Baleka Mbete and the ANC vs. Mail & Guardian

This ruling is based on the written submissions of Ms Baleka Mbete, National Chairperson of the ANC and Ms Nicqui Galaktiou (on her behalf), and Charmeela Bhagowat, managing editor of the Mail & Guardian newspaper.

COMPLAINT

Mbete and the ANC complain about a story in the Mail & Guardian, headlined Mbete looks out for number one – Behind the Gold Fields pickle is a powerful politician who favours progress over principle (page 4, 13 September 2013).

The complaint is that the story erroneously reported that Mbete had:

• been accused of having exploited state funds and that she had reportedly paid back her share; and
• received an illegal driver’s license in 1997.

Mbete concludes that the story was intended to cast aspersions on her integrity and her standing in society.

THE TEXT

The article, authored by Phillip de Wet, asked the question whether Mbete had “scuppered a large and extremely important empowerment deal for mining firm Gold Fields”. The reporter also asked if the mining company had reason to believe she had the reach and influence to cause it trouble. This led to the following question: Would Gold Fields have had reason to believe that she would?

ANALYSIS

Accusation of exploiting state funds; paying back her share

The story said: “Mbete (herself accused of having exploited state funds, although she reportedly paid back her share)…” (This issue concerned the so-called Travelgate scandal.)

Mbete’s complaint, arguments

Mbete denies the truth of this allegation. She also argues that:

• when the misuse of travel vouchers was investigated, she was the Deputy Speaker of the National Assembly: “I did not use travel vouchers for the purposes of my travel and therefore could not have been part of any [such] queries…”; and
• some years ago another newspaper included her name as one of the people accused of having misused travel vouchers – “I subsequently approached the Press Ombudsman who instructed [the publication] to retract the article and this was duly done”. She adds that the allegation was retracted more than five years ago.

The M&G’s response

The M&G replies that Mbete’s link to and handling of the Travelgate scandal as a senior official of Parliament was central to the issue because the matter had been:

• broadly considered a key event during her term in Parliament, which may have formed an important part of an assessment on her likely actions, or political influence by a third party (in this case, Gold Fields); and
• the basis of its 2008 analysis that found Mbete’s record to suggest that “she often puts political progress before principle” (I shall return to this statement).

The newspaper adds that Travelgate was never fully ventilated, “due in part to the role Mbete apparently played in Parliament’s dealing with the scandal”. It also points out that she was personally accused of keeping the lid on the sordid saga, closing down Travelgate prosecutions, refusing to release a report commissioned by Parliament into the matter, misrepresenting the facts of the investigation, and convincing liquidators to drop outstanding claims against Members of Parliament (the newspaper provides me with internet links to prove that all of these “accusations” were published). “These instances and allegations formed the factual basis for the analysis.”

M&G argues that Mbete has indeed been accused of having exploited state funds, and provides this office with reports “across multiple platforms” to prove that these accusations were indeed published.

Regarding the statement that Mbete reportedly paid back her share, the M&G says that legal representative in the liquidation of Bathong travel agency, Bernard Kurz, told it in 2008 that she had received a letter of demand because she appeared to owe money, “but [that she] had…provided proof of payment”. It adds: “Details around the amount Mbete paid, as well as the exact nature of the travel involved, were never publicly disclosed, fuelling confusion over her involvement.” The newspaper provides this office with a story that was published in 2008 to substantiate this statement.

The publication says: “It is therefore our assertion that Mbete has been alleged to have been involved in the Travelgate, and has reportedly paid back money, as stated in the news analysis but that there are no facts available to us to determine her innocence or not…”

In conclusion, the M&G denies that it intended to harm Mbete’s image and adds that the article was clearly marked “news analysis”. It argues that this meant that Section 7 of the Press Code applied (and was adhered to).

Mbete’s reply to the M&G’s response

Mbete replies that the:

• mere fact that an allegation was published, does not make it true (which the story reported as such) – in this case, the allegation was indeed false;
• M&G repeated an allegation that this office had directed another publication to retract; and
• story did not take fair account of all available facts (referring to Section 7.1 and 7.3 of the Press Code).

She also argues that the use of the word “accused” implied a criminal accusation. “A reasonable reader would interpret that to mean that [she] was formally accused by the State. This is false.” She adds that the Oxford Dictionary defines the word “accused” as to be “charged of a crime”.

My considerations

My first question is if Mbete was indeed accused (I’ll put the use of the word “accused” on ice for a moment, and shall return to it shortly) of having exploited state funds, as the article stated.

I note that the article itself did not (try to) justify this statement – it merely stated it as fact.

In its reply to the complaint, the M&G “justifies” the assertion by saying that Mbete was accused of:

• keeping the lid on the matter;
• closing down Travelgate prosecutions, resulting in senior MPs being prevented from facing legal consequences;
• refusing to release a report commissioned by Parliament;
• misrepresenting the facts of the matter; and
• convincing liquidators to drop outstanding claims against Members of Parliament.

I do not dispute for one moment that these allegations were published – but that did not justify the allegation that Mbete herself had been accused of herself having exploited state funds (for her own benefit, which is why she allegedly paid back some money). The allegations were about her covering up the matter, and not about her having exploited state funds herself.

Given the fact that the article did not justify the statement in dispute, and the fact that the newspaper missed the point in trying to defend its statement on this matter, I can only conclude that the assertion was unfair to her (see Section 2.1 of the Press Code). It also did not take into account all available facts which were material to the matter commented upon (Section 7.3).

Another issue is the use of the word “accused”. If the reporting of the “allegation” was unfair, so was the use of the word “accused”.

Illegal driver’s license

De Wet reported: “Revealed to have been the recipient of an illegal driver’s licence in 1997…”

Mbete’s arguments

Mbete says that the report by the authoritative Moldenhauer Commission of 1997 was debated in Parliament, and that it contained no adverse findings against her in this matter.

The M&G’s response

The newspaper replies that Mbete relies on the findings of the Commission – however, she “does not deny having been the recipient of an illegal driver’s licence, and to our knowledge has never done so”. It adds that the report recorded the fact that Mbete had been a recipient of an improperly issued licence, and points out that:

• she admitted that she had not completed the standard requirements for obtaining a valid driver’s licence;
• the Moldenhauer report found that Mbete’s driver’s licence was among those that had been issued improperly; and
• an ANC press statement (issued on 24 May 1997) said that Mbete had apologized and committed herself to return the licence, which the party itself described as “invalid” (www.e-tools.co.za/newsbrief/1997/news0526).

In conclusion, the M&G reiterates that the article was clearly marked “news analysis”. This means that Section 7 of the Press Code applied (and was adhered to). “The article expressed opinion with no malice, and no motive other than to better inform readers on the larger background to developing news in the public interest.”

Mbete’s reply to the M&G’s response

Mbete replies that this part of the story contained a half-truth (which constituted a material omission) and states that it was unacceptable to have reported that she received an illegal driver’s licence without also stating that there was no finding of guilt against her. She explains that she unknowingly received an illegal driver’s licence and reiterates that the Moldenhauer Commission found her not guilty (and that she has never been charged in regard to this issue).

She refers to a story in another newspaper, headlined New Speaker Worries About Harsh Spotlight on Corruption (18 July 2004), which not only stated that she had handed the driver’s licence back after a judicial commission found it had been improperly issued, but also found that she had not done anything wrong herself. The same newspaper published the following sentence (under the headline The friendly first lady with claws of an alley cat, 21 September 2008): “…in April 1997 [Mbete] was found to have received an improperly issued driver’s licence. She was not charged with any wrongdoing.”

Mbete adds that the M&G should not hide behind a “news analysis” article, which supposedly was protected by greater latitude in terms of the Press Code.

This issue is materially the same than part of a finding that I have made on 19 July 2012 in the complaint of ANC councillor Neil Diamond against The New Age. The story said that Diamond had been at the centre of a multimillion-rand land scandal several years ago. This fact was true and accurate, but it was out of context (unfair) as he has been greatly exonerated and as no steps were going to be taken against him – facts which the journalist neglected to mention.

Back to the issue at hand: It was correct to have stated that Mbete had received an illegal driver’s licence – correct, but unfair as it omitted to state that she was found not guilty on this matter.

I take into account that the rest of the article raised critical questions (it was the M&G’s right to do so, as I shall repeat below) – within this context, however, the half-truth surely caused Mbete some unnecessary harm. Sometimes a half-truth is as bad as an outright lie.

Intended to cast aspersions on her integrity, standing in society

Mbete’s complaint, arguments

Mbete concludes that the story was written with the intention to cast doubt on her integrity and standing in society.

She argues that the story:

• relied on unfounded allegations and distortions, without any evidence, “to prove the myth that I am an unprincipled individual and leader” who could be bribed and who would do anything to “get ahead”, putting her “political progress before principle”; and
• in this process misrepresented internal processes of the ANC including election into leadership and the deployment of its cadres in government.

The M&G’s response

M&G responds that Mbete has provided no facts to refute the information published “and we assert that the piece was clearly marked as news analysis…”

The newspaper denies that it intended to cast aspersions on Mbete’s character – instead, “the intention was to examine whether…Gold Fields would have reason to believe [Mbete] capable and/or willing to influence or impede an important business deal… The article examined more than a decade of publicly documented events and sought to draw conclusions based on the available facts… We believe that it was in the public interest to do so.”

My considerations

In addition to what I have argued above, I now need to look at the article as a whole (in context).

The story started off with a question: Could Mbete have scuppered a large empowerment deal for Gold Fields? (The ANC reportedly said “no”.) A follow-up question was posed: Would the mining company have had reason to believe she had the reach and influence to cause it trouble? (De Wet argued: “The simple answer appeared to be yes”.)

