Gengezi Mgidlana vs. Eyewitness News


Thu, Nov 9, 2017

Ruling by the Press Ombud and a Panel of Adjudicators

9 November 2017

This ruling is based on the written submissions of Mr Gengezi Mgidlana, Secretary to Parliament, and those of Tebogo Mokoena of the Eyewitness News online publication, as well as on a hearing held on 25 October 2017 at the University of the Western Cape in Bellville.

Present at the meeting were:

·         Ms Nomvuyiso Batyi, group human capital and regulatory affairs executive of Primedia Broadcasting, Katy Katopodis, group editor-in-chief of ENW, the journalist Rahima Essop; and

·         Mgidlana and his wife, Ms Lerato Mgidlana.

The members of the Panel of Adjudicators who assisted the Ombud were Henry Jeffreys (press representative) and Lindsay Clowes (public representative).

Mgidlana is complaining about a story in Eyewitness News of 21 July 2017, headlined Nehawu concerned over theft of case file in Gengezi Mgidlana matter.


Complaint 

The gist of Mgidlana’s complaint is that the reportage linked the disappearance of stolen documents, unfairly and falsely, with “evidence” that could have been used in parliament’s probe into him – creating the impression that he had been involved in a criminal act (theft) to make “evidence” against him disappear (adding that the newspaper intended to harm his reputation and damage his character).

He also complains that the:

  • headline and picture portrayed a misleading inference; and
  • journalist did not give him an opportunity to respond.

In general, he says that the story flouted numerous clauses of the Press Code, and brought the standing of not only the Secretary to Parliament and the Parliament of South Africa into disrepute, but also that of the profession of journalism itself.

He says that EWN deserves “the harshest sanction” for its conduct, which should include his (prominently placed) reply and address the inaccurate and unbalanced manner in which the article was written.

The article

The story, written by Rahima Essop, reported that the National Health Education & Allied Workers Union (Nehawu) was concerned that private documents – potentially to be used as evidence in a probe against Mgidlana – were stolen.

The documents reportedly went missing from lawyer Johan Nortje’s offices. He represented Ms Zelda Holtzman, the suspended head of Parliament's Protection Services, in her labour dispute with Mgidlana.

Essop also reported that Mgidlana had been granted special leave while a parliamentary audit committee probed allegations of mismanagement on his part and added, “The investigation followed a relentless campaign by Nehawu members to have Mgidlana suspended.” Holtzman reportedly opposed Mgidlana’s use of a car fitted with blue lights and the recruitment of former police officers to work as security guards in the National Assembly.

Fair hearing?

Before considering the merits of this complaint, the panel needs to respond to a concern, raised by Batyi, to the manner in which the hearing was being conducted. She argues that EWN’s “[right] to a fair hearing has been, and may be, negatively affected”.

The panel views these allegations in an extremely serious light, and shall respond to each of them in this regard.

Allegation 1:

“[Requiring] us to reveal our source/s is impermissible and we declined to do so”.

The panel places it on record, once again, that a publication is under no obligation to reveal the identity of its sources. Depending on the circumstances, the Ombud from time to time asks (never “demands” or “requires”) for the identities of sources – and that would always be off the record.

In this case, the panel has not asked EWN to reveal its sources, not even off the record – neither before, nor during, nor after the hearing, and neither in the complainant’s presence or in his absence

This unfounded allegation – which undermines the credibility of the Press Council by suggesting that the panel is acting acted against its own Code – is, quite frankly, inexplicable and bizarre.

Allegation 2:

Batyi says a number of new complaints and issues were suggested by the Ombud and Mgidlana at the hearing – and that EWN had no opportunity to consider and formally respond to these prior to the hearing. Specifically, the use of Mgidlana’s photograph was a new issue under Section 10 of the Code, she claims. She also states that EWN does not concede it is “under any obligation to respond to the specific questions in your email” (which refers to questions put to EWN following the hearing, regarding matters on which the panel sought clarity).

