Ronnie Kasrils vs Sunday Times

This ruling is based on the written submissions of Mr Ronnie Kasrils, former Minister of Intelligence Services, and those of Susan Smuts, legal editor of the Sunday Times newspaper.

COMPLAINT

Kasrils is complaining about a front-page article (immediately beneath the masthead) published in Sunday Times of 7 September 2014, headlined Spy tapes ‘illegal’ and expose Kasrils, and another on page 4 in The Times the next day (I discussed NPA investigations – Kasrils). The first story was amended in the next edition and headlined Tapes illegal and expose role of Kasrils.

He complains that the:

• paper falsely alleged that he was the mastermind behind a political conspiracy to manipulate the National Prosecuting Authority (NPA):
  • without any evidence;
  • by quoting unnamed sources; and
  • without giving him enough time to respond; and
• reporting has damaged his reputation.

After a previous ruling, made on 19 September 2014, the content of the so-called spy tapes came to light, after which Kasrils withdrew his complaint and resubmitted a new one. I shall largely repeat the sections of the initial finding which are still relevant.

THE TEXTS

The first story, written by Sam Mkokeli, said the intercepted telephone conversations resulting in the withdrawal of corruption charges against Pres Jacob Zuma “were tapped through dubious and possibly criminal means”. The NPA reportedly “discovered” this as it perused the tapes ahead of releasing them to the DA, following a court order to this effect. Mkokeli added that Kasrils was allegedly identified through the latest transcripts and tapes as “the mastermind behind most of the political maneuvering at the height of the Polokwane “battle”.

The second article, authored by the same journalist, stated: “Ronnie Kasrils, the former intelligence minister unmasked by the ‘spy tapes’ as the mastermind behind the manipulation of the [NPA], has admitted to discussing the NPA’s matters (with Scorpion head Leonard McCarthy). But he says it was all part of his duties as the intelligence minister.”

BACKGROUND, ACCORDING TO KASRILS

In 2009, sections of these tapes were “leaked” to the Mail & Guardian (M&G), which reported a conversation between McCarthy and NPA chief Bulelani Ngcuka, during which the former mentioned having spoken to “the guy”.  As this might have referred to him (Kasrils), he contacted the newspaper and informed it that he, as minister of intelligence at the time, had obviously met professionally with McCarthy; and that, in the immediate run-up to the ANC’s Polokwane conference, McCarthy had asked him about the possible consequences, should Zuma be arrested and charged.

The relevant passages of the report carried by the M&G and the questions put to him, with his answers, can be found at http://mg.co.za/article/2009-05-22-ronnie-kasrils-bring-it-to-light).

The first question: Did you advise McCarthy to charge Zuma?

No. It was clear from what he had heard that they were definitely going to prosecute Zuma. So, he told McCarthy charging Zuma days before Polokwane would be madness – if they were determined to prosecute, that was their decision, but they should wait with that for the next year. There was nothing sinister or underhanded in them meeting. “It would be remarkable if the minister of intelligence never met with the head of the DSO [directorate of special operations].” He never had a conversation about whether or not to charge Zuma. “It’s not my call! And at no time in my discussions with McCarthy was I an intermediary for [Thabo] Mbeki.”

The second question: Ncguka and McCarthy referred to a person as ‘the guy’. Is that you?

“It’s possible. Who knows? “I’ve no guilt about expressing a view – without interfering in McCarthy’s duty to decide their course of action – about the timing of Zuma’s prosecution. Of course, if they had charged Zuma before Polokwane it would have seemed even more of a conspiracy.”

ANALYSIS

The correspondence between the parties and this office proved to be a rather to and fro exercise. I shall first summarise the arguments as they reached our office (chronologically), putting the newspaper’s replies in boxes for the sake of clarity. I’ll then argue the issues from there.

Mastermind; exposed

Kasrils says as far as he is aware, there are no conversations between the former head of the Scorpions, Leonard McCarthy, and himself on these tapes – a fact attested to in a radio interview by DA leader Helen Zille, who has perused the transcripts of the tapes.

If the Sunday Times had done its research, it would have known that the story was not sensationally “exposing” his role.

He also complains that Mkokeli phoned him about the spy-tapes story and his role in it only at approximately 6 p.m. on Saturday, 6 September, and informed him that it would be published the following day.

