Viroshini Naidoo vs. Business Day


Sun, Aug 6, 2017

Ruling by the Press Ombud

6 August 2017

This ruling is based on the written submissions of Ms Viroshini Naidoo and those of Susan Smuts, legal editor of the Business Day newspaper.

Naidoo is complaining about an article in Business Day of 7 June 2017, headlined Gigaba and Brown eased Gupta allies in – E-mails add weight to claims they aided state capture.

Complaint                                            

In general, Naidoo complains that the article, construed as a whole, constituted false, distorted, unbalanced and injurious reportage in relation to her.

This, she says, inter alia involved her alleged association with the Gupta family and / or people who did business with that family (read: state capture), painting her in this process as a corrupt individual who had been appointed to the Eskom board to assist the Guptas to benefit from state entities.

In particular, Naidoo complains that the:

·         article wrongly stated that Minister Malusi Gigaba had appointed her to Eskom’s board;

·         passing mention of her alleged “Gupta” associates, including her husband, was unfair;

·         newspaper did not verify its information with her and with other interested parties;

·         headline was misleading and did not reflect the contents or tenor of the article; and

·         article has violated her rights, and wrought baseless harm to her reputation.

The text

The article, written by Kyle Cowan, Graeme Hosken, Sikonathi Mantshantsha and Genevieve Quintal, was about Minister Malusi Gigaba and Minister Lynne Brown, as being part of state capture and having appointed people who were linked to the Gupta family, resulting in the Gupta family benefiting from state-owned enterprises.

The report also listed specific board members, alleging they were appointed by Gigaba or Brown. Naidoo was reportedly one of those members.

The full text regarding her read:

“Gigaba appointed her to the Eskom board in June 2011. Her husband, Kuben Moodley, is special adviser to Mineral Resources Minister Mosebenzi Zwane, whose links to the Guptas have been widely reported.”

The complaint in more detail

Malusi Gigaba

Naidoo says Gigaba did not appoint her to Eskom’s board, as stated in the article, as she was appointed by Minister Lynne Brown.

Unfair reference to Naidoo’s associates, husband

Naidoo complains it was unfair to mention that her husband, Mr Kuben Moodley, was a special advisor to Mineral Resources Minister Mosebenzi Zwane (whose links to the Guptas had been widely reported).

She says this implied that she had been appointed due to her husband’s influence, creating the false impression that her appointment had been linked to the Gupta family.

She adds that the reportage was “devised to influence readers to believe that [she] was only appointed to the Eskom board because she is married to someone who might know someone who is an associate to the Gupta Family”.

Views not sought 

Naidoo argues the article constituted critical reportage of her since it created the firm impression that she had been appointed by Gigaba as part of state capture and that she had been a Gupta ally, and possibly linked to corruption – yet no attempt was made to contact her for comment. She contests that, had the newspaper done so, the article would not have been published in its present form.

She argues that, as the article implied that the (notorious) Gupta e-mails exist, the newspaper had a duty to forward the e-mail to her and to request her to comment.  She adds that she should have been asked to comment on reports mentioned in the article (with which she was associated while she had nothing to do with them) on Gigaba’s role in state capture, and on her appointment to Eskom. 

Naidoo also complains that the newspaper did not properly verify its information with the Companies and Intellectual Property Commission (CIPC), which keeps a record of all directors in public and private companies as well as state-owned enterprises (SOE). Had the journalists done their jobs in terms of the press code or complied with the rules they would not have printed the article, alternatively not mentioned Ms. Naidoo.

Headline misleading, not reflecting the article

Naidoo complains the headline created the impression that she was an ally of the Guptas (whose name, rightly or wrongly, has become synonymous with corruption in the popular media) – while the article did not even demonstrate that she had ever met or interacted with them. “The headline is, therefore, fundamentally at odds with the contents of the article and creates a false and sensational bias in readers’ minds before they even begin to read the article,” she argues.

She adds that a further sub-heading (#GuptaEmails Revealed) impelled readers to the almost unavoidable conclusion that there was e-mail correspondence which linked her appointment to the Eskom Board to the Guptas, or alternatively that she was a Gupta ally.

Violating her rights, baselessly harming her reputation

Naidoo says the reportage has violated her constitutional rights. This, she contends, was also done by the previous Public Protector, the Public Affairs Research Institute (PARI), and the South African Council of Churches, as they all drew conclusions on her role at Eskom without contacting her or verifying their information.

She says as a board member she has done nothing wrong, but due to insinuations and fake news her reputation has been destroyed – even though she has on numerous occasions denied any links with the Gupta family.

She adds that other damning online articles have been printed, quoting this one, and shaming her – all of which have baselessly harmed her reputation.