Firstly, the reasons for the “new complaints and issues” to which Batyi objects, were fully explained at the hearing. It seems necessary to repeat that explanation here:

The purpose of a hearing is to flesh out contentious issues. In that process, it may happen that aspects come to the fore which flow from those raised in the complaint, and which need consideration. This happens in each and every hearing, as is the nature of such an exchange. If this should not be allowed, there would hardly be any point to holding a hearing in the first place.

Moreover, when issues arising from previous topics beggar a more considered response from a publication, the panel always gives both parties an opportunity to respond, in writing, after the hearing – which has happened in this case. The panel has never, at least not during the past eight years (of which this panel has intimate knowledge), encountered any problem with this practice.

Also note that, when Mgidlana raised an objection to a certain sentence at the hearing, the panel immediately disallowed a discussion on that matter, as it introduced a new issue not arising from his initial complaint. Mgidlana accepted this ruling.

The panel therefore finds it hard to understand the reasons for or motivations behind EWN’s objection in this regard.

With regards to Batyi’s specific objection to the discussion on the use of Mgidlana’s picture: Her assertion that Mgidlana did not mention the use of his picture in his original complaint is also not correct. In that complaint it was stated, “In fact, seeing the photo of Mr. Mgidlana and after reading the article - one might be left with an impression that the investigation by the Audit Committee is only dealing with issues around Ms. Holtzman’s investigation, which that is not true. More so, after seeing Mr. Mgidlana’s photo and reading the headline, the readers can draw a wrong inference that, Mgidlana is involved in the theft of case file.” (The panel’s emphases.)

In addition:

·         Mgidlana also referred to the picture in later correspondence but prior to the hearing – which was forwarded to EWN prior to the hearing, and which formed part of the correspondence put on the table; and

·         the Ombud has sent a summary of all the relevant documentation to all the parties to assist them in their preparation for the hearing – which included the issue of the picture.

EWN did not object to any of these documents prior to the hearing.

Secondly, Batyi’s comment that EWN was not under any obligation to respond to the specific questions put to it (which flowed from the discussion at the hearing) constitutes a genuine cause for concern – if a publication which is affiliated to the Press Council does not have an obligation to respond to questions posed by a duly constituted panel, the logical conclusion would be that it is not bound by the Press Council’s decisions either, including its sanctions.

Let us just say we trust that Batyi has not thought this statement through.

Allegation 3:

Referring to Mgidlana’s complaint against the Sunday Times, Batyi states: “As you will be aware, the two complaints are different and it will severely prejudice our rights should the Press Council seek to consider our response on its own merits, without recourse to any evidence or material in the Sunday Times complaint.”


The panel finds it hard to understand what Batyi is actually asking of us:

·         She says the two complaints are “different” – which, logically, would mean that the panel should adjudicate Mgidlana’s complaint against EWN and the one against Sunday Times separately, each on its own merits; but

·         She also states it would “severely prejudice our rights should the Press Council seek to consider our response on its own merits, without recourse to any evidence or material in the Sunday Times complaint” – which implies the opposite, namely that the two complaints should be adjudicated in conjunction with one another. (Emphasis by the panel.)

Logically, the two statements are mutually exclusive.

Be that as it may, the panel points out that we have suggested, right at the start, to have a joint hearing between Mgidlana, EWN and Sunday Times, as the complaints were much the same (barring, of course, some small differences). This would have given EWN recourse to evidence or material in the Sunday Times complaint (for which Batyi is now apparently asking) – but this request was denied by EWN.

At no time, though, was there any intention of conflating the two complaints. The panel is adjudicating this specific complaint on its own merits. 

The arguments

Reportage slanted; reputation harmed

Mgidlana complains that the article was unbalanced, untruthful, inaccurate and unfair, and couched in a manner seeking to link an isolated and unrelated incident to the ongoing parliamentary processes – all with the intention to mislead and confuse the readers and public and cause harm to his dignity and integrity.

The crux of his complaint is that it was unfair to portray an impression that he had been involved in the theft of the case file in order to safeguard him against parliament’s investigation into him.

