Ruling by the Press Ombud
14 December 2017
This ruling is based on the written submissions of Mr Gengezi Mgidlana, Secretary to Parliament, and those of Katy Katopodis, group editor-in-chief of the Eyewitness News website.
Mgidlana is complaining about three articles on EWN:
· Parliament to fire security boss Zelda Holtzman? (9 October 2017);
· Parliament’s security boss Zelda Holtzman fired (October 11); and
· Zelda Holtzman: Parly’s reason for dismissal almost laughable (October 11).
Complaint
Mgidlana complains that:
· several statements reportedly made by Ms Zelda Holtzman were false, which led to unfair, incorrect and unbalanced reporting;
· information about the number of complaints and findings against her were incorrect; and
· the publication did not give him a right of reply – which it should have, as the reportage has unnecessarily tarnished his reputation and character.
The texts
The first article, written by Rahima Essop, said that Parliament had been considering whether to fire its suspended security boss Zelda Holtzman following an independent disciplinary process.
The second story reported that Parliament had decided to dismiss Holtzman with immediate effect – a few days after the chairperson of her disciplinary inquiry recommended she be dismissed, and more than two years after she had been placed on suspension.
The third article, penned by Mia Lindeque, quoted Holtzman as saying the reason provided by Parliament for dismissing her was almost “laughable”. Parliament’s disciplinary inquiry reportedly recommended that she be dismissed for insubordination. However, she said she believed she was unfairly treated for clashing with Mgidlana and refusing to sign off on certain plans.
The arguments
‘False’ statements by Holtzman
Mgidlana complains about the following statements in the three stories:
· “Throughout her protracted labour dispute, she argued that she was being unfairly treated for raising concerns about Secretary to Parliament Gengezi Mgidlana's problematic use of official vehicles fitted with blue lights, and the recruitment of police officers to bolster Parliament's Protection Services” (first article).
· The second article quoted Holtzman as making the same claims that, “Throughout her protracted labour dispute, Holtzman argued she was being unfairly treated for raising concerns about … Mgidlana’s problematic use of official vehicles fitted with blue lights, and the recruitment of police officers to bolster Parliament's Protection Services”.
· The third story stated that, according to Holtzman, “the reason provided by Parliament for getting rid of her is almost laughable”; she also reportedly believed that she had been unfairly treated for clashing with Mgidlana and refusing to sign off on certain plans; and, “I feel that there’s a very big difference between securitizing Parliament and securing democracy and I didn’t think that the way they are going about it was securing democracy, particularly when police were utilized while they’re employed by the South African Police [Services] and all of that was wrong and I wasn’t prepared to sign off on that”.
In all of these cases, Mgidlana refutes Holtzman’s claims in quite some detail, referring to several official documents in this regard.
The crux of Katopodis’s reply is that the stories reflected Holtzman’s opinions, to which she was entitled. She states, “Ms Holtzman’s belief that she was being unfairly treated was at no time portrayed to readers as fact. [It was also] clear to readers in the context of each article that EWN was reporting on [her] opinion on the charges against her and the outcome of the proceedings.”
Mgidlana agrees that Holtzman is entitled to her own opinion. However, that is not the “basis” of his complaint. He says he is taking issue with the journalist and not with Holtzman because the reportage was untruthful, inaccurate and unfair.
He says the records (the CCMA, the Labour Court, and the outcome of the disciplinary hearing of Parliament) are easily available to any journalist and media house intent on presenting a balanced view that is accurate and truthful; he adds that EWN instead decided to base its reports on “wild views” rather than facts, truth and fairness, and chose to ignore this context.
“In presenting a single-minded unbalanced view, EWN has deliberately not allowed its readers access to all information and enable them to make their minds considering all information available,” he maintains.
He argues, “[The] question arises, because the focus of the articles was on dismissal, does that mean then we should turn a blind eye to the inaccurate claims contained in the articles…? Seen from another angle, it might seem that EWN is saying, yes there were inaccurate claims made in the articles, but we are not interested in those factual misrepresentations because they do not relate to what was our focus - the dismissal… [This] view of the EWN … condones ‘fact-devoid’ reporting that places a premium on inaccurate, unfair, uncritical reporting of news, all in total opposite to the ethos and ideals of the Press Code.”
Analysis
This office is not the place to ascertain whether Holtzman is correct or not – she has a right to her opinion.
Likewise, EWN has the right to publish those views. So, the publication of Holtzman’s views is not problematic; what may be, is the way in which those views were presented.
I am therefore not entertaining any of the complaints relating to the justification for publishing Holtzman’s views on the different matters, and am ignoring all the arguments about the correctness of her opinions.
In other words, essentially I find nothing wrong with what was reported in any of the articles – from a media ethical perspective, that is.
Incorrect number of complaints, findings against Holtzman
Some articles stated that Holtzman had been found guilty of three of the 14 charges against her.
Mgidlana says these figures are incorrect – the charges against her were 12, not 14, and she was found guilty on 4 charges, not 3.
Katopodis does not reply to this part of the complaint.
Analysis
The figures mentioned in the articles are indeed not correct and should therefore be rectified – although nothing much turns on this.
No right of reply; character tarnished
Mgidlana says that, together with Holtzman and Parliament, he was a subject of the stories. “Given the far-reaching implications the report has on [my] character and professional integrity … it was prudent and expected of the journalist, as required by the Press Code, to contact [me] to solicit [my] views on the matter in question.”
He complains that the reportage has damaged his character by associating him with victimization and the demise of a colleague’s career.
Katopodis denies there was any onus on EWN to seek a response from Mgidlana, as he was not the subject of the articles – she argues Holtzman and her ongoing labour dispute with Parliament were the subjects of the story. She adds that, because it was consistently clear that the allegations published were Holtzman’s views, Mgidlana was not the subject of critical reportage.
She denies that Mgidlana’s character was impugned by being associated with the alleged victimisation and the demise of a colleague’s career, as he was “not directly criticised in the article”.
The editor says the articles merely repeated Holtzman’s views on the labour dispute, which had already been published by EWN and other publications numerous times, and the facts of which are clear from her affidavit in the labour dispute. She adds it is of no consequence that Mgidlana himself interpreted the articles to be damaging to his character, dignity or integrity – the test lies with how a reasonable reader would have understood the reportage.
She concludes that Mgidlana had no right to respond to the content of the articles, and EWN consequently had no responsibility in terms of the Press Code to afford him such an opportunity.
Mgidlana complains that he was the subject of critical reportage and maintains that it was unfair to air the views of one party (who, he says, was aggrieved, biased and blamed him for her dismissal) without giving him the chance to rebut the statements or properly reference the outcomes of the hearing.
He says readers were left unable to form their own views on the issue – one person’s opinion (who was biased in his view) was not adequate as the sole platform of expression on the matter. “This approach by EWN and the journalist deprived the reader an opportunity to make an informed observation on the facts, process the decision and/or view about who might be right and who might be wrong,” he maintains.
He also argues that, by failing to balance out Holtzman’s views with different perspectives and facts, it actually rendered her opinions as factual. He says readers were left with a possible conclusion that EWN was legitimizing her opinions as truthful or factual.
Mgidlana says that by not offering him a right of reply, EWN has unnecessarily tarnished his dignity and reputation.
Analysis
I am taking the following general considerations into account:
· The first question is whether Mgidlana was the subject of critical reportage. By this I mean whether there was a possibility that the reportage could have harmed him. It does not matter if such harm is deserved or not – the subject of critical reporting deserves a right of reply in any case;
· A person does not have to be the subject of a story in order to be the subject of critical reporting. A story may refer to someone in passing, but it may be defamatory or potentially harming of such a person – in which case that person was the subject of critical reportage, even though she or he was not the subject of the story; and
· The question is also whether anything new was reported with regards to the person who might be the subject of critical reportage. If not, this office cannot expect the media to ask such a person for comment every time they refer to the past – on condition, of course, that the story is fair and balanced to both parties. For example, if Person A alleged something about Person B, and the latter denied it, it would be perfectly in order for the media to re-publish those allegations without asking that person for comment again – on condition, of course, that it is accompanied by the denial (in the absence of which the story would by default be unfair and unbalanced).
The first article reported that Parliament was considering whether to fire Holtzman, who was suspended at that time and who was found guilty on some of the charges against her.
As background, or context, the journalist wrote that:
· Holtzman has argued, throughout her protracted labour dispute, that she was being unfairly treated for raising concerns about Mgidlana's problematic use of official vehicles fitted with blue lights, and the recruitment of police officers to bolster Parliament's Protection Services; and
· Mgidlana has denied any wrongdoing.
The story then continued to report a new development – that the chairperson of Holtzman’s disciplinary inquiry recommended her dismissal for insubordination and for failing to produce a business plan for her unit. Parliament reportedly said in a statement that it would consider the recommendations and take a decision.
I am satisfied that this reportage has met all the requirements set by the Press Code – the context was balanced, as it referred to both Holtzman and Mgidlana, and the new development did not concern him directly (it was about the chairperson’s recommendation, and Parliament’s reaction to it).
Given these considerations, I do not believe that Mgidlana was the subject of critical reportage in this text.
In the second story EWN reported Parliament’s decision to fire Holtzman with immediate effect.
As background, or context, it was stated inter alia that:
· the chairperson of her disciplinary inquiry had recommended her dismissal a few days before;
· throughout her protracted labour dispute, Holtzman argued she was being unfairly treated for raising concerns about Mgidlana’s problematic use of official vehicles fitted with blue lights, and the recruitment of police officers to bolster Parliament's Protection Services; and
· Mgidlana had denied any wrongdoing.
The same argument applies to this story as in the first one.
The third article was about Holtzman’s reaction to her dismissal, stating (again) that with regards to Mgidlana, she believes she had been unfairly treated for clashing with him and refusing to sign off on certain plans.
This was not a new allegation, and EWN was not duty-bound to ask Mgidlana yet again for his comment on it. However, it should have reported the latter’s denial of wrongdoing, as the previous two articles did.
I know that EWN has previously published Mgidlana’s denial, and foresee that it could argue that this story should be read in context with those articles – yet I also believe that if the news site found it necessary to re-publish Holtzman’s accusations, it should also have deemed it necessary to repeat Mgidlana’s denial.
Without his denial, the story was unbalanced and unfair.
Having published his denial within the same context before, though, I do not believe that the omission of his denial this time could have contributed significantly to the tarnishing of his reputation.
In summary, I do not blame EWN for not having asked Mgidlana for comment – I am saying, though, that the publication of his previous comment would have provided the necessary balance to the story.
Finding
‘False’ statements by Holtzman
This part of the complaint is dismissed with regards to all three stories.
Incorrect number of complaints, findings against Holtzman
Some articles incorrectly reported that Holtzman had been found guilty of three of the 14 charges against her. This was in breach of Section 1.1 of the Press Code that states, “The media shall take care to report news … accurately…”
No right of reply; character tarnished
The complaint with regards to not having asked Mgidlana for comment in every one of the three articles is dismissed.
However, the third story lacked the necessary balance in that it published Holtzman’s allegation yet again (newly stated, but repeated nevertheless) but did not publish Mgidlana’s denial as well. This was in breach of Section 1.1 of the Code which reads, “The media shall take care to report news … fairly.”
The complaint with regards to the tarnishing of Mgidlana’s reputation is dismissed.
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 breach of the Press Code with regards to:
· incorrectly stating that Holtzman was found guilty on three out of fourteen charges against her was a Tier 1 offence; and
· the omission to report Mgidlana’s denial of Holtzman’s accusation against him in the third article was a Tier 2 offence.
Sanction
EWN is directed to:
· apologise to Mgidlana for not reporting his denial of Holtzman’s accusation in the third article; and
· correct the number of complaints and findings against her.
The news site is requested to publish the apology at the top of the page where the third article is published, with a headline containing the words “apology” or “apologises”, and “Mgidlana”.
The text should:
· be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, in accordance with that ruling;
· 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 publication and be approved by me.
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