Emsley Manne Dipico vs. The Star

This ruling is based on the written submissions of Mr Thekiso Tlhacoane, for Mr Emsley Manne Dipico, and Tony Carnie, for The Star newspaper.

Mr Dipico, a former Premier of the Northern Cape Province, complains about a story in The Star, published on October 20, 2011, and headlined Mining deal likely to enrich ‘outsiders’ – Anger among KZN communities who claim they will see little benefit as their land is taken.

Dipico complains that:

As a result of the latter, Dipico also complains that the story:

Similar stories appeared on the same day in the Mercury and the Cape Times. These stories fall outside the scope of this complaint.

The intro to the story explains what the article is all about. It reads: “A R4.5 billion black empowerment deal by mining giants Rio Tinto and BHP Billiton (in the Richard’s Bay area) has come under fire, with fears that it could largely enrich ‘outsiders’ and ‘fat cats’ rather than uplifting the 140 000 people whose land is being mined.” It says that a 13% share of the equity cake will be shared by a group which represents seven private consortiums – with Dipico as one of its directors. The story then focuses on local people who are aggrieved that “outsiders” will take a disproportionate share of the mineral wealth of four rural and peri-urban community groups.

On the same page, another story (headlined Meet some of the ‘fat cat’ directors) that lists eleven directors is published. There is also an organogram headlined RBM empowerment deal, together with a big picture of Dipico.

We shall now consider the merits of the complaint:

Dipico complains that, while the story purports to be dealing with RBM, it actually seems to be more about himself as a primary target – adding that he is worried about the effect the story had on him.

In support of his complaint, he points to:

The Star denies the allegation that Dipico was singled out as a primary target of the story, saying that he is just one example of a so-called outsider who appears to benefit from the RBM deal. However, the newspaper concedes that the positioning of Dipico’s face in the masthead next to the words “BEE fat cats enrich themselves and the poor stay poor” as well as the picture on page 7 may have created an impression that the story was mainly about him.

The newspaper also notes that Dipico:

From this, Carnie concludes that Dipico is the most recognizable of the parties listed in the group of “background” individuals and that it was therefore justified to give him more prominence than the others.

In his reply to the newspaper’s response, Dipico says that there would have been no problem if the story had limited itself to RBM and had mentioned Dipico as its director. However, he says that the story confuses him with the company, with the result that the complaint remains – namely, that the story focuses on him (as a primary target), whilst the story purports to be dealing with RBM.

My first consideration is that it is wrong to divorce RBM from Dipico as the story is about both. In fact, it is even wider than that – the story is about RBM and its directors (as well as about dissatisfaction by some local people). This means that it was perfectly in order for the newspaper to include Dipico in the story.

Therefore, my question at this stage is not if the story mentions or even focuses on Dipico (in relation to RBM), but rather if it unfairly singles him out in relation to the other directors.

So let’s take a look at what was published:

The story in dispute itself adds to this impression:

Of course, when taken in isolation, the above-mentioned issues mean nothing; however, when seen together, a certain pattern emerges – as far as RBM’s directors are concerned, the main focus is on Dipico. The newspaper is not correct when it says that he was just one example of a so-called outsider who appeared to benefit from the RBM deal.

The next question is: Was this fair?

Several directors are mentioned both in the story as well as is the story that lists some directors. They are all prominent people, including another former premier (Dr Ben Ngubane). From the list, the two former premiers are probably the most prominent.

From this perspective, it becomes clear why the newspaper chose to hone in on Dipico – Ngubane was a former premier of KZN, and therefore not an “outsider”. By putting the main focus (regarding the directors) on Dipico, the newspaper could drive home the point that people were frustrated because (some of) the money would go to people from other provinces.

As the story is about people’s frustration regarding businessmen from outside the area, I would think that the newspaper was within its rights to put the main emphasis (regarding the directors) on Dipico.

However, it is also understandable that Dipico is unhappy about this.

Dipico says that he is “aggrieved” that The Star did not communicate with him or with anyone from RBM to verify the information it referred to. He also states that he is looking forward to a “validation of the fact that it is not acceptable to refer to an innocent and unsuspecting individual in a newspaper article without affording him an opportunity to comment or correct what might be said relating to him”. He adds that this does not mean that the newspaper must necessarily believe his version.

Carnie replies that the story was not about Dipico, but about RBM. He argues that, because the information about Dipico was merely provided as background information, the newspaper was under no obligation to contact him prior to publication. He adds that the information about Dipico was in the public domain and that he obtained his information from Cipro records.

Dipico replies that, if he were contacted, he could have refuted the statement in the story that he is an “outsider” and the anonymous source’s question whether he knows where the mining place is without looking at a map – he says that he visits the area about three times every month “for purposes of RBM”.

Carnie’s argument should be scrutinized here.

Firstly, when newspapers use “background information” they are not under any obligation to ask comment from the subject of its reportage. This hardly needs to be said.

The question, therefore, is this: Is it true that Dipico was merely provided as “background information” (implying that the newspaper was under no obligation to contact him prior to publication)? Or, to ask it in another way: Was the story about him or about RBM (as the newspaper alleges)?

As indicated earlier, this is a misleading question, as the story is about both. Let’s take another look at the intro: “A R4.5 billion black economic empowerment deal by mining giants…has come under fire, with fears that it could largely enrich a select group of ‘outsiders’ and ‘fat cats’ rather than uplifting the 140 000 people whose land is being mined.”

This sentence consists of and combines three elements: the mining deal (read: RBM), the people who would be enriched (the “fat cats” and “outsiders” – or directors – who are mentioned later in the story) and the people whose land was being mined (the dissatisfied).

Taking a look at the story, it becomes clear that these three elements are in fact what the article is made up of: Paragraphs 2 and 3 are about the mining deal, paragraphs 4 – 7 are about the directors, while the rest are mainly about people who are dissatisfied with the deal. Also: an organogram of the RBM deal (with Dipico’s picture) appears on the same page; and the directors feature under the headline Meet some of the ‘fat cat’ directors.

It should also be noted that the people who are said to be dissatisfied, are unhappy with the “outsiders”. The whole story is about people who are up in arms about these “outsiders”.

Keeping all of this in mind, it is difficult to see how reportage on the directors can be described as “background information” only. True, this can be said about the information in the story that lists eleven directors – but the story itself is not about “background information”. On the contrary, the “outsiders” form in a certain sense the heart of the story (as they are at the centre of people’s dissatisfaction).

From the perspective mentioned above alone, the newspaper should have asked some of the directors for comment – and specifically Dipico himself, as the centre of the focus in the story (as far as the directors are concerned) falls on him.

Also important is what the nature of the statements regarding Dipico is. This is an important issue, for were the statements negative towards him, surely that would have made it even more necessary for the newspaper to have asked him for comment.

Well, not a single positive thing is said in the story about Dipico – on the contrary. The promo on the front page depicts him as a “fat cat”; and so does the story itself. There is no doubt that the story portrays him as part of the problem, as seen through the eyes of the disadvantaged community – which is what the article is about.

So therefore: Even if it was fair to portray Dipico as a “fat cat” (we shall come back to this issue) and as an integral part of the problem (an “outsider” who has “taken their land” and will “make off with a disproportionate share of the mineral wealth”), it was not fair to do so without asking him for comment – given the focus that was placed on him.

Dipico says that the transaction came about as a result of a deliberate process by Rio Tinto and BHP Billiton. “In these processes, some entities are approved, others not.” He says that he is particularly aggrieved that a story that suggests a corruption of sorts was “sold with my name on it”.

Carnie argues that the primary purpose of the story was to highlight and stimulate debate on the question on the most appropriate model of broad-based BEE – and not “to impugn the professional reputations of the approximately seven private entities and 29 corporate individuals who appear to have been favoured with disproportionately larger shareholdings than the approximately 140 000 residents of the four RBM ‘mining host communities’.”

It should be noted that neither the word nor the insinuation of “corruption” appears in the story. The story is not about corruption, but about “outsiders” who would supposedly benefit.

Consider the sentence:

The gist of the story is not that (some of) the directors are corrupt, but that the money that they are going to get should rather have gone to local people.

The story says that “deed searches” suggest that Dipico was a director of more that 50 companies.

Dipico complains that this statement is false. He says that, while there is nothing illegal or wrong if that were the case, he had instructed his auditors to resign him from the companies that he was no longer involved with. He argues: “Had the newspaper checked its facts with me, they would have known that I am actively involved in about 4 companies, and not the 50 stated in the article.”

He adds that a number of those (50) companies have already been deregistered by Cipro or were in the process of doing so – and that the story neglects to report this fact.

The newspaper says that Dipico seems to rely on two factors, namely the fact that some of the companies he is involved in are dormant and being deregistered and that in some instances he asked his auditors to resign him. He adds that:

To this, Dipico replies that he had already been deregistered from some companies at the time of the publication of the story in dispute, adding that the journalist should rather have used a database that was more accurate. He says that his resignation from several companies may not yet have reflected on Cipro’s database. He concludes: “…not all information supposedly in the public domain is accurate, or is being properly evaluated”.

Dipico furnished me with several documents that he says are all dated prior to the publication of the story. These are lists of:

Of these, only the third one is dated.

If Dipico is to be believed regarding the dates, it would make the reference to 50 companies inaccurate.

However, with reference to the well-known Bogoshi court case against City Press: Even if the newspaper’s information is not correct, my question should be what reasonable steps the journalist took to attain his information. The High Court’s verdict in the Bogoshi case made it clear that, while there is ultimately no excuse for incorrect reporting, newspapers may err – if they can show that they took reasonable steps to obtain their information.

A Cipro-search certainly is a reasonable and credible step to take. (Cipro, an acronym for Companies and Intellectual Property Registration Office, is an official Government body.)

On the other hand, a single telephone call or e-mail to Dipico may have shed a different light on this matter. It is indeed possible that Cipro’s records were not up to date.

Dipico complains that it is unfair to call him a “fat cat”. He says that he does an honest day’s living – in some cases he makes money, in others he loses money. “Yet the newspaper article labels me in a certain way without facts, rhyme or reason.”

An search on the internet revealed some definitions of what is meant by “fat cat”. This includes:

Given those definitions, I would think that it is not unreasonable for the newspaper to have believed that there may be a perception that Dipico can be described as such. It also needs to be noted that the expression “fat cat” is used in inverted commas both in the story and in the other story’s headline. This suggests that it is not the newspaper that has decided that this term is an appropriate one to use, but that it is rather quoting its sources.

Dipico says his impression is that the story was published to advance a certain political viewpoint against some others.

The Star vehemently denies this. Carnie says: “The fact is there is a diverse group of political affiliations amongst the named individuals, ranging from IFP to ANC members.”

The newspaper’s argument is persuasive.

While Dipico does not complain about the fact that the story erroneously described him as a former Premier of the North-West Province (it should have read Northern Cape Province), it should be noted here.

The story focuses on Dipico in relation to the other directors, but not unfairly so. This part of the complaint is dismissed.

References to Dipico are more than mere background information – the “fat cat” directors form in a certain sense the heart of the story (as they are at the centre of people’s dissatisfaction). This, coupled with negative statements regarding Dipico as well as the content of the story as a whole, made it necessary for the newspaper to have asked him for comment. This is in breach of Art. 1.5 of the Press Code that states: “A publication should usually seek the views of the subject of serious critical reportage in advance of publication…”

Neither the word nor the insinuation of “corruption” appears in the story. This part of the complaint is dismissed.

By doing a Cipro-search, the newspaper took reasonable steps to obtain information. This part of the complaint is dismissed.

However, The Starr would do well if, of its own accord, it publishes Dipico’s version of the number of companies that he is a director of. That would be the right thing to do, even though I have not found that the newspaper breached the Press Code on this issue.

The newspaper does not unfairly depict Dipico as a “fat cat” as such a perception may exist. The expression is also mostly used in inverted commas. This part of the complaint is dismissed.

This part of the complaint is dismissed.

The statement that Dipico is a former Premier of the North-West Province is inaccurate. This is in breach of Art. 1.1 of the Press Code that states: “The press shall be obliged to report news…accurately…”

The Star is:

The newspaper is:

The Star is:

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