He adds the statement that Holtzman was in a labour dispute with him was wrong, as it was “thus reducing institutional matters into individual matters”. The journalist erroneously personalized matters and did not take the forensic investigation’s findings on Holtzman into account, and presented institutional and management decisions as his decision, as if he was acting in his personal capacity, he says.

In EWN’s reply to the complaint, Mokoena showers the panel with court verdicts, mainly boiling down to the following:

  • To determine defamation, the test is not what the sender of the message intended to convey, or the meaning given to it by the recipients – the test is what meaning the reasonable reader of ordinary intelligence would attribute to the statement; and
  • An article must be read as a whole and individual words must not be singled out and interpreted out of context.

He submits that the article contained no express or implied allegation that Mgidlana was in any way involved in the theft of the documents – the reference to him was simply to indicate that the stolen documents were to be used as evidence in Parliament’s probe into him.

“The reasonable reader would not draw the inference from the article that Mr Mgidlana was involved in the theft of the documents. The fact that Mr Mgidlana understood the article to imply that he was involved in the theft is of no consequence,” he continues.

Cognisant of the fact that the article did state that Nortje represented Holtzman “in her labour dispute with Mgidlana”, Mokoena denies that this constituted a negligent departure from the facts – the story did not claim that Mgidlana was Holtzman's employer, and it would be obvious to the reasonable reader that Holtzman was employed by Parliament, he argues.

He also argues that Holtzman’s dispute was indeed with Mgidlana – he says the former had “opposed Mgidlana’s use of a car fitted with blue lights and the recruitment of former police officers to work as security guards in the National Assembly”, which formed the heart of her labour dispute – having been victimized for opposing Mgidlana. It is therefore substantially true that Holtzman’s dispute was with Mgidlana, he argues.

To further substantiate his argument, Mokoena provided the Ombud with a copy of a founding affidavit in which Holtzman outlined her allegations against Mgidlana.

Referring to yet another court case, he argues that even if the statement about Holtzman’s dispute with Mgidlana was removed, or if the story reported that her dispute was with Parliament’s management, it would make no difference to the article as a whole. “The parties to the labour dispute is a peripheral fact and is irrelevant to the main thrust of the article, which is that documents which were to be used in Ms Holtzman's labour dispute (which deals with the conduct of Mr Mgidlana) and Parliament's investigation into Mr Mgidlana were stolen,” he says.

Mgidlana replies that Mokoena incorrectly applied the court cases cited, and argues that those cases did not exonerate EWN from complying with the provisions of the code. He says the Press Code remains one of the most appropriate yardsticks EWN and the journalist needed to use when measuring and/or deciding on the expected journalistic conduct. “In this case, they dismally argue that they have no obligations arising from the Press Code, which is tantamount to them arguing that the Press Code does not apply to them,” he argues.

It was now his turn to shower the panel with findings – this time from the office of the Ombud, which “provide an equally suitable body of knowledge, nomenclature and/or standards (benchmarks) to be used when making determination on all ethical journalistic issues”.

At the hearing

Mgidlana noted that Holtzman lost her case in the Labour Court and the CCMA, arguing that for those reasons her affidavit could not justifiably have been used as a source for the story.

Batyi countered that the affidavit was relevant as Holtzman mentioned Mgidlana in that document. She also argued that EWN did not say or imply that the content of the affidavit was true.

She denied that the story intended to harm Mgidlana’s reputation, and that it had implied any criminal activities on his part. She also explained that it was relevant to refer to him, as his name carried much news value.

After the hearing

Issues arose from the hearing which needed clarification. The panel therefore sent some questions to EWN:

·         Regarding the credibility of the sources, and specifically that of Nehawu: How did that union know what documents were contained in the file which was stolen? Did the source see it first-hand, or was the source told about it by another source? (We noted the issue was not whether  Nehawu had detailed knowledge about those documents, but only how the union knew what the nature of those documents were);

·         We asked for a copy of the document which contained information about the theft at Nortje’s office, including a case number. We wanted to know if Essop and Nehawu had sight of that document;

·         We wanted to know why Essop used the word “private” in the introductory sentence, as this word – by the journalist’s own admission – was not used by her source (Nehawu);

·         We wanted to know exactly what Nehawu was “concerned” about; and

·         We asked for comment on the use of Mgidlana’s picture.

Mgidlana was given an opportunity to reply to Batyi’s response.

Batyi replied:

·         Nehawu was not aware which documents were contained in the stolen file, but were simply “broadly aware” that the theft had taken place; EWN did not confirm that Nehawu was its source; it was EWN’s journalistic duty to seek reaction to the stolen documents; and it was under no obligation to ask if Nehawu saw the documents first hand;

·         EWN did not have sight of the affidavit;

·         The word “private” was used in the context of the documents being classified as such from an attorney-client relationship between Holtzman and Nortje; the documents were therefore not in the public domain; and

·         Nehawu was concerned about the theft of the documents “in general”, as well as about the potential breach of any attorney-client privilege; at no time did either EWN or Nehawu suggest that the “concern” may relate to Mgidlana’s involvement in the theft of documents.

Mgidlana replied:

·         If Nehawu was not aware which documents were stolen, then there was no legitimate basis for the headline; at the hearing, EWN stated that Nehawu knew what was in the file and that they knew that they were in contact with Holtzman in this regard;

·         The statement that Nehawu was “broadly aware” of the theft is in direct contrast to what the article in question had to say about the matter;

·         The article did not refer to a “general” concern about the theft of documents – instead, both the headline and the story were about a specific “concern” (which involved him);

·         Since EWN and Nehawu did not know what was in the documents, why establish a link with him;

·         At the hearing, EWN undertook to bring a copy of the case file they relied on because it was their contention that they knew what was in the file. They interviewed Nortje in their initial article on the matter and they could have requested a copy of the affidavit from him or from the police – which EWN did not do, by its own admission; this means that it presented the matter of the alleged stolen documents being linked to him as fact, without verification and without reporting this as a rumour or a supposition;

·         Matters in an attorney-client relationship are privileged, not private – the concept of privilege between attorney and client is linked to the right of an accused to proper legal representation and has nothing to do with privacy;

·         Since neither Nehawu nor EWN have had sight of these documents or the affidavit, they cannot classify them, neither can they know whether all of these documents were “in the public domain”, and therefore they have no basis for being concerned; and

·         Batyi did not answer the question about the reason for Nehawu’s concern.

Misleading headline, picture

Mgidlana complains that the headline and his picture misleadingly linked the alleged theft of documents to the (unrelated) parliamentary investigation into him, with the intention to mislead and confuse readers, and to harm his dignity and reputation in that process.

Mokoena says the headline accurately reflected the content of the article – according to the Nehawu spokesperson the stolen documents were to be used as evidence in Parliament’s investigation into Mgidlana. It was therefore justified, he argues, to state that the stolen case file was to be used in the “Mgidlana matter”.

Mgidlana replies that Nehawu’s spokesperson was not the right person to know for a fact whether the stolen case was to be used as evidence in Parliament’s investigation – Holtzman or her representative would been better placed to know that. The union’s information should at least have been reported as an opinion, not as fact, he adds.

He argues that the use of the word “alleged” with reference to the “theft” would have provided much-needed clarity on the matter.

With special reference to the quote by a spokesman of Nehawu, saying that the documents “could have been used” as evidence in the probe against him, he declares, “I am being accused, prosecuted and judged on a matter of alleged theft that has no bearing on me.”   

He also says EWN ignores the linkage between the photo and the headline, which again implicates him in the story, and asks why his picture was used even though EWN says he was not the subject of the reportage (see this argument below).

At the hearing

Mgidlana asked why EWN used his picture if he was not the subject of the story.

Batyi argued that the headline was factually accurate, and that it reasonably reflected the content of the article.

Right to respond

Mgidlana says he was a primary subject in the story, and argues that EWN should have contacted him for comment (together with Holtzman, Nehawu, and Parliament’s spokesperson) as the story held far-reaching implications for him.

Arguing that no reasonable reader would think less of Mgidlana as a result of the reportage, Mokoena denies that the former was the subject of the article and argues that therefore, there was no onus on EWN to seek his (personal) response. He says that the subject of the article was the theft of documents – the reference that the stolen documents were to be used in Parliament’s investigation into Mgidlana did not make the latter the subject of critical reportage.

