Ruling by the Press Ombud
17 October 2017
This ruling is based on the written submissions of Mr Thokwadi Seabela of Hustlers Empire (Pty) Ltd, on behalf of Mr Gayton McKenzie, leader of the Patriotic Alliance (PA), and those of Susan Smuts, legal editor of the Sunday Times newspaper.
McKenzie complains about the following articles in the Sunday Times:
· Zuma’s fightback: NHZ for cabinet (10 September 2017); and
· Zuma’s pals in R5bn gas deal (September 17).
Complaint
McKenzie complains that the stories contained statements / insinuations / allegations which were fabricated, unsubstantiated, untrue and malicious, and which unfairly compromised his reputation. This includes that he had been:
· influencing Pres Jacob Zuma for favours (inter alia with reference to Ms Leanne Williams, a former PA city councillor in Johannesburg);
· feared in some circles;
· trained in espionage, with an implication of treason;
· involved in blackmail;
· called a new Gupta; and
· responsible for exposing Deputy President Cyril Ramaphosa’s marital infidelity.
He adds that the:
· newspaper was not justified in using anonymous sources;
· reportage was not in the public interest;
· journalist did not afford him an adequate opportunity to respond; and
· articles did not distinguish between allegation and fact.
The texts
The first article, written by Mzilikazi wa Afrika, Qaanitah Hunter, Thabo Mokone and Jan-Jan Joubert, said that a major cabinet shake-up seemed imminent as details emerged about the influence of controversial figures (read: McKenzie and Kenny Kunene; details below) over Zuma. It stated that Sunday Times could reveal that Zuma had been considering appointing Williams as a deputy minister.
“Insiders said that fact that Williams’s name landed on Zuma’s desk proved the growing influence ex-convicts Gayton McKenzie and Kenny Kunene have over Zuma,” the story continued, adding that the move was met with great resistance from within the ANC.
The journalists reported that senior ANC leaders said the influence McKenzie and Kunene had over Zuma “was being spoken about in hushed tones in the party because the two were feared”, and that it was “an open secret” that the two had been working closely with the President.
The two were allegedly also the masterminds behind e-mails purporting to show marital infidelity on Ramaphosa’s part. Ministers and senior officials of state-owned companies reportedly alleged that the two had been using their influence to seek favours.
The article quoted a cabinet minister as saying that people were afraid to talk about meetings McKenzie had had with some ministers “because they are being blackmailed”. One ANC national executive committee member reportedly called McKenzie and Kunene “the new Guptas”.
The journalists quoted a source as saying, “Gayton has been going to Russia in recent months, either to collect information on certain people or to get some intelligence training. It is believed that him and Kenny do the dirty work for uBaba. Some ministers have been warned not to offend the two or they would be in trouble. When Gayton phones you, some of us are not sure if he is speaking on behalf of uBaba or himself.”
McKenzie reportedly denied these allegations.
The second story started as follows: “ANC insiders have said Kenny Kunene and Gayton McKenzie, widely regarded as ‘the new Guptas’, have access to Zuma’s official residence Mahlamba Ndlopfu − and are using their influence to seek favours. South Africa’s ‘new Guptas’ − former jailbirds Gayton McKenzie and Kenny Kunene − are being lined up as BEE partners in a lucrative deal with a Russian oil company, thanks to their increasingly cosy relationship with President Jacob Zuma.”
It “revealed” that the two “convicts-turned-politicians” travelled to Russia at the same time as State Security Minister David Mahlobo and a delegation from South Africa’s Central Energy Fund to sell themselves to Russian company Rosgeo as possible BEE partners.
The article continued, “Last week, the Sunday Times reported that the pair have such influence with Zuma that they were in a position to nominate a future deputy minister of higher education.”
The arguments
First story
‘Influence’ over Zuma
McKenzie denies any influence over Zuma and also that he was capable of intimidating ministers, calling those allegations untrue and unsubstantiated fabrications.
He says he can only assume that the reportage was driven by an agenda drawn up by Zuma’s enemies – who perhaps theorised that by invoking McKenzie’s name and his well-known criminal past, and assigning certain powers and activities to him, it would reflect badly on Zuma and the election campaign of Dr Nkosazana Dlamini-Zuma (who was also mentioned in the article).
He also questions the use of the word “details”, as it implied that some sort of specific information would be forthcoming – which, he says, did not happen.
