Gengezi Mgidlana vs. Sunday Times


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 Susan Smuts, legal editor of the Sunday Times newspaper, as well as on a hearing on 12 September 2017 in Cape Town. Present at the meeting were Mgidlana, with his wife Lerato and Mr Thembi Mbadianyene, as well as Smuts and the journalist, Babalo Ndenze.

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 Sunday Times of 18 July 2017, headlined New twist in case against Mgidlana.

Complaint                                            

The gist of Mgidlana’s complaint is that the reportage unfairly and falsely linked the disappearance of a “red suitcase”, containing the “Holtzman’s files”, to Parliament’s investigation into allegations leveled against 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:

·         story contained several inaccuracies with regards to his and Ms Zelda Holtzman’s suspensions;

·         headline was sensationalist and misrepresented the story and that the use of his picture accentuated those misrepresentations; 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.

Citing the Preamble to the Press Code with reference to the media’s goals of pursuing excellence in journalism, professionalism and ensuring an appropriate balance between the exercise of various rights enshrined in the Constitution of South Africa, Mgidlana says Sunday Times deserves “the harshest sanction” – which should include an apology to the Secretary to Parliament, a retraction of the offensive article and his (prominently placed) reply to the allegations and opinions paraded as facts by the newspaper.

The text

The article, penned by Ndenze, said that a “red suitcase”, containing evidence that was to be submitted to Parliament as part of its investigation into Mgidlana, had been stolen from the offices of Advocate Johnny Nortje, who was representing Holtzman, Parliament's head of security.

Holtzman had reportedly been suspended by Mgidlana two years ago, with the latter accusing her of presiding over security breaches at the legislature.

The investigation into Mgidlana included allegations of irregularly hiring senior staff, embarking on unauthorised international trips, and ordering parliamentary staff to chauffeur him around in vehicles fitted with blue lights.

Mgidlana was also facing an investigation by public protector Busisiwe Mkhwebane after the National Education Health and Allied Workers Union (Nehawu) lodged a complaint against him.

Ndenze wrote that there had been no sign of forced entry to Nortje's offices and that the matter had been reported to the police for investigation.

The reporter quoted Nortje as saying that the documents were due to be submitted to an independent audit committee of parliament, as evidence against Mgidlana. The committee was investigating allegations of mismanagement, corruption and abuse of power against him.

The advocate also reportedly said it was strange that the documents were stolen just weeks after parliament asked its audit committee to investigate the allegations against Mgidlana – the red suitcase had been “right there” for the past two years, and disappeared only after an inquiry was announced.

The arguments

Reportage slanted; harming reputation

Mgidlana submits that the article was about information which had allegedly been lost or stolen from Nortje’s offices regarding a different matter (the Holtzman case), which had nothing to do with him or with Parliament’s investigation into him. He adds that this link was a deliberate ploy to defame him.

Mgidlana says the journalist used the words “red suitcase” (presupposing that the public knew about the suitcase, or that the general public accepted the existence of the suitcase in question) and the statement that he had been “reliably” informed that it had contained more than 2 000 pages of evidence and transcripts as a rhetorical device to create a hyperbolic effect – to append his argument to an “individual of power or authority” (a top advocate and reliable source) in an effort to give trustworthiness to his argument.

He argues, “In essence, he is trying to make an inference that because the advocate in question is a top advocate … he cannot be at fault for the missing documents or for misplacing them.”

The further intention, he adds, was to shift the focus and blame from what might be someone’s shortcomings or negligence regarding the alleged missing documents to him.

He inter alia adds that the journalist:

·         negligently or deliberately omitted to include the word “suspended” when referring to Holtzman;

·         personalized issues by not taking into account forensic investigation findings on Holtzman’s conduct – to portray him as a bad manager who willy-nilly suspended people;

·         stated three times as fact that the documents were “stolen”, while the story did not even report a case number or any confirmation that a case of theft had been reported to the police; and

·         has not taken into account that his source (Nortje) might have been conflicted because his client was involved in the story;

·         used the allegation that the documents were stolen just weeks after Parliament had instituted an investigation into him to create a link between those documents and the “case” against him;

·         couched his story in a manner that sought to link an isolated and unrelated incident to the ongoing parliamentary processes; and

·         used sneer or scare quotes when referring to issues about Holtzman only (treating those with skepticism), and not to allegations against him as well.

Smuts says the article did not argue that Nortje was beyond reproach for not taking better care of the documents. She says Mgidlana’s suggestion that Nortje might have misplaced the documents went unsubstantiated, and he did not advance any reason to doubt that the suitcase contained more than 2’000 pages of evidence and transcripts either.  In fact, the only people who could make an authoritative estimate of the number of pages are the people who compiled or collected them, she argues.

The legal editor says Mgidlana has failed to demonstrate any departure from the facts and any breach of the Press Code.

Smuts also argues there was no material difference between describing Holtzman as “a suspended Parliament head of security” and “Parliament’s head of security, suspended by…”

She also denies that the story personalised matters. “To some extent the events involve the conduct of people, and reporting on such conduct is justified and indeed unavoidable. We did not seek to portray the conflict between Mr Mgidlana and Ms Holtzman as motivated by anything beyond the institutional situation. We submit that we have not gone further in describing such conduct than is necessary,” she argues.

Fact of the matter is that Mgidlana was the accounting officer for Parliament, and the suspension was made under his watch and, on his version, by his deputy. He has never spoken against the decision, nor questioned his deputy’s authority to make the decision, she submits.

The legal editor adds:

·         The forensic investigation, while interesting, is of historical significance and not essential to the story of the theft of the suitcase – there is no onus on the newspaper to  rehash every detail of the story when new events come to light; the article did state, though, that the suitcase had been stolen weeks after Parliament had asked its audit committee to investigate the allegations against Mgidlana, which was “sufficient for the purpose of the story”;

·         It is “patently untrue” that the story was based on “opinion, allegation, rumour and supposition” – the matter had been reported to the police (CAS 1359/07/2017), information and quotes were properly attributed, and Nortje was a credible source as it was from his office that the documents (which he had helped to compile) were stolen;

·         Mgidlana has not advanced any reasons for doubting the theft – if the case had been falsely reported, the police would uncover that and consequences for Nortje would likely ensue;

·         The story attributed the reference to the “famous red suitcase” to Nortje; and

·         Placing the words “security breaches” in quotation marks was not an attempt to “sneer” – it was merely done to indicate that such “breaches” were contested; besides, the use of quotations marks did not alter the meaning of the particular statement.

Mgidlana replies:

·         By referring to Holtzman as Parliament’s Head of Security (while there was an Acting Head of Security) the journalist was nullifying and/or delegitimising the acting appointment of the current incumbent as well as the current disciplinary process;

·         A reference to the forensic findings on Holtzman would not have been misplaced – she was also the subject of the article and the allegedly stolen documents might have contained information on the forensic findings as well. If such a reference was misplaced, then it can also be argued that a detailed reference to him was misplaced since the newspaper admits that “the story is about the theft of the suitcase and its relevance” – and therefore not necessarily about him; and

·         Providing exact details regarding the date and time of the theft was important because it would have eliminated speculation about the linkages between the theft and the investigation into allegations against him – the newspaper withheld that information because it would have removed the sensation and misrepresentation created by the non-disclosure of all facts.

The panel’s considerations

The basic questions, which are closely interlinked, are whether the reportage has:

·         wrongly linked the disappearance of the Holtzman files from Nortje’s office with parliament’s investigation into Mgidlana; and

·         created the impression that the latter had something to do with the disappearance.

Wrongly linked: There is no question that Nortje (reportedly) did make this link – he dubbed the documents “the Holtzman files”, and he linked those to Parliament’s investigation into Mgidlana.

The panel has no way of deciding whether this link was justified or not, neither is it within our mandate to make such a decision. The point is that Nortje had a right to say so – even though he might possibly have been incorrect.

It follows that Sunday Times had a similar right to quote him. The mere fact that Sunday Times reported that Nortje had linked the two issues cannot therefore be a breach of the Press Code.

However, Ndenze went further – he also stated this information, garnered from Nortje, as fact:

·         His introductory sentence read, “A ‘red suitcase’ containing evidence that was to be submitted to parliament as part of its investigation against Gengezi Mgidlana … has been stolen…”; and

·         He followed this up by reporting that Sunday Times had been “reliably informed” about this information.

It seems that Nortje, who might or might not have been conflicted in this matter, was the journalist’s only primary source.

This should have alerted the journalist not to state information garnered from Nortje as fact, but rather to treat it for what it was – an allegation (which, the panel repeats, he was justified to report).

Mgidlana’s ‘involvement’: The question is whether the story created the impression that Mgidlana had something to do with the disappearance of the documents (which could have incriminated him).

The story did not state this – although some readers might have suspected that he had been involved in order to protect himself against “evidence” which might have been used against him.

However, a newspaper cannot be held responsible for wrong conclusions, if indeed it reported accurately and fairly – as was correctly pointed out earlier by a Panel of Appeals.

Conclusion: Based on the above, the panel does not have evidence that Sunday Times “intended” to harm Mgidlana’s reputation and damage his character – but we do believe that the newspaper went too far in stating as fact that the missing documents contained evidence which was to be used in parliament’s investigation into Mgidlana.

Suspensions

Mgidlana complains that the following statements in the article were false, unfair and/or misleading:

·         References to him having been “suspended” – while, in fact, it was publicly announced that he had been put on special leave pending the outcome of the investigation;

·         The Speaker had suspended him – while she took this decision in conjunction with the Chairperson of the National Council of Provinces; and

·         He had suspended Holtzman – while she had been suspended by the Deputy Secretary to Parliament: Support Services (which created the unfair and subjective impression that Holtzman’s suspension was an individual issue relating to him).

Smuts says Mgidlana has drawn numerous unsustainable inferences from the facts presented in the story:

·         While the newspaper accepts that Mgidlana was placed on “special leave”, the use of the word “suspension” was justified as a parliamentary HR official told the newspaper that special leave was a (less intrusive) form of suspension; and

·         Holtzman was suspended by Parliament in 2015 following clashes with Mgidlana – who is head of parliament, and its accounting officer. “The parliamentary statement of July 30 2015 said nothing about [her line manager]. If Mr Mgidlana disagreed with his subordinate, he should have said so and lifted Ms Holtzman’s suspension. If he agreed with it, he should, as her principal, stand behind [his subordinate’s] decision.” Therefore, Sunday Times was justified in reporting that Mgidlana had suspended Holtzman.


Mgidlana questions the newspaper’s argument about special leave being a form of suspension, saying that this was not an official response of Parliament and emphasizing that official documentation on special leave did not say anything about suspension or about special leave being a form of a suspension.

He says it is true that, as the accounting officer, he was responsible for the entire administration; it is also correct that this decision was taken during his tenure as CEO. However, he denies that he has anything personal against Holtzman “and I do not have to prove that by compromising a legitimate disciplinary process in order to appease the Sunday Times and the journalist concerned or being blackmailed about it”.

The panel’s considerations

Special leave: The panel accepts there is a difference between special leave and suspension, even though the one may also be seen as a form of the other. Ndenze should have been more careful in this regard – Mgidlana’s exact situation was that he was put on special leave, and there is no reason for the journalist not to report it as such.

Mbete: While it is true that not only Mbete took action (she did so in conjunction with the Chairperson of the National Council of Provinces), the statement in question has little or no potential to cause anybody harm of any kind. This part of the complaint is frivolous.

Mgidlana having suspended Holtzman: As parliament’s accounting officer, it was technically not wrong to state that Mgidlana had suspended Holtzman, even though she reported to someone else who, in turn, reported to the CEO.

Headline, picture

Mgidlana complains that:

·         the headline did not:

o   reasonably reflect the content of the story as:

§  it mentioned a case against him whereas, in essence, the article was about information which had allegedly been lost or stolen from Nortje’s offices regarding a different matter (the Holtzman case), which in fact had nothing to do with him or with Parliament’s investigation into him. He submits that this link, together with a picture of him, was a deliberate ploy which was defamatory of him;

§  the word “case” was not used anywhere in the body of the article, which “gives credence” to the view that it was used to sensationalise issues and “cunningly sway public opinion on the matter”;

o   distinguish between a “case” and an “investigation” – the latter is a process of collecting evidence to clear some doubt, to enhance knowledge or to find a solution to a problem, while in a case charges are leveled regarding a dispute between opposing parties, which is resolved by a court or by some equivalent legal process. As no charges had been laid against him and there was no “case” for him to answer, the headline should have referred to an “investigation” instead of a “case”. He argues, “Confusing the two is misleading and deliberately aimed a confusing the public with the effect of tarnishing [his] name”; and

·         use of his picture accentuated the misleading impression created by the headline (and the article).

Mgidlana adds that the word “case” has negative connotations and “there is a likelihood that it was intentionally used to serve that purpose – portraying [him] in a bad light … to achieve a sensational effect [and]  to confuse and mislead the public and trick them into believing that there is a case against [him].”

If follows that, as there was no case against him, there could also not have been any “new twist” in this “case”, as stated in the headline.

Smuts denies that the headline has misrepresented the story.

She argues that Mgidlana was central to Holtzman’s case – the stolen documents pertained to her efforts to clear her name after she was suspended shortly after Sunday Times ran a story alleging that Mgidlana had illegally used a vehicle fitted with blue lights to transport him and his family around – a matter about which Holtzman raised concerns, amongst other matters.

The legal editor says those documents were to be submitted to a parliamentary audit committee, investigating allegations of mismanagement, corruption and abuse of power against Mgidlana.

She notes the story did not say that Mgidlana had anything to do with the loss of the documents – but maintains that the event certainly had a bearing on the investigation.

Smuts adds:

·         It was clear from the story that both the words “investigation” and “case” were appropriate – Holtzman was building a case against Mgidlana in her effort to clear her name, while Parliament was pursuing an investigation into allegations of mismanagement, corruption and abuse of power against him;

·         The makings of a case against Mgidlana had to exist in order for Parliament to devote resources to the investigation. “While it is true that an investigation will test the allegations, no investigation would be contemplated in the absence of evidence of wrongdoing”;

·         The allegations which were being investigated had been made against Mgidlana. “It is [therefore] clear that a case is being investigated against Mr Mgidlana”;

·         Mgidlana’s differentiation between the two processes is “overly pedantic” in relation to a newspaper article and the headline, adding that the ordinary colloquial meaning of case must be applied; and

·         The word “case” has no negative connotations that are absent in the word “investigation”.

“In these circumstances, we submit, it is fair and accurate to refer to the case against Mgidlana,” she concludes.

Mgidlana maintains that the distinction between a case and an investigation is of material importance – to regard it as pedantic means a failure to take responsibility and own up to the confusion or misunderstanding that has been created.

In this regard, he argues:

·         Parliament has not said he had been charged;

·         Someone with a case to answer is someone whose wrongdoing has been established on a prima facie basis;

·         Sunday Times has to provide proof that Parliament has charged him; and

·         The investigation may demonstrate that there is no case for him to answer.

He denies that he was central to the Holtzman case, as:

·         she did not report directly to him, even though he was the accountable official overall;

·         her disciplinary hearing was conducted by her line manager; and

·         the alleged theft or loss of documents had no bearing on him.

He also asserts the reportage carried the sting that he was involved in the criminal conduct of stealing documents and subverting the legal process, but without any evidence or verification to this effect, and calls the statement that the investigating into him pointed to evidence of wrong-doing on his part a “biased fabrication”.

Mgidlana concludes that, when someone’s reputation and integrity are at stake, editorial rigour, journalistic flair and attention to detail cannot be suspended and deemed unnecessary.

The panel’s considerations

The headline

The issues are whether the:

·         headline was a reasonable reflection of the content of the story, as required in Section 10.1 of the Press Code; and

·         use of the word “case” in the headline was justified.

A reasonable reflection, or not: Given the link Nortje made between the missing Holtzman documents and parliament’s investigation into Mgidlana, the headline was indeed a reasonable reflection of the content. However, the headline perpetuated Ndenze’s mistake, which was to present an allegation as fact. If a headline reasonably reflects a mistake in the article, it follows that the heading itself is also at fault.

‘Case’: At the hearing, Smuts agreed that Sunday Times should have been more careful with the use of the word “case”, but she also submitted that this word had been used in a colloquial way and argued that nothing much turned on this issue. The panel agrees that nothing much turns on this.

The picture

Given Nortje’s words, Sunday Times cannot be blamed for using a picture of Mgidlana to accompany the story.

Right to respond

Mgidlana says the newspaper should have contacted him as he, together with others, was the subject of the reportage.

He adds that the journalist was correct in contacting Parliament’s spokesperson, Mr Moloto Mothapo, since the investigation processes are by their very nature institutional.

However, given the far-reaching implications the news might have had for his character and professional integrity, the journalist was duty-bound to solicit his views as well.

Smuts says Mgidlana himself acknowledges that the correct procedure for journalists to follow, in terms of Parliament’s communications policy, was to approach Mothapo for comment.

As such, she submits, there was no need to contact Mgidlana directly, adding that the story did not accuse him of stealing the suitcase or of being behind the theft. “We needed comment on whether or how the theft might have impacted on parliament’s inquiry,” she concludes.


Mgidlana replies the reportage implied that he had something to do with the alleged theft of documents, or that the person who was responsible was trying to do that for his benefit – which required his (personal) response.

The panel’s considerations

At the hearing, Mgidlana said that he was the main focus of the story and argued that the journalist should have given him a right of reply. He refuted the newspaper’s argument that members of the media could not contact him directly.

However, Smuts’s argument is correct in that Ndenze did indeed follow the correct procedure in approaching Mothapo for comment (in line with parliament’s communications policy).

However, Ndenze’s reporting as fact Nortje’s statement (that the stolen Holtzman documents contained evidence forming part of parliament’s investigation into Mgidlana), made this matter more than a mere “academic” enquiry. Mgidlana was personally involved, and he should have been contacted for comment as the reportage had the potential to cause Mgidlana harm.

Finding

Reportage slanted; harming reputation

Wrongly linked: While justified in reporting that Nortje had said that the Holtzman documents were stolen (which documents contained evidence to be submitted to parliament as part of its investigation into Mgidlana), the story went further in stating the allegation as fact. This was in breach of Section 1.3 of the Press Code that states, “…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.”

Mgidlana’s ‘involvement’: This part of the complaint is dismissed.

Intending to harm Mgidlana’s reputation: This part of the complaint is dismissed.

Suspensions

Special leave: The statement that Mgidlana had been suspended was inaccurate and in breach of Section 1.1 of the Press Code that states, “The media shall take care to report news … accurately…”

Mbete: This part of the complaint is dismissed.

Mgidlana having suspended Holtzman: This part of the complaint is dismissed.

Headline, picture

While the headline was a reasonable reflection of the story’s content, it also presented an allegation as fact. This is in breach of Section 1.3 of the Code.

The complaint regarding the use of the word “case” in the headline is dismissed.

The complaint regarding the use of Mgidlana’s picture is dismissed.

Right to respond

As Mgidlana could have been seen as the subject of critical reportage, given that he could have been caused some harm, Sunday Times should have given him a right of reply. By neglecting to do so, it was in breach of Section 1.8 of the Press Code which states, “The media shall seek the views of the subject of critical reportage in advance of publication…”

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, except for the statement that Mgidlana had been suspended, which is a Tier 1 offence.

Sanction

Sunday Times is directed to apologise to Mgidlana for:

·         stating as fact in the article that the missing Holtzman documents contained evidence to be submitted to parliament as part of its investigation of him;

·         perpetuating this mistake in the headline; and

·         not affording him an opportunity to respond to the allegations prior to publication.

The newspaper is also cautioned for inaccurately stating that Mgidlana had been suspended, instead of reporting that he had been placed on special leave, and is asked to correct this mistake.

 

Sunday Times is requested to publish the apology:

·         prominently, on the same page as the offending story, with a headline containing the words “apology” or “apologises”, and “Mgidlana”; and

·         online (at the top of that page), and to link it to the offending article.

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)