He also states, “Nothing in the article, read as a whole, would lead the reasonable reader to consider Mr Mgidlana to lack professional integrity. It is therefore far-fetched to claim that the article may have far-reaching implications on [his] character and professional integrity.”

In his reply to the above, Mgidlana insists that he was the main subject of this article – his name and photo were used, and the article referred to him in a negative light and even suggested that he might have been involved in criminal conduct, all of which impinged his character and dignity.

This, he argues, placed the onus on EWN to seek his comment.

He adds, “To say …  that Mr Mgidlana was not the subject of an article on [the] ‘Gengezi Mgidlana matter’ is contradictory at best and unfairly harmful to me… Any reasonable journalist who respect his/her profession would have deemed it fit to contact Gengezi Mgidlana to hear his views or get his side of the story on the case file on ‘Gengezi Mgidlana Matter’.”

At the hearing

Batyi argued that the theft of the documents was the subject of the story, and not Mgidlana. She added that he was not criticised in the article, and that EWN therefore was not under any obligation to ask him for comment.

The Ombud explained the issue was not whether Mgidlana was the subject of the story, but rather whether he was the subject of critical reportage. He used the following example: If Protea batsman AB de Villiers scores a century and a publication reports on that, it is not necessary to get comment from him – even if he was the subject of the report.

Why not?

The reason for this is simple, but profound – because such reportage is not likely to cause him harm of any kind.

The crux of the matter, therefore, is also quite simple: If the reportage was likely to harm Mgidlana (whether rightly or wrongly, it does not matter), EWN would have been obliged to get comment from him – if not, then no right of reply was necessary.

That, and that only, was the question before the panel.

Analysis

The panel shall first analyse the main parts of the complaint separately, before coming to a final conclusion.

Reportage slanted; reputation harmed

The gist of the complaint

The panel now focuses on the gist of Mgidlana’s complaint: Did the story create the impression that he had been involved in the theft of the case file in order to safeguard him against parliament’s investigation into him? And, if that be the case, was such a portrayal unfair, causing unnecessary harm to his dignity and reputation?

Mokoena, in his initial reply to the complaint, correctly points out that the test of defamation is not what the sender of the message intended to convey, but rather what meaning the reasonable reader of ordinary intelligence would attribute to the statement – which renders rather irrelevant Batyi’s argument at the hearing that the story did not intend to harm Mgidlana’s reputation.

The question before the panel, therefore, is whether the reasonable reader would have inferred from the article that Mgidlana had in some way been involved in the theft of the documents.

Mokoena’s second remark in this regard, namely that an article should be read in context, is also correct – which is exactly why we had a hearing in the first place, why new questions arose from that hearing, and why the panel is now going to look at different aspects of the article which might bring some light to this issue.

The introductory sentence to the story stated Nehawu had been concerned that private documents, which could have been used as evidence in the probe against Mgidlana, were allegedly stolen.

There can be nothing wrong with this statement, when viewed in isolation – if Nehawu was concerned about missing documents which could have been used against Mgidlana, it was the union’s right to be concerned, and similarly EWN’s right to report it.

So far, so good.

However, the panel believes the reasonable reader would have wondered what information those documents contained and who stole them – and especially with regard to the question why they were stolen. While the “what” was important, and perhaps even more so the “who”, it is the “why” which hangs in the air and which gave rise to Mgidlana’s complaint.

To play devil’s advocate: If the story did not address the issue of why the documents were stolen, but only reported Nehawu’s “concern” in this regard, the reasonable reader might have put two plus two together, and concluded that the documents were stolen to protect Mgidlana. Whether or not he had a finger in that pie, is difficult to decide. At the very least, though, he was the only one who stood to benefit from the theft…

This is exactly why the panel asked this question at the hearing, and pertinently repeated it in our correspondence following the hearing: “What exactly was Nehawu concerned about? Why was the union so concerned?”

