Appeal Decision: Achmat Z, Isaacs and Geffen vs Mail & Guardian

In the matter between

ACHMAT Z                                                                                                FIRST APPLICANT

ISAACS D                                                                                            SECOND APPLICANT

GEFFEN N                                                                                               THIRD APPLICANT

AND

1. On 18 May 2018 the Mail & Guardian (“respondent”) published a story in print and online in which it was alleged that some sexual harassment had been perpetrated at Equal Education (“EE”), a non-profit organization.  The story said that the allegations of sexual harassment were levelled against Mr Doron Isaacs, one of the co-founders of EE, but that the allegations were covered up by Mr Achmat and Mr Geffen. In the meantime, EE appointed an inquiry headed by a retired judge to look into the allegations.

Mr Achmat’s complaint

2. Mr Z Achmat, one of the co-founders of EE, issued an e-mail to the Office of the Press Ombud on 15 June 2018 in which he laid a complaint against the Mail & Guardian.  However, he asked that the adjudication of the complaint be held back until the conclusion of the inquiry. This proposal was agreed to by the Public Advocate of the Press Council. The Mail & Guardian says it only became aware of this complaint in September 2018.  It says it objected to what it describes as a condonation of Mr Achmat’s application for the late filing of the complaint.  If it is true that Mr Achmat lodged his complaint on 15 June 2018, it would mean that it was lodged within the period prescribed by the Complaints Procedures (of the Press Code).  There would therefore not be any need for condonation. The Mail and Guardian would in this regard therefore be wrong, as apparent from the letter dated 5 November 2018 by their attorneys, Webber Wentzel.  The fact that Mr Achmat asked that the finalization of the complaint be held back pending the outcome of the inquiry, would not change the factual situation that the complaint was lodged in time.  The Ombud would therefore be correct to direct the Mail & Guardian to respond to the merits of the complaint, after which the matter would proceed to be dealt with in the normal course.
3. Was Mr Achmat’s complaint lodged in time? In their letter of 30 August 2018, Cheadle Thompson Inc Attorneys, acting for EE, say that Mr Achmat lodged his complaint on 15 June 2018; the Ombud accepted that the complaint was indeed lodged on that date. The Mail & Guardian cannot dispute this; all they can say is that the only became aware of this in September. I must therefore consider the matter on the basis that Mr Achmat’s complaint, albeit with a request that the matter be held back until after the inquiry, was indeed lodged on that date. Even if it can be said that the Public Advocate irregularly agreed to hold the complaint back, as the Mail & Guardian argue, that would not detract from the fact that the complaint was filed in time. It was for the Public Advocate to ensure that the matter was adjudicated upon by the Ombud in the normal way irrespective of the fact that there was an inquiry pending; the blame cannot be placed at Mr Achmat’s door. In their letter referred to above, Attorneys Webber Wentzel said that it would be in the interest of justice for the Ombud to make a ruling on whether or not the complaints by Messrs Achmat, Isaacs and Geffen should be considered in light of the delay in lodging them. The Ombud did just that in his Ruling. Given the fact that Mr Achmat’s complaint was lodged on 15 June 2018, I agree with the Ombud that it was lodged in time.  The Ombud was therefore correct to direct the Mail & Guardian to respond to the merits of Mr Achmat’s complaint and for the matter to be dealt with in the normal course in accordance with the Press Code. Regarding the complaints by Mr Isaacs and Mr Geffen, see below.

Complaints by Mr D Isaacs and Mr N Geffen

4. The two complaints can be dealt with together because Mr Geffen relies on Mr Isaacs submissions, barring one or two peripheral points he seeks to make. On his own version, Mr Isaacs finally lodged his complaint in October 2018, some 5 months after the publication, after initially indicating to the office of the Ombud his desire to do so on 4 September 2018 (a date itself nearly three months after the publication of the story on 18 May 2018). Mr Geffen’s complaint was also lodged on the same date in October 2018. Their reliance in their applications on the Appeals Panel Decision in the matter of Zion Christian Church & Lekganyane vs Sunday World, Matter No: 3598/11/2018 and on the judgment in Melane v Southern Insurance Co Ltd 1962(4) SA 531 (AD) does not assist them for a number of reasons. Firstly, they provide no reasonable explanation why they did not file their own complaints. Clearly, they did not feel any need to lodge their own complaints, but to ride on the back of Mr Achmat’s complaint. Secondly, the delay is just too long. The longer the delay, the better the explanation ought to be; their explanations are wanting. Thirdly, the EE inquiry could not dictate on the proceedings before the Ombud. Fourthly, the fundamental point why the above authorities referred to above cannot assist Mr Isaacs and Mr Geffen is well put by the Mail & Guardian, namely, that the subject of the EE inquiry was not the same as the issue before the Ombud. In effect, the Mail & Guardian says that while the inquiry was to investigate the truth of the allegations, the Ombud was, as they say, only to determine whether or not “the publication of the article was justified based on the information that was available to (The Mail & Guardian) at the time of publication.  The (resolution) of the complaint cannot be dependent on the outcome of an unrelated and distinct panel of inquiry which may have access to information which our client did not have access to at the time of the publication.” Indeed, nor would the remedy from the inquiry be the same as the one from the Ombud. Finally, it is important to bear in mind that when the inquiry was established on 19 July 2018, the period within which to lodge a complaint had in any case already elapsed.
5. As I have already said, Mr Geffen associates himself with the submissions made by Mr Isaacs; and I therefore need not deal with his matter any further. What concerns me though is his view that there is a “widely held  and justified perception that the Ombud’s Office is lenient about filing complaints on time”. This is an unfortunate perception which should be arrested; the process is supposed to be expeditious. Granting them condonation under the present circumstances would only serve to perpetuate this regrettable perception, and seriously compromise the principle of expeditious resolution of complaints before the Press Council.
6. For the reasons given above, the Ruling by the Press Ombud is upheld, and

6.1 the Mail & Guardian is directed to respond to the merits of the complaint by Mr Z Achmat and for the matter to thereafter be dealt with in the normal way in accordance with the Press Code of the Press Council;

6.2 the applications by Mr Doron Isaacs and Mr Nathan Geffen for leave to appeal the Ruling of the Ombud that their complaints were lodged out of time are dismissed for lack of  prospects of success before the Appeals Panel.

Dated this 4th day of Janaury 2019

Judge B M Ngoepe, Chair, Appeals Panel