Media 24 Holdings (Pty) Ltd v Chairman of the Appeals Board of the Press Council of South Africa and Another (19001/2014) [2014] ZAGPJHC 194 (28 August 2014)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 19001/2014

DATE: 28 AUGUST 2014

In the matter between:

MEDIA 24 HOLDINGS (PTY) LTD........................................................................................Applicant

and

THE CHAIRMAN OF THE APPEALS BOARD

OF THE PRESS COUNCIL OF SOUTH AFRICA.....................................................First Respondent

MS NADINE HAMMAN...........................................................................................Second Respondent

SUMMARY:

Review Media – Press Council of South Africa – complaint lodged with Ombudsman of Press Council – review in terms of sec 6(2) of Promotion of Access to Justice Act 3 of 2000 (“PAJA”) – decision of Chairman of Appeals Board of Press Council in refusing application for leave to appeal finding of Ombudsman of Press Council – contravention of sec 8.3 of the South African Press Code – sec 154(3) of the Criminal Procedure Act 51 of 1977 – identification of minor child facing criminal charges – Press Complaints Procedures – principle of best interests of minor child of paramount importance – no valid grounds or exceptional circumstances advanced to either review or substitute

decision of Chairman – review application dismissed.

REVIEW JUDGMENT

MOSHIDI, J:

[1] This review application came before me in the unopposed motion court. It was heard in camera at the request of the applicant.

THE RELIEF CLAIMED

[2] The applicant in the notice of motion, sets out the relief sought in the following terms:

“1. Reviewing and setting aside the first respondent’s ruling in the Press Council case between Huisgenoot and Nadine Hamman (the second respondent) with case number 441/2014.

2. Referring the appeal of the Ombudsman’s ruling in the Press Council case between Huisgenoot and Nadine Hamman (the second respondent) back to the first respondent for consideration in accordance with the Press Council of South Africa’s Complaints Procedures …”

The third and fourth prayers deal with the issues of costs in the event of any opposition by the respondents, and alternative relief,

respectively.

THE PARTIES

[3] The applicant is a company and the owner and publisher of the magazine Huisgenoot, with its head office in Cape Town. The first

respondent is the Chairman of the Appeals Board of the Press Council of South Africa, the Honourable former Judge President of the High Court of South Africa, Gauteng Division, Mr Justice B M Ngoepe (“the Chairman”). The second respondent is Ms Nadine Hamman who is the complainant in these proceedings (“the complainant”). Both the Chairman and the complainant did not file any opposing papers, with the Chairman abiding the decision of this Court. The matter was, as mentioned before, heard in camera.

THE CRISP ISSUE FOR DETERMINATION AND THE BACKGROUND

[4] The crisp issue for determination is whether the Chairman in refusing the applicant’s application for leave to appeal

against the decision of the Press Council Ombudsman (“the Ombudsman”) was correct. On 5 December 2013 the Ombudsman, pursuant to a complaint initiated by the complainant found that the applicant, through the publication in the Huisgenoot on 14 November 2013, identified the minor child who was charged with the murder of his parents and his sister at Griekwastad, Northern Cape Province. The finding was that the applicant had breached certain provisions of the Press Code, as indicated below. The sanction imposed was a severe reprimand of the applicant. The Ombudsman also directed the applicant to publish a “kicker”, which essentially was an apology, on its front page with the words “Griekwastad: Press Ombudsman severely reprimands Huisgenoot”. The applicant, aggrieved by the finding and sanction imposed by the Ombudsman, applied for leave to appeal to the Chairman in terms of the provisions of sec 3.6 of the Press Council’s Complaints Procedures. The Chairman considered the application for leave to appeal. On 14 March 2014 the Chairman ruled that the applicant had demonstrated no reasonable prospects of success on appeal, and dismissed the application for leave to appeal. It is against this ruling that the applicant now seeks the review in terms of sec 6(2)(e)(iii), (f)(i) and (ii) and/or (I) of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).

[5] The background giving rise to the present review is indispensible. In the recent past, the Steenkamp family were attacked on their farm near Griekwastad. During the incident, the Steenkamp parents and a sister of a 17 year old boy were killed. The latter was the only surviving member of his family. He was arrested and charged with the murders. He is in fact the minor child referred to in this review.

[6] During March 2013, prior to the minor’s court appearance, the Judge President of the Northern Cape High Court, Justice F D Kgomo (“Kgomo JP”) granted certain orders regarding the court proceedings of the minor. This was in terms of the provisions of sec 153(1) of the Criminal Procedure Act 51 of 1977 (“the Criminal Code”), read with the Child Justice Act 75 of 2008 (“the Justice Act”), as discussed later in this judgment. Part of the order allowed the media and journalists, including applicant’s representative, Huisgenoot, to attend the court proceedings. The order of Kgomo JP, also prohibited any publication of the identity of the minor accused under any circumstances.

[7] In spite of the above court order, Huisgenoot on 14 November 2013 caused to be published on its front cover page, the following:

“Griekwastad: Huisgenoot By Don Steenkamp Se Voog – Oom Bennie oor seun – moet niemand dan lief wees vir hom?”

The front cover also contained a photograph of the minor and that of his uncle guardian, Oom Bennie. It is not in dispute that the name of the minor is Don Steenkamp.

[8] It is also not in dispute that, pursuant to the above publication, the complainant lodged a complaint with the Press Council Ombudsman. The gist of the complaint is that the publication of the minor’s photograph and his name was detrimental to his image and self-confidence, and in contravention of sec 8.3 of the Press Code. The complainant also contends that the publication described above was obtained by Huisgenoot by paying the guardian of the minor, Oom Bennie, and therefore contravening the provisions of sec 12 of the Press Code. I need to say no more about the latter provision.

[9] The Ombudsman’s finding was that, Huisgenoot in the publication, identified the minor who was facing charges of murdering

his parents and sister, even though Huisgenoot did not mention this as a fact, but that the publication was not in the public interest

and disregarded the best interests of the minor.

THE BEST INTERESTS OF A MINOR

[10] Section 8.3 of the South African Press Code, which is clearly based on sec 28(2) of the Constitution which affirms that a child’s

best interests are of paramount importance in every matter concerning the child, provides as follows:

“The press shall not identify children who have been victims of abuse, exploitation, or who have been charged with or convicted of a crime, unless a public interest is evident and it is in the best interest of the child.” (emphasis added)

The best interests principle is also to be found in sec 9 of the Children’s Act 38 of 2005, which provides as follows:

“In all matters concerning the care, protection and well-being of a child the standard that the child’s best interests is of paramount importance, must be applied.”

In protecting the best interests of minor children, and in regard to criminal proceedings, sec 154(3) of the Criminal Code provides that:

“No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of eighteen years or of a witness at criminal proceedings who is under the age of eighteen years: Provided that the presiding judge or judicial officer may authorize the publication of so much of such information as he may deem fit if the publication thereof would in his opinion be just and equitable and in the interest of any particular person.” (emphasis added)

In upholding the standard, and refusing the identification of minor child witnesses by the media nor anybody else, by name or otherwise,

either directly or indirectly, Bertelsmann J in Prinsloo and Another v Bramley Children’s Home and Others 2005 (5) SA 119 (T), at 121F said:

“Minor witnesses are consequently protected even from indirect disclosure of their identity: S v Citizen Newspapers (Pty) Ltd and Another; S v Perskorporasie van Suid-Afrika Bpk and Another 1980 (3) SA 889 (T) and, on appeal, S v Citizen Newspapers (Pty) Ltd en ‘n Ander; S v Perskorporasie van Suid-Afrika Bpk en ‘n Ander 1981 (4) SA 18 (A).”

The applicant also relies on this decision in the heads of argument referred to in more detail below.

[11] In the appeal matter of S v Citizen Newspapers (Pty) Ltd and Another; S v Perskorporasie van Suid-Afrika Bpk 1980 (3) SA 889 (T) referred to above, the court was called upon to, inter alia, interpret the word ‘information’ contained in sec 154(3) of the Criminal Code and the approach to be adopted in determining whether there was a contravention of the section. The Court, through Franklin J at 894G-H said:

“In my judgment the proper approach to be adopted in determining whether there was any contravention of the provisions of s 154(3) is to inquire whether the articles in question either reveal or may reveal the identity of CH as the accused person to a hypothetical ordinary, average reader of the newspaper articles in question who has no prior or special knowledge of any of the incidents or persons referred to in the article, and who therefore reads each article as a separate news item divorced from anything that may previously have been published about such incidents or persons.”

