Kormorant’s appeal to the Ombud’s ruling

APPEAL: KORMORANT

IN CASU: MATHIBEDI HOLDINGS V KORMORANT

Background:

On May 12 2018, the Press Ombudsman ruled in the matter of Mathibedi OTN Holdings (the complainant) v Kormorant.

The complaint instituted by the complainant centred on two reports published in Kormorant.

The first was titled “African Island resort for Schoemansville” and “DWS did not approve foreshore development.”

This appeal deals only with certain excerpts of the judgment.

  • The consideration of a third text:

The ruling acknowledges that a third text (titled “Land grab skulduggery”) was published after the complaint was lodged. The third report is used as background to help interpret the relevant material. On page 9 of his finding, Ombudsman Mr Johan Retief refers to a statement by Constitutional Court Justice Edwin Cameron that articles published within a reasonable space of time of each other may be interpreted within the same context. Accordingly, he interprets the first two reports in light of the third.

In Citizen 1978 (Pty) Ltd and Others v Mc Bride CCT 23/10 [2011] at paragraphs 180 to 189, the court deals with two opinion pieces dated September 10 and September 11, 2003. The court interprets the second piece by taking the first into consideration. Accordingly, Kormorant argues that the interpretation of a series of reports is done chronologically.

If this argument is accepted, it follows that the first two reports complained of cannot be interpreted in terms of the third report.

  • The meeting on May 7:

Correspondence prior to meeting.

After Mathibedi lodged his complaint, Kormorant responded. Mathibedi replied and Ombud Mr Johan Retief requested a site visit meeting in Hartbeespoort Dam. In correspondence to Ms Helene Eloff who represented Kormorant, Retief indicated on May 2 that the meeting would not be a hearing.

The meeting was scheduled for May 7. Based on Retief’s statement, Kormorant’s representatives did not prepare as they would have prepared for a hearing, nor did the paper compile a reply to the complainant’s reply to its response. Eloff and editor Deon van Huizen planned to do so after the site visit, should any additional disputes arise, but before an expected hearing.

Kormorant editor Deon van Huizen arrived at the meeting unprepared and unaccompanied by his legal advisor. The complainant was accompanied by two attorneys (who stated that they were there in their capacity as developers). Two employees from the Department of Water and Sanitation were also present.

To van Huizen, this felt like an ambush as the ‘meeting’ ended up being a hearing – Retief allowed evidence to be led, which he accepted, and made a ruling accordingly. Kormorant argues that the evidence led at the meeting should be considered ultra vires as it had been recorded in a scenario where van Huizen had been misled into not bringing evidence of his own along. Had van Huizen known that the ‘meeting’ would become a hearing, he would have asked sources to accompany him.

  • Were the Mathibedi’s actions on the land lawful?
  • Background:

The first text stated that the Department of Water and Sanitation had approved the development of the resort, and that the management of Schoemansville resort was not accordingly informed.

The second text stated that the DWS had not approved any application for development in the area and that approval would only be granted once all legal issues had been cleared. The same report stated that Mathibedi had already begun chopping down trees in the area. The same report indicated that a fence had been erected on the property.

The Ombud’s finding holds that this amounts to an allegation of illegal occupation.

The Ombud acknowledges that it falls outside his mandate to adjudicate on the third article, but uses the third article to interpret the second. The headline of the third article contains the words “skullduggery” and “land grab.”

The result of this interpretation of the reportage complained of, the Ombud finds that the reportage alleges that the Mathibedi’s illegally occupied the site.

  • The Ombudsman’s competency to make a finding on the legality of the Mathibedis’ actions:

Retief acknowledges that it does not fall within his mandate to decide whether the DWS, had it given the Mathibedi’s permission to utilise the land, acted wrongly or illegally. The Ombudsman is not the competent authority to rule on the legality or illegality thereof.

  • Inconsistent and nonsensical comment from the Department of Water and Sanitation:

In addition thereto, the inconsistent and nonsensical comment from the DWS caused a further predicament – all the parties face different versions from the DWS.

During the meeting on May 7, the Ombud spoke to two DWS officials who had accompanied the complainant and who were not the designated communication officials mandated to address the media.

At the meeting, these two persons told the Ombud that the development of the site had not yet been approved, but that the Mathibedi’s had been given permission to prepare the land in order for them to lodge a proper application for the proposed development.

Kormorant also sought comment from the Department of Water and Sanitation (the custodian of the land) through its designated spokesman, Sputnik Ratau. On April 30, media queries were sent with an indicated deadline of May 2. The spokesman did not reply on time and feedback was received on May 7. The feedback differed from that given to Retief on the same day.

On that day, Ratau stated on behalf of the department that the complainants’ proposed lease has been presented to the Lease Agreement Committee. It was recommended for approval, but had not yet been approved. The department awaited the appointment of a valuator which would precede the finalisation.

The spokesman confirmed that the complainant was not authorised to erect any permanent infrastructure on the land in question. When asked whether an environmental impact study (EIS) was necessary prior to a development on an environmentally sensitive area, the spokesman replied that the department was not aware that the area was environmentally sensitive.

According to the spokesman the area was earmarked for recreational purposes as per the Resource Management Plan for the dam. The spokesman said that the plan was discussed at public meetings. The spokesman added that conservation zones are indicated in terms of the resource management plan and that these zones will not be leased to interested parties.

The spokesman concluded that an applicant who successfully applies for a lease agreement from the DWS will not be exempted from complying with other applicable legislation. The spokesman stated that an environmental impact study would have to be done if one was necessary.

  • Was an EIS necessary prior to occupation in order for the Mathibedi’s to legally occupy the land?

Yes.

The National Environmental Management Act requires a developer to subject a listed activity to environmental authorisation prior to commencing with the activity. This is in terms of section 24 of the National Environmental Management Act 107 of 1998 (NEMA). In terms of this section, a notice had to be issued announcing which activities would be subject to prior environmental authorisation. In the Government Gazette of December 4, 2014, Environmental Affairs Minister Edna Molewa published a listing notice tabling the activities that may not commence without an environmental impact authorisation from the competent authority. Regulations 19 and 20 of the Environmental Impact Assessment Regulations, 2014 applies.

Activity number 12(xii) on the list is “infrastructure or structures with a physical footprint of 100 square metres or more” where such development occurs within a watercourse, in front of a development setback or if no development setback exists, within 32 metres of a watercourse.

As stated above, the Mathibedi’s had erected a fence surrounding the land in question. This fence surrounds an area exceeding100 square metres and is on the shorefront of the Hartbeespoort Dam. Accordingly, its erection should have been preceded by the required environmental authorisation.

The DWS’s spokesman referred to a Resource Management Plan for the dam. The existence of this plan, however, does not exempt land occupants from obtaining the required authorisation in terms of the National Environmental Management Act, nor does the zoning of the land.

None of the Department of Water and Sanitation’s inconsistent answers to questions surrounding the legality of the Mathibedis’ actions confirmed that the required environmental authorisation had been obtained prior to the fence being erected. Furthermore, the Mathibedi’s took exclusive use of land that was previously accessible to the public. From the above, it is gathered that they did so illegally.

Based on these facts, the conclusion of fact is that the Mathibedi’s had acted illegally in putting up a fence on the land they applied to lease.

  • Appeal: finding and sanction

In light of the above, Kormorant appeals the Ombudsman’s findings as set out below:
– The finding that Kormorant had acted wrongly in reporting that the Mathibedis’ acts on the land were illegal.
– Using the third text to interpret the first two and finding that Kormorant unjustifiably used the terms “land grab skulduggery.” From the above it is clear that the Mathibedis had acted unlawfully in erecting a fence on the land and the terms are therefore justified.
– The evidence allowed at the May 7 meeting should be considered ultra vires, as Kormorant was instructed not to prepare for a hearing, whereas the Mathibedi’s showed up prepared and with witnesses by their side. Had Kormorant known that the meeting would turn out to be a hearing, the editor would have been accompanied by witnesses who could, among other things, attest to the fact that the Mathebedis’ charges laid in connection with malicious damage to property, racism and intimidation had been withdrawn.

When the above is taken into consideration, Kormorant submits that the sanctions are disproportionate to the offences. Accordingly, Kormorant requests the Press Council to reconsider both the finding and the sanctions. with Ombud to submit tomorrow morning first thing.

  AUTHOR
Kormorant

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