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Smuts says McKenzie is the leader of the Patriotic Front (sic – the party, in fact, is called the Patriotic Alliance), who supported Zuma publicly, or attacked his detractors, claiming that some had received corrupt payment from their handlers to campaign for the president’s downfall. She argues, “It is natural that questions about his relationship to President Zuma would be a matter of interest and concern among ANC members and other citizens.” Smuts refers to a former finding of mine in which I stated, “Dlamini-Zuma should accept that her private life, insofar as it may impact on public life, is open to scrutiny. In this case, her relationship with Pres Zuma is of public interest – even if it is a private relationship, it may have political consequences. I am not in a position to categorically state that it does have such an implication, but the possibility of such is enough to have justified the reportage.” Similarly, she says, the possibility that McKenzie and Kunene may be in a position to exercise undue influence over the president justified the reportage, “especially in light of overwhelming evidence that the president has been unduly influenced by several individuals before and that the media owes it to the public to be especially vigilant about the possibility of such sources of influence”. The legal editor adds that the complaint about the sentence referring to “an open secret” is without merit, as it was properly attributed to sources. Also, the story carried McKenzie’s denial that he had any relationship with Zuma, and that he met cabinet ministers and politicians on a regular basis. |
McKenzie replies that, while revealing its anti-Zuma bias, Sunday Times pointlessly compares his complaint to a previous one by Dlamini-Zuma. He denies any particular or unusual “influence” over the president and attests, “no one has yet been able to provide evidence to the contrary, aside from supposed ‘talk’ in government circles. Is this what amounts to investigative journalism these days?”
Analysis
From the outset I need to be clear on when a newspaper may publish a potentially defamatory allegation. Clearly, an allegation cannot be published just because someone has made it. For example, if some uninformed person or someone with malicious intent alleges that I have stolen R1-billion from the Press Council, I’ll surely be suing any newspaper if it publishes such an allegation (even as an allegation).
As is the case with most, or all rights, the right to publish an allegation is also not absolute.
Section 1.3 of the Press Code lays down the following principle: “…Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.”
While that much is clear, it should be noted that the Code does not go into detail as to the circumstances allowing or disallowing the publication of an allegation – it is left to its users and interpreters, using the whole Code (in word and spirit), to make such a decision.
Fortunately, the South African courts have indeed given us some guidelines in this regard – when the publication of an allegation is potentially harmful to a person, to such an extent that it may be defamatory, the allegation has to be:
· reasonably true; AND
· in the public interest.
To this, I need to add that sources also need to be credible and independent.
This does not mean that readers should take allegations made by credible sources as the gospel truth. Of course not – which is why Section 1.3 states that such allegations should never be presented as fact.
To be practical again: If a factory worker in the Northern Cape says his colleague has stolen R1 from him, it may be reasonably true – but hardly in the public interest; if the same person says the premier of KwaZulu-Natal has stolen R1 from him, it may be in the public interest – but hardly true.
In short: The more credible a source, the greater the reasonable possibility that a statement may be true, and the greater the public interest (read: the more accountable a subject of critical reportage is to the wider public), the more justified a newspaper is to publish such a statement – as long as it is clear that it is an allegation.
Applying these considerations to the complaint at hand, I have no doubt that the allegation by “insiders” that McKenzie had influence over Zuma was of public importance. The mere fact that the allegation in question was made should be revealed to the public, as it passes the tests of reasonable truth, public importance and the credibility of sources.
Please note that, by accepting that the sources were credible, I am not saying that their information was necessarily true. Fact is, though, that they were in high places, which made their opinion worthwhile to publish.
If true, the implications speak for themselves; if untrue, it says more about the sources than it does about McKenzie, Kunene and Zuma.
I have no reason to believe Sunday Times is lying about what its sources told the reporters (which is no guarantee that that information was correct). That being the case, it was their duty to report the information. The condition, again, is that the information is presented as an allegation or an opinion and not as fact – if as fact, then with the necessary evidence.
So then, let us now take a look at the reportage. The story inter alia stated:
· “A major cabinet shake-up seems imminent as details emerge of the influence of controversial figures over President Jacob Zuma”;
· “Insiders said the fact that Williams’s name landed on Zuma’s desk proved the growing influence ex-convicts Gayton McKenzie and Kenny Kunene have over Zuma”;
· “Senior ANC leaders this week said the influence McKenzie and Kunene have over Zuma was being spoken about in hushed tones in the party…”; and
· “A number of senior ANC leaders and cabinet ministers said it was an open secret that the two were working closely with Zuma”.
In all but one of these sentences it was not stated as fact that McKenzie had influence over Zuma – the article consistently attributed such claims to sources and presented them as allegations.
There is one unfortunate exception, though – the first bulleted sentence, and in particular the use of the word “details” in that sentence. This word may suggest some kind of concrete evidence to substantiate the allegation – which was not forthcoming.
Reading the story in context, though, I am satisfied that the use of that word should be interpreted as “details regarding allegations”, and not as “concrete evidence”. However, I need to state that the use of that word was risky – and unnecessarily so.
Given the fact that the relevant statements regarding this matter were attributed to sources, Sunday Times deserves the benefit of the doubt on this issue. The sentence in question was not reflected in the headline either.
‘Seeking favours’
McKenzie complains the statement about him using influence to seek favours, as well as the allegation that Williams’s name landed on Zuma’s desk as a result of such influence, were not backed up by any kind of evidence – except for the reference to “inside” sources.
He notes that only the president decides on cabinet reshuffles. “… no one, not even a very clever NEC member, has any influence over who President Zuma chooses to work with and who he doesn’t. There is no recognition of this reality in the Sunday Times story,” he says.
He submits that neither Williams nor he knew anything about any supposed plan for her to join the cabinet, adding that she was not even a member of the ANC.
He states, “There is no such plan afoot, and the very idea that there might be is completely ridiculous. Whatever one may think about such grandiose speculation, the fact is that it points to the general trend of the article in that it offers these spectacular revelations that are then almost categorically impossible to back up.”
He reiterates that he had no “growing influence” over Zuma and that he could not influence cabinet appointments.
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Smuts says the Sunday Times received a tip-off that there was a proposal to appoint Williams as an MP. An official in the deputy president’s office then confirmed that Williams’s name was submitted to the director-general in the president’s office, Cassius Lubisi. The reporters also spoke to three people who confirmed that her name had been submitted for the position of a deputy minister. “Two of these people are parliamentary staff who have access to this information, the third is an advisor to a minister. One of them said that Mr McKenzie had submitted her name,” she states. The legal editor submits that, even though a source said that McKenzie had been responsible for submitting her name, the story did not say that. “We stated as fact that President Zuma had been considering Ms Williams’ appointment, and we stated that insiders said this proved the growing influence of Mr McKenzie and Mr Kunene,” she says. This reportage was justified, she argues, as three different sources with access to information (including an official in the deputy president’s office) confirmed that Zuma was considering Williams for a deputy minister’s post. She adds, “The opinion − that this proved the growing influence of Mr McKenzie and Mr Kunene − was properly attributed to insiders. We submit we were justified in reporting this.” Also, the story reflected Williams’s emphatic response that she was not aware of any plans to appoint her to the executive and that she was preoccupied with her business. Smuts also notes that, according to another source, Williams was appointed to the PetroSA board “through a strong-arm intervention by Mr McKenzie”. She says that Williams’s tenure at PetroSA also coincided with efforts by McKenzie and Kunene to secure the R5-billion gas deal. “It would appear there is reason to believe she is useful to the two business partners,” she argues. The legal editor concludes, “In the face of the multiple-source corroboration that Ms Williams’ name was put forward, along with her fortuitous presence at PetroSA when Mr McKenzie and Mr Kunene appeared to have learned of the Rosgeo deal, we submit our information is far more plausible than Mr McKenzie would have you believe.” She states that a cabinet minister and an advisor to another minister were among the newspaper’s sources voicing disquiet about Williams’s name emerging for a deputy minister position when senior and capable ANC members should have been considered ahead of her. “They also said that ANC members were not happy that Ms Williams had been appointed to the PetroSA board as there was a feeling she had been parachuted into the position,” she adds. |
McKenzie denies the veracity of Smuts’s arguments and reiterates that members of cabinet and deputy ministers serve at the discretion of the president alone.
He also notes that the Sunday Times has subtly shifted the story in their submission from what they initially published (that Williams was supposedly to become a deputy minister) to now talking about MPs. “In doing so they are now talking about ‘parliamentary staff’ and the things these staff members apparently knew about an incoming MP. However, that was not what they published in their paper. In the Sunday Times they wrote about a cabinet appointment, presumably not dependent on Leanne being an MP (as insane as that seems to me, and should seem to any reasonable person).”
He also questions:
· whether the journalist who penned the first story understands the parliamentary system and how cabinet appointments work;
· the veracity of the source from the deputy president’s office, as the latter had no powers and could just as easily be fired by the president;
· why he was drawn into an ANC-on-ANC battle in which he has no interest; and
· the allegation that he had “called these ministers”, and asks for proof thereof.
With regard to Smuts’s statement that the newspaper was justified in stating that Zuma was considering Williams for a ministerial post because this had been confirmed by three different people, McKenzie says Sunday Times has utterly destroyed its own credibility through its own submissions. “They are in effect telling us that one should believe the word of a rival’s supporters when they are talking about the affairs of that rival. They then have the audacity to refer to such rivals as ‘insiders’. It doesn’t matter how ‘justified’ this makes the Sunday Times feel, they are actually only undermining their own argument,” he says.
McKenzie also asks for evidence regarding his alleged influence in Williams’s appointment to the PetroSA board. He denies have “strong-armed” anyone in this regard, adding that he had actually tried to talk her out of it.
Analysis
The story said:
· “Ministers and senior officials of state-owned companies alleged that the two have been using their influence to seek favours”; and
· “The Sunday Times can reveal that Zuma had been considering appointing Leanne Williams, a former councillor of the Patriotic Alliance in the City of Johannesburg, to a deputy minister position (as an example of such a ‘favour’). Insiders said that fact that Williams’s name landed on Zuma’s desk proved the growing influence ex-convicts Gayton McKenzie and Kenny Kunene have over Zuma.”
The statement in question was attributed to sources, and it passes the tests outlined above (reasonably true, in the public interest, and credible sources).
The question whether Zuma considered appointing Williams as deputy minister is not relevant to this complaint. Given his own argument about the appointment of ministers and deputies by the president alone, it is not clear how McKenzie could know that no such plan was afoot.
And again, it was not stated as fact that her name landed on Zuma’s desk – the information was ascribed to “insiders”.
Feared in some circles
McKenzie calls the statement that he was “feared” in some circles “patently ridiculous”. He states, “I have threatened no one and no one has gone on record anywhere to so much as suggest that they have any reason to fear me… I suspect the only reason this sentence was included was in the hope that a case could be made for protecting the anonymity of the Sunday Times’ ‘sources’ because of fears of reprisal and intimidation from poor Mr Kunene and me.”
He accuses Sunday Times of writing this sentence “in extremely bad faith”, knowing that they would have to explain their reliance on unnamed sources to this office.
He says he also takes exception to the fact that Kunene’s name was thrown into this article in the way that it was, considering that he publicly stopped being a member of the Patriotic Alliance three years ago (this was not reflected in the story, which appeared to suggest that he was still involved in the party).
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Smuts says the reference in question was based on comments by people who feared them – several of them mentioned the word “blackmail”, and at least one said “intimidation”, adding that this statement was properly attributed. (The Ramaphosa e-mail leaks may be regarded by some of these people as an example of what may befall them if they cross McKenzie or Kunene, or the interests they represent, she adds.) She says that, while Sunday Times fully accepts that McKenzie and Kunene have paid their debts to society, it is a fact that they both spent time in jail – in the former’s case, armed robbery was involved. “He was willing to use violence in the commission of his crimes, and it takes no great leap of the imagination to believe that people may easily be afraid that he would do so again if his interests were thwarted. Mr McKenzie’s history gives credence to [this] fear,” she argues. The legal editor says that an informed EFF leader told Sunday Times: “Whenever Zuma wants to smear someone or want to do something illegal, he will ask the two former convicts to do the dirty work for him. Whenever there is a propaganda message to spread around, Kenny and Gayton will bring in Steve Motale and he will write everything as if it is the gospel truth.” |
McKenzie replies that, while he has never denied his past, there is no evidence of him having enacted criminal violence against anyone in the fourteen years since his release.
Analysis
The sentence in dispute stated, “Senior ANC leaders this week said the influence McKenzie and Kunene have over Zuma was being spoken about in hushed tones in the party because the two were feared.”
Again, the statement was attributed to credible sources, the matter was in the public interest, and it could have been reasonably true. McKenzie’s statement that he has not intimidated anybody or enacted violence against anybody during the fourteen years since his release from prison does not mean that people with whom he interacted felt the same way.
Espionage
McKenzie says the statement that he had been going to Russia in recent months, either to collect information or to get intelligence training, tied him to espionage. He says this is “ridiculous” and “very damaging nonsense”, adding that it has “measured about 10 on the defamation Richter scale”.
He argues that the allegation that he went to Russia to receive intelligence (espionage) training was tantamount to suggesting he might be willing to engage in treason – which could damage his reputation for life, and could spiral into even more dangerous assumptions that could cause him, his family, his political followers, his businesses and others irreparable harm.
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Smuts says the story did not suggest that McKenzie’s actions amounted to treason. |
McKenzie begs to differ.
Analysis
The story quoted either a senior ANC member or a minister as saying, “Gayton has been going to Russia in recent months, either to collect information on certain people or to get some intelligence training. It is believed that him and Kenny do the dirty work for uBaba. Some ministers have been warned not to offend the two or they would be in trouble. When Gayton phones you, some of us are not sure if he is speaking on behalf of uBaba or himself.”