The panel notes that neither at the hearing, nor in its response to our questions following the meeting, did EWN specifically reply to this question – all we have, is a blanket denial that neither EWN nor Nehawu suggested that the “concern” related to Mgidlana’s possible involvement in the theft of documents.

Nehawu

Several issues are at stake:

·         Batyi’s denial that EWN confirmed Nehawu as its source has the panel non-plussed – not only did Essop confirm this at the hearing, but both the story and the heading testify to that. Expressed from a different angle: If it is true that Nehawu was not EWN’s source, then not only was the whole story based on hearsay, but in fact also simply false (the introductory words were “Nehawu said”, and Essop quoted Mr Sthembiso Tembe from that union);

·         If indeed Nehawu was merely concerned about the theft of the documents “in general”, the (quite specific) references to Mgidlana in the story, in the headline, and with the use of his picture, were meaningless;

·         The panel asked the question − how did Nehawu know what the stolen documents contained − because we believe a reasonable reader would have asked that same question. Especially since Nehawu must have had some kind of information (without which its “concern” would have hung in the air), and the story stated that the documents were “private” (if so, then how did Nehawu know what they were about?). We did not receive any satisfactory response to this question – instead, we got the rather mind-boggling reply that EWN never confirmed that Nehawu was its source);

·         Another cause of concern for the panel is Batyi’s admission that Nehawu was not aware which documents were contained in the stolen file – so again, the question is why would the union be so concerned;

·         The panel also wondered about this “concern” as it was most likely that the missing documents had duplicates, somewhere;

·         Batyi’s statement that EWN was under no obligation to ask whether Nehawu saw the documents first-hand, has the panel stumped – even if the union did not have sight of the documents, the question how it knew that they contained information about Mgidlana was pertinent  − a reasonable reader would also have wondered about this issue;

·         If Nehawu did not have first-hand information about the content of the documents, the:

o   next question is who told them so;

o   conclusion is that the union had to rely on hearsay (in other words, that Nehawu was not a primary source); and

o   other question is who was the primary source, if not the union.

So many of Batyi’s responses hang in the air – and nobody should be surprised if they also hung in the air in the minds of reasonable readers reading the article in dispute.

Given these uncertainties, the panel needs to ask itself at some point:  just how was the information linking the stolen documents to the Mgidlana investigation presented – as opinion (in which case, as whose opinion), or as fact?

The relevant parts of the story stated, “Nehawu said it was concerned that private documents that could have been used as evidence in the probe against Mgidlana were allegedly stolen. It emerged last week that the case file went missing from lawyer Johan Nortje’s office… The union’s Sthembiso Tembe says their complaint [to parliament] is related to Holtzman's dispute. ‘We don’t know what’s contained in that evidence that was taken but we’ve got reputable evidence that we’ve submitted to the audit committee as a union’.”

From this, it is clear the story stated as fact (only) that a case file went missing from Nortje’s office; it portrayed the “link” between the missing documents and Mgidlana as an allegation (by Nehawu); and it seemed to be a fact that Nehawu was concerned about the matter.

The panel believes that EWN had the right to report that Nehawu was concerned about the alleged theft – but then, such reportage would have hung in the air if questions about who did it, and especially why, were not addressed. To be more specific: It there was just silence about the one person who might have benefitted from the disappearance of the documents.

The reporting as fact that the documents “went missing”, is more problematic – Essop did not state from where this information came, which means the public was expected to uncritically consume this information. Had she stated she had garnered the information from Nortje, it might have put doubt in some readers’ minds. Given this omission, it certainly would have been better to portray this as an allegation as well.

But there is more, which the panel will address in due course.

Documentation

Nortje: At the hearing, Essop said the information about the content of the documents came from Nortje. Should the panel therefore believe that Nortje has revealed “private” information (or “privileged” data, to use Mgidlana’s word) to the union? How reasonable is that to believe? Also, the story did not say that the information came from Nortje – so then, how was the public to know how to evaluate the credibility of this information?

At the back of our minds was the possibility (please note, this is not an accusation – we are merely pointing out the possibility, without stating it as a probability) that Nortje, as Holtzman’s legal representative, might have been conflicted in the matter. Therefore, we asked how EWN had any confirmation, other than from Nortje, of the allegation that the documents were stolen in the first place.

Police: The answer came that Nortje reported this matter to the police, and that a case number to this effect existed. That would do. But not quite, as Essop said she did not have sight of this document. Our request to EWN to produce that document also had no success.

Affidavit: Batyi’s statement that EWN did not have sight of Holtzman’s affidavit is equally bizarre – she argued at the hearing that it was relevant to make use of this document, as it contained references to Mgidlana. So again, how did EWN know about the content of the affidavit if it did not see it (prior to publication)?

Misleading headline, picture

The question is if the headline and his picture misleadingly linked the alleged theft of documents to the parliamentary investigation into Mgidlana, harming his dignity and reputation in that process.

The headline

In our evaluation of this part of the complaint, we need to:

·         determine whether the headline was a reasonable reflection of the content of the article (as required by Section 10.1 of the Press Code); and

·         keep in mind that, if the story created a misleading impression and the headline accurately reflected such an impression, the headline would be misleading as well.

The headline read, Nehawu concerned over theft of case file in Gengezi Mgidlana matter; the introductory sentence stated, “Nehawu said it was concerned that private documents that could have been used as evidence in the probe against Mgidlana were allegedly stolen.”

The panel has already indicated that the story (correctly, but on condition…) portrayed the statement linking the lost documents to parliament’s investigation into Mgidlana as an allegation, and the statement that documents “went missing” as fact. The first question, therefore, is whether the headline reasonably presented those issues as such (on the same conditions, of course).

We do not want to split hairs, but we believe that each party’s argument has some sort of merit – it really would depend on where one puts the focus when reading the headline.

It could read:

·         Nehawu concerned over (theft of case file in) Gengezi Mgidlana matter; or

·         (Nehawu concerned over) theft of case file in Gengezi Mgidlana matter.

In the first instance, the link would be an allegation on Nehawu’s part; in the second, the link would be stated as fact.

In this part of our adjudication, we need to take Mokoena’s argument seriously, meaning that we need to interpret the headline in the context of the story. As the story itself did not state as fact that the contents of the case file contained evidence against Mgidlana, but indeed reflected this as an allegation, the panel needs to give EWN the benefit of the doubt on this issue.

While it is true that the headline could have been interpreted in more than one way, we believe that – given how the story was written regarding the “link” – that the reasonable reader would have interpreted the headline as an allegation, and not as fact.

Our contention that the headline is a reasonable reflection of the story, however, only covers one part of the issue – we now also need to decide whether the story itself (which was reasonably reflected in the headline) was not misleading – which, in turn, would make the headline misleading as well.

Again, we put this on ice, but just for a moment.

The picture

The question is whether the use of Mgidlana’s picture was misleading (Section 10.2 of the Press Code).

This matter can only be dealt with in conjunction with the panel’s deliberation on the merits of the story itself – so this is put on ice as well, also for a moment.

Right to respond

Let us repeat: The question is not whether Mgidlana was the subject of the story, either primary or secondary – the issue is whether he was the subject of critical reportage (which does not necessarily mean that he had to be the primary subject – someone can be the subject of critical reporting even in one sentence − let alone in the headline and by the publication of a picture − which would necessitate an opportunity to comment).

The central question is whether the reportage had the potential of damaging Mgidlana’s dignity and reputation – if “yes”, EWN was obliged to obtain comment from him.

The fact that Nehawu has linked the missing documents to parliament’s investigation into Mgidlana could certainly have caused him harm – whether that link was accurate or not, and whether it was portrayed as fact or as an allegation.

The simple fact is that the story said (as fact) documents were stolen and these could have been used against Mgidlana (an allegation by Nehawu). The message was that evidence was “lost” – and the only one who stood to gain was … Mgidlana…

This leaves the panel with one conclusion only: EWN was obliged to give him a right of reply prior to publication.

Conclusion

The panel is now going to defrost all the issues we have put on ice, stir the potpourri into a proper mix, and come up with a conclusion.

Looking at the matter from a reasonable reader’s perspective, the statement that the documents were stolen, and that Nehawu believed that those documents could have been used in parliament’s investigation into Mgidlana, could have created the impression that Mgidlana had been involved in the theft of the case file in order to safeguard him in the investigation. At the very least, it portrayed the message that he was the only person who could have benefitted from the theft – which, of course, would leave readers with pertinent questions.

The fact that the reason for Nehawu’s concern hung in the air could only have exacerbated the possible harm which could have come his way.

The panel also believes Essop should have reported the alleged theft of the documents as an allegation, or alternatively, have referred to her source in this regard.

As such, we firmly believe that Mgidlana was the subject of critical reportage, and therefore should have been asked for comment.

However, the panel does not have reason to think that EWN intended to harm Mgidlana’s dignity and reputation – but, at the same time, the lack of such intention does not mean that a reasonable reader would not have come to such a conclusion.

Given these possibilities, the panel has no hesitation in deciding that the headline as well as the use of Mgidlana’s picture has contributed to the potential harm – which could have been avoided had he been asked to comment, and had Essop been more careful in not portraying the theft of the documents as fact.

We hasten to state that, while the panel believes that the “link” had the potential of harming Mgidlana’s dignity and reputation (whether rightly or wrongly), we are not in a position to declare whether he deserved this harm or not – we are not a court of law.

It is an established journalistic principle that a publication cannot be held responsible for conclusions drawn by the public if its reportage was accurate and fair. In this case, though, it was unfair not to have given Mgidlana a right of reply, which greatly contributed to the possibility that he could have been harmed unfairly.

Finding

The complaint is upheld insofar as EWN should have given Mgidlana a right of reply to the statement that the documents had been stolen (instead of calling it an allegation, or of attributing that information to a source), and to the alleged link between the theft and parliament’s investigation into him.

The fact that he was not asked for comment on those issues, as well as the fact that the reason for Nehawu’s concern was not addressed, had the unfair potential of harming Mgidlana’s dignity and reputation.

The breaches of the Press Code are the following:

·         Section 1.8: “The media shall seek the views of the subject of critical reportage in advance of publication”;

·         Section 1.1: “The media shall take care to report news…fairly”; and

  • Section 1.3: “…Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner…” and
  • Section 3.3: “The media shall exercise care and consideration in matters involving dignity and reputation.”

Seriousness of breaches                                              

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).                                             

The breaches of the Press Code as indicated above are all Tier 2 offences.

Sanction

EWN is directed to apologise to Mgidlana for:

·         not giving him a right of reply; and

·         the lack of care and consideration regarding his reputation and dignity, especially with regards to its reportage and the suggestions the reportage carried, namely that there might have been a link between the theft of the documents and parliament’s investigation into him.

The breaches of the Press Code are the following:

·         Section 1.8: “The media shall seek the views of the subject of critical reportage in advance of publication”;

·         Section 1.1: “The media shall take care to report news…fairly”; and

  • Section 1.3: “…Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner…”; and
  • Section 3.3: “The media shall exercise care and consideration in matters involving dignity and reputation.”

The website is requested to publish:

·         the apology at the top of the page, with a headline containing the words “apology” or “apologises”, and “Mgidlana”; and

·         a link between the two texts.

The text should:

·         be published at the earliest opportunity after the time for an application for leave to appeal has lapsed;

·     refer to the complaint that was lodged with this office;

·     end with the sentence, “Visit www.presscouncil.org.za for the full finding”; and

·     be prepared by the newspaper and be approved by the panel.

Addressing on sanction

Section 5.5 of the Complaints Procedures reads, “At the conclusion of a hearing, and after a Panel has reached a decision, both parties shall be entitled to address the Panel, personally or in writing, on sanctions and where appropriate mitigation.”

This section should not be confused with an appeal – it merely gives each party an opportunity to address the panel on the sanction itself. The opportunity to appeal, either the finding or the sanction, remains open for the next seven workings days, as outlined below.

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.

Lindsay Clowes (public representative)

Henry Jeffreys (media representative)

Johan Retief (Press Ombud)