Complainant: Adv Johnathan Kaplan, instructed by Mr L Fuchs, attorney Harry Goss Attorneys.

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1 DATE OF HEARING: 14 FEBRUARY 2008 CASE NUMBER: 03/2008 LOONAT COMPLAINANT vs RADIO ISLAM RESPONDENT TRIBUNAL: Prof Kobus van Rooyen SC (Chairperson) Prof Henning Viljoen Prof Jacqueline Heaton Complainant: Adv Johnathan Kaplan, instructed by Mr L Fuchs, attorney Harry Goss Attorneys. For the Respondent: Adv N Jagga instructed by Zuneid Osman Attorneys, Bedfordview, accompanied by Mr IS Variava, Programmes Manager, Mr. H.A.E. Dhorat - Station Manager, Mr. Abdurehman Abed -persenterjournalist, of Radio Islam. Dignity and reputation- host implying that complainant had been involved in fraudulently obtaining an extension of a work permit such inference not justified on the facts. Court papers in motion proceedings which have not yet been decided on by the Judge, may not be used to substantiate an accusation of fraud. Loonat vs Radio Islam, Case No: 03/2008(BCTSA).. SUMMARY The Registrar of the Commission received a complaint from a Mr Loonat, stating that his reputation had been invaded by Radio Islam as a result of remarks by a host that he had been involved in fraudulently obtaining an extension of a work

2 2 permit for a Mr Patel; in fact, that the papers which granted the extension, were fraudulent. The Tribunal held that the host had not followed the legally correct approach. He could not, merely because Mr Loonat had refused to take part in the programme, then commence implicating him in fraud. It, accordingly, serves no purpose to argue that Mr Loonat was invited to defend his position on air. For the host to accuse Mr Loonat, directly or indirectly, of fraud or involvement in fraud, amounts to a serious violation of his reputation and dignity in terms of clause 38 of the Broadcasting Code. The Tribunal found that the Broadcaster had contravened clause 38 of the Code. The sanction was that the Broadcaster must broadcast a prescribed statement and pay a fine of R JUDGMENT JCW Van Rooyen [1] The Registrar of the Commission received a complaint from a Mr Loonat, stating that his reputation had been invaded by Radio Islam. A host on a programme had made remarks that implied that he had been involved in fraud ulently obtaining an extension of a work permit for a Mr Patel; in fact, that the papers which granted the extension of the permit were fraudulent and that Mr Loonat had been involved in this process. [2] On the 17 th August 2007 a host on Radio Islam presented a programme on the detention of a Mr Patel, who was being held in the Lindela Repatriation Centre for purposes of deportation. The basis for his dete ntion related to alleged forged documentation in connection with his work permit. The host firstly introduced the matter by referring to a pending application before the High Court against the

3 3 repatriation of Mr Patel. In the process he remarked that Mr Patel had received fake certificates to fake letters and whatever, it is the whole corrupt way of getting his immigration or his residence permit or whatever it may be, by a gentleman or an attorney by the name of... who is actually working in this immigration and consulted and also an Ismail Loomat. In an interview with Mr Patel s wife she, inter alia, explained that her husband is a wonderful person, that he would not do anything wrong and that they had believed that their documentation was valid. She remarked that especially this Ismail Loonat (has) been rude to me. The host then remarked that they (must) have paid a lot of money to Mr Loonat and then said : Obviously and who else was involved besides Ismail Loonat. She then explains that, at first, it was another attorney who was involved. Two years later they went to Ismail Loonat, who told them that it would be no problem to have the permit extended. They then accepted that everything was in order. A year later they established that all was not in order. The host then said: The way in which they obtain(ed) it...was obviously fraudulent.... Then she sa id : Yes it was fraud. After that the host interviewed an attorney, Mr Ebrahim, who was involved in the court application. He, inter alia, said the following to Mr Ebrahim: All right, we have just spoken to (Patel s wife)...she mentioned two very crucial names here, she said that these people were very rude to her and her husband in obtaining these fraudulent documents...the names were Ismail Loonat and an attorney...what do you know about these people? Mr Ebrahim then responds by saying that he would not respond to the question, since these two men should be given the opportunity to respond. [3] Before this Tribunal reference was consistently made to the papers before the High Court. It was argued by Respondent s counsel that the papers implicitly justified the host s stating that the extension papers were obtained fraudulently. I do not think that it would serve any purpose to deal with this aspect further. Court papers in motion proceedings serve to set out the dispute. Allegations under oath are made from both sides and ultimately the Judge decides the matter on the

4 4 papers or refers the matter to trial, either fully or in regard to certain aspects. If such a matter is reported on it must be made clear that allegations were made by the parties involved. In fact it would be prudent not to discuss a matter of this nature, since the discussion might even amount to contempt of court in the sense that it would violate the sub judice rule. Nothing is final until the Judge has ruled on the matter. Only once the Judge has made a finding that fraud had indeed been involved, a broadcaster would be permitted to report that the Court has found that fraud had been committed. [4] The host did not follow the legally correct approach. He could not, merely because Mr Loonat had refused to take part in the programme, commence implicating him in fraud. It, accordingly, serves no purpose to argue that Mr Loonat was invited to defend his position on air. For the host to accuse Mr Loonat, directly or indirectly, of fraud or involvement in fraud, amounts to a serious violation of his reputation and dignity in terms of clause 38 of the Broadcasting Code. [5] Radio Islam must take responsibility for the conduct of its hosts. Accordingly, the Radio Station is held to have been in contravention of clause 38 of the Broadcasting Code. The Complainant has requested an apology on air. This would, on the face of it, seem to be a reasonable request. However, we need to hear from the Respondent whether it has a different proposal. The Respondent is referred to clause 14 of the Constitution of the BCCSA in so far as possible sanctions are concerned. [6] We have now received argument from both sides as to sanction. The Complainant s attorneys argue that the invasion of the dignity of their client and the effect on his reputation in the community must be regarded as serious. An apology plus the maximum fine of R should be ordered. Conversely the Respondent s attorneys argue that an appropriately formulated apology on air, repeated as often as this Tribunal directs, would be a sufficient sanction. They

5 5 have also argued that, in so far as the fine is concerned, no evidence has been put forward as to the damage indeed suffered by the Complainant. Furthermore that, as a community radio, the financial means of the Respondent are limited and that by imposing a fine, the community would, indirectly, be prejudiced. [7] Clause 14 of the Constitution of the BCCSA provides as follows: Following any investigation of an alleged infringement of the Code by a signatory, the adjudicator or, as the case may be, a Tribunal, the Adjudicator or Tribunal may 14.1 dismiss the complaint; 14.2 reprimand any respondent adjudged to have been guilty of an infringement of the Code; 14.3 direct that a correction and/or a summary of the findings of the Adjudication Committee be broadcast by the respondent in such manner as may be determined by the Committee; impose a fine not exceeding R50,000 upon any respondent adjudged to have infringed the Code, whereupon the fine so imposed shall be a debt due to the BCCSA and recoverable as such; 14.6 in its reasons for its findings, record criticism of the conduct of the complainant in relation to the complaint, where such criticism is in its view warranted; 14.7 make any supplementary or ancillary orders or directions that it may consider necessary for carrying into effect orders and directives made in terms of this clause and, more particularly, give directives as to the broadcasting of its findings. [8] From the above it appears that the ordering of an apology is not provided for. The reason for this omission must have been the uncertainty whether the Roman- Dutch law s amende honorable is still part of our law. Melius de Villiers in The Roman and Roman-Dutch Law of Injuries at 177, stated the following: 'In the systems of jurisprudence founded on Roman law a legal remedy has been introduced which was entirely unknown to the Romans, known as the amende honorable.... This remedy took two forms. In the first place, there is the palinodia, recantatio or retractio, that is a declaration by the person who uttered or published the defamatory words or expressions concerning another, to the effect that he withdraws such words or expressions as being untrue; and it is applied when such words or expressions are in fact untrue. In the second place there is the deprecatio or apology, which is an acknowledgment by the person who uttered or published concerning another anything which if untrue would be defamatory, or who committed a real injury, that he has done wrong and a prayer that he may be forgiven.' Willis J 1 has held that the remedy is still part of our law and Mokgoro J, in a 1 Mineworkers Investment Co (Pty) Ltd v Modibane 2002(6) SA 512(W).