With regards to “intelligence training” my argument remains the same. McKenzie’s inference about treason is taking the matter a few bridges too far.
Blackmailed
McKenzie says blackmail is a crime and calls the statement in question defamatory. “If the Sunday Times wants to accuse me of any crime, then they should just come out and do it,” he challenges.
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Smuts says two cabinet ministers as well as the head of a state-owned enterprise told Sunday Times that McKenzie attempted to blackmail, threaten or intimidate them. She also points out that, according to another source, Williams was appointed to the PetroSA board “through a strong-arm intervention by Mr McKenzie” – this, she asserts, tends to support the allegations of blackmail levelled against McKenzie, as well as the information that Williams was a key figure for McKenzie and Kunene in their dealings with the state. |
McKenzie questions why no charges were brought against him if this were true, and asks for proof.
Analysis
The story quoted a cabinet minister as saying, “We know that Gayton has been having meetings with some of the ministers, but people are afraid to talk about it because they are being blackmailed.”
My argument, as outlined above, remains the same.
New Guptas
McKenzie complains that there is not a shred of evidence to support the “new Gupta” claim. He says this is possibly the most defamatory label currently in South Africa, given the widely held negative perceptions about that family.
He inter alia asks whether this means that he should expect his own banks to refrain from doing business with him because of the risk to their reputations, or supposed state capture. “The implication and dangers for me of so casually being called a new Gupta are so profound that it risks my entire livelihood and the hundreds of people who rely on the success of my businesses,” he submits.
He calls this statement “defamation of the worst kind”.
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Smuts replies that the words “the new Guptas” referred to that family’s influence over Zuma, and argues that this was clear from the context of the story. The person who proffered the description backed it up by saying, “They have access to the big house [Mahlamba Ndlopfu].” This person has seen the two men at that house, Smuts claims, adding that another source said he went to Mahlamba Ndlopfu (the president’s official residence) to complain to Zuma about Williams’s appointment, and when he left he saw McKenzie and Kunene. She submits that “this is sufficient corroboration for accepting that Mr McKenzie and Mr Kunene have access to President Zuma’s official residence. This fact is the basis for the opinion expressed by our source that they are the ‘new Guptas’.” She adds that, while it was true that the Guptas had been exposed as central to the state capture project, and that various hardships such as the closing of bank accounts had befallen them as a result of such exposure, nothing in the story suggested that McKenzie and Kunene were in line for the same. She argues, “The description refers, in a figurative sense, to the fact that the influence of the Guptas over President Zuma appears to be waning, and that it is being replaced by that of Mr McKenzie and Mr Kunene.” |
McKenzie replies that there were no facts to support that he was a “new Gupta”.
Analysis
The story quoted an unnamed ANC executive committee member who said that McKenzie and Kunene were “now the new Guptas”.
The same argument as outlined above applies in this case.
E-mails
McKenzie denies that he knows the source of the Ramaphosa e-mails: “I certainly didn’t hack them myself or ask anyone else to do it.”
He takes exception to the implication that because Kunene and Motale might have met with Ramaphosa’s aides, he was also involved.
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Smuts says Sunday Times was told by a source sympathetic to Ramaphosa that McKenzie and Kunene were the masterminds behind the e-mail leaks. She adds that two other independent sources have placed McKenzie in the centre of the e-mail saga. She says the newspaper is not willing to disclose the nature of the information in these submissions as its sources would be compromised. She adds that the publication is willing to reveal the nature of this information to me, off the record. The legal editor submits that Sunday Times was justified in stating that sources said the pair were the masterminds of the e-mail leaks “based on the information we had”. |
McKenzie replies that Sunday Times should have submitted that a Ramaphosa ally told them of a mere suspicion that he and Kunene were the masterminds behind the leaks – an allegation he emphatically denies.
Analysis
The article reported:
· “Senior government sources said the two were the masterminds behind the e-mails published in last week’s Sunday Independent that purported to show marital infidelity on the part of Deputy President Cyril Ramaphosa”; and
· “The Sunday Times understands that so involved were the two in the leaked e-mails that a meeting between Ramaphosa aides and Sunday Independent editor Steve Motale took place at Kunene’s business premises.”
My argument remains the same.
Unjustified use of anonymous sources
McKenzie remarks that the story consisted of apparently random observations and speculation from nameless people presented as supposedly reliable sources – without independent scrutiny and accountability.