“This was too late to canvass my views. I asked him whether he was aware that I had spoken publicly about my role to the Mail & Guardian as quoted above. Had he and the paper followed the rules of journalistic due diligence and abided by professional standards I would have certainly been able to assist their reportage. Instead they were clearly solely bent on relying on the one-sided spin of unnamed government sources, failing their readers, and maligning me in the process.”

He added that he did not have access to the “spy tapes” – and neither did the newspapers.

Smuts responds that the reporter spoke to three people who had heard the “spy tapes”, and who all had concluded that “the guy” (a term used often during the conversations in question) referred to Kasrils. “We submit that three sources is ample confirmation of the facts as published in our stories.” She adds the newspaper accepts that Kasrils’s name was not mentioned in the radio interview with Zille. However, “we did not say that they did. We [merely] said that they referred to ‘the guy’ and that ‘the guy’ has been identified as Mr Kasrils”. Smuts admits that the newspaper called Kasrils too late for his comments to be included in the first edition of the Sunday Times. “We apologise for this, and are willing to publish them in the first edition of Sunday Times this week (or as soon as the complaint is resolved). His comments were included in later editions of Sunday Times last week, and were included in The Times.” In later correspondence, she: reiterates that the neglect to reflect Kasrils’s comments in the first story (in its first edition) amounted to the only breach of the Press Code (and offers text to this effect); and explains that two sources called Kasrils the “mastermind”, while the third called him a “cut-out” (who would give former President Thabo Mbeki “plausible deniability in the alleged interference”). The legal editor adds that Mkokeli specifically told Kasrils that he came up a number of times in the tapes and the transcript, including his role “in the political manipulation of the body”. Kasrils “confirmed” that this was the case, although he denied interfering politically.

Kasrils questions the reliability of the sources in his reply to the newspaper’s response.

His argument is important enough to cite it in full: “As government agents do they not have their own agenda particularly given the secrecy and evasiveness this issue has been clouded in for six years? The tapes, which were obtained by the illegal interception of telephone conversations, are said to have been the secretly stored material of government security agents manifestly leaked to and shared with the…President’s legal advisers and attorneys. Since these sources of the ST claim to have knowledge of these illegal tapes it follows they must be tied in to the President and/or Security Services and it reasonably follows that they would be inclined to side with the Government’s and the ANC’s story and the decided spin the Security Agencies would had have in fact placed on those tapes. How then can the ST decide those sources are reliable and objective?” (Emphasis added.)

Kasrils adds that the reference to him being a “cut-out” has no substance “and is based on unsubstantiated conjecture over the years that Mbeki and his supporters were conspiring to prevent Jacob Zuma [from] becoming ANC and…[SA] President. This has never in fact been proven”. And yet, he concludes, the Sunday Times nevertheless accepted the reliability of its sources and their “extremely problematic and dubious assertions and allegations they have made…to my detriment”.

He also denies that he ever confirmed that his name “came up” a number of times – he says he has had no access to the tapes or the transcripts.

