Ruling by the Deputy Press Ombudsman
May 10, 2012
This ruling is based on the written submissions of Ms Nicqui Galaktiou, for Mr J. Malema (the then ANC Youth League president), and The Sunday Independent newspaper.
COMPLAINT
Mr Julius Malema complains about two frontpage stories in The Sunday Independent on 30 October 2011 and 6 November 2011. They were headlined MALEMA FACES ARREST – Investigators using SMSes to nail Youth League leader and MALEMA ALLY DETAINED – Hawks allegedly find him with R2m.
On the first story, Malema complains that:
• the first two paragraphs as well as the headline falsely and misleadingly implied that he was about to be arrested on charges of corruption, fraud and money laundering;
• the reporter did not question the reliability of his source, relied on anonymous sources and did not verify the information;
• the picture of Hawks boss Anwa Dramat served to further sensationalise the assertion of his imminent arrest;
• the story falsely stated that his new property was worth R16 million; and
• it inaccurately stated that a lot of companies were registered under his name and the names of his associates.
Malema complains that the second story repeated the allegation in the previous week’s story, that there was prima facie evidence of wrongdoing on his part as a fact, and falsely stated that his arrest was imminent.
ANALYSIS
The first story, written by Moffet Mofokeng, says that a probe by the police’s special investigative unit, the Hawks, into Malema’s financial affairs has “allegedly uncovered prima facie evidence of wrongdoing relating to the awarding of tenders to companies with close ties to him in his home province of Limpopo”. It was reportedly no longer a case of “if”, but of “when” he was likely to be hauled before a court.
The second story is about one of Malema’s “allies” who was briefly detained during the Hawks’ probe into corruption, fraud and money-laundering involving millions of rands in the tenders mentioned in the first story.
The first story
Malema about to be arrested
The statements in dispute say that:
• a probe by the Hawks has allegedly uncovered prima facie evidence of wrongdoing by Malema relating to the awarding of tenders to companies in Limpopo with close ties to him, involving cases of corruption, fraud and money laundering; and
• it was therefore no longer a matter of “if”, but rather of “when” Malema was likely to be hauled before a court.
The headline says Malema faces arrest.
Malema complains that his legal representative contacted the Hawks the day after the publication of the story and she received written confirmation that no warrant of arrest had been issued. He adds that this reportage has caused him undue concern and stress.
He also complains that the story did not mention that he or Hawks’ spokesperson McIntosh Polela had denied the allegation of his imminent arrest. This omission, he argues, was “misleading”.
In its response, The Sunday Independent says its sources made it believe that Malema’s arrest was imminent “…but such action is dependent on the agencies acting upon it.”
The newspaper also adds that Malema himself indirectly confirmed that he might be arrested in that on February 13, he told an ANCYL NEC lekgotla that he was preparing for a life outside the ANC and “possibly in prison”. It argues that this phrase can be construed as Malema accepting that investigations were no longer only speculation by the media.
The newspaper concludes: “We don’t wish to use this as the basis of our defence but simply to illustrate that the headline…is not completely false.”
Galaktiou argues that it is a “cop-out” for the newspaper to say that the arrest was dependent on the actions of the agencies: the mere fact that Malema has not been arrested several months after the story was published supports his complaint that the story is false.
She also:
• says that the newspaper’s reference to Malema’s comments on 13 February is irrelevant and should be disregarded;
• calls the newspaper’s statement that it does not use the 13 February argument as a basis for its defence but only to illustrate the correctness of the headline “a contradiction”; and
• questions the newspaper’s assertion that the headline was not “completely” false – she wants to know which part of the headline is false and which is true (“one cannot be half pregnant”).
The fact that there were several investigations into Malema’s affairs is not in dispute; the only thing in question here is the state of those investigations.
History has shown that the statement in dispute was not correct – it is now a full six months after the story was published, and still Malema has not been charged or arrested.
The crucial question in this matter is: How reasonable was it for the newspaper to believe it was true that Malema was about to be arrested.
These are my considerations:
• The story does not state it as fact that Malema was about to be arrested – all the quotations are ascribed to sources;
• The fact that no warrant of arrest was issued does not imply that the Hawks were not about to arrest Malema;
• The newspaper says it contacted independent sources in both SARS and the Hawks;
• The editor says that these sources were senior and had previously proved to be reliable;
• I do not know the identity of these sources and am therefore not in a position to make a judgment on their credibility;
• The newspaper’s reference to Malema’s comments on February 13 is irrelevant to this complaint as the contexts are substantially different;
• The sources may have deliberately misled the newspaper; and
• These sources may have given the newspaper the correct information at the time, as the editor argues.
This last consideration does seem unlikely. Given the “seniority” and “reliability” of the sources, they should have known the true status of the investigation. Also given that the current political climate is tense, it is at least a feasible possibility that it suited them to mislead the newspaper on this occasion.
Whether or not the sources deliberately misled the newspaper, or gave information that was right at the time, which changed at a later stage, truth is that Malema was not arrested – not even six months after the publication of the stories.
The report on this therefore needs to be corrected or explained, as required by the Press Code.
Probably the most important factor here is that the story does not state it as fact that Malema’s arrest is imminent, but consistently ascribes it to sources or uses the word “alleged”.
However, that is only one side of this matter. The question whether or not the newspaper was justified in its reporting, also hinges on the credibility and independence of its sources. That the newspaper did not ask Malema or his legal representatives for comment on this specific issue also plays a role.
The headline states it as a fact that Malema “faces” arrest, while the story itself consistently reports it as an allegation.
Reliability of sources
Malema complains that Mofokeng relied on an anonymous source for most of the allegations. He argues that the fact that the Hawks did not question him should have alerted the reporter to question the reliability of the source. He also says when the journalist used the word “apparently” when reporting that the Hawks found a lot of companies registered under his name and that big money was moving from one account to others it should have indicated to him “that this allegation is not confirmed”. He says Mofokeng should have verified this information and this he could have easily done by checking with the Registrar of Companies.
Galaktiou further argues that:
• “the press has been cautioned on numerous occasions about relying on unnamed and anonymous sources in circumstances where such information can be corroborated”; and
• as Malema was a prominent politician, the journalist had “a higher ethical duty” to establish the correct facts regarding “these very defamatory allegations” prior to publication. She later expands on this, saying that such allegations could be highly damaging and besides, they could have come from someone who was interested only in advancing his or her own agenda.
The Sunday Independent says that, given the sensitivity of the case, the officials were not prepared to speak on the record,. “However, we have accepted their information – verified it – based on their seniority and authority at these agencies (SARS and the Hawks). We had no basis to believe that they were motivated by any other consideration other than law enforcement professionalism.” (own emphasis)
The newspaper adds that one source confirmed the information and furnished details to its reporter in the presence of the then editor and the deputy editor. It also says that other sources confirmed the information to other reporters besides Mofokeng.
It states: “We were made to believe that the arrest was imminent.”
To this, Galaktiou responds that the information has not been verified “other than relying on the alleged seniority of the anonymous sources”. She argues that the word “verify” means to make sure or demonstrate that something is true, accurate or justified, which the newspaper did not do.
She also asks how a journalist can be “made to believe” something without sufficient verification, particularly when such information is damaging and harmful.
As I deliberate over this ruling, I am conscious of Judge Joos Hefer’s judgment in the often quoted Bogoshi case. The court held that:
• “the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in a particular way and at the particular time”; and
• “In considering the reasonableness of the publication, account must obviously be taken of the nature, extent and tone of the allegations. We know, for instance, that greater latitude is usually allowed in respect of political discussion… What will also figure prominently is the nature of the information on which the allegations were based and the reliability of their source as well as the steps taken to verify the information.”
Among the circumstances that Judge Hefer took into account was whether the publication had reasonable grounds for believing that its story was true and whether it had sought the response of the subject of its report and published it.
With this at the back of my mind, I asked the newspaper what steps it had taken to verify the statement. I asked the newspaper if in hindsight it should not have questioned the reliability of the sources more closely. I also enquired if it was willing to disclose its sources confidentially to this office.
The editor responded that, if a cabinet minister says he will fire his DG and a newspaper reports it, and that minister then changes his or her mind, “it will be highly unfair to punish the newspaper for that”. He argued: “Our verification that Malema was indeed a subject of criminal investigation was reasonable enough to believe the plausibility and imminence of the arrest.”
He added that the newspaper was satisfied that the information was correct, given the seniority and authoritativeness of its sources, and that he was not comfortable with revealing his sources (a decision that I respect).
Because the Press Code makes provision for both verification (Art. 1.4) and corroboration (Art. 12.2), and both these matters are relevant here, I need to determine if the newspaper adhered to the Code on both scores. I therefore need to make a distinction between these near synonyms.
“Verification” is when the truthfulness or veracity of a statement is established (beyond any doubt); “corroboration” is when information is confirmed. While these have very close meanings, there is also a distinct difference between the two. It is possible to “corroborate” false information (when a second source is as ill-informed or malicious as the first one). Therefore, one can corroborate a lie – but one cannot verify a lie.
I accept that The Sunday Independent did corroborate the information because it used more than one source.
The question now is if it also verified the information. By speaking to senior sources in different institutions, the newspaper clearly believed that it had indeed verified the information – even though one source may have used the word “apparently” (in fact, it specifically uses the word “verified” in its response to the complaint).
I am not going to fault the newspaper on this issue, as I believe that it was justified in believing that it had actually verified the information.
Here are some more considerations:
• The newspaper did not rely on one source only, as Galaktiou alleges (above) – I take its word that it spoke to independent sources (plural);
• It is always important for journalists to question the reliability and credibility of their sources – in this case, however, I am prepared to give the newspaper the benefit of the doubt for not questioning the reliability and credibility of its sources, based on its testimony;
• The newspaper does not quote Malema or his legal representative on this issue (on other issues, yes). If the publication asked Malema about his alleged imminent arrest, it certainly does not reflect this in the story; and
• The Press Code stipulates that the subject of serious reportage should be contacted for comment prior to publication – which the newspaper did not do with reference to the allegation of his imminent arrest. However, I am not sure how Malema would have known that the police were about to arrest him – the SAPS normally does not make such information available prior to an arrest. Be that as it may, the newspaper should have sought his comment.
On the basis of the above, I conclude that the newspaper took reasonable steps to gather its information, and that it had enough grounds to believe that its sources were credible (even if they later turned out not to have been) in order to publish the allegation as an allegation.
Picture of Dramat
The story carries a mug shot of Hawks boss Anwa Dramat.
Malema complains that this was meant only to further sensationalise the assertion of his arrest as the story does not mention Dramat. He argues: “The use of this photo is to try to add credibility to the allegations.”
The newspaper says that the picture was used to illustrate the involvement of the Hawks – and Dramat is the face of the Hawks.
This argument is sound and the use of Dramat’s picture represents normal journalistic practice.
Property worth R16 million
The story says that Malema’s R3 million house was demolished to make way for a bigger mansion “believed to be worth about R16m”.
Malema says that he has previously denied that his house was worth R16 million, and complains that Mofokeng neglected to mention this. He also complains that the reporter did not independently verify this information.
Malema submitted a letter from architects confirming that the total cost of the property was approximately R8.5 million.
The Sunday Independent says that it accepts that it did not evaluate the house accurately. “We accordingly accept that Mr Malema and his representatives can and have a right to subjectively determine – based on other factors unknown to us – the value of the property.”
The newspaper concludes that it is prepared to correct this error.
I welcome the newspaper’s willingness to correct this mistake. However, let me add that Malema clearly has not “subjectively” determined the value of his house – this was done by architects.
Also: I need to express my concern that newspapers sometimes uncritically take over information from other publications, without independently verifying it. When this information turns out to be false, all that those newspapers have succeeded in doing is to perpetuate the lies. Journalists must realise that information is not true or accurate just because it was published.
Mofokeng should have known about Malema denying that his house was worth R16 million and this should have given him enough reason to doubt the accuracy of that figure. He should therefore have tried to verify it, even though the story does not state it as a fact (it says “believed to be…) – it still perpetuates an inaccuracy.
Company registrations
The sentence in dispute reads: “During their investigation, the Hawks apparently found a lot of companies registered under Malema and his associates, with ‘big money moving from one account to another’.”
Malema says that companies are not registered to people. Even if Mofokeng was referring to “directorships” held by him, it would also have been wrong as he is not a director of any company – he is reflected as a member of a CC and as a director of a company that has been deregistered. He adds that any member of the public can verify this information by conducting a search with the Company and Intellectual Property Commission.
The Sunday Independent says it accepts that there could have been confusion regarding the technical explanation of Malema’s association with some of the companies. The newspaper adds: “However, it is a fact that there are several companies which are directly and indirectly linked to Malema whose financial transactions are a subject of criminal investigations in so far as their payment to Malema is concerned.”
Galaktiou denies that there is any such confusion “when this information is readily available to be checked and verified”. She adds that it is not true, as the newspaper states, that there are several companies which are directly and indirectly linked to Malema. She says: “Mr Malema is a trustee of the Ratanang Family Trust which is a shareholder in On-Point Engineering (Pty) Ltd. This information has been published numerous times. There is no link between Mr Malema and any company.”
In the absence of any proof from the newspaper to substantiate this, it is reasonable to agree with Galaktiou’s argument, and therefore also to accept that it was incorrect to state that a lot of companies were “registered under Malema”.
The second story
Reporting an allegation as a fact
The sentences in dispute say:
• “Last week The Sunday Independent revealed that the Hawks’ probe into Malema was at an advanced stage and that they had a prima facie case against the tough talking politician”; and
• “Last week’s revelations about Malema’s imminent arrest came as…”
Regarding the first sentence, Malema complains that the allegation in the first story is now stated as a fact.
On the second sentence, Malema says that there is no substance to the statement about “revelations” about his imminent arrest.
The newspaper refers me to its earlier correspondence regarding Malema’s remarks on February 13.
Let me now take a close look at the first sentence in dispute:
The relevant sentence in the 1st story The corresponding sentence in the 2nd story
“A probe by…the Hawks into the financial affairs of Julius Malema, has allegedly uncovered prima facie evidence of wrongdoing relating to the awarding of tenders…” (emphasis added) “Last week The Sunday Independent revealed that the Hawks’ probe into Malema was at an advanced stage and that they had a prima facie case against the tough talking politician.” (own emphasis)
Malema is correct: the “alleged” prima facie evidence of the first story becomes a “revelation” that there was a prima facie case against him in the second one. The allegation has indeed become a “fact”. This is unacceptable reportage.
However, he is not correct regarding the second sentence as the newspaper indeed “revealed” information about his imminent arrest – whether there was any substance to these “revelations” or not.
General remarks
Galaktiou asks this office to criticise the newspaper’s delay of several months before replying to Malema’s complaint, and argues that the delay shows the newspaper’s disrespect for the system.
While I agree that such a long delay is unacceptable and indeed decreases the credibility of this office, I can fortunately report that the new editor co-operated excellently and speedily.
FINDING
The first story
Malema’s imminent arrest
The newspaper was entitled to publish this allegation as an allegation. This part of the complaint is dismissed.
The headline does not accurately reflect the contents of the story, as it presents the allegations in the article as fact. This is in breach of Art. 11.1 of the Press Code that states: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”
However, history has proved that this allegation was false. Art. 1.6 of the Press Code becomes relevant: “A publication should make amends for publishing information or comment that is found to be inaccurate by printing, promptly and with appropriate prominence, a retraction, correction or explanation.”
Reliability of sources
The complaint about the reliability of the newspaper’s sources is dismissed.
The complaint about the lack of verification is dismissed.
The newspaper did not ask Malema for his comment on the allegation of his imminent arrest. This is in breach of Art. 1.5 of the Press Code that states: “A publication should seek the views of serious critical reportage in advance of publication…”
Picture of Dramat
This part of the complaint is dismissed.
Property worth R16 million
The value of Malema’s house is considerably less that R16 million. This reportage is in breach of Art. 1.1 of the Code that says: “The press shall be obliged to report news truthfully, accurately and fairly.”
The reporter did not independently verify the value of the house, but merely repeated what other publications have published before. And Malema had publicly denied the figure of R16 million. This element in the story is in breach of Art. 1.4 of the Code that states: “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such report.”
Company registrations
The statement that companies were registered under Malema’s name is inaccurate. This reportage is in breach of Art. 1.1 of the Code.
The second story
Reporting an allegation as a fact
The story reports the allegation in the first story, that the Hawks had allegedly uncovered prima facie evidence of wrongdoing relating to the awarding of tenders, as a fact. This is inaccurate and in breach of Art. 1.1 of the Code.
The complaint about the newspaper having “revealed” the previous week information about Malema’s imminent arrest is dismissed.
SANCTION
The Sunday Independent is directed to apologise to Malema on its front page for:
• stating as fact in its headline that Malema faced arrest, while the body of the story itself reported that as an allegation;
• not asking Malema for his comment on the allegation of his imminent arrest;
• inaccurately stating that Malema’s house was worth R16 million, and for not independently verifying the figure;
• inaccurately stating that a lot of companies were registered under Malema’s name; and
• repeating in its second story the allegation in the first story, that the Hawks have uncovered prima facie evidence of wrongdoing relating to the awarding of tenders, as a fact.
In the apology, the newspaper is directed to publish a summary of these findings, beginning with the context and what it got wrong.
Even though I have found that the newspaper was justified in publishing the allegation that Malema was about to be arrested, history has shown that this allegation was not true. The Sunday Independent has already suffered a dent to its credibility because of the length of time that has elapsed since it announced Malema’s “imminent” arrest. It would have salvaged its reputation if it had gone back to its sources early on to clarify the information they had given for its initial reports.
Not having done that, the newspaper is directed to make amends by including in its correction and apology an explanation of this reportage.
The newspaper is also directed to publish Malema’s comments on the relevant issues, if indeed he wants to comment.
The Sunday Independent newspaper is free to mention and elaborate on the parts of the complaint that were dismissed at the end of the text.
The text should end with the following sentence: “Visit www.presscouncil.org.za (rulings, 2012) for the full ruling.”
APPEAL
Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Deputy Press Ombudsman