He also says South Africa is now heading into the “silly season” of campaigning for votes in the run-up to the ANC’s December conference. Their sources are claimed to be senior ANC leaders, senior government sources, ANC NEC members, and perhaps even ministers.
He argues, “So, must we now be led to conclude that just because somebody is an ANC national executive committee … member or even a ‘senior member of the ANC’ or a ‘senior member of government’, they therefore must obviously know what they’re talking about? At least 104 NEC members are listed on the ANC’s website – being in the ANC’s NEC does not bestow superhuman powers of infallibility on any of these people. Whatever they say or think must reasonably surely also be subject to the same rigorous journalistic tests for proof that we would expect of anyone else. Otherwise we shall all soon be awash in credulous article after credulous article – which would have been given weight simply because one or more of these 104 people felt the need to call a journalist one day and whisper something in his or her ear.”
He asserts that he does not believe that the use of anonymous sources in this case was justified and requests me to ascertain, in confidence, the identities of these sources.
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Smuts agrees that while it is always preferable to name sources, this is not always possible. In the present case, she says, the sources include cabinet ministers and other senior leaders in public service. “The information they gave us was about their personal experiences of dealings with Mr McKenzie and did not rely on hearsay. We submit it is preferable, and in the public interest, for their insights, experiences and concerns to be brought to light than to be kept in the shadows. To this end, we agreed to withhold their identities in the interests of publicising the information they shared with us,” she explains. The legal editor says the newspaper is alive to the fact that sources will have their own interests in sharing their information – but “we do not make common cause with their motives”. She submits that each source was a credible and responsible leader, adding that McKenzie is not an elected leader, and any influence he may wield over an elected representative should be open to scrutiny. Smuts says Sunday Times does not wish to submit a detailed account of what any of the sources told them, as this would expose them. She is, however, willing to make this information available to me on a confidential basis. In conclusion she says, “We found the details in each of these cases to be convincing. The fact that three people mentioned a similar modus operandi in the dealings they had with Mr McKenzie mutually reinforces the credibility of their information. We submit that the collective weight of the details they furnished us with justified our decision to publish the allegations. At all times, we made it clear that the allegations carried in the story were being made by people in cabinet and other leadership positions. We submit that it was justified to report in the way we did because citizens should be kept informed about the influences, due and undue, that their leaders operate under. This is all the more so when the following week, more information came to light about Mr McKenzie and Mr Kunene’s involvement in the Russian gas deal.” |
McKenzie says Smuts’s argument could be interpreted as a free licence to these “senior leaders” to say whatever they pleased without any fear of accountability for their gossip-mongering.
He adds, “So what the Sunday Times is saying is that if one person tells them a lie, they will not believe it, but if three people tell them the same lie, they will be compelled to put that lie on the front page of the Sunday Times. [One] billion people who believe the same thing can still be wrong, and one person with the facts and not one friend in support of him can still be right. I’m sorry, their submission cannot be considered convincing.”
Analysis
The fact that the use of anonymous sources should be avoided if possible is not in dispute; neither is its use if circumstances necessitate such a practice.
In this case, I can well understand that the newspaper’s sources wanted to stay anonymous – their wagers may carry high stakes.
For the record: I have indeed ascertained the identities of the sources. If anything, it strengthened my judgment.
No public interest
McKenzie argues that, considering that there was not a shred of proof for any of the allegations or any rational reason to believe that he has ever been party to any form of wrongdoing, a case of public interest cannot be made.
He says the story did not change or improve anything – all it did was to paint him and others in a poor light and to cast shadows over the motivations of their lives. He asks, “How can trying to harm my reputation for no apparent reason be presented as a public good?”
He says that, while Sunday Times has no obligation to present him in a favourable light, it should not be allowed to present him in a false and defamatory light either.
McKenzie adds the fact that he is a public figure does not mean that he is fair game and that Sunday Times has carte blanche to report unfairly on him. He concludes, “There was not enough public interest to subsequently publish the article on the basis of only these anonymous sources.”
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Smuts submits that changes to the cabinet were of “immense public interest”. The same goes for when cabinet ministers and other senior leaders in government believe they were being compelled to put the interests of individuals ahead of those of the country. |
McKenzie agrees that a cabinet change would be in the public interest. However, he denies ever having had anything to do with any such alleged changes.
Analysis
I have already accepted that the issues raised in the article, as well as the substance of McKenzie’s complaints, are in the public interest. I do not believe that I need to belabour this point.
No adequate opportunity to respond, verification
McKenzie says the journalist did not give him an adequate opportunity to respond to the full agenda set forth by this article – the reporter was merely “fishing” for details (asking him, for example, how many times he had been to Russia, and why he went there) and did not ask him directly if he went to Russia to receive intelligence training.