Smuts wished to make further submissions because her first reply was aimed at finding a speedy resolution, rather than defending the story in detail. Also, Kasrils’s latest correspondence raised matters which required further responses. She wrote: “Our sources are unnamed because that was the condition they made for sharing information with us. They have intimate knowledge about the processes of dropping the charges against Zuma and the release of the tapes to the DA. We are unwilling to go further in describing their proximity to the ‘spy tapes’ for fear of breaching our undertakings to them.” The newspaper adds that Kasrils is not in a position to call its sources “dubious” and that his speculation about their motives is misplaced. The only thing that is relevant is whether their information is true or reasonably true. “We submit that it is. We submit that the sources are known to our reporter and have previously given him reliable information.” Smuts argues that the information garnered from its (three) sources had tallied in material respects, namely that Kasrils emerged as a “mastermind” (two sources) and “cut-out” (one source) in the latest transcripts and tapes given to the DA. They were not reporting on “unsubstantiated conjecture over the years”, as Kasrils alleges, but rather on information that is currently within the first-hand knowledge of its sources and which has been given fresh relevance by the DA’s recent court victory. She adds that it is in the public interest to reveal the content of the spy tapes. Because the content of these tapes has not been made public, the newspaper had to rely on getting information from people who know what the tapes contain. “Our sources are such people.” Kasrils was identified as “the guy” on the latest transcripts. Smuts denies that no interview took place between the reporter and Kasrils. The interview lasted about 20 minutes and the quotes used in later editions were obtained during this interview (and not from the M&G’s archives, as Kasrils alleges). From the onset, Mkokeli made it clear to Kasrils that he had been informed that the latter had been fingered in the tapes and/or the transcript regarding political manipulation relating to the NPA. When asked if that was the case, Kasrils replied: “Yes, it is, and I made it clear at the time, when I saw the tapes and everyone was talking about references, thinking the references were to President Mbeki.” The reporter specifically asked Kasrils about the interactions he had had with McCarthy in the context of the release of the tapes and how many times he had spoken to him in relation to the charges against Zuma. With regard to Kasrils’s statement that there was nothing new in being identified as “the guy”, Smuts says the spy tapes have become newsworthy again, and Sunday Times and the M&G do not necessarily share the same readers. It is also no breach of the Press Code to revisit information in the public domain. “More pertinently, our sources distinguish between the 2008 transcript and the transcript that has been released to the DA insofar as the new transcript points more directly to Mr Kasrils’ involvement. The previous debate raised questions about the person referred to in code in the 2008 transcript. Our reporter explored the identity of this politician with regard to the new transcript with Mr Kasrils…” Smuts explains that Kasrils’s comments, which were carried in the later editions of the newspaper, were included to give context. “We deny that his comments should have substantially altered the thrust of the story. The story was adequately sourced. Mr Kasrils, who has a vested interested in the spy tapes saga, is one of several people we spoke to. He has not presented any good reason why we should have elevated his views above those of anyone else or used his views to determine the presentation of the news.” Kasrils’s comments to McCarthy (that his discouragement of the latter’s intention to arrest Zuma before the Polokwane conference was “hardly the actions of a ‘mastermind’ maneuvering against Zuma”) can be construed in more than one way without straining credibility. There was another argument that went along the lines of: Avoid mayhem by letting Zuma stand at Polokwane, then arrest him later but before he gets the chance to become President of the Republic. Indeed, the charges against Zuma were revived, only to be dropped in 2009 after the “spy tapes” emerged. With respect to Kasrils’s complaint that Mkokeli requested an interview with him on Monday, 8 September, Smuts says that it is Kasrils who suggested the follow-up meeting and invited the reporter to call him on Sunday to set it up. He initially agreed, but changed his mind after he heard on radio that Kasrils had accused Sunday Times of unfair reporting. “We remain willing to carry the correction we previously submitted.”

Kasrils’s relevant responses to the above are as follows:

• The fact that the sources are senior government officials must cast reasonable doubt on their objectivity and reliability – “especially given how tainted such sources have [been] shown to have been over the years and particularly with regard to security issues and the spy tapes”;
• The Sunday Times did not even bother to get Zille’s view (who had read the transcripts – her public statement is very different to that of the newspaper); and
• He does not want his view to be elevated – he merely asks for unbiased reporting.

He concludes: “We all await the legal assessment which is why the spin doctors have certainly won in using the Sunday Times to project a story and perceptions about me as the mastermind without the objective test the Press Code demands of professional and objective journalism.”

My considerations

                                    In general

Unlike at the time of my first finding, I have now gained access to the content of the tapes by way of a transcript (which is why Kasrils re-lodged his complaint in the first place).

In question now is the matter of reasonableness in publication, which would be determined by the following related issues:

• This matter hinges firstly on the independence and hence the reliability (also read “credibility”) of the sources. Under “independence” I understand independent of each other, as well as independent of factors that may have influenced the type of information they gave to the reporter. Their independence would (partly) help to determine the sources’ reliability and credibility (which is why I specifically asked Smuts how reliable and independent these sources were);
• The nature of the text of the story is also important – as Mkokeli did not have first-hand information about the tapes and transcripts (he relied on his sources), he should have been careful not to make statements of fact regarding Kasrils, but rather to portray the information as allegations attributed to sources; and
• The attribution of information to a source (as an allegation) does not by default safeguard a publication from breaching the Press Code. I have ruled several times that an allegation should not be published just because someone has made it – there has to be some kind of substance to it. So, even if the information was portrayed as an allegation, it still needed to stay within the boundaries of the Code.

Two more vital issues remain. The first question is: Did the content of the spy tapes support the information given to the newspaper by its sources? In other words: Were the sources correct or justified in identifying Kasrils as the mastermind behind the dropping of the case against Zuma, based on the content of these tapes?

