressure or ignorance for the delay, I would have considered all the factors listed in my earlier reasons and might have fully ventilated the complaint. However, absent a rational explanation, the application for condonation stands to be refused due to the complete absence of an explanation.

25. Even if I am wrong about the absence of an explanation, and lest the impression be created that I did not at least consider the complaint in its proper context or that the office of the Press Ombud is unfairly concerned about technicalities, it must be noted that the complainant’s prospects of success were not all that clear in light of News24’s response.

26. As mentioned above, the complaint centred around two broad aspects, being the question whether the phrases constituted comment or statements of facts and the use of the word “stolen”. If the statement is one of opinion, it would be protected in terms of clause 1.7 of the Press Code.

27.  The facts of the complaint are similar to the Constitutional Court case of Democratic Alliance v African National Congress and Another[3] where the ANC complained about an SMS sent out by the DA which read:

“The Nkandla report shows how Zuma stole your money to build his R246m home. Vote DA on 7 May to beat corruption. Together for change.”

It was common cause in that case that the Public Protector report made no finding of “theft” or money being “stolen”.

28. The nub of the current complaint is that the arbitration panel concerned itself with a civil claim from Stellenbosch University against Roux and that there was no finding of the criminal offence of “theft” against Roux or that he misappropriated the university’s funds for his own benefit. It does, however, appear to be common cause that the arbitration panel found that Roux misappropriated funds of the university which the university wanted to recover. 

29. In Democratic Alliance, the majority of the Court explored the notoriously grey line between comment and statements of fact and said that a statement qualifies as a factual claim “when it depends on nothing but the writer’s own authority”. The Court therefore held the SMS to be an interpretation of and a comment on the Public Protector’s report, rather than an assertion of fact.

30. Once it is accepted that Basson’s opinion piece and the statement about the “stolen” funds is his interpretation of the arbitration panel’s findings, as I would have been inclined to do, the merits of Roux’s complaint are considerably weakened.

31. There is also merit in News24’s arguments about the interpretation by the ordinary reader of the word “stolen”.  As Van der Westhuizen J stated in a minority judgment in Democratic Alliance, to say someone has “stolen” has a much wider meaning for the ordinary reader than a meaning of the crime of theft. In fact, the judges found, it is also commonly used to describe actions like misappropriation or embezzlement, or to “take without permission or legal right and without intending to return it”.

Conclusion

32. The application for condonation for the late filing of the complaint is refused for a lack of explanation for the delay. Even if the explanation for the late filing were rational, the merits of the complaint are not of such compelling nature that it would justify condonation being granted. 

33. The complaint is dismissed.

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

Press Ombud

28 August 2022