See also Boberg, 2nd ed, at 876, footnote 57.

[12] The wording used in both sec 8.3 of the Press Code, and sec 154(3) of the Criminal Code, is couched in peremptory terms and therefore make very little room for condonation in the event of non-compliance therewith. (Cf Sheray Investments v Town Council of Springs 1984 (4) SA 80 (W) 84-85.) The Ombudsman and the Chairman found that, upon a proper interpretation of the provisions of sec 8.3 of the Press Code, the applicant violated the said section. This on the basis that, having regard to the widespread media publication of the murders in Griekwastad, allegedly committed by a surviving minor of the family concerned. The applicant’s publication on its front cover page, as quoted above, indeed identified the minor, and also in the process, indirectly disclosed that the said minor has been charged with a crime. The Chairman, at the outset of his judgment mentioned that the publication was not in public interest or in the interest of the minor concerned. In regard to the question posed by “Oom Bennie” on the cover page, namely, “moet niemand dan lief wees vir hom?” (loosely translated, asking whether nobody should then love the boy), the Chairman found that, in the context of the matter, and the history thereof, “Oom Bennie”, clearly the uncle to the minor concerned, clearly conveyed to the average reader that somebody should still love this poor boy even though he was charged with murdering his family. This, coupled with the mention of the minor’s name and publication of his photograph, as well as his guardian’s name and photograph, was found to be clearly disclosing to all and sundry that the identified minor has been charged with the crimes of murder in Griekwastad. It is not in dispute that the name “Don Steenkamp”, as well as the accompanying photograph on the cover page referred to the minor. It is rather significant that the Chairman, in rejecting the applicant’s assertion that there was neither a contravention of sec 8.3 of the Press Code, nor of sec 154(3) of the Criminal Code, remarked that:

“It should be stated at the outset that whatever appeared on the cover page was neither in the public interest or in the child’s

interest.”

[13] For all the above reasons, the Chairman concluded that on the merits of the appeal, the applicant has established no reasonable prospects of success on appeal. The application for leave to appeal against the sanction imposed by the Ombudsman suffered the same fate. This was so mainly since the applicant’s contention that being ordered to publish the sanction would violate the very same Press Code and the Criminal Code, made no sense at all.

[14] At the conclusion of the hearing in camera before me, I requested counsel for the applicant to submit written heads of argument as I had certain concerns in just giving the order sought simply because the matter was unopposed. The heads of argument were filed promptly, for which I am grateful to applicant’s counsel.

[15] The present review is brought in terms of the provisions of sec 6(2)(e)(iii) of PAJA. In short, and paraphrased, the relevant provisions enjoin the Court to review an administrative action if the action was taken, “because irrelevant considerations were taken into account or relevant considerations were not considered”. In the heads of argument the applicant, in the final analysis, seeks an order reviewing the decision of the Chairman refusing leave to appeal, and for this Court to grant leave to appeal, and direct the Chairman to refer the matter to the Appeals Panel of the Press Council for consideration. This, in essence, means that this Court is called upon to vary or substitute the Chairman’s decision with its own decision.

[16]

16.1 The Complaints Procedures of the Press Council are aimed at rather speedy mediation and adjudication of disputes lodged by its members and by the public. The Complaints Procedures also provide that:

“Complaints be considered and mediated in an informal manner.”

More relevant to the present matter, clause 3.2 of the Complaints Procedures provides that:

“The Ombudsman may, if it is reasonable not to hear the parties, decide the matter on the papers.”

This in fact is precisely what happened in the instant matter. The applicant’s response to the complaint also formed part of the papers.

16.2 The procedure adopted above formed part of the grounds of appeal to the Chairman. The applicant complained that the Ombudsman, relied on the views of unnamed persons to bolster his own first impressions of the front cover page of Huisgenoot edition, quoted above, without cross-examination and thereby infringing the applicant’s right to a hearing and the audi alteram partem rule; that the Ombudsman elected not to have a formal hearing to obtain clarification before the adjudication panel in terms of the Complaints Procedures; considered information not placed before him, for example, “that is now common cause that the minor was accused of murder”, which conduct is not authorised by the Complaints Procedures of the Press Council; and that he viewed the article from his own subjective perspective, without applying the objective test of the ordinary, reasonable reader.