Business Day responds

Malusi Gigaba

Smuts says the newspaper accepts it was Brown, and not Gigaba, who appointed Naidoo to the Eskom board, and adds that it is willing to publish a correction to this effect – even though “very little, if anything, turns on the difference between being appointed by Ms Brown or Mr Gigaba in the context of the story”.

The rest of the complaint should be dismissed, she says.

Unfair reference to Naidoo’s associates, husband

Smuts says the article focused on Gigaba and his successor (Brown). “Both ministers have featured prominently in reports on the so-called Gupta leaks. In particular, the two ministers have featured in the appointment of boards who enabled, in one way of another, access for the Gupta family to lucrative contracts at state-owned enterprises,” she continues.

The legal editor adds that this modus operandi was already exposed by former public protector Thuli Madonsela's State Of Capture report of 2016, which shone a light on Eskom and its dealings with the Guptas.

Smuts argues that the role of cabinet ministers in facilitating access to state-owned enterprises, and where dodgy deals involving public money are done, is a matter of unassailable public interest – the context in which Naidoo’s name was mentioned.

She says it is a fact, as reported in the story, that Gigaba and Brown appointed directors to the boards of Eskom, Denel and Transnet. A great number of these directors were connected to the Guptas in one way or another. “We listed some of the directors appointed to the boards when ‘state capture’ took place. One of the directors appointed at this time was Naidoo,” she says.

The legal editor adds the article stated explicitly what her links to the Guptas were, namely that her husband was an advisor to Zwane, whose links to the Guptas had been well established. “There was no further mention of her in the story beyond the statement of these facts,” she says.

She submits that Naidoo has not contested (and “indeed she cannot”) the facts as published in the story, apart from which minister appointed her – “and her complaint must fail on this basis”.

Her argument continues, “The story did not allege any wrongdoing by Naidoo. It merely described her links to the Guptas. We did not attempt to induce our readers to reach a conclusion about Naidoo’s conduct.”

In this regard she refers to the following precedents by the Appeals Panel:

·         Jesse Duarte vs. Mail&Guardian (M&G): Duarte argued it was unfair to include her in an article and graphic about people linked to the Guptas. The Appeals Panel found her inclusion was justifiable as she was not accused of wrongdoing, among other reasons;

·         Vivian Reddy vs. M&G: The newspaper reported that Reddy's son Shantan had clinched a deal for a controversial multibillion-rand nuclear programme and stated that Reddy (senior) and Pres Jacob Zuma were friends. The Appeals Panel found that “an inference of corruption against the respondent can only be made if it would be the only reasonable inference that can be made from the proven facts: if there are more than one probable inferences, it would have to be the most probable one. It cannot be...”; and

·         ANC vs. Daily Dispatch: The newspaper published a graphic depicting the links between a company that was awarded a toilet tender, and various ANC leaders. The panel found that the “average reader would not necessarily infer from the photographs, the headline or the story, any direct or even indirect influence by the politicians themselves. It is more likely that the reasonable reader would infer that the municipal officials acted on their own upon noticing the named politicians”.

Smuts says these rulings are supported by case law such as Le Roux and Others v Dey, Case CCT 45/10, which found that the meaning of the published word is the meaning the reasonable reader of ordinary intelligence would attribute to the statement.

She concludes it would be inappropriate to find that the only reasonable inference is that Naidoo actively assisted in the state capture project when a number of other more likely inferences can be drawn from the facts as stated.

I am citing the rest of her argument for the sake of completeness:

“This is not to say that there is not evidence that Ms Naidoo participated in the project. Such evidence is in fact contained in the State of Capture report, which drew business links between Mr Moodley and Mark Pamensky, a Gupta associate. The report also found that Mr Moodley was a director of Albatime, which contributed to the purchase of the Optimum Coal Holdings (OCH) by Tegeta, a company owned by the Guptas. Ms Naidoo listed herself as an employee of Albatime in her declarations of February 2016 and May 2016, according to the state capture report. She was also present during the board meeting that approved the sale of shares in Optimum Coal Mine to Tegeta and released OCH from the guarantee given to Eskom, and did not declare her interest, according to the state capture report. We mention this to demonstrate that Ms Naidoo's role and conduct is in fact open to question, according the State of Capture report. However, the story of which she complains did not traverse this and we should not be made to prove allegations and inferences we did not make.”

Views not sought 

Smuts denies that the text constituted critical reportage with regards to Naidoo – she says it merely referred to uncontested (apart from which minister appointed her) facts – and therefore argues that the newspaper did not have a duty to seek comment from her.

She adds that, as the article did not report that any of the e-mails mentioned Naidoo, Business Day had no duty to forward them to her.

The legal editor specifically says the mentioning of Naidoo’s husband (who was associated with Zwane, who was in turn associated with the Guptas) did not amount to a breach of the Press Code. She argues, “These are all demonstrable facts and there is no reason at all to keep them from the public or to refrain from making the links. We do not know if these are the only reasons Ms Naidoo was appointed to the Eskom board. We did not say [they] were.’

She also notes that the story did not mention Naidoo in relation to the PARI report.

Headline

Smuts says the headline demonstrated how Gupta associates were appointed to SOE boards and made a general reference to the Gupta associates – it was not specifically about Naidoo.

Violating her rights; baselessly harming her reputation

Based on her arguments, as documented above, Smuts denies that the article violated Naidoo’s rights.

Naidoo replies

Malusi Gigaba

Naidoo says it is not fair for the newspaper to simply publish the correct fact without acknowledging that it has violated the Press Code. She calls this mistake a “Tier 3” violation which represents “serious misconduct”) and says the publication should be held accountable for this mistake.

Unfair reference to Naidoo’s associates, husband

Naidoo replies that the references to her were written in the context of a story dealing with alleged corruption by Gigaba and Brown, and therefore the article was intended to imply negative connotations to her as an Eskom board member. She insists that the text falsely implied that she had been appointed to the Eskom board in an unethical manner and for the benefit of the Gupta family. 

She says that neither The State Of Capture Report nor the PARI report made any findings at all.

Naidoo says the article inferred that:

·         she had been appointed by Gigaba to assist the Guptas in acquiring state contracts (read: state capture);

·         there were damning e-mails that confirmed the above; and

·         consequently, she was corrupt.

She argues that the inference of state capture reflected negatively on her – which made the reportage unfair.

She also rejects Smuts’s argument about the findings of the Appeals Panel, as the matters were not comparable.

Analysis

Unfair reference to Naidoo’s associates, husband

Apart from Gigaba not having appointed Naidoo, the correctness of the information with regard to her is not in dispute – the issue is how reasonable readers would have interpreted the text. In other words, the context becomes vitally important.

It is indeed possible to report unfairly with the aid of correct (but unrelated, or incomplete) information. Therefore, the basic question is: What purpose did the inclusion of (correct) facts serve? Or, even simpler: Why did the article refer to her?

 

Therefore, I cannot dismiss the complaint on the grounds that the information was correct (bar one issue).

 

For the record: I am keeping the findings of the Appeals Panel in mind, irrespective of whether Smuts mentioned them or not. All such findings set precedents, to which I should adhere – if, of course, they are applicable.

 

At the back of my mind would be the question if:

·         the reportage was justifiable as Naidoo was not accused of wrongdoing; and

·         an inference that she was guilty of corruption was the most reasonable one to make – and if so, if the reportage was justified.

So then, the central question is: Why did the article refer to Naidoo?

The parties’ responses to this question is, of course, different:

·         Naidoo says the article intended to imply that she had been appointed to the Eskom board in an unethical manner and to assist the Guptas in state capture; while

·         Smuts denies that any negative inference could be reached about Naidoo’s conduct – the text merely listed some directors with links to the Guptas, and did not necessarily infer that she actively assisted in state capture.

The opening sentence of the article properly provided the context that I am looking for. It stated that Gigaba and Brown have “peppered state-owned companies with Gupta family associates, leaked e-mails show”.

This is about state capture (rightly or wrongly) – and Naidoo was listed as one of the directors appointed for that reason (read: appointed because they were in some way or other linked to the Guptas).

The problem is that Naidoo, on the one hand, vehemently denies any link with the Guptas, while on the other hand the State Of Capture Report (rightly or wrongly) mentioned such a connection (which Naidoo contests).

The other issue, of course, is Smuts’s argument that the text did not suggest that the complainant actively participated in state capture – she not only denies such participation, but also the “Gupta link” in the first place.

The dilemma is that both sides have a point.

Attempt at a solution

In an attempt to be fair to both, and to break this impasse, I am proposing the same route that a Panel of Adjudicators followed in a similar complaint by Naidoo a few months ago (against a different newspaper). I suggest that she withdraws her complaint, but on condition that Business Day does a follow-up story with her comments included – giving prominence to her denial of having any links with the Guptas. This text, which does not necessarily have to include the fact that Naidoo lodged a complaint with this office, should also reflect the fact that it was Brown who appointed her to the Eskom board.

All parties, myself included, should be satisfied with such a text.

I am quite deliberately using the word “impasse”, because as an independent adjudicator I really do not have enough grounds to either dismiss or uphold the complaint – which I shall be forced to do if pressed by any of the parties.

The rest of the complaint falls away, if my suggested route is followed.

If this is not amenable to both parties, I shall make the best decision possible on the available facts – expecting one of the parties to lodge an appeal.

Johan Retief

Press Ombud