Black First Land First vs. News24
Tue, Aug 29, 2017
Ruling by the Press Ombud
29 August 2017
This ruling is based on the written submissions of Mr Andile Mngxitama, on behalf of Black First Land First (BLF), and those of Adriaan Basson, editor of News24.
BLF is complaining about an article on News24 (online) of 24 July 2017, headlined GuptaLeaks: Gupta spin machine commissioned BLF’s Mngxitama.
BLF complains that the:
· story contained several inaccurate and unsubstantiated statements (details below – but mainly regarding the allegation that Mngxitama had met with members of the Gupta family and asked them for funding, and that the latter had instructed him to write an article about BizNews editor Alec Hogg on their behalf); and
· journalist did not afford him a right of reply.
The article said that BLF leader Mngxitama had not only met with the Guptas, he had also received an instruction to write an article about BizNews editor Alec Hogg on their behalf.
This has reportedly been revealed in the #GuptaLeaks “which shows that Mngxitama met with Gupta lieutenant Santosh Choubey in February 2016 and that he asked the family for funding around the same time”.
Mngxitama reportedly denied receiving any money from the Guptas “despite aggressively defending them”.
Before coming to the complaint as such, both sides make some preliminary remarks.
BLF complains that News24 breached sections 1.1, 1.2, 1.3, 1.7, and 1.8; sections 3.3.1, 3.3.2, 3.3.3, 3.3.4, and 3.3.5; and sections 6.1.1, 6.1.2, and 6.1.3 of the Press Code.
This mainly boils down to the complaint that the reportage was:
· untruthful, inaccurate and unfair;
· misleading in that opinion was stated as fact; and
As a result the complainant’s dignity and reputation was tarnished.
Referring to the hierarchy of sanctions to be applied, Mngxitama asks for the most severe of them (Tier 3, “serious misconduct”). He also asks this office to impose a penalty on News24 that would serve to deter it and others engaging in similar acts of misconduct.
Basson says News24 believes that Mngxitama, who has been found in contempt of a court order preventing him from intimidating journalists, is desperately clutching at straws to make a case showing him to be a victim of negative media coverage.
He cites the following in this regard:
· The BLF protest outside the house of Peter Bruce, editor-at-large at the Tiso Blackstar Group, during which two senior editors who came to check on Bruce were physically assaulted;
· The South Gauteng High Court then granting an interdict against Mngxitama and the BLF following an application by the SA National Editors’ Forum (Sanef) (to stop them from harassing, intimidating and threatening journalists and editors over their reporting on alleged state capture);
· The BLF nevertheless proceeding to disrupt a gathering of amaBhungane organised to discuss the Gupta leaks project at a function in Johannesburg, which prompted Sanef to return to the high court with a contempt of court application; and
· Judge C Weiner finding Mngxitama and the BLF in contempt of court on 8 August 2017 and sentencing him to three months imprisonment, suspended on condition that neither he nor the BLF breaches the interdict again. Judge Weiner also expanded the ambit of the interdict to include all journalists.
The editor argues that BLF’s attacks on, intimidation of and harassment of journalists, including journalists working for News24, ensued after the media published revelations from the leaked Gupta e-mails, showing the extent of state capture by the family. “Included in the emails were references to interactions between Mr Mngxitama and employees of the Gupta companies. This background is important when judging this complaint,” he argues.
Citing some of Mngxitama’s statements as well as some Facebook messages by well-known BLF members, Basson argues that the allegations in the article are not unfounded. He says Mngxitama apparently does not consider the association with the Guptas as something that has brought him into disrepute – in fact, he appears to have taken some pride in it, as well as in his fight with the media.
He submits that the documents on which the article was based were authentic.
Mngxitama replies that the above-cited allegations made by News24 are not relevant to his complaint.
He adds that, if this ruling goes against News24, the media house would in fact become a repeat offender as both the Ombud and the Appeals Panel have previously found in favour of BLF and against News24.
He concludes, “It is important to note that News24 in [an] attempt to provide a context (albeit an irrelevant context) … has deliberately left out the fact that the Press Ombud has previously ruled against it in favour of BLF as indicated above. I submit that the conduct of News24 in this respect is an attempt to taint the mind of the Press Ombud to the extent that it would deprive him/her of an open mind to render an impartial ruling or decision in this case.”
Story (par. 1): “Black First Land First leader Andile Mngxitama did not only meet with the Guptas, he also received an instruction to write an article about BizNews editor Alec Hogg on their behalf.”
Mngxitama: The allegation that he had met with the Guptas and was given an instruction by them to write an article about BizNews editor Alec Hogg on their behalf was presented as fact, while those statements have not been verified – not previously, and not via the contents of the article in question. The statement is therefore misleading.
Basson: There are a number of e-mails between Mngxitama, the Guptas and their employees in the Gupta leaks which show they have met, that the former had requested funding from them, and that a Gupta family member had sent him an instruction to write about and send questions to Hogg. (He provided this office with copies of these e-mails.) This information was also previously published in a TimesLive article in May, which was followed up by many similar reports.
· The link provided in the article to the “leaked e-mails” did in fact not lead to such correspondence – it led to what was described as “All the reports in one place...” However, these reports were of a hearsay nature, and the authenticity of the e-mail in question remains in question.
· He has also not seen the actual “e-mail” showing that he requested funding from the Guptas.
· The authenticity of the “e-mails” attached to the News24 response is also in question – those documents could have been generated by anyone.
· He was not given an opportunity to present his side of the story which, in turn, has prejudiced him.
* * *
Story (par. 2): “This has been revealed in the #GuptaLeaks which shows that Mngxitama met with Gupta lieutenant Santosh Choubey in February 2016 and that he asked the family for funding around the same time.”
Mngxitama: No evidence could be found to substantiate these allegations.
Basson: The link in the article directed readers to other Gupta leaks stories. Later in the article a picture of the main e-mail, which showed the instruction to Mngxitama, was posted.
Mngxitama: News24 provided a link leading to the article titled “#GuptaLeaks collaborative investigation”, but that link (and others) did not offer any evidence to substantiate the allegations in question.
* * *
Story (par. 3): “Mngxitama has denied receiving any money from the Guptas despite aggressively defending them.”
Mngxitama: This statement suggested that since he had been “aggressively defending” the Guptas, he was therefore receiving money from them. “This is fallacious reasoning. The conclusion or inference that I have been receiving money from the Guptas does not follow from the premise that I have been ‘aggressively defending’ [them].” This inference was false, it amounted to fabricating news to create the wrong impression, and it rejected his denial that he had received money from the Guptas.
Basson: Mngxitama’s accusation against News24 is unclear – this sentence was a mere statement of fact and the inference that BLF has drawn from it is an exaggeration of what has been said.
Mngxitama: The conclusion “despite aggressively defending them” does not follow from the premise that he “has denied receiving any money from the Guptas”. News24’s response merely restates its fallacious argument in a circular manner, rather than showing how the premise leads to the conclusion.
* * *
Story (par. 4, 7): “A new email has been discovered that suggests Mngxitama did more than just meet the Guptas; that he actually received instructions from the family and that his ‘free’ voice may, at least once, have been steered by London PR firm Bell Pottinger and the Guptas.” And: “The email was titled ‘Peter Bruce!’ and it included an attachment of an opinion article written by Bruce, the Tiso Blackstar editor-at-large. The opinion piece was based on a legal letter the Guptas had sent to Hogg.”
Mngxitama: The online links provided in the article in respect of the “Gupta Leaks” did not substantiate the allegations made. The document purporting to be an e-mail to him (dated 11 March 2016, ostensibly from “Media Profile”) was fabricated and could easily have been generated by anyone. He did not admit to the contents of that document, neither did he admit to receiving it from Media Profile, neither was he given a right of reply in this respect.
The content of that document, including the identities of its “sender” and its “recipient”, was presented as the truth – while, in fact, it was unsubstantiated and unnecessarily tarnished his and the BLF’s reputation. There was also no indication of whether he had accepted the alleged instructions to write an article about Hogg on the Guptas’ behalf.
Basson: The leaked Gupta e-mails are authentic and News24 has no reason to doubt their veracity. Numerous individuals who have been linked to the e-mails have also confirmed their authenticity. A number of those e-mails have linked Mngxitama to the Guptas and their employees. While there is no proof in the e-mails that Mngxitama followed through on the instruction to question Hogg, it is significant that the Guptas sent the instruction in the first place – it indicated closeness with Mngxitama, and the informal tone in the e-mail indicated that this was not the first time he had received such instructions. He also focused on the same journalists the Guptas and the British PR firm Bell Pottinger targeted in their campaigns and legal complaints, and has made it known that he was a supporter of the controversial family. The fact he did in fact target Hogg after this e-mail was sent speaks for itself.
Mngxitama: The only documents, as suggested by News24, implicating him are the “e-mail” in which he was allegedly given an instruction to write about and send questions to Hogg, and the one alleging that he had met with Choubey and asked the Gupta family for money.
In this regard, News24 has not:
· proved the authenticity of the first e-mail or evidenced the second one;
· provided the identities of the “numerous individuals” who were “linked to the e-mails” and who “have also confirmed their authenticity”;
· addressed the question of how the media house in fact can prove the authenticity of the e-mails; and
· presented the “e-mails” ostensibly linking him to the Guptas and their employees for his comment prior to publication.
* * *
Story (par. 5): “In the trove of emails that form part of the leaks there is an email address, firstname.lastname@example.org, which is also known as ‘media profile’. The address seems to be a shared account where Bell Pottinger, the Guptas and staff including Choubey discussed their media campaigns.”
Mngxitama: He has not come across any evidence in the “#GuptaLeaks collaborative investigation” suggesting the conclusion that email@example.com is also known as “media profile” – so again, this allegation is unfounded. “The basic law of evidence is that the one who alleges must prove, or else there is nothing to reply to – and News24 has not provided the relevant proof.”
Basson: There is a significant amount of e-mails from the “media profile” account in the Gupta leaks – too many to attach to the article. The story did include the main e-mail, however, which showed that Mngxitama had received an instruction to write about Hogg (sent from the e-mail address mentioned in the story). The e-mails clearly showed that “media profile” was the common name for this e-mail address – which was shared between the Guptas and their employees, like Choubey and Bell Pottinger.
Mngxitama: The e-mail (dated 11 March 2016) purportedly showing that he had received an instruction to write about Hogg does not provide any evidence, neither does the submission about a significant amount of e-mails from the “media profile” account in the Gupta leaks.
* * *
Story (par. 6): “It was from this email account that Mngxitama was sent a message on 11 March 2016.”
Mngxitama: There is evidently no basis for this suggestion.
Basson: Despite Mngxitama’s denial, the e-mail nevertheless showed he did receive an instruction from the Guptas or their employees from this particular e-mail address; the other e-mails between them, including his request for funding, showed he was in contact with the family. He also did not deny this statement when News24 called him and when he was sent an e-mail, requesting comment.
Mngxitama: There is no evidence to substantiate the allegation in question. In any event, the e-mail dated 11 March 2016 reflected the sender as “Media Profile” and not the address firstname.lastname@example.org, and there is no evidence linking that address to “Media Profile”.
* * *
Story (par. 8): “Hogg published the letter sent to him by London-based reputation and privacy consultancy Schillings on his online site.”
Mngxitama: News24 has not established with any degree of certainty that he had been sent this e-mail (from the email@example.com account on 11 March 2016).
Basson: Mngxitama may deny this allegation, but the e-mail nevertheless showed he did receive an instruction from the Guptas or their employees from this address; other e-mails, including his request for funding, also showed he had been in contact with the family, using a frequently used email account. Mngxitama did not deny this when News24 called him, and when he was sent an e-mail requesting comment.
Mngxitama: Evidence showing how News24 arrived at the inference or conclusion that “[t]he address (firstname.lastname@example.org) seems to be a shared account where Bell Pottinger, the Guptas and staff including Choubey discussed their media campaigns” is still missing. The e-mail purportedly instructing him, reflects the sender as “Media Profile” and not as email@example.com. Besides, there is no evidence linking those two.
* * *
Story (par. 9): “Bruce weighed in on what was seemingly a legal letter from Schillings, saying it showed the Guptas were anxious, but their move was sure to backfire because Hogg was no pushover, businessmen would help fund a defamation claim for Hogg and ‘it will intensify efforts to prove Gupta/Zuma links the London lawyers say don’t exist’.”
Mngxitama: News24 should have produced Bruce’s correspondence to substantiate its claim in this regard – without such evidence, this claim is unfounded.
Basson: The attachment to the e-mail was a published article by Peter Bruce which could be looked up by anyone. There is no rule stating the media need to include every attachment or reference in a story to authenticate information. Besides, this was not the important part of the e-mail – the instruction to Mngxitama was the vital issue.
Mngxitama stands by his complaint, adding he was not given a chance to examine the original e-mail and respond to it.
* * *
Story (par. 11): “In the body of the email, the author of ‘team media’ asks Mngxitama, ‘Pls see, and the part where he writes about Alex (sic) Hogg funders, can you write on this something and send some questions to him, for source of funding, legal/illegal, who are the funders. Thanks’.”
Mngxitama: News24 did not produce any evidence that he had accepted or executed the alleged instruction. The publication also did not afford him a right of reply. He denies having received such an e-mail (and instructions). The document is not authentic and the suggestion contained in it is a “fabricated lie”.
· The leaked Gupta e-mails are authentic;
· Mngxitama was given an opportunity to respond to the allegations – two days prior to publication he was called from a cellphone which was not blocked, which made it possible for him to call back or find out who had called him. He asked the journalist to repeat the allegation made about him numerous times and indicated he did not know what the journalist was talking about. He then asked the journalist to e-mail him to get comment, which was done promptly. This e-mail did not bounce and if it was undelivered, there would have been a notification to this effect;
· He ignored the e-mail; and
· He appears to lodge complaints with the Press Ombud to “substantiate” his claims that the media are out to get him.
Mngxitama: The e-mail relating to him contains fake news aimed at bringing his name and that of BLF into disrepute.
He did not receive the “e-mail” attached to News24’s response and which it claimed was sent to him by the journalist Angelique Hartleb on Saturday July 22, 2017 at 16:19 – had he received it, he would have responded to it.
There is no “corroborative evidence” that the e-mail allegedly sent by News24 did not bounce and that the media house received no such notification – News24 should have provided a full technical report indicating the information requested above as well as successful sending of the e-mail by Hartleb and receipt thereof by himself to substantiate its claims in this regard.
The allegation that he uses the office of the Ombud is speculative and conjecture.
* * *
Story (par. 12): “Hogg, along with Bruce, are among a list of journalists that Mngxitama has openly stated he is gunning for as ‘white racists’.”
Mngxitama: The use of the word “gunning” was a distortion and misrepresentation – neither he nor the BLF was “gunning” for the white racist journalists. The expression “gunning for” suggests the act of seeking to kill or murder the journalists. BLF respects freedom of expression and the independence of the media, but will not tolerate racism, defamation, fake news and the covering up of white corruption under the guise of journalism.
Basson: A reasonable reader would interpret the expression “gunning for” not literally, as Mngxitama does, but rather see it as a metaphor – it means to look for an opportunity to blame or attack someone (as indicated in the Oxford dictionary).
Mngxitama: He was not looking for an opportunity to blame or attack Hogg, Bruce or any other journalist either.
* * *
Story (par. 13): “When called, Mngxitama told us he did not know what we were talking about and asked that he be emailed queries, which he has not yet responded to.”
Mngxitama: News24 did call him and he did say that he did not know what the journalist was talking about. However, the journalist never sent him the e-mail and did not call him back either.
“Subsequently many of the white owned media houses, including News24, have ran with the story without obtaining my version of the story. No steps were taken to verify the accuracy of the Gupta leaks which in turn are presented as facts by News24 without any prior authentication, for example by making available the original documentary evidence for inspection and comment by myself, BLF and indeed the public.”
Basson: Mngxitama did not ask during the telephone conversation for the original e-mails to be sent to him. News24 repeated the allegations to him numerous times, and followed up this call with an e-mail, which he ignored. If his response was not included in the story, it was because he did not respond to the request for comment, and not the other way around.
Mngxitama stands by his complaint.
* * *
Story (par. 14): “The Gupta leaks show that New Age journalists followed up on Bruce’s opinion piece by sending him and Hogg questions about the funding of Biznews.”
Mngxitama: This allegation was based on hearsay, speculation and conjecture, and inter alia relied on some “Gupta Leaks” – which have not been authenticated. Again, he was not given a right of reply.
Basson: The Gupta leaks are authentic.
Mngxitama stands by his complaint.
News24’s argument about Mngxitama’s and BLF’s history with “white racist journalists”, Sanef’s interdict, and the outcome of the court case will in no way influence this finding – my only interest is the reportage complained about, and not the conduct or the motives of the complainant.
Yes, Section 1.6.2 of the Complaints Procedures does give me an option to dismiss a complaint if it is “fraudulent, frivolous, malicious or vexatious”. However, to reject a complaint on such a basis requires some solid reasons – which in this case I do not have.
My focus is therefore on the story, not on Mngxitama.
Main complaint: Inaccurate reporting based on fake evidence
Mngxitama and Basson use the same coin as an argument, with the one calling for “heads” (read: the Gupta leaks are authentic) and the other for “tails” (read: the Gupta leaks are fake, at least as far as references to Mngxitama are concerned).
They both use the wrong coin, though, as the issue is not whether the allegations in the e-mails were authentic / true or not.
Let me explain:
Even though Basson goes out of his way to argue that the content of the e-mails was essentially true (with Mngxitama doing the opposite), it was in fact not what the article purported to portray. Nowhere in the text did the journalist make any such claim – the story merely reported (as fact), and consistently so, what the documents in News24’s possession had said.
I am repeating this, as it is vitally important: The story did not say or imply that the allegations contained in the e-mails were materially true, it merely stated (as fact) that those allegations were made. It was left to the reader to decide whether what was said in the e-mails were true, or not.
This also goes for the headline, which attributed the statement to the “Gupta links”.
For this very reason, News24 was under no obligation to provide any “proof” or “substantiation”, as complained by Mngxitama.
Given the above, a finding against News24 on this issue would amount to telling the media they are not at liberty to disclose the contents of the “Gupta Leaks” (which is what the publication has done) – which would be unthinkable in an open democracy such as ours.
Not offered a right of reply
The fact that the journalist phoned Mngxitama and that they spoke for a while is not in dispute.
News24 has also provided me with an e-mail sent by Hartleb to firstname.lastname@example.org two days prior to publication. I have no reason to believe that this e-mail was fake. If, for whatever reason, Mngxitama did not receive this e-mail, it surely cannot be the publication’s fault.
In her e-mail Hartleb asked Mngxitama about the allegation that he had received an e-mail from an address which was shared by Bell Pottinger and the Guptas. This correspondence was titled “Peter Bruce”, and contained an article written by him which he had sent to Hogg. In this e-mail, she added, he was asked to write an article about Hogg and to direct questions to him about the financing of his website. Hartleb asked him why Bell Pottinger or the Guptas had sent him such an e-mail, and if he had been paid to do that. She also asked if he had campaigned against Bruce and Hogg because he had been told to do so.
These questions covered a large part of Mngxitama’s complaint, which did not, however, specifically address the allegation that he had met the Guptas and asked them for funding.
However, the story did say that Mngxitama denied receiving any money from the Guptas (a claim which he does not dispute) – which presupposes that News24 did ask him about money (albeit not about having “asked” for it).
Given the fact that the journalist and Mngxitama also spoke on the phone, I have no evidence that News24 has neglected its duty to ask him about all the material issues covered by the “Gupta e-mails”.
Some smaller issues
Some other parts of the complaint:
· The statement that Mngxitama “has denied receiving any money from the Guptas despite aggressively defending them” is materially correct – he did deny it, and he is on record as to defending them. While the link between those two statements is indeed unclear (as the one does not necessarily and logically lead to the other) this cannot amount to a breach of the Press Code;
· No reasonable reader would have attributed any undertones of a threat of violence by the use of the expression “gunning for”; and
· The story did not say that Mngxitama carried out the Guptas’ “instruction”, which renders this part of the complaint irrelevant.
In light of this argument, none of the other issues, including the reference to the “link” between the address email@example.com), “Media Profile” and Bruce’s correspondence, are of any real consequence as far as this complaint is concerned.
The complaint is dismissed.
The Complaints Procedures lay 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 may be contacted at Khanyim@ombudsman.org.za.