He says, “The same style of seeking my comments without actually explaining what the article was actually about holds true for the rest of the article and its allegations too.”
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Smuts submits that the newspaper did ask McKenzie for his response to all material allegations in the story. However, she adds, “We did not ask his response to comments and interpretations made by our sources. We submit that we were not obliged to do so as these were legitimate comments and interpretations based on facts.” She says that, although McKenzie seeks to suggest the story is thin on detail, the details reported on were sufficiently corroborated to justify the article. “These included the proposed appointment of Ms Williams and the growing concerns over the relationship between President Jacob Zuma on one hand and Mr McKenzie and Mr Kunene on the other.” |
Analysis
The journalist’s style of interviewing McKenzie might have been inadequate (I have no way of knowing, though) – but that, in itself, does not necessarily breach the Press Code. I am satisfied that the article quoted McKenzie’s denials adequately, and accept that Sunday Times fulfilled its duty in this regard.
No distinction between allegations, facts
McKenzie complains that the article did not clarify that it was based on opinion, allegation, rumour and supposition – instead, Sunday Times was doing its utmost to present this “nonsense” as fact.
Analysis
I have pointed out above, ad nauseam, that the article consistently presented the allegations as allegations and not as fact.
Second story
McKenzie says the breaches in this article are, in many respects, similar to those from the first article.
“Its primary failing is that the journalists who wrote it appear to have accepted the previous week’s article on a wholesale basis and now think it’s perfectly OK to just refer to us as the new Guptas and to discuss our ‘cosy relationship’ with Zuma as if this is now a proven scientific fact. No facts have been proven, however, and to write as if they have is severely disingenuous.”
He adds:
· It may be true that he was on the same flight as Mahlobo, but this did not mean that they travelled with some sort of common purpose – “and yet that would appear to have been the only conclusion the Sunday Times could reach about why we would be together on a gigantic passenger aircraft”. He says, “I don’t recall seeing Minister Mahlobo on the flight, but I’m sure that if the Sunday Times’ information is correct, then he must have been”;
· The statement that he and Kunene had such influence with Zuma that they were in a position to nominate a future deputy minister of higher education is “ridiculous”;
· The statement that he and Kunene were now “widely regarded as the new Guptas” is untrue – the first he heard of this was when he saw it on the front page the week before, and nobody else has called him that;
· When the Sunday Times tried to popularise this label on Twitter, also by using the hashtag #NewGuptas, on the Saturday before the release of the second article, they received so much criticism about it that they deleted the tweet;
· Sunday Times referred to him and Kunene as the new Guptas on a street poster (without quotation marks), “thereby implying that it is in fact its label for us” – which amounted to defamation; and
· The “utterly unacceptable allegation” that he had been blackmailing senior government staff, including, perhaps, Mahlobo, was repeated.
|
Smuts says McKenzie’s objection to the description of him and Kunene as former jailbirds, claiming that it was done to portray him as unfavourably as possible, misses the fact that his criminal past was a springboard to his prominence. She argues, “It was the basis of his career as a motivational speaker and [it] featured in his books. His averments that our reference to his past is evidence that Sunday Times ‘is going all out to represent us as unfavourably as humanly possible’ is misplaced.” She adds: · Three sources with intimate knowledge of the Russian trip confirmed that McKenzie, Kunene and Mahlobo were on the same flight, and headed for the same place where the latter introduced them to Rosgeo; McKenzie does not deny his attendance at Rosgeo with Mahlobo and Kunene; · The story reflected KcKenzie’s reaction (and that of Kunene) to being on the same flight as Mahlobo; · The comment about “blackmail” in relation to Mahlobo came from a source in the security cluster, and it was presented as speculation; and · In his complaint about the second story, McKenzie does not deny that he and Kunene were being lined up as the BEE partners in the R5-billion gas deal. She concludes, “His protestations about our reports should be seen in this light. It is clear that the scrutiny is unwanted because he does not want to endanger the deal. Furthermore, the deal would tend to support the views of the people quoted in the first story that Mr McKenzie and Mr Kunene were using their influence to line up deals.” |
McKenzie replies that it was the Sunday Times, and nobody else, who was trying to popularise the “new Gupta” label, and it is definitely defamatory.
He adds, “The Sunday Times has conveniently failed to respond to the serious allegation that they dropped the quote marks by week two and tried to popularise the #NewGuptas hashtag on Twitter. I wonder why? Perhaps they realise only too well how out of line they were.”
