The Office of the Presidency vs Cape Times

This ruling is based on the written submissions of Mr S. Moshoetsi, on behalf of the Presidency, and the Cape Times newspaper.

Mr Sifiso Moshoetsi, acting deputy director-general in the private office of the President, complains about a column in the Cape Times on 27 March 2012, headlined President’s war room is on full alert.

The Presidency complains that the column makes a number of shocking sweeping statements which are grossly untrue and unfair to the President, that no verification of the statements was made before publication, and that gossip has been produced to the public as fact.

The column, written by Max du Preez, is an opinion piece about the battle for the leadership of the ANC and the way in which the media is manipulated to achieve the ends of the differing factions.

Moshoetsi takes strong exception to the following statements:

·         “Being president and thus in charge of the intelligence communities and law enforcement agencies, Jacob Zuma is best placed to dig out – and even manufacture – dirt on his opponents and spread it to the media”; and

·         “Zuma, I am told reliably, has created a ‘war room’ of senior politicians to safeguard his interests and destroy his enemies.”

He says these are serious accusations. “An impression will be created in the minds of the readers that the President indeed manufactures ‘dirt’ on his opponents and gives it to the media. This is an absurd and preposterous statement to make about the head of state.” He asks that the editor either produces hard evidence, or retracts these statements and apologises for making them.

Moshoetsi also denies that the President has a war room and points out that the allegation that certain people are used to safeguard his interests and destroy his enemies “is a vicious fabrication that seeks to create fear and division (and) is unfounded”.

He also argues that these statements go beyond fair comment, adding: “There are many wild allegations in this soap opera script that poses as editorial.”

Du Preez says that the thrust of his column was to warn readers “…against the manipulation of organs of the state in the leadership battle in the ANC and against believing every piece of dirt that becomes public in this way. I also warn the media to not become a part of this in-fighting”.

He argues that “war room’ is “universally understood as a small group of the centre of operation inside a business or political party where strategic decisions are made and operations launched” – a phrase that readers would not understand to mean an actual war room. He adds that he could very well have used the term “special task team”.

·         it is factually correct – Zuma is indeed best placed to do that;

·         he does not actually state it as fact that the president is personally doing it, but he is suggesting it is being done by his camp inside the ANC;

·         the above is his opinion, which was the result of his interpretation of reliable nformation he had received from inside the ANC; and

·         this was not the first time such a reference has been made, and gives examples of the underlying information on which his opinion is based.

Du Preez adds that a column is understood by reasonable readers as the writer’s personal views rather than a balanced report where the relevant parties’ views are canvassed.

Moshoetsi rejects the explanations of the newspaper and Du Preez and argues that he should have asked if the information he had been given was indeed incorrect. “The Cape Times allowed him to make his opinion known…because his opinion is respected. That respect must be accompanied with responsibility”.

The gist of the complaint is that the two statements in dispute were published without verification of the facts, that gossip has been passed off as fact and that these statements are untrue and unfair. The issue for consideration now is whether the column (not an editorial, which would represent the view of the newspaper) falls within the protection of the Code.

Art. 8.1 of the Code states: “The press shall be entitled to comment upon or criticise any actions or events of public interest, provided such comments or criticisms are fairly and honestly made.” Art. 8.3 says: “Comment by the press shall be an honest expression of opinion, without malice or dishonest moves, and shall take fair account of all available facts which are material to the matter commented upon.”

I hall also be guided by a ruling by the Constitutional Court in April 2011 (Robert McBride vs. The Citizen) which reads: “Criticism is protected, even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is an honest opinion, without malice, in the public interest and founded on true facts.”

In a news report the newspaper would be required to ensure, where possible, that the facts on which it relies have been checked or that the reporter has made reasonable attempts to ensure that the facts are correct. However, the position in respect of a column is entirely different – a column is an expression of an opinion; it is not a news report.

In expressing his opinion on the power struggle leading to the election of the top man in the ANC, Du Preez presents his view of what is happening behind the scenes based on the information that he has received. He does not pass this information off as fact, but as opinion – an honest expression which may be either accepted or rejected.

If this opinion is either malicious or based on a dishonest motive his column may be challenged. Moshoetsi, however, does not complain about malice or dishonesty, and neither do I have any reason to accuse Du Preez of being malicious or dishonest in this regard.

On the first statement: Du Preez is correct in that he does not say that the President is actually involved in digging out or manufacturing dirt against his opponents, but only that he is “best placed” to accomplish this if he chooses to do so.

However, he also strongly suggests that the public can “expect more dirt”. When read in context, Du Preez is at least strongly suggesting that the President himself is likely to dig up dirt in future. But again, this is Du Preez’s opinion, which cannot reasonably be ascribed to malice or dishonesty.

The term “war room” is indeed a well-known description and ordinary readers are likely to understand it to denote a small group in the centre of an operation where strategic decisions are made and operations are launched.

I have no reason to disbelieve Du Preez that he has been “reliably told” – which means that I cannot uphold the complaint about no verification. Also: Gossip has not been produced to the public as fact, as it is clearly an opinion piece which does not state the matters in dispute as fact.

I therefore conclude that:

·         even if Du Preez’s criticism may have been severe, unbalanced, exaggerated or prejudiced, this does not mean that his opinion, honestly held and without malice, is not protected – his right to express his opinion deserves protection;

·         Moshoetsi correctly points out that the newspaper takes ultimate responsibility for what it chooses to publish, and that the respect that Du Preez enjoys must be accompanied with responsibility. However, it is also the newspaper’s task to participate in the marketplace of ideas and to allow him to express his views within the boundaries of the Press Code and the Constitution; and

·         this office will do the freedom of speech in particular and our democracy in general a disservice if it stifles the robustness of the debate when it is not convinced that the Press Code was breached.

The Complaints Procedure permits a party to apply for leave to appeal against a decision of the Press Ombudsman. An application for leave to appeal, fully setting out the grounds, may be made to the Chairperson of the South African Press Appeals Panel, Judge Ralph Zulman. He may be contacted at [email protected].