Tony Yengeni vs. Mail & Guardian

This ruling is based on the written submissions of Mr Tony Yengeni and the Mail & Guardian newspaper.

Complaint

Mr Tony Yengeni, a former head of Parliament’s defence committee, complains about a front page headline in the M&G, published on 14 June 2013, stating: Revealed: Yengeni’s R6-million ‘kickback’ agreement – German police find record of deal signed by ANC heavyweight when he headed Parliament’s defence committee. The story itself started on page two, headlined Yengeni’s R6m ‘bribe deal’ – Raid on German company revealed ‘bribe’ to Yengeni to secure purchase of corvettes.

He complains that these headlines and the story were defamatory and unfair, and based on (unpublished) gossip that had been designed to impugn his name and integrity. He also denies that the so-called bribe agreement (emanating from the arms deal) of R6-million has been published.

Analysis

The story, written by Stefaans Brümmer, said that German detectives reported that Yengeni had signed a R6-million bribe agreement with an arms bidder when he headed Parliament’s joint standing committee on defence in 1995.

In reaction to Yengeni’s complaint the M&G had offered him a right of reply of 650 words, which he declined.

I then sent the following correspondence to the editor and the journalist (all in italics):

Mr Yengeni has declined your offer of a right of reply, and insists that I come to a finding.

The story said that German detectives:

·         “have reported” that he signed a R6-million bribe agreement with an arms bidder in 1995;

·         reportedly found a copy of this agreement when they raided ThyssenKrupp; and

·         in some correspondence, detailed “some corroborating evidence”.

In his complaint, Yengeni denies that the so-called bribe agreement has been published.

In order for me to proceed meaningfully, I need all the relevant correspondence that you have at your disposal.

You may also consider revealing to me confidential documents (if at your disposal), if these will help me to come to a responsible decision. Of course:

·         Such confidential information will remain confidential; and

·         You are under no obligation to reveal such documentation to me.

The story

Brümmer responded by visiting me on July 16, bringing with him two documents (reports).

Here are my considerations:

• Both documents corroborated the information that the reporter attributed to these detectives; and
• I note that nowhere did the story state the allegations by German detectives as fact – the journalist consistently attributed the information to them.

This left me with questions about the credibility of these documents, as well as that of his source (the one who provided Brümmer with the information). These issues emerged as my task is not to establish the veracity of the allegations by the Germans – I am merely concerned with the question if and how justified the journalist was in his reportage.

Brümmer explained that he believed that the reports were credible as their contents concurred with his frame of reference (which was quite wide, as he had been reporting on this matter for several years now).

He added that he had worked with this source before, and said that he had no doubt as to the trustworthiness and credibility of this person. (He refused to reveal his source’s identity to me – this was his right, which I accordingly respected).

Given these considerations I have enough reason to believe that Brümmer’s reportage was justified – which, of course, is not to say that the information by German detectives as recorded in the reports are necessarily correct.

The headlines

Yengeni complains that the headlines were defamatory and unfair, and based on (unpublished) gossip that had been designed to impugn his name and integrity.

The M&G says that, in South African defamation law, a headline may be defensible even if it is inaccurate, provided the context of the whole article is considered. The Press Code takes a slightly different approach, calling for a headline that is a “reasonable reflection” of the article in question.

The newspaper argues: “The key word here is reasonable. Reasonable does not mean exact or perfect, it means that the headline broadly captures the content of the article in the mind of a reasonable reader.”

The editor admits that the headlines may or may not have been perfect, but says that they were certainly not baldly inaccurate; he argues that they were reasonable and defensible in both common law and Press Code terms – it captured in the limited words available the basic thrust of the content (that an agreement involving Yengeni was the subject of the article, that the value of the alleged contract was R6-million, and that it allegedly constituted a bribe).

The editor adds that quotation marks were used, in line with long-established newspaper tradition, to signal that this was an allegation, rather than an absolute claim, and that it emanates from someone other than the newspaper.

“In other words, the quotation marks allow the reasonable reader to infer room for doubt. Arguably, had the entire phrase ‘kickback agreement’  been included between the quotation marks, the headline would have risen to a higher standard of perfection, but that is not what the Press Code asks for. Quite properly, it asks for reasonableness, and that standard has been amply met.”

The first headline

The first headline said, Revealed: Yengeni’s R6-million ‘kickback’ agreement – German police find record of deal signed by ANC heavyweight when he headed Parliament’s defence committee.

The newspaper is not correct in arguing that it was sufficient to have used inverted commas only for the word “kickback” – by not using inverted commas for the words “agreement”, “revealed” and “find” as well, it in fact recorded these allegations as fact.

This was in stark contrast with Brümmer, who was careful to attribute his information to a source (as he had never actually seen this alleged bribe agreement himself).

To portray allegations (as reported in the story) as fact (in a headline) is not reasonable and does not meet the criterion set by the Press Code. As such, the headline may unnecessarily have harmed Yengeni.

The second headline

This headline read: Yengeni’s R6m ‘bribe deal’ – Raid on German company revealed ‘bribe’ to Yengeni to secure purchase of corvettes.

In this case, the use of inverted commas (twice) was adequate enough to convey the message that the “bribe deal” was not a fact, but an allegation. I believe that the M&G is correct in this case – this headline was not perfect, but it also did not cross the ethical line as set by the Code.

Finding

The story

This part of the complaint is dismissed.

Headlines

The first headline stated allegations as fact. This was in breach of Section 10.2 of the Press Code that states: “Headlines…shall give a reasonable reflection of the content of the report…in question.”

The complaint with regards to the second headline is dismissed.

Sanction

The Mail & Guardian is directed to:

• apologise to Yengeni for implying in one headline the said allegations as fact, which may have caused him unnecessary harm ; and
• publish such an apology on page 2 – the wording of which should be approved by this office. The text should end with the words: “Visit www.presscouncil.org.za for the full finding”. (The M&G is free to elaborate on the parts of the complaint that were dismissed, if it wishes to do so.)

Appeal

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman