Appeal Hearing Decision: Spotlight Publications and Sadmon Projects and Consulting cc

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between

SPOTLIGHT PUBLICATIONS                                                  APPLICANT

AND

1. On 19 December 2019 Spotlight Publications (“appellant”) was granted leave to appeal the Ruling of the Ombud that was handed down on 10 October 2019. The Ruling was on a complaint that had been lodged by Sadmon Projects and Consulting CC (“respondent”) in relation to a series of five articles published by the appellant, consecutively, during November 2019. The appellant is primarily an online publication which has made it its business to monitor the country’s response to Tubercolosis (TB) and the Human Immunodefiency Virus (HIV) as well as health systems; the monitoring is also over the people responsible for these projects and the implementation of the relevant government policies. The activities of the respondent, which had gotten communication tenders from the National Department of Health (NDoH) relating to the above programmes therefore fell within the ambit of the appellants monitoring activities. In this respect, the appellant submitted the following in its application for leave to appeal: “Sadmon was the flagship recipient of the NDoH’s communications tender; Spotlight submits that people’s lives depended on this campaign, and it would have been irresponsible of Spotlight not to scrutinise this budget. Spotlight has also published a series of articles looking at how the health budget is spent. The subject-matter of the series of articles falls squarely within the focus of Sportlight. As a point of departure, it is noted that the importance of the right to freedom of expression, including press freedom, cannot be gainsaid.”
2. Several complaints were raised by the respondent; for example, that the articles were not fair, accurate or truthful and that the right of reply was not given. All but two complaints were dismissed and do not feature. In her Ruling, the Ombud upheld the complaint that the headline to the first story was misleading. It read: “Government pushed R352m to contraversial community company.” The company referred to was of course the respondent. The Ombud ruled that the use of the word “controversial” was not justified and thus misleading. In the article, the appellant quoted verbatim Mr Sadiki, a director fo the appellant, and, having done so, added a footnote saying that Mr Sadiki’s comments had not been edited for spelling or grammar. The Ombud ruled that the “footnote in the first article that Mr Sadiki’s comments had not been edited for spelling or grammar infringed on his dignity.” Sanctions were imposed, including an apology to Mr Sadiki.
3. Apart from an appeal on the merits, the appellant contended, firstly, that the appeal was noted out of time. The appellant also alleged a number of irregularities on the part of the Ombud. These related to the fact that the Ombud conducted certain investigations ex parte on the basis of which she came to her Ruling.
4. Properly so, first to be argued was whether or not the late noting of an appeal should be condoned, because once the condonation is refused, the appeal would fall away and there would therefore be no need to get onto the merits, or to adjudicate on the alleged irregularities.

Late noting of an appeal: whether condonation should be granted

5. The timelines set out below are relevant:
   1. 1 The article complained of was published on 19 November 2018.
   2. 2 The complaint was lodged on 8 February 2019; at that time, it was clearly out of time with some 2 months, but no application for condonation was filed.
   3. 3  On 28 February 2019 the Public Advocate declined to entertain the complaint on the ground that it was out of time.
   4. 4 On 3 March 2019 an application for condonation was lodged, even though it was dated 21 December 2018.
   5. 5 On 18 March 2019 the former Ombud granted condonation.
6. As it can be seen, the appeal was noted well out of time; correctly so, the current Ombud says that it was filed extremely late. It should have been filed within 20 working days of the publication of the article, which was on 19 November 2018. But as her predecessor had already granted the condonation, the Ombud’s hands were tied. The appellant is challenging the granting of the condonation by the previous Ombud.
7. 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. The previous Ombud makes a terse statement in justifying the granting the condonation: “The arguments put forward by the (respondent) in responseto the decision of by the Public advocate are reasonable, especially given the fact that the delay was not unreasonably long, and that most of the delay was due to the festive season.” Firstly, if the Ombud meant that the delay was not delay in terms of time frames, he was, with respect, wrong; festive season or no festive season. Secondly, as it appears below, no adequate explanation was given by the respondent for the delay. The respondent says legal opinion had to be sought first; surely the appeal could have been noted in the meantime. The following is the sum total of the explanation contained in the application.

“7.   On Monday 03 December 2018 instructions to this effect was given by the First and Second Applicant and the first draft of the complaint was ready by 14 December 2018.

8. The office of both the complainant and the attorney of record herein, closed on this day, being 14 December 2018 and it was agreed that the attorney would attempt to deliver the final draft, which was still being drawn after 14 December 2018, by 21 Decmeber 2018, making special arrangements in this regard as the respective offices were already closed for the Festive Season and all staff had gone on leave.

9.    Regrettably this was not possible as the messenger of the attorney failed to return to the office on 21 December 2018 as pre-arranged to deliver the said complaint. His transport arrangements had changed and he was required to leave on 18 December 2018 to enable him to reach his family for the Festive Holidays in time, in Limpopo Province.”

The explanation speaks for itself and needs no further analysis. It simply holds no water. None of what is said above even begins to explain why no effort was taken to ensure that the complaint was filed in time. Better explanations with even shorter delays have been rejected in the past. To uphold this condonation would create a very bad precendent. The whole process aims to deal with the complaints as expeditiuosly as possible. What compounded the situation is that the then Ombud did not grant the appellant the opportunity to be heard before the application for condonation was granted.  Given the length of the delay and the nature of the explanation, this failure by the then Ombud constituted a material irregularity.

8.    In light of our above finding, it is not necessary to either consider the alleged irregularites on the part of the current Ombud, or the merits of the case. It follows that the appeal must succeed; the following Order is therefore made:

(a)   The appeal is upheld;

(b)   The granting of condonation for the late filing of the complaint is set aside;

(c)   The complaint lodged by the respondent against the respondent on 8 February 2019 is dismissed.

Dated this Friday the 13th day of March 2020.

Judge B M Ngoepe, Chair, Appeals Panel

Mr R Mnisi; Public Representative

Mr T Makhadi; Media Representative