Mathews Phosa and the ANC vs. City Press

This ruling is based on the written submissions of Dr M. Phosa, the ANC and City Press.

Both ANC treasurer-general Dr Mathews Phosa and the ANC complain about a front page story that appeared on August 16, 2009 in City Press, headlined Phosa tries to muzzle City Press.

The complaints are about the following:

The story is about Phoza who tried to “muzzle” City Press not to publish allegations that he:

We shall now discuss the complaint point by point.

Phosa says it is apparent that the journalist, Makhudu Sefara, started working on the disputed story several days prior to publication – so why was he only contacted in the nick of time, he wants to know.

The newspaper acknowledges that it received as many as six calls from ANC officials prior to Phosa being contacted. However, City Press denies that Phosa was not afforded a reasonable opportunity to comment. Besides, the newspaper says it has offered both Phosa and the ANC a further right of reply which has not been accepted (City Press says this offer is still open).

Let’s look at the facts:

Surely, given the seriousness of the allegations, Phosa should have been given more time to respond. It is not fair to intend to print a story that could be potentially damaging, defamatory and a violation of someone’s dignity and then to invite the subject of that story to have a right of reply at the last moment. Which is exactly what happened here.

The newspaper says the intro is truthful, accurate and a fair description of the events which preceded publication.

Phosa disagrees. He says it was rather the newspaper that contacted him at the eleventh hour. He adds that by reporting the way it did, the newspaper managed to distort, exaggerate and sensationalize his response.

The mention of Phosa’s “eleventh hour bid” in the intro is indeed problematic. It is indeed an accurate description of what had happened, but it is not fair – the context of Phosa’s eleventh-hour action was the never-mentioned fact that Phosa himself, in turn, was only contacted by Sefara at the eleventh hour.

This ommission (the lack of context) created an imbalance in the story.

According to the story Phosa tried to stop the newspaper from publishing the allegations leveled against him. This is reflected in the headline.

It is noted that Phosa, in his complaint, says that his intention was not to silence City Press, but only to object to false information being published.

However, in an e-mail Phosa’s lawyer sent to the editor, this was said: “Our client (Phosa) requires an undertaking that such allegations will not be printed.” City Press was also informed that Phosa was “not prepared to accept” that only portions of the story would be changed.

If words have meanings, this was indeed an attempt to silence the newspaper. City Press was therefore justified to report on this issue the way it did.

Phosa says the newspaper’s sources were not verified.

The newspaper answers that the allegation that Phosa leaked information to damage Motlanthe was based on corroborated confidential information and was clearly identified as opinion.

It adds that this kind of journalism often “…will only ever be told through anonymous sources but it’s a story the press must tell, not only because it is good for journalism but because democracy is best-served by ensuring the governing party’s debates and fights are not staged behind closed doors. The stakes are too high.”

Right.

But then the sources must be credible and independent – and the public must be informed accordingly. The story only mentions “some in the ANC” and “sources”; it makes no effort to tell the public how reliable and independent the sources were. This is very important. If, for example, a husband is used as a source in a case, the testimony of his wife and seven children can by no means be considered to be independent. Those nine people should be considered as one source.

The existence of independent sources always strengthens a story – so one would expect that, if the sources were independent, this would have been mentioned in the story. But it wasn’t.

This means that some serious doubts exist over the independence of the sources used in the story.

The ANC says the references to a low-key contest and a deteriorating relationship between Phosa and Motlanthe distorted and misrepresented the facts.

City Press argues that the story should be considered in the broader context of the new presidential race leading onto 2012; it was “common knowledge” that this race had already started. In light of the fierceness of the last succession race (between Zuma and former president Thabo Mbeki) the issue was pursued, City Press explains.

This is a nagging question: Why, if the relationship between Phosa and Motlanthe was indeed deteriorating (which, according to the newspaper, necessitated the questions posed to Phosa), why did City Press not also ask Motlanthe the same question?

Be that as it may, given the strange world of politics, the newspaper’s argument is reasonable – there are few governments in the world, if any, where prominent politicians (such as Phosa and Motlanthe, for example) do not jockey for positions. Also, if true in this case, it is again not unreasonable to entertain the possibility that their relationship may have been deteriorating.

The benefit of the doubt therefore goes to the newspaper.

The posters referring to this story read: Now it’s Phosa vs Motlanthe. By the newspaper’s own admission the statements that point to this so-called low-key contest are clearly identified as opinion. Well, in that case the posters elevated opinion as fact – which is misleading, for sure.

The newspaper did not give Phosa ample time to respondand is therefore in breach of Art. 1.1 of the Press Code which states: “The press shall be obliged to report news…fairly.”

The reference to Phosa’s “eleventh-hour” bid to stop City Press from publishing the story is found to be unfair because it was not balanced with the fact that Phosa himself was contacted at the eleventh hour. City Press is therefore in breach of Art. 1.1, as well as in breach of Art 1.2.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts (whether) by omissions…”

The reference to Phosa trying to stop the newspaper from publishing a story as well as the headline is found to be a true reflection of what had happened. This part of the complaint is therefore dismissed.

The random use by City Press of unnamed “sources”, without any attempt to state their number, credibility and especially their independence, amounts to a breach of Art. 1.4 of the Press Code: “When 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 a report.” (emphasis added)

As the statements that point to a low-key contest and a deteriorating relationship between Phosa and Motlanthe may reasonably have been true, this part of the complaint is dismissed.

The posters presented opinion as fact, thereby breaching Art. 5.2 of the Press Code: “Posters shall not mislead the public…”

The breaches of the Code as described above my have caused the ANC in general and Phosa in particular some personal and professional harm.

City Press is directed to apologise to both Phosa and the ANC for various breaches of the Code and for possible harm done to them. This should be done on the front page and within the context of an appropriate summary of this finding. Our office should be furnished with a copy of this text prior to publication. The following sentence should be used at the end of the summary: “Visit www.presscouncil.org.za (rulings, 2010) for the full finding.”

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties 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 reached at [email protected].

Johan Retief

Deputy Press Ombudsman