Also: Section 2.5 of the Code is clear that the subject of critical reportage (in this case, Kasrils) should have a right of reply. If that was not possible, the story should have stated that fact. Did that happen?

So, first things first.

The sources

Smuts refuses to name the newspaper’s sources (which is her right, of course), but she does say that they have “intimate knowledge” of the matter, that they are known to Mkokeli, that they have previously given the reporter “reliable information”, and that the information garnered from these sources has tallied in material respects. In later correspondence, she also argues that they did not know that the others were corroborating their information, which means that they were sufficiently independent.

These are strong arguments, from a journalistic point of view.

I need to weigh this up against Kasrils’s view, namely that there has to be reasonable doubt as to the objectivity and reliability of the sources, as they are senior government officials – “especially given how tainted such sources have [been] shown to have been over the years and particularly with regard to security issues and the spy tapes”.

This is also a strong argument, given Kasrils’s years of experience in this field.

Firstly, the fact that a source is involved with a particular institution does not by default mean that such a source would be biased towards it – the very opposite may be the case. (One never really knows, does one?)

On the other hand, the fact that Kasrils was singled out as the “mastermind” may indeed have been an indication that the sources were biased towards the government (as he argues).

In the end, though, the fact that Kasrils argues from a general perspective (the sources, unknown to him, “must” have been biased), and Smuts from a particular one (they are known to the reporter and were not biased, and were sufficiently independent of one another), sways the scale in the newspaper’s favour on this particular issue.

I am therefore giving Sunday Times the benefit of the doubt, thereby accepting that it was justified in quoting these sources – as long as it was clear that their information was their views, and that these were not presented as facts (which, by their very nature in this instance, the newspaper could not prove at the time of publication).

The question of their motives is therefore a merely academic exercise, as far as I am concerned.

I now need to focus on the stories themselves.

With regards to the first story (Spy tapes ‘illegal’ and expose Kasrils, and in the next edition, Tapes illegal and expose role of Kasrils): Every time that this article referred to Kasrils, it portrayed information as an allegation. Given my arguments above, the Sunday Times was justified in doing so.

However, both headlines stated as fact that Kasrils was “exposed” by the spy tapes. At the stage of publication this was premature and unjustified. If the headlines stated that sources had exposed him, it would have been in order (because that was true) – but not the tapes. Moreover, the heading did not meet the criteria set by the Press Code in that it did not reasonably reflect the content of the story (the article portrayed the statements as allegations, while the headline reflected them as fact).

Yet again a sub-editor, writing a headline, has gone overboard.

Unlike the first article, though, the second one (I discussed NPA investigations – Kasrils) did present allegations as fact – it said that Kasrils was unmasked as the mastermind behind the manipulation of the NPA. Given the fact that the reporter never saw the tapes or the transcripts at the time of publication or listened to it, he was not justified in stating these allegations as fact.

Once again this proves that the more an allegation is repeated, the greater the chance that it will be presented as fact. And so it becomes “the truth” in the public mind…

The content of the transcripts

The content of the transcription now becomes of vital importance. Did the spy tapes support the information given to the newspaper by its sources? In other words: Were the sources correct or justified in identifying Kasrils as the mastermind behind the dropping of the case against Zuma, based on the content of the tapes?

I do not believe that for one minute. Kasrils is mentioned in the tapes only a few times, and then mainly in passing – these are not nearly sufficient to “unmask” his as the “mastermind” behind it all. The onus is on the newspaper to provide evidence to this effect.

I accept that Kasrils did identify himself as the one that the expression “the guy” referred to – but that phrase is mentioned in several different contexts, and the assertion that he is “the guy” referred to in all these cases is nothing more than an assumption.

It might be possible that some primary source comes forward at some later stage and identifies Kasrils as the mastermind. However, I submit that the newspaper did not have enough evidence to come to such a conclusion – not at the time of publication, and neither after having had access to the content of the tapes.

Also, I find it puzzling that the follow-up stories did not mention Kasrils – knowing that he has complained to this office.

Not enough time to respond

This part of the complaint only relates to the first edition of the first story, and does not concern the second version (of the first story), or the second story (which both contained comment by Kasrils). I am satisfied that the other stories adequately included his views.