He says blackmail is a rather serious thing to just toss into an article as mere “speculation” – it is a crime. He asks, “Can one now be allowed to suggest that people are engaging in crimes simply because someone may speculate that this crime may be the explanation for someone’s behaviour?”
McKenzie says he is happy to talk about his business affairs, but not in this context. He submits, “If the Sunday Times can be allowed to ‘report’ about me in the way it has then my fear is not that any gas deal will be ‘endangered’, but that ALL my business prospects will be scuppered. The Sunday Times has not subjected me to any ‘scrutiny’, as they rather flatteringly call their own work. This has merely been a hack job and a character assassination. THAT is what is unwanted.”
In conclusion, McKenzie says the audacity of calling him a “new Gupta” is almost entirely predicated on “this nonsense” of him being able to put a name on “Zuma’s desk” for appointment as deputy minister – because this was supposedly what the Guptas were able to do.
“That the Sunday Times was able to, in their first article, ‘reveal’ this with such ‘authority’ was bad enough, but for them to refer to it as a ‘fact’ in the follow-up article the week after should surely be unforgiveable… [If] if this be allowed to stand, it would create a precedent that newspapers are now allowed to create their own ‘facts’ based on no hard evidence whatsoever.” He adds that such reportage should be disallowed.
Analysis
Having studied the second story, I am satisfied that the reportage was on exactly the same level as that of the first one – the allegations were presented as such, the sources were credible, and the issues were in the public interest.
In conclusion
Smuts says the stories should be read as part of a robust political debate about a number of interrelated matters in which McKenzie plays either a central or peripheral role. These include his defence of Zuma, his attacks on Zuma’s detractors, his and Kunene’s possible involvement in the Ramaphosa e-mail saga, the Williams matter, and the gas deal.
She says South African courts have acknowledged that political debate in this country is robust, and that political speech should be safeguarded. In this regard she refers to Argus Printing and Publishing vs Inkhata Freedom Party (1992 SCA) http://www.saflii.org/za/cases/ZASCA/1992/63.pdf where it was stated that, “The law's reluctance to regard political utterances as defamatory no doubt stems in part from the recognition that right-thinking people are not likely to be greatly influenced in their esteem of a politician by derogatory statements made about him by other politicians or political commentators. At the same time, it seems to me, it also reflects the general approach properly adopted by our courts that a wide latitude should be allowed in public debate on political matters.”
Also Pienaar & Another vs Argus Printing & Publishing 1956 WLD: “... I think that the Courts must not avoid the reality that in South Africa political matters are usually discussed in forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too, that the public and readers of newspapers that debate political matters, are aware of this. How soon the audiences of political speakers would dwindle if the speakers were to use the tones, terms and expressions that one could expect from a lecturer at a meeting of the ladies' agricultural union on the subject of pruning roses!”
Smuts notes that McKenzie himself is robust and outspoken in his own political speech. She refers to an open letter he penned to Julius Malema, in which he referred to the latter as “the biggest thief” he had ever seen (http://news.iafrica.com/sa/920077.html). In July this year he publicly called black executives at the Chamber of Mines who were opposed to Minister Mosebenzi Zwane’s mining charter house niggers. (https://citizen.co.za/business/1544927/gayton-mckenzie-says-house-niggers-new-mining-charter/)
She argues, “It is only now that he is the subject of such speech that he is complaining.”
McKenzie replies it is hard to believe that the Sunday Times is unashamedly saying that they are resorting to the supposed protections of political speech to get away with poor reportage.
He admits that he has said tough things about people and has been unabashed in his opinions – but those were opinions (to which he was entitled), unlike Sunday Times, which presented articles on its front page about him as though they were fact and as though it was nothing other than objective reportage.
He argues, “The Sunday Times can’t have it all their own way. They are either reporting accurately and fairly or they are engaging in this ‘robust political debate’ in a form of ‘political speech’. These articles were not presented as opinion pieces. The Sunday Times and I were not in parliament insulting each other in a context of parliamentary privilege. The reality is that they were abusing their far more powerful platform than anything I myself have access to in order to denigrate me and perhaps destroy me.”
Analysis
By accepting that Sunday Times was justified in reporting the allegations as allegations because their sources were credible, the information could reasonably be accepted as true, and the issues were in the public interest, I have neither said nor implied it was true that McKenzie was feared, that he had blackmailed some people, that he had exerted some influence on Zuma, etc.
All this means, is that allegations were made (by credible sources which, indeed, does not necessarily mean that their information was correct – hence the need to report the allegations as allegations and not as fact) and that the newspaper was justified in its reportage in this regard.
Finding
The complaint is dismissed.
Appeal
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 can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombud