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 Times newspaper.
COMPLAINT
Mr Julius Malema complains about a story in The Times on 31 October 2011 that was headlined Julius Malema on the ropes.
Malema complains that the story falsely stated that:
• there was a joint investigation between South African Revenue Service (SARS) and the elite police unit, the Hawks; and
• the police probe was “as good as complete” and that it was “just a matter of time” before authorities acted.
He also says that another newspaper contacted his legal representative, implying that The Times failed to do so.
ANALYSIS
The intro to the story, written by Chandré Prince, summarises what the article is all about. It says: “ANC Youth League president Julius Malema partied up a storm in Mauritius at the weekend amid rumours of his imminent arrest by the Hawks following an extensive investigation of his financial affairs.”
Joint investigation
The offending sentence reads: “The Times has established that the net is closing in on Malema and that a joint investigation by the elite police unit, the Hawks and the South African Revenue Service (Sars), was ‘as good as complete’ and that ‘it was just a matter of time’ before authorities acted.”
Malema says that his legal representatives have established that there was no such “joint” investigation and complains that no evidence was given to support this false statement.
In its response, The Times says that Prince had read the story which appeared in The Sunday Independent the previous day. She then contacted unnamed sources (plural) within SARS and the Hawks.
The newspaper also argues that the portions which Malema complains about should be read in the context of the article as a whole. Amongst other things, it mentions that the story also states that:
• there was no confirmation of a warrant having been issued for Malema’s arrest;
• Malema was also being investigated by the Public Protector; and
• a Hawks spokesperson could not confirm that the investigation was complete.
Galaktiou responds that, if a journalist relies on anonymous sources, s/he must be able to prove the veracity of that evidence or disclose the sources’ identities – failing which the false allegation must be retracted. She says that, immediately after the publication of the story, she has obtained written proof that there was no warrant of arrest by the Hawks and that there was no joint investigation. This, she adds, was confirmed by SARS. She also states: “We engage with the most senior officials of SARS and the Hawks.”
Of course the story must be read in full, and portions that Malema complains about should indeed be read in context, as the newspaper argues. But more needs to be said.
The issue is how truthful the information about a “joint” investigation was. The reporter clearly thought that it was true, as she uses the rather strong word “established” – not in inverted commas, neither ascribed to a source, but portrayed as fact. (Synonyms for “establish” are: ascertain, determine, prove, verify, authenticate, corroborate and confirm.)
The sentence in dispute indeed does not leave any room for doubt – it was “established” (read: ascertained/determined/proved/verified/authenticated/corroborated/confirmed) that SARS and the Hawks undertook a joint investigation. Fact.
Wrong.
I made my own enquiry, and this is how the Hawks responded: “The Hawks is responsible for its own investigation and is not jointly investigating the matter with any other institution.”
Even though I can accept that the newspaper only reported what it was told by its sources, the fact remains that the information was incorrect. If the story stated it as an allegation, or attributed it to a source, its reportage may have been in order. Instead, the story presents a lie as an “established” truth.
Probe ‘as good as complete’
The sentence in dispute states that the investigation was “as good as complete” and that it was “just a matter of time” before authorities acted (read: “imminent arrest”). Both these phrases are used in inverted commas.
Malema says that the police probe was at an early stage and complains that the statements are therefore false.
The newspaper argues that the story was “properly sourced and is a fair and accurate rendition of the rumours and facts surrounding Mr Malema at that time”.
Galaktiou replies that the newspaper obtained its information from anonymous sources. She also argues that that several months have passed since the publication of the story – and still Malema has not been charged. This “…further demonstrates the untruth of the information ‘established’ by The Times.”
The fact that there were several investigations into Malema’s affairs is not in dispute; what is in question is the state of those investigations.
History has shown that the statements in dispute were not correct – it is now a full six months after the story was published, and still Malema has not been charged or arrested and the investigation is still underway.
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 probed further and asked The Times 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 Times responded that:
• the story was based on information that was obtained from at least two sources, one within SARS and another at the Hawks;
• these sources were reliable in the past and neither the editor nor the journalist had any reason to doubt the information;
• information subsequently received on the same topic has proved to be accurate; and
• it would not reveal the identity of its sources to this office, not even in confidence (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 am prepared to give the newspaper the benefit of the doubt for not questioning the reliability and credibility of its sources, given its testimony regarding these sources. I also take into account that the inverted commas point to the fact that these statements were (at least partly) presented as the opinion of its sources.
On this basis, I accept that The Times did corroborate the information and that the newspaper had reasonable grounds for believing that its story was true.
The question now is if the newspaper also verified that information.
By speaking to sources in different institutions, the newspaper clearly believed that it had verified the information. But that was not verification, as one cannot verify a lie.
If the story stated the phrases as an allegation, or attributed them to a source, its reportage may have been in order. However, it says that this information was “established” (as the truth, verified) – which, as history has taught us, was not true.
The Times has already suffered a dent to its credibility because of the length of time that has elapsed since its reportage of this matter. 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 asked for comment
Malema notes that a reporter from another newspaper asked his legal representative about the allegations, and implies that The Times did not do so.
In its reply, the newspaper says that Prince contacted various sources at different institutions, and also argues that its on-the-record source casts a different light on what the anonymous sources told its journalist.
I note that the newspaper is silent on the complaint itself, namely that it did not ask Malema for his views. I therefore accept that the reporter did not ask him or his legal representative for comment – as it should have, according to the Press Code.
FINDING
Joint investigation
The sentence in dispute stated that the newspaper has “established” that the Hawks and SARS conducted a “joint” investigation, and therefore presented it as a fact – which it was not. This is in breach of Art. 1.1 of the Press Code that states: “The press is obliged to report news truthfully (and) accurately…”
Although the newspaper corroborated its information, it did not verify it as one cannot verify a lie. This is in breach of Art. 1.4 of the Press Code that says: “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.”
Probe ‘as good as complete’
The phrases in dispute stated that the newspaper has “established” that the investigation into Malema was “as good as complete” and that it was “just a matter of time” before authorities acted, and therefore presented it as a fact – which it was not. This is in breach of Art. 1.1 of the Press Code.
Although the newspaper corroborated its information, it did not verify it as one cannot verify a lie. This is in breach of Art. 1.4 of the Press Code.
Not asked for comment
The newspaper did not ask Malema for comment. 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…”
SANCTION
The Times is directed to apologise to Malema for:
• inaccurately stating that the Hawks and SARS conducted a “joint” investigation;
• inaccurately saying that it had “established” that the investigation into Malema was “as good as complete” and that it was “just a matter of time” before authorities acted; and
• not asking Malema for his comment.
The newspaper is directed to:
• prominently publish a summary of this finding and sanction, beginning with the context and what it got wrong;
• make amends by including in this text a correction and an explanation of this reportage;
• publish Malema’s comments on the relevant issues, if indeed he wants to comment;
• end the text with the following sentence: “Visit www.presscouncil.org.za (rulings, 2012) for the full finding”; and
• provide the text to this office prior to publication.
The Times newspaper is free to mention and elaborate on the parts of the complaint that were dismissed at the end of the text.
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