[17] Section 8(1)(c) of PAJA provides as follows:

“The court or tribunal, in proceedings for judicial review in terms of section 6(1), may grant any order that is just and equitable,

including orders –

(a) …

(b) …

(c) setting aside the administrative action and –

(i) remitting the matter for reconsideration by the administrator, with or without direction; or

(ii) in exceptional cases –

(aa) substituting or varying the administrative action or correcting a defect resulting from the administrative action; or

(bb) directing the administrator or any other party to the proceedings to pay compensation.”

SUMMARY OF APPLICANT’S REVIEW GROUNDS

[18] The present review, summarised from the heads of argument, contends that the Chairman, in refusing leave to appeal misdirected himself in several respects. These include that the decision was taken based on irrelevant considerations or having failed to consider relevant considerations such as the test to consider whether the impugned article revealed or might reveal the identity of the minor; the decision was not rationally connected to the information before the Chairman, or the reasons given for the decision.

ADMINISTRATIVE ACTION AND SOME CASE LAW

[19] There is no doubt that the decision of the Chairman in refusing leave to appeal amounted to administrative action as envisaged in sec 33 of the Constitution. Subsection (1) of this sec provides that:

“Everyone has a right to administration action that is lawful, reasonable and procedurally fair.”

In Simelane v Minister of Justice and Constitutional Development[1] the review concerned the question of the Amnesty Committee of the Truth and Reconciliation Commission in refusing amnesty to the

applicant. In dealing with the ‘standard of review’, the Court[2], at para [10] said:

“The South African courts have long accepted that a review envisaged in these proceedings under this Act is the ‘third type of review’, identified more than a hundred years ago in Johannesburg Consolidated Investments Co v Johannesburg Town Council 1903 TS 111, i.e. where Parliament confers statutory powers of review. Innes CJ, with reference to this kind of review, stated that a court could –

‘enter upon and decide the matter de novo, it possesses not only the powers of a court of review in the legal sense, but it has the functions of a Court of appeal with additional privileges of being able, after setting aside the decision arrived at … to deal with the matter upon fresh evidence.’

The test to be employed in reviewing the substance of a decision of the committee is an enquiry into the presence of rational connection

between the decision taken and the facts on which the decision is based, as well as the reasoning of the decision (see Nieuwoudt v Chairman, Amnesty Subcommittee, Truth and Reconciliation Commission; Du Toit v Chairman, Amnesty Subcommittee, Truth and Reconciliation

Commission; Ras v Chairman Amnesty Subcommittee, Truth and Reconciliation Commission 2002 (3) SA 143 (C).”

At para [11] of the judgment, the Court went on to say that:

“Section 6(2)(f) of the Promotion of Administrative Justice Act 3 of 2000 recognises an absence of rationality as one of a number of bases upon which administrative action may be assailed by means of judicial

review …”

In Deacon v Controller of Customs and Excise[3], which concerned the forfeiture and seizure of imported goods in terms of secs 87 and 88 of the Customs and Excise Act[4], Horn J, considered whether the administrative action involved, followed substantive and procedural fairness and compliance with the rules of natural justice. At 920B-C of the judgment, the learned Judge observed as follows:

“The provisions of s 33 of the Constitution has had the effect of widening the scope of common-law review. (Farjas (Pty) Ltd and Another v Regional Land Claims Commissioner, KwaZulu-Natal 1948 (2) SA 900 (LCC)). The protection of the rights of the individual has acquired legislative recognition and functionaries henceforth we have to constantly remind ourselves of the requirements of the law concerning the rules of fair and justifiable administration.”

Later on, on the same page, the learned Judge went on to say that:

“A Court will, in given circumstances, enquire into the merits of the matter in order to ascertain whether the statutory official had correctly

applied his mind to the problem at hand. This is not done with the object of substituting the decision of the administrative

authority, but rather to ascertain whether the outcome of the administrative decision and its resultant effect was rationally justifiable.”

Admittedly, both the Simelane v Minister of Justice and Constitutional Development as well as the Deacon v Controller of Customs and Excise matters (supra), involved administrative action in the context of statutory provisions[5]. In the present review, as pointed out by the applicant and, quite correctly so, in my view, the Press Council of South Africa is an independent regulatory mechanism for print and online publications. It is regulated by its Constitution[6]. It has established a self-regulatory framework to provide impartial and expeditious adjudication of disputes over editorial contents of publications through an Ombudsman and an Appeals Panel. However, in my view, the principles of review by this Court, enunciated above apply with equal force to the instant review.

[20] In Competition Commission v General Council of the Bar of South Africa[7], the Court had to consider applications by the Bar Council for certain exemptions based on its rules from the application of sec 4 of the Competition Commission Act[8]. At para [14], in reviewing and setting aside the respondents’ decision and remitting the exemption applications to the respondent for reconsideration, the Court said:

“It is not necessary to deal at length with a reviewing Court’s power to substitute its own decision for that of an administrative

authority. Suffice it to say that the remark in Johannesburg City Council v Administrator, Transvaal, and Another that ‘the Court is slow to assume a discretion which has by statute been entrusted to another tribunal or functionary’ does not tell the whole story. For, in order to give full effect to the right which everyone has to lawful, reasonable and procedurally administrative action, considerations of fairness also enter the picture. There will accordingly be no remittal to the administrative authority in cases where such a step will operate procedurally unfairly to both parties. As Holmes AJA observed in Livestock and Meat Industries Control Board v Garda … The Court has a discretion, to be exercised judicially upon a consideration of the facts of each case, and … although the matter will be sent back if there is no reason for not doing so, in essence it is a question of fairness to both parties.” (footnotes omitted)

See also Premier, Mpumalanga v Association of State-Aided Schools[9].

[21] In the majority of the abovementioned case law, the review applications were successful for one or the other reason. Such

reasons are, regrettably, not present in the instant review. In the first place the applicant made full written submissions through their legal representatives to both the Ombudsman and the Chairman before their respective decisions were made (cf Deacon v Controller of Customs and Excise (supra). The Ombudsman duly exercised the discretion vested in him by sec 3.2 of the Complaints Procedures, quoted above, by deciding the complaint on the papers. There is no indication at all that the applicant had requested a formal hearing before the Ombudsman. The applicants are bound by, and are part of these informal but speedy procedures, as members of the Press Council of South Africa and of the Print and Digital Media South African (formerly PMSA). It has voluntarily placed itself under the jurisdiction of the Ombudsman. For these reasons, the applicant’s contention that the Ombudsman violated its right to a hearing and the audi alteram partem rule, is therefore without merit. (Cf Nortjé en ‘n ander v Minister van Korrektiewe Dienste [2001] 1 All SA 623 (A).)

THE CHAIRMAN’S FINDINGS

[22] In considering the application for leave to appeal, the Chairman had before him, all the relevant documentation and information, for, sec 3.8 of the Complaints Procedures requires that the grounds of appeal must be filed at the Ombudsman’s office. The applicant’s grounds of appeal were extensive, extending to some five pages, made up of ten pages, including the appeal against the sanction imposed. The Chairman delivered a simple, but well-reasoned judgment. He gave a brief background of the complaint, including that Don Steenkamp, a 17 year old was charged with the murders of his family and was the sole survivor in the incident, and that the incident and court proceedings were widely covered in the media. The Chairman proceeded to carefully interpret the provisions of sec 8.3 of the Press Code, quoted above, and having regard to the publication on the front cover of Huisgenoot, came to the conclusion that the identity of the minor, Don Steenkamp, had been adequately revealed to the ordinary reasonable reader, as the person charged with a crime, i.e. murders in Griekwastad even though there was no express mention that the minor was charged with a crime. It will be recalled that the article in question was printed in bold letters, mentioning the geographical area, Griekwastad; the name and picture of the minor, Don Steenkamp. It also mentioned the minor’s guardian, Oom Bennie, as well as depicting his photograph as well. In my view, all of these brought the applicant’s conduct squarely in conflict with the provisions of sec 8.3 of the Press Code. There was undoubtedly identification of the minor child or identification by inference, and which inference was reasonable in the circumstances of the case, as was held in S v Citizen Newspapers (supra). The Chairman concurred in the findings of the Ombudsman, even if it was for different reasons. The Chairman also found as disingenuous the contentions of the applicant to the contrary. In regard to the applicant’s appeal against the sanction imposed by the Ombudsman, the Chairman dismissed same as making no sense at all. The applicant argued that the sanction compelling it to publish it, would be a violation of the provisions of the Press Code. By then the so-called proverbial horse had bolted, and the applicant was solely responsible for such a result. In any event, the sanction imposed was a discretionary matter as provided for in the Complaints Procedures. It can hardly be described as excessive or unreasonable. For example, in Le Roux v Multichoice Channel 144 [2014] JOL 31770 (BCCSA) the complaint concerned the broadcasting of a film with an age restriction of 16. This was admittedly in contravention of clause 22 of the Broadcasting Complaints Commission Code of Conduct. In imposing a fine of R20 000,00, the Commission said: “The protection of children remains of cardinal importance.” In keeping with this principle, as well as the “best interests of a child” prescript, the sanction imposed in the present matter was, in my view, fair and equitable in the circumstances.

[23] For all the aforegoing reasons, the Chairman concluded that the application for leave to appeal had no reasonable prospects of success on appeal. With this finding, I cannot find any fault. There was no irregularity or misdirection committed by the Chairman. The Chairman had a discretion in the matter as is made clear by the provisions of the Complaints Procedures. There is no indication at all that the discretion was not properly exercised or that irrelevant matter was taken into account. The fact that the Ombudsman did not convene a formal hearing does not mean that the rules of natural justice have necessarily been violated. See Deacon and Controller of Customs and Excise (supra) at 917C-E, and Competition Commission v General Council of the Bar of SA (supra) para [16] at 619. In my view, it will truly be fruitless to remit the matter to the Chairman for re-consideration. He has already expressed his well-articulated views on the issue of reasonable prospects of success on appeal.

THE GROUND OF REVIEW TO SUBSTITUTE FINDING OF THE CHAIRMAN

[24] This Court has also been asked to substitute the order made by the Chairman, and grant leave to appeal, and further direct that the Chairman refers the matter to the Appeals Panel for consideration. The submission is not without problems for a variety of reasons. (See Competition Commission v General Council of the Bar of South Africa (supra) para [14]; and Premier, Mpumalanga v Association of State-Aided Schools (supra) at para [50].) However, in the light of my above finding that there is no valid legal ground to interfere with the decision of the Chairman, I discuss only briefly some relevant considerations.

[25] Although sec 8(1) of PAJA, provides that a court on review, may grant any order that is just and equitable, it goes on to stipulate that the substitution of administrative action by the administrator can only occur in exceptional circumstances. In Cora Hoexter at 489, it is said:

“The Act does not offer any guidelines as to what sort of cases might be exceptional, and in this regard the courts will surely continue to be guided by the principles established at common law, informed by the constitutional imperative that administrative action must be lawful, reasonable and procedurally fair. Fairness to both sides has always been and will almost certainly remain an important consideration.”

In Makhanya NO v Goede Wellington Boerdery (Pty) Ltd[10], the Court was called upon to consider, inter alia, whether the decision of the Tribunal was reviewable under PAJA and could be substituted by the Court a quo. At para [43] of the judgment, the Court stated:

“A case is exceptional when, on a proper consideration of the relevant facts, a court is persuaded that a decision to exercise the power in question should not be left to the designated functionary. That determination will be made with reference to established principles, like those in Johannesburg City Council (supra) informed by the constitutional imperative that administrative action must be lawful, reasonable and procedurally fair. As the Constitution enshrines everyone’s rights to lawful, reasonable and procedurally fair administrative action, a court has to have regard to considerations of fairness. There will be no remittal to an administrative authority in cases where such a step would operate procedurally unfairly.” (footnotes omitted)

See also Dumani v Nair[11], at para [32], and at para [33], where the Court rejected the appellant’s review of convictions in the following terms:

“The convictions would not be reviewable on the ground of material error of fact, nor under the guise of the provisions of section

6(2)(e)(iii) of PAJA viz ‘because irrelevant considerations were taken into account or relevant considerations were not considered’.” (See further para [28] of this judgment below.)

[26] In my considered view, on a proper consideration of the conspectus of the evidence placed before the Chairman, there are plainly no exceptional circumstances to review and substitute his decision that the applicant violated the provisions of sec 8.3 of the Press Code. Neither would it be reasonable or procedurally fair to do so. He had a discretion in the matter and concluded that there are no reasonable prospects of success on appeal to the Appeals Panel, on both the merits and the sanction imposed. In my view, the Chairman applied the correct test in matters of this nature. See, for example, Barnard v The State[12].

[27] I make the above finding fully mindful of the important role of the press[13], press freedom, and freedom of expression[14], in our democratic society. However, these rights are not limitless[15]. In discussing the role and functions of the press in South Africa, Yvonne Burns[16], says:

“One must agree with the view of the United States Commission and Freedom of the Press, which delivered its report in 1947, that society requires the following of the press:

· It must provide truthful, comprehensive and intelligent reports of daily events in a meaningful context. Reporting must be accurate and a distinction must be drawn between the fact and opinion …”

Section 154(3) of the Criminal Code is one of the laws of general application which limits press freedom. The other example is sec 63 of the Justice Act[17]. In particular, subsection (6) of the latter Act provides that:

“Section 154(3) of the Criminal Procedure Act applies with the changes required by the context regarding the publication of information.”

Finally, and more pertinent to the present matter, and in addition to sec 8.3 of the Press Code, sec 4.1 of the Press Code provides as follows:

“The press shall exercise care and consideration in matters involving the private lives and concerns of individuals. The right to privacy may be overridden by legitimate public interests.” (emphasis added)

All of these provisions, including sec 28(2) of the Constitution, emphasise “the child’s best interests” principle and to protect unwarranted identification of minor children in certain circumstances.

CONCLUSION

[28] For the above reasons, I came to the conclusion that the applicant has failed to show any ground on which this Court could or should interfere with the decision of the Chairman in refusing leave to appeal. There is also no case made out to either review or substitute the decision as contended by the applicant in the absence of exceptional circumstances as envisaged in sec 8(1) of PAJA. As to the guidelines on the meaning of exceptional circumstances, see M V Ais Mamas Seatrans Maritime v Owners, M V Ais Mamas, and Another 2002 (6) SA 150 (C) at 155; and S v Botha en ‘n Ander 2002 (1) SACR 222 (HHA). As stated in Simelane v Minister of Justice and Constitutional Development (supra)[18]:

“An attempt by this Court to substitute the decision of the Committee would constitute an unwarranted usurpation of powers entrusted to the public authority by the legislature (see Baxter (supra).”

The review application must fail. I have taken into account the fact that the Chairman did not file opposing papers and abided the decision of this Court. In any event, in my view, the fact that an application is unopposed does not automatically entitle the applicant to the relief sought. The Court retains its discretion to adjudicate based on the particular facts of each case.

ORDER

[29] In the result the following order is made:

1. The review application is dismissed.

2. There is no order as to costs.

__________________________________________

D S S MOSHIDI

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

COUNSEL FOR THE APPLICANT: C DREYER

INSTRUCTED BY: CLIFFE DEKKER & HOFMEYR INC

COUNSEL FOR THE FIRST

RESPONDENT: NO APPEARANCE

COUNSEL FOR THE SECOND

DATE OF HEARING: 22 JULY 2014

DATE OF JUDGMENT: 28 AUGUST 2014

[1] 2009 (5) SA 485 (C)

[2] Per Ndita J

[3] 1999 (2) SA 905 (SE)

[4] Act 89 of 1989

[5] The Promotion of National Unity and Reconciliation Act 34 of 1995 (sec 19(2)), and the Customs and Excise Act 91 of 1964, ss 44(6)(c), 87, 88 and 93, respectively.

[6] See para 8 of F/A read with annexure “B1” thereto.

[7] 2002 (6) SA 606 (SCA)

[8] Act 89 of 1989

[9] 1999 (2) SA 91 (CC) at paras [50] and [51]

[10] [2013] 1 All SA 526 (SCA)

[11] [2013] 2 All SA 125 (SCA)

[12] (891/2012) (2013) ZASCA 75 (29 May 2013) para [4]

[13] Government of the Republic of South Africa v Sunday Times Newspaper 1995 (2) SA 221 (T) 227

[14] Section 16 of the Constitution

[15] Section 36 of the Constitution

[16] Communication Law, 2ed 357

[17] Subsections (5) and (6)

[18] Para [46].