6 6 minority judgment in the Constitutional Court 2 has expressed the view that even if the remedy was not part of our law, ubuntu required restorative justice of this kind. Lewis JA has referred to the amende honorable as a new remedy and that, in the light of the majority of the Court s rejection of the defamation claim, it was unnecessary to decide whether the remedy is still part of our law. 3 Generally, the following observation of Moseneke DCJ is also relevant for the deciding of sanction in the present matter: [92] The extent of sentimental damages for defamation has implications for the properly mediated connection between dignity and free expression. It is plainly so that overly excessive amounts of damages will deter free speech and foster intolerance to it. As it is often said, robust awards will have a 'chilling effect' on free expression, which is the lifeblood of an open and democratic society cherished by our Constitution. On the other hand, as Smalberger JA observed in Van der Berg v Coopers and Lybrand Trust (Pty) Ltd and Others 4 'a person whose dignity has unlawfully been impugned deserves appropriate financial recompense to assuage his or her wounded feelings'. I therefore think there is a very strong argument to be made that the assessment of damages in a defamation suit is a constitutional matter and I will assume in favour of the applicant that it is. However, as will appear from the reasoning below, it is not necessary to finally decide the issue in this case. [9] In Young v Shaikh 5 Nel J did not seem impressed by the effect of the amende honorable. On the facts before him, the learned Judge refers to a half-hearted apology on the papers before the Court as not serving any purpose. Further, that freedom of expression did not include the right falsely to attack the integrity of a fellow citizen for selfish reasons which had nothing to do with public benefit. And if the award which the Court intended to make would have a 'chilling' effect on possible future and similarly baseless and selfish attacks on the integrity of others, it would certainly be an additional reason not to make use of the amende honorable. An apology in a plea and a half-hearted apology in evidence could certainly not be regarded as adequate. It was held that the defendant had shown no compunction when attacking the integrity of the plaintiff and was indifferent to any financial harm which his baseless accusations could have caused. In the circumstances there should not be any reasons to try to avoid serious financial harm to the culprit.... Having regard to the often expressed reluctance of our Courts to award huge amounts as damages for defamatory statements, R Dikoto v Mokhatla 2006(6) SA 235(CC) at para [92]. 3 Mthembi-Mahanyele v Mail & Guardian Ltd & Another 2004(6) SA 329(SCA) (2) SA 242(SCA).

7 7 was considered to be an appropriate award. In the result, the defendant was ordered to pay the plaintiff the amount of R [10] The attorneys for the Respondent offer to publish an apology. The apology tendered would include that the remarks are unconditionally retracted and were without any foundation. However, we are not convinced that the tendered apology refers to a sincere apology in this case. In fact, the Respondent argued that the Complainant has not proved that his reputation has been affected. Even after having been found guilty of a contravention of the Broadcasting Code, the Respondent still argued that the Complainant had not offered evidence of the damage he had suffered. The Respondent therefore is apparently still of the view that an apology is not really required. The Tribunal therefore finds that to permit the Respondent merely to broadcast an apparently insincere apology would not be a sufficient sanction for contravention of the Code. Generally, it should be borne in mind that the Tribunal is not permitted to order that an apology be broadcast since the Constitution of the BCCSA does not provide for such a sanction. However, when a sincere apology is tendered, the Tribunal will take it into consideration in determining what the sanction would be, especially in regard to the amount of a fine, where a fine is appropriate. With regard to the Respondent's contention that a fine ought not to be imposed because the Complainant has not offered evidence of the damage he has suffered, it should be noted that a fine that is imposed for contravention of the Broadcasting Code is not the same as an amount of sentimental damages that is awarded if a court finds that a person has been defamed. The Complainant need therefore not prove the extent of his or her damages. The extent of the damage the Complainant suffered may be a factor the Commission takes into consideration in determining the amount of the fine that it imposes, but the Commission clearly is not bound to impose a fine that corresponds to, or is related to, the extent of the damage the (3) SA 45(C). 6 Quote from the head note to the judgment.

8 8 Complainant suffered. If it were different, the upper limit of R for a fine would not have been included in Clause14 of the Constitution of the BCCSA, for it is clear that a Complainant may suffer damage in excess of R [11] We have come to the conclusion that the Respondent must, before 20 April 2008, on two occasions (one during the morning between 07:00 and 08:15 and one during the evening between 19:00 and 20:15 in a newscast) broadcast the following: In August 2007 a host on Radio Islam presented a programme on the detention of a Mr Patel, who was being held in the Lindela Repatriation Centre for purposes of deportation. The basis for his detention related to alleged forged documentation in connection with his work permit. In the course of the programme, the host implied that Mr Ismail Loonat had been involved with Mr Patel's forged documentation. Mr Loonat filed a complaint with the Broadcasting Complaints Commission against Radio Islam. The Broadcasting Complaints Commission found that it was impermissible for Radio Islam to have implicated Mr Loonat in fraud or involvement in fraud. Radio Islam herewith unconditionally retracts the remarks that implicated Mr Loonat in fraud or involvement in fraud and state that they were without any foundation. [12] In view of the seriousness of the contravention of the Broadcasting Code the Tribunal further imposes a fine of R8 000 on Radio Islam. In determining the fine it was taken into consideration that a community broadcaster is not permitted to divide profits amongst its members and that the profits must be re-invested in the station. Accordingly, a fine of R50 000, as proposed by the complainant, will indirectly affect the quality of the service to the community, which the radio

9 9 station serves. That would be unfair. The fine is to be paid to the Registrar in equal amounts over a period of four months as from 31 May The complaint is accordingly upheld. The Broadcaster is found to have contravened clause 38 of the Code, is required to broadcast the above-mentioned statement and to pay a fine of R KOBUS VAN ROOYEN SC CHAIRPERSON Commissioners Viljoen and Heaton concurred.