Then, the third (and all-important, for the purpose of this exercise) question followed: “Would a company [-] concerned that Mbete could cause it trouble [-] have reason to believe that she would?” (emphasis added)

Clearly, this is the crux of the matter. If the answer to this question is “yes”, her integrity and position would indeed be in question. As such there is nothing wrong with questioning her integrity – but then the journalist should have enough justification for doing so. If not, he would have unnecessarily tarnished Mbete’s dignity and reputation.

De Wet replied to this question, saying: “Again, the answer appears to be yes.”

Therefore, fairness dictates that I now need some proper justification for the inference that Mbete was prone to “cause trouble”.

So now, back to the article: De Wet essentially gave two reasons for this assertion:

• The M&G’s editor-in-chief (Nic Dawes) wrote in 2008 that Mbete’s record as speaker suggested that she could get things done, but also that she often put her political progress before principle (with reference to the Travelgate issue); and
• Mbete’s handling of her driver’s licence affair (“that would give a cautious company most food for thought on her level of principle”).

Firstly, regarding the Travergate issue I note that the M&G itself says: “It is therefore our assertion that Mbete has been alleged to have been involved in the Travelgate, and has reportedly paid back money, as stated in the news analysis but…there are no facts available to us to determine her innocence or not…” (emphasis added).

The M&G’s first piece of “evidence” for stating that Gold Fields had reason to distrust Mbete is, by its own admission, not proven. The fact that Dawes made that statement, does indeed not prove that the assertion is necessarily correct or fair.

The second main reason (which should have given Gold Fields “most food for thought”, according to the article) concerned the illegal obtaining of the driver’s licence.

I have already said that this was a half-truth.

In conclusion: The motivation that de Wet put forward for stating in the affirmative that the mining company had reason to believe that Mbete could cause it trouble, stood on shaky grounds. This, I believe, unnecessarily tarnished her dignity and reputation.

I am not suggesting that there were no such grounds – I am merely stating that the motivation that the reporter put forward for this suggestion was by no stretch of the imagination enough to justify such a damning inference.

Please note that I am not taking issue with the fact that the M&G raised critical questions – I am merely stating that the article implied a lack of integrity on Mbete’s part without enough justification to do so.

Her argument that the article misrepresented the internal processes of the ANC including election into leadership and the deployment of its cadres in government cannot hold water – clearly, the article did not focus on this issue, neither did it imply that the ANC’s internal processes were corrupt.

General comment

I cannot determine if the reporter deliberately caused Mbete unnecessary harm by publishing unfair comments about her without justification to do so, causing her huge unnecessary harm – what I can say, though, is that the article surely resulted in just that.

FINDING

Accusation of exploiting state funds; paying back her share

The M&G did not have enough justification to make the accusation in question. This is in breach of:

• Section 2.1 of the Press Code: “The press shall take care to report news…fairly: and
• Section 7.3: “Comment by the press…shall take fair account of all available facts which are material to the matter commented upon.”

Illegal driver’s license

The sentence in dispute was accurate, but unfair as the journalist neglected to state the other half of the truth, namely that Mbete has not been found guilty on this matter. This is in breach of the following sections of the Press Code:

• 2.1: “The press shall take care to report news…fairly”; and
• 2.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”

Intended to cast aspersions on her integrity, standing in society

The article cast aspersions on Mbete’s integrity and dignity without enough justification to have done so (even if there had been no intention to do so). This is in breach of Section 4.2 of the Press Code that states: “The press shall exercise care and consideration in matters involving dignity and reputation…”

SANCTION

The Mail & Guardian is directed to apologise to Mbete for unfairly:

•  stating that she personally had been accused of misusing state funds for her own benefit;
•  neglecting to state that she was found not guilty after having received an illegal driver’s licence; and
• casting doubt on her integrity and dignity without enough justification to do so.

The newspaper is also asked to publish the text below on page 4, above the fold, with the heading, “Apology to Mbete” (or something similar).

Beginning of text

The Mail & Guardian apologises to ANC chairperson Baleka Mbete for unfairly stating that she had been accused of misusing state funds for her own benefit, for neglecting to state that she was found not guilty after having received an illegal driver’s licence, and for casting doubt on her integrity and dignity without enough justification to do so.

She lodged a complaint with the Press Ombudsman about a story that we had published on 13 September 2013, headlined Mbete looks out for number one. The story, authored by Phillip de Wet, asked the question whether Mbete had “scuppered a large and extremely important empowerment deal for mining firm Gold Fields”. The reporter also stated that that Gold Fields probably had reason to believe that it would cause trouble to the mining company.

Press Ombudsman Johan Retief said, “I cannot determine if the reporter deliberately caused Mbete unnecessary harm by publishing unfair comments about her without justification to do so, causing her huge unnecessary harm – what I can say, though, is that the article surely resulted in just that.”

He dismissed a part of Mbete’s complaint, as well as some of her arguments.

Visit www.presscouncil.org.za for the full finding.

End of text

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