Jessie Duarte vs. Mail & Guardian

This ruling is based on the written submissions of Mr Krish Naidoo, on behalf of Ms Jessie Duarte, and those of Verashni Pillay, the editor of the Mail & Guardian newspaper.

Complaint

Duarte, the Deputy Secretary General of the ANC, is complaining about an article in the Mail & Guardian of 24 March 2016, headlined The ‘Gupta-owned’ state enterprises.

The essence of Duarte’s complaint is that ordinary readers would have concluded that she could have exercised her influence for the benefit of the business interests of the Gupta family, with which she had links.

In particular, she complains that the story:

·         falsely depicted her (in a graphic representation and the text referring to the graphic) as a business person who had links with the Gupta family and presumably was an active participant in the capture of state enterprises by the Gupta family (which is what the story was about);

·         contained several issues that had no relevance, such as the reference to Mr Malcolm Mabaso and her former husband, who were reportedly part of a security company; that she had attended Mabaso’s wedding; information about her divorce and details of her daughter’s marriage; and

·         falsely stated that Mabaso’s business and personal life was intertwined with the Duarte family – suggesting that she was in business with the former (as part of the family).

She argues that this reportage has impacted negatively on her dignity and reputation, as well as on those of the ANC.

The text

The article was credited to Sam Sole, Craig McKune and Stefaans Brümmer.

It said, “More than a dozen people linked directly or indirectly to the [Gupta] family and its closest allies can exercise extraordinary influence over the two parastatals and related government policy, such as in mineral resources, an amaBhungane investigation shows. The links are indisputable in some cases, and circumstantial or minor in others, and there is no evidence of the named directors and advisers doing anything untoward. But the power this network could wield adds significant weight to concerns about so-called state capture.”

The report referred to Duarte under the sub-headline Mabaso and the Duartes. This full text read as follows:

“Malcolm Mabaso’s business and personal life is intertwined with that of the Duarte family.

“He was previously the managing director of John Duarte’s company, Vumela Holdings. Duarte was also a director of Premium Security and resigned on the same day as Mabaso.

Duarte’s son was best man at Mabaso’s wedding, which ANC deputy secretary general Jessie Duarte also attended. Jessie divorced John in 2002.

“Their daughter Zoe is married to Ian Whitley, the adviser to former four-day finance minister Des van Rooyen.

“Vumela seems to be a one-stop security, consulting and lobbying business, boasting of clients that include Eskom, City Power, Transnet, the State Information and Technology Agency, Vodacom and PetroSA.

“Jessie Duarte told amaBhungane: ‘I do know Malcolm Mabaso and have met him; he is an acquaintance of my son. I am not a partner nor shareholder at Vumela’.”

With the text went a graphic in which 16 people were named and linked to other people through some arrows. Jessie Duarte formed part of this illustration.

The arguments

The M & G replies

In general, and as background, Pillay says that the article was published in the context of public concern about so-called state capture by the Gupta family, and therefore the reportage was in the overwhelming public interest.

She submits that what the newspaper found in its investigation gave cause for concern, but argues it should be noted that the article “specifically cautioned against drawing concrete negative inferences from the facts presented”, in that the:

·         headline was in inverted commas, making it clear that it referred to a perception, rather than to fact; and

·         story cautioned that, while it revealed an extraordinary network of contacts close to the Gupta family that dominated Eskom and Transnet, this should be judged in context, as was stated in the article: “The links are indisputable in some cases, and circumstantial or minor in others, and there is no evidence of the named directors and advisors doing anything untoward. But the power this network could wield adds significant weight to concerns about so-called state capture”.

The editor says that the article was about existing relationshops which had the potential to influence matters, without asserting that this potential was in fact realised in any untoward manner.

She adds that the newspaper presented Duarte with a detailed preview of the allegations, but she merely provided the journalist with a two-line response.

In particular, Pillay responds as follows:

·         The graphic linked Duarte only to her son-in-law and ex-husband, and not to the state enterprises or their directors, nor directly to the Gupta family. “This should be viewed against the background … of the article being about the potential exercise of influence only”;

·         The article did not suggest that Duarte had direct links to the Gupta family or that she had been a businesswoman, neither had there been any presumption that she had been an active participant in the state enterprises captured by the Gupta family – her indirect links were factually presented, with the necessary caveats;

·         The article did not state as fact that the Guptas had captured state enterprises – it set out the facts that gave rise to perceptions that the Guptas might be able to exercise significant influence over government policy on Eskom, Transnet and related matters, such as mineral resources; it says nothing about the “volume of business” the Gupta family had been doing with these state enterprises;

·         Most of the article dealt with links associated with Gