SKG Africa & Others vs Sunday World

(Decision to adjudicate)

Complaint 32042                                                                                               

Ruling by the Press Ombud

Date of article:                    14 September 2024 – 13 October 2024

Headline of publication:   Various

Author:                                  Mzilikazi wa Afrika

1. This ruling is on a narrowly defined issue. It concerns the interplay between the alternative dispute resolution mechanism of the Press Ombud and litigation in a court of law.
2. Mr Sean Sim from Sim Attorneys Inc. represents the complainants, being SKG Africa (Pty) Ltd, Ms Nontutuzelo Mbiza, and Mr Jean du Plessis. The latter two are directors of SKG Africa (“SKG”).
3. Ngwako Malatji, acting editor of Sunday World, answered on behalf of the publication.

Background

4. Sunday World has published a series of articles about SKG, and more particularly the company’s business relationships with the government and the company’s B-BBEE status.
5. SKG is aggrieved by a number of articles that appeared on various platforms of Sunday World. A total of 20 individual complaints against three articles were submitted.
6. The initial complaint was accepted by the Public Advocate during October 2024. The complainant was requested to complete the standard questionnaire containing the following questions:

“(a) Are the issues which are the subject matter of this complaint against the publication concerned pending at present before any court of law; or

(b) Does the complainant in the event that the complaint is resolved in his/her favour or to his/her satisfaction intend to or contemplate at any time in the future instituting proceedings in any court of law against the publication concerned based on the issues which are the subject matter of the complaint; or

(c) Does the complainant in the event that the complaint is not resolved in his/her favour or to his/ her satisfaction intend to or contemplate at any time in the future instituting proceedings in any court of law against the publication concerned based on the issues which are the subject matter of the complaint?

7. On 7 October 2024, Mr Sim responded to the questions as follows:
8. “(T)he issues which are the subject matter of this complaint are not at present before any court of law;  and

1. no further action is contemplated by our clients based on the findings of the Ombud in relation to this complaint.”
2. SKG supplemented its complaint as more articles were published. The complaints were sent to the publication for a response and the ordinary mediation attempt ensued.
3. On 23 December 2024, a summons was issued out of the Gauteng High Court (Johannesburg) by SKG, Mr Du Plessis and Ms Mbiza against ten defendants, including Mr Malatji in his capacity as acting editor of Sunday World, the publisher of Sunday World, and a journalist from Sunday World, Ms Boitumelo Kgobotlo.
4. This development came to light in the new year, leading to a decision by the Public Advocate on 10 February 2025 to stop the proceedings in accordance with clause 1.7.3. of the Complaints Procedure, which reads:

“Where at any stage of the proceedings it emerges that proceedings before a court are pending on a matter related to the material complained about, the Public Advocate, the Ombud or the Chair of Appeals, depending on (the) status of the complaint at that stage, shall forthwith stop the proceedings and set aside the acceptance of the complaint by the Public Advocate, unless it is shown that the issue complained about is not among those that the court is adjudicating.”

11. SKG is formally requesting me to allow adjudication of the matter.

The “legal proceedings” provisions in context

12. Amongst the various functions of the South African Press Council is the offering of a complaints procedure that serves as alternative to costly and lengthy litigation. Such alternative dispute resolution process is beneficial for complainants and subscriber members alike. Complainants need not wait several years for a trial date in court and do not have to pay anything for the service. Mr Sim rightly states in his submissions that the complainants’ action will not go on trial in the High Court until at least 2030. Publications, on the other hand, also benefit through legal cost savings, risk management and being more responsive and accountable to their audiences.
13. The waters get murky when the Press Ombud is not approached as an alternative to litigation but as a prelude or an adjunct to litigation.
14. The risks associated with this was initially addressed by the so-called “waiver requirement” in the Press Council’s procedures. Complainants were required to enter into an arbitration agreement to be bound by the outcome of the Press Ombud’s or Appeal Panel’s rulings. In what risks to be an oversimplistic statement, complainants agreed to waive their right to approach a court if they were aggrieved – or perhaps emboldened – by the outcome of the Press Council complaint procedure.
15. During 2012, a wide-ranging review of the complaints procedure was undertaken based on the final report of the Press Freedom Commission chaired by the late Chief Justice Pius Langa. One of the recommendations was to remove the waiver requirement to enhance access to the Press Council’s complaints mechanism.
16. The report recorded:

“The justification for the inclusion of a waiver in the current complaints procedure has primarily been to thwart what is referred to as ‘fishing expeditions’ or tribunal hopping by complainants, who may be looking to test the merits of their complaint. The waiver is also designed to prevent a publication from answering twice on the same complaint.”

17. These issues, being potential prejudice for subscriber members and potential abuse of the institution of the Press Ombud, deserve some elaboration. In my view, there is little risk that the findings of the Ombud may cause controversy in future litigation (if such findings would be admissible as evidence at all). The difficulties rather arise from the process culminating in a finding.
18. The office of the Ombud follows an informal procedure that is in many ways beneficial for a complainant compared to the position of a plaintiff in court proceedings. A complainant before the Ombud is not subjected to cross-examination. There is no blanket requirement in the complaints procedure to provide any version under oath[1]. There is not even a requirement for the complainant to personally provide any version, in writing or otherwise, under his or her name. It is often a legal representative acting on their behalf that formulate the complaint and provide background facts. There is no discovery procedure in the Ombud’s procedure or a right to subpoena to obtain documents or information in possession of the complainant or a third party. Publications do not have these tools to their disposal in putting up a defence before the Ombud.
19. Although there is no “onus” to discharge as it is applied in litigation, the practical implication of the Ombud’s process often boils down to a publication having to justify what was published. In doing so, they put their entire version in writing, which is shared with the complainant. Moreover, publications routinely share source documents, recordings, journalists’ notes, correspondence with third parties, etc. in support of their responses. Hence the recordal by the Press Freedom Commission on the fears of a “fishing expedition”.
20. A publication is putting all its cards on the table. If the publication’s justification for a published piece to the Press Ombud is to differ in a subsequent trial or court proceedings, an astute lawyer will have fertile soil for cross-examination.
21. Under circumstances where there is a real threat of possible future litigation, it would be surprising if a publication takes part in the Ombuds process without the assistance of their lawyers. This could undermine the purpose of a cost-effective alternative to litigation. Moreover, it has the potential of stifling the ventilation of the dispute before the Ombud if the parties frame and even censor their submissions in anticipation that anything they say or provide may be used against them later.
22. The risks get even greater where confidential sources and source documents are involved, which is not an unusual occurrence. Clause 11.1. of the Press Code explicitly recognises the protection of sources as a basic principle in a democratic and free society. The archives of Ombud rulings contain several examples where publications shared certain information or documents with the Ombud in confidence. (See, for example, Raymond J Paola vs Daily Maverick (2024) where the Deputy Ombud noted it is “established Press Council practice to allow confidential information to be shared with the Press Ombud” and Nage vs Sunday Times (2023). There is no way for the Ombud to guarantee such confidentiality to a publication or a complainant for that matter if the office of the Ombud itself could be dragged into subsequent litigation.
23. Despite these risks, the Press Freedom Commission recommended an abolishment of the waiver for two reasons. Firstly, there were concerns that the requirement had “a chilling effect on the use of the Ombudsman by potential complainants”.
24. Secondly, the Press Freedom Commission perceived the risk of claims based on a finalised Press Ombud complaint to be low. The commission noted that “a court considering any future claim based on the same facts would have to take into account any order that the Ombudsman made, given that this would always be relevant to the extent to which the complainant’s dignity needed to be assuaged.” To place the last sentence in concrete terms: If person X already received a public apology from a publication, it would likely mitigate any possible damages award to a plaintiff in a subsequent defamation action. This is because a damages award by a court is meant to be solace for the plaintiff and not to enrich him or her[2].
25. Following the comprehensive review of the complaints procedure, the waiver was abolished and the status quo was established. A complainant retains the right to approach a court at any time. The complainant is merely asked about his or her intentions about future litigation to enable the Public Advocate and/or Ombud to exercise their discretion based on, amongst other factors, the issues highlighted above.
26. However, once a complainant opts for litigation, the situation changes. The Press Freedom Commission never envisaged a parallel process. The recommendations noted:

“A complainant should be properly advised by the Public Advocate that he/she should not commence legal proceedings once he/she has chosen to use the Ombudsman’s Office to resolve his/her dispute. After all, a complainant chooses the complaints procedure of the Press Council because it is intended to be an alternative dispute resolution mechanism, designed to be a quick, cheap and effective manner of resolving a dispute.”

27. The current complaints procedure deals with two distinct scenarios:

• In the event a complainant answers any of the proposed litigation questions in the affirmative, the Public Advocate and Ombud has a discretion to defer the complaint pending legal proceedings. This is provided for in clause 1.7.1. of the Complaints Procedure.
• If litigation is not simply threatened or envisaged, but actually pending in a court of law, clause 1.7.3. enjoins the Public Advocate, Ombud, or Chair of Appeals to stop the proceedings at once. The Complaints Procedure affords no general discretion to the Public Advocate or Ombud. They may only continue if “it is shown that the issue complained about is not among those that the court is adjudicating”.

SKG’s pending defamation action

28. SKG, Ms Mbiza, and Mr Du Plessis claim general damages of R750 000-00 from Sunday World.
29. According to the particulars of claim, this claim is based on an article published on 11 November 2024 titled, “Public Works probes SKG Africa over corruption allegations”.
30. This article is not one of the articles complained about in the Press Council process. However, it should immediately be noted that the plaintiffs in the action complain about the alleged imputation in the said article that “Ms Mbiza is being used by Mr Du Plessis as a BEE front”, that “SKG Africa is not empowered”, and that “there is substance to these allegations and criminal prosecution will follow”.
    The plaintiffs in particular complain that Sunday World repeated the allegations of Mr Andile Mngxitama, a member of Parliament representing the MK Party. Similar grievances are raised against Sunday World in the Press Council complaints.
31. SKG, Ms Mbiza, and Mr Du Plessis also claim more than R244 million from, amongst others, Sunday World, as special damages.
32. In support of this claim, the plaintiffs allege that Sunday World had a duty of care not to publish false statements of and concerning any person, including SKG Africa. In setting out how Sunday World allegedly breached this duty of care, the plaintiff explicitly relies on the fact that Sunday World is bound by “the rules of ethics and press codes for journalists”. The pleading then proceeds to quote large parts of the Press Code, including the duty to seek pre-publication comment from the subjects of critical reportage (clause 1.8), to verify the accuracy of information (clause 1.7), not to publish inaccurate, misleading or distorted information (clauses 1.1. and 1.2), to exercise care and consideration in matters involving individuals’ private lives (clause 3), etc. In layman’s terms, the plaintiffs allege that Sunday World acted unlawfully by not upholding the standards required by the industry codes of ethics.

“Unless it is shown not to be the same subject matter”

33. As I have already stated, there is in my view no general discretion for the Public Advocate or Ombud to allow a continuance of the process once there is actual pending litigation. The discretion is confined to situations where “it is shown that the issue complained about is not among those the court is adjudicating”.
34. Mr Malatji, on behalf of Sunday World, argues that the Press Ombud complaints and pending litigation is intertwined. He says Sunday World has had to retain senior counsel at vast costs to defend the publication in the High Court action and cannot be expected to proceed with the Press Ombud’s process.
35. In requesting an adjudication of the complaint, Mr Sim argues that the pending defamation action relates only to an article published on 11 November 2024 which was not referred to the Ombud and which was authored by a different journalist (Ms Kgobotlo) than the previous three articles (Mr wa Afrika).
36. Mr Sim says a purposeful interpretation of the Complaints Procedure means that clause 1.7.3. is “aimed at seeking to avoid the adjudication of a matter by (the Ombud) when that very matter and corresponding relief is serving before a court”. In amplification thereof, Sim states that the court is being called upon to determine “as to whether the statements made by (Mr) Mngxitama are defamatory (and) as to whether the publication of the defamatory statements amounts to Sunday World being liable for defamation”.
37. The Ombud, so the complainants argue, are called upon to merely adjudicate whether there were breaches of the Press Code.
38. I agree with Mr Sim’s synopsis of the different roles of the Ombud and the Court. This office has repeatedly stressed in rulings that it is not a court of law. (See, for example, ASRM Coalition vs BloemNews (2024), Mathys v EWN (2021)) The Ombud cannot, and will not, make a determination that any party acted unlawfully or illegally, or contravened specific legislation. Similarly, there can never be a finding that a publication defamed a complainant.
39. What I disagree with, is the point of departure that “corresponding relief” in the two processes is a relevant factor at all. The relief can never correspond when the Ombud has no jurisdiction to make findings of lawfulness, liability, or damages.
40. The aim of the provision in clause 7.1.3. of the Complaints Procedure cannot be limited to avoid a double adjudication for the sake of avoiding duplication. It is aimed at avoiding prejudice to subscriber members and an abuse of the Press Council’s procedures.
41. It is against this backdrop that I am to consider whether it has been shown that the “same issue” is not being considered in the pending litigation.

The complaints with the Ombud

42. It is undesirable and inappropriate to undertake a forensic analysis or comparison between the Press Ombud complaints and the particulars of claim in the pending litigation. A succinct summary will suffice to illustrate the intertwined nature of the Press Ombud complaints with the issues raised in the particulars of claim.
43. The first article complained about to the Ombud was published under the headline, “Property company with the lion’s share of state tenders faces probe”, on 14 September 2024. According to the complainants, the article created the false impression that there are credible accusations of BEE fronting and corruption against them. Moreover, there is a complaint that a certain document or extract thereof was “unlawfully obtained” by the journalist and the complainants demanded to know the source thereof.
44. The second complaint – based on further reportage by Sunday World – added an allegation that the journalist authoring the articles under complaint was “not acting independently” and that he has “become the mouthpiece of, what is clearly a concerted and determined smear campaign aimed at the complainants”. These allegations are closely aligned to the plaintiff’s case for special damages, even though they do not attach all the articles as annexures to the combined summons.
45. A third complaint followed when Sunday World continued publishing articles on the same subject matter. The complaint again highlights an alleged pattern of repeating allegedly false allegations made by Mr Mngxitama. Again, it is hard to imagine that these allegations of persistent coverage in the face of the plaintiff’s rebuttals will not feature in some way in a claim for special damages.
46. The central question whether the pending action in the High Court includes “the issue(s) complained about”, the answer must be in the affirmative:

• It matters little that the quoted article in the summons was written by a different journalist than the three articles complained about at the Press Council. The publication is vicariously liable for whatever any of its journalists published.
• The articles of the Sunday World followed on each other as a series. As was determined by the Constitutional Court in The Citizen 1978 (Pty) td and Others v McBride 2011 (4) SA 191 (CC), a court will consider whatever was published as part of a series in that specific context. The article of 11 November 2024 attached as annexure “POC13” to the summons will not be considered in isolation and it is unlikely that neither the plaintiffs nor defendants will refer to the series of articles leading up to the 11 November 2024 article.
• In requesting an adjudication, the complainants seek to differentiate the issues before the Ombud and their claim for general damages based on annexure “POC13”. I am not convinced that these issues are not intertwined. However, even if this could be shown that there is a difference between the Press Ombud complaints and the complainants’ claim for general damages, the arguments disregard “claim 13” in the combined summons for special damages. As already stated above, many of the individual complaints submitted to the Press Council fall squarely within the ambit of what the plaintiffs seek to prove in their claim for special damages.

47. Sim implored me to consider a ruling by my predecessor in Hanna vs News24.com (2021) and to hear “issues in the complaints that are of a journalistic nature and are not, based on any interpretation, before the Court”.
48. The Hanna matter concerned an inquiry by the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL). The matter did not deal with pending litigation. The publication (News24) was not under investigation by the CRL and was not a defendant in any claim for damages. There were no considerations of prejudice or the integrity of the Ombud’s procedure that are comparable to the current matter.
49. In addition, the entire claim against Sunday World that is pending before the court is journalistic in nature. The claim is that Sunday World did not uphold journalistic standards and are therefore liable for damages.

Conclusion

50. The importance of making the Press Council’s procedure accessible to the public has been stressed in a number of rulings. The office of the Ombud is slow to entertain procedural objections at the risk of depriving complainants an opportunity to ventilate their complaints. (See: Roux vs News24 (2022), SA BDS Coalition vs SA Jewish Report (2021).)
51. The issue of pending litigation is, however, not a technicality. It involves fundamental issues involving the accessibility of, fairness, and integrity of the Press Council’s complaints mechanism.
52. The complainants are fully entitled to approach the courts to enforce their rights. Plaintiffs generally have three years to institute an action for damages against a media defendant before such a claim becomes prescribed. By that time, the Press Ombud procedure would have been long finalised.
53. The complainants in this matter exercised their rights to approach the courts. The unfortunate consequence is that the Press Council procedure cannot proceed.
54. The Public Advocate’s decision to stop proceedings in terms of clause 1.7.3. of the Complaints Procedure is upheld.

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

14 April 2025

[1] Clause 6.1.2. empowers the Ombud or Chair of Appeals to require any allegation of fact to be verified on oath. However, I am not aware of any instance where this was enforced.

[2] Minister of Safety and Security v Seymour [2007] 1 All SA 558 (SCA) at para 20.