I appreciate Smuts’s apology for this omission, and note that this neglect was addressed in later stories. However, that does not take away the obligation that his comments should have been included in the first story – and if that was not possible, the story should have stated that fact (as required by the Sect. 2.5 of the Press Code).

Reputation damaged

Kasrils complains that the reportage has damaged his reputation.

He provided this office with a copy of a letter published in The Times on September 9.  It stated:  “I have lost all respect for Ronnie Kasrils.  It is sad when a hero of our past is revealed as a manipulator.” He argues that his reputation has been damaged, and that the reportage bordered on defamation.

In later correspondence he says: “…not only has this sensational and unsubstantiated story maligned my name and reputation but the reckless nature of the allegations could arguable (sic) inflame violent reactions against me and my family.”

Smuts replies that Kasrils’s accusation that the reports demonstrated an “alacrity to portray me in a most negative and unfair light” is without merit – the story was about the spy tapes, and was not designed to portray him in any particular light. It sought to place on record facts that have emerged about his involvement, and he was a central character in the story.

My considerations

For clarity’s sake, let me summarise what I have concluded so far:

·         Based on the credibility and independence of its sources (as believed by Sunday Times at the time) the newspaper was justified in publishing the allegation by its sources (Kasrils as mastermind) as an allegation;

·         The headlines and the second story crossed this line, as they have stated an allegation as fact; and

·         The content of the spy tapes does not contain enough evidence to come to a justified conclusion that the sources were correct in identifying Kasrils as the mastermind behind the plot.

So, therefore: The headline to the first story as well as the content of the second article unjustifiably stated the views of the sources as fact. This unnecessarily damaged Kasrils’s reputation. In retrospect, after having studied the content of the tapes, even the mere allegation of him having been the mastermind were unnecessarily damaging.

Section 4.7 of the Press Code is relevant in this case. I do not believe that the newspaper has exercised “care and consideration” with regards to Kasrils’s reputation, and also not that either of the four exceptions to this stipulation (as reflected in sub-sections 4.7.1 – 4.7.4) were adhered to.

I do not have enough ground to ascribe either malice or sensationalism to either the reporter or the newspaper, though. The mistakes that crept in are common enough.

FINDING

The first stories (in the Sunday Times)

The complaint about the content of these stories is dismissed – not because the allegations have been proved to be true, but because the publication thereof at the time were based on what the newspaper had perceived as credible and independent sources.

The headlines are in breach of Sect. 10.1 of the Press Code that reads: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”

The omission of Kasrils’s comments in the first edition of the first story, and the fact that the article did not say that it was unable to include his views in time, were in breach of Sect. 2.5 of the Press Code: “A publication shall seek the views of the subject of critical reportage in advance of publication… If the publication is unable to obtain such comment (in time), this shall be stated in the report.

The second story (in The Times)

The complaint about the content of this story is upheld in that it stated the allegations as fact – that the tapes and transcripts had “unmasked” Kasrils as the mastermind behind the manipulation of the NPA.

This is in breach of the following sections of the Press Code:

• 2.1: “The press shall take care to report news truthfully, accurately and fairly”; and
• 2.3 “…Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.”

Both stories

Kasrils’s reputation was damaged unnecessarily. This is in breach of Section 4.7 of the Code which states: “The press shall exercise care and consideration involving…reputation…”

The complaint about malice and sensationalism is dismissed.

SANCTION

Sunday Times is directed to:

• apologise to Kasrils for stating as fact in the headlines that the “spy tapes” have “exposed” him (as the mastermind behind the manipulation of the NPA), thereby inaccurately, unfairly and unnecessarily harming his reputation;
• retract the mastermind-statement;
• publish this apology and retraction on its front page, above the fold;
• provide me with this text prior to publication; and
• end the text with the words: “Visit www.presscouncil.org.za for the full finding.”

If the story featured on the newspaper’s website, this apology should go there as well.

The Times is directed to:

• apologise to Kasrils for stating, as fact, the allegations that the “spy tapes” have identified him as the mastermind behind the manipulation of the NPA, thereby inaccurately, unfairly and unnecessarily harming his reputation;
• retract the mastermind-statement;
• publish this apology and retraction on page 4, above the fold;
• provide me with this text prior to publication; and
• end the text with the words: “Visit www.presscouncil.org.za for the full finding.”

If the story featured on the newspaper’s website, this apology should go there as well.

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