Nthabiseng Mogale vs.Randfontein Herald

This ruling is based on the written submissions of Mokoduo Attorneys, for Adv Nthabiseng Mogale, and Johan Meyer, editor of Randfontein Herald.

COMPLAINT

Mogale, a former municipal manager of Randfontein Local Municipality, complains about a letter headlined Open letter to District and Randfontein municipalities, published in Randfontein Herald on 25 September 2013.

She says that the contents of the letter has defamed her and harmed her reputation.

She adds that:

• she should have been asked to comment on the contents of the letter prior to publication; and
• the newspaper should provide her with the identity of the author and access to the original letter or email.

THE TEXT

The letter, under the pseudonym Anonymous from Mohlakeng Extension 5, said that the recent service delivery protests in the area were just the beginning. “More and drastic [action] is yet to come.” The writer alleged that those from local government who have positioned themselves as suitable to sort out the problems were “actually part of the corrupt group that have illegally acquired land in Extension Five”. The letter mentioned Mogale in this regard.

ANALYSIS

Dignity, reputation

Mogale complains that the contents of the letter has defamed her and harmed her reputation.

She does not stipulate exactly which statement(s) she refers to, so let’s take a look at what the letter says about her: “We have it on good authority that…Mogale who is very much entangled in this corruption has threatened the [people who were mixed up in corruption] that she will not go down alone therefore they must protect [each other] at all costs.”

The letter went on to talk about “you” (later: “people”), but from the context I accept that the rest of the letter probably did not specifically refer to her.

Meyer says that:

• the content of the letter was the view of the writer, and not that of the newspaper;
• it was clearly stated that the letter was published unedited; and
• the accusations against Mogale were nothing new and was therefore considered to already be in the public domain.

The editor adds that he regrets that these accusations were published in the form of a letter; he would have preferred a journalist to investigate and do an in-depth story with input from Mogale and others. “This unfortunately did not happen, and the letter was published at the last minute – an oversight on my part. For that I apologise. The journalist in question did receive a warning…for her failure to follow up on the letter and do a proper article as requested by me.”

Meyer proposes to publish a response from Mogale with equal or more prominence, and to do a proper follow-up story (including responses from Mogale and others) that would be published prominently.

Mogale rejects these proposals.

My considerations

I’ll firstly deal with Meyer’s defence. None of his arguments can hold water. Even if the content of the letter was the view of the writer, and not that of the newspaper, the publication (and in particular, the editor) is responsible for everything that is printed. It also does not matter that it was clearly stated that the letter was published unedited – that fact does not relieve the newspaper of its responsibility. The argument that the accusations against Mogale were nothing new and were therefore considered to already be in the public domain is also weak. There may have been millions of accusations or allegations against her – but this does not mean that they were true (as stated in the letter).

The sentence in question made serious remarks about Mogale, which brings Section 4.2 of the Press Code into play. It reads: “The press shall exercise care and consideration in matters involving dignity and reputation.” This can be overridden, though, if the facts reported are true or substantially true (4.2.1).

(Note that in law, the repetition of defamation is also defamation. Applied to the Press Code: The repetition of the violation of someone’s dignity and reputation is also a violation of these matters.)

Based on Section 4.2.1 I was compelled to ask the editor the following question: “As the letter stated it as fact that Mogale had been involved in corruption, I need to know if there is any evidence to this effect. Please note that I am not asking if there is any proof that there were such allegations – I am trying to establish if there is any proof that Mogale has in fact been found guilty on charges of corruption.”

The editor could provide no such proof as far as the Mohlakeng Ext 5 issue is concerned. Ultimately, this means that the claim by the writer of the story was without foundation, which also means that the publication of the letter was unjustified.

He said: “I do not mind publishing a retraction and even an apology. I simply feel that [Mogale’s] insistence on it being on the front page…as well as ‘glittering’ on the websites is going a bit too far.”

The letter was published on the letters’ page (4).

I appreciate Meyer’s attitude, and I also agree with him as far as the front page and “glittering” on the website is concerned. It is normal practice for this office to have retractions/apologies published on the same page as where the offending text appeared.

Not asked to comment

Mogale complains that she should have been asked to comment on the contents of the letter prior to publication.

This is not standard journalistic practice, and the newspaper was under no obligation to do so.

Disclose identity

Mogale demands that the newspaper provides her with the identity of the author and access to the original letter or email.

This is also not standard journalistic practice. In fact, the press has an obligation to protect its confidential sources (Section 11.1 of the Press Code).

FINDING

Dignity, reputation

The statement in the letter that Mogale was very much entangled in corruption in Mohlakeng Extension 5 was without foundation and in breach of Section 4.2 of the Press Code that says: “The press shall exercise care and consideration in matters involving dignity and reputation.”

Not asked to comment

This part of the complaint is dismissed.

Disclose identity

This part of the complaint is dismissed.

SANCTION

Randfontein Herald is directed to apologise to Mogale, and to retract the relevant allegations against her on its letters’ page. If the offending text was published on its website, the newspaper is also asked to either remove this text, or alternatively to add the apology and retraction to that text. It follows that, if the text did not appear on its website, the publication is under no obligation to publish the apology and retraction online.

The newspaper is directed to publish the following text:

On 25 September 2013 we published a letter headlined Open letter to District and Randfontein municipalities.

The letter, under the pseudonym Anonymous from Mohlakeng Extension 5, said that the recent service delivery protests in the area were just the beginning. The writer alleged that those from local government who have positioned themselves as suitable to sort out the problems were “actually part of the corrupt group that have illegally acquired land in Extension Five”.

The letter mentioned former municipal manager Nthabiseng Mogale in this regard, saying: “We have it on good authority that…Mogale who is very much entangled in this corruption has threatened the [people who were mixed up in corruption] that she will not go down alone therefore they must protect [each other] at all costs.”

We apologise to her for this unsubstantiated statement, and hereby retract it unconditionally.

Visit www.presscouncil.org.za for the full finding (she lodged a complaint with the Press Ombudsman, who dismissed the rest of her complaint).

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