Press Ombud rules against City Press in case involving judge and sexual harassment claim

2 Sep 2024

Journalists need to be careful when repeating previously published allegations, especially in matters of dignity and reputation.

The Press Ombud found against City Press in a ruling published on 29 August.

The factual background to the ruling is as follows: Lindiwe Rusi is a judge of the Eastern Cape Division of the High Court, whose judge president has been accused by a court official of sexual harassment.

The judge president is currently on special leave, and a judicial conduct tribunal has been established to hear the complaint against him. If he is found guilty of serious misconduct, he may be removed from office.

On 3 December 2022, Judge Rusi called the court official who had lodged the complaint. There is a dispute as to what was said in the call.

According to Ray Hartle, in an article published in the Sunday Times on 5 March 2023, Judge Rusi “interposed herself into a formal process in which she had no role”. Hartle alleged that Judge Rusi had confronted the complainant “about her complaint against ‘uTata’”.

In the City Press article, published on 17 March 2024, under the title “Judiciary is not above criticism: Who judges the judges?”, Hartle repeated his then year-old allegation. He stated that neither Judge Rusi nor another judge had “offered an explanation of why they would regard it as appropriate to engage informally with an official whose complaint was the subject of a formal investigation by the Judicial Conduct Committee”.

‘Perpetuating narratives’

The article goes on to discuss an “open letter” to then Chief Justice Raymond Zondo from Judge Rusi “in which she (allegedly) accused (him) of perpetuating narratives about her contained in an anonymous complaint”.

In discussing what subsequently transpired, Hartle stands firm on his allegations about Judge Rusi’s call to the complainant: “However, let us put into context Rusi’s actions on which I reported: she called a complainant who had already made a formal complaint against (the judge president). She has never denied calling the complainant.

“Unless the call was entirely and unequivocally benign, unless Rusi’s statements during the call were agnostic to the complainant’s claim, Rusi interposed herself into a formal process in which she had no role, as far as I know.”

The problem with Hartle’s March 2024 article, the Ombud found, is that Judge Rusi had “(given) an explanation for her conversation with the young woman”. After Judge Rusi “took exception to the Sunday Times article (in 2023), … (it) subsequently published a follow-up article and updated the online version to include Rusi’s version of events, amongst other updates”.

Implicit in the ruling is that Hartle knew that this had happened.

“None of this is hinted at in the City Press piece,” the Ombud notes. “In fact, there is not even a bare denial from Rusi recorded in the piece. To the contrary, Hartle states in the piece that Rusi has not ‘offered an explanation of why (she) would regard it appropriate’ to contact the complainant. She did.” And it was the omission of this material fact from Hartle’s March 2024 article that sank his defence.

While the Ombud could find no “indication of malice from Hartle or the publication”, noting that the reporter “raises genuine issues in the public interest and nothing suggests an ulterior motive”, he nevertheless came to the conclusion that the “safe harbour” of clause 7 – a fair comment defence – was not open to Hartle, because he had not “taken fair account of all material facts that are either true or reasonably true”.

Clause was breached

So what is the outcome? Subject to certain well-recognised defences, clause 3.3 of the Press Code requires the media to “exercise care and consideration in matters involving dignity and reputation”. The Ombud found that this clause was breached by Hartle when he alleged that Judge Rusi had “improperly ‘interposed’ herself in a complaint about sexual harassment”, while omitting to mention her “denial and version”.

The remedy includes an apology “for not exercising care and consideration regarding her reputation by omitting her version”, an update to the online version of the article, and a note in that article that the update was made following a finding by the Ombud.

As is ordinarily required, “the wording of the update and apologies will be approved by the Press Ombud prior to publication”. DM

First published by GroundUp.

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‘Perpetuating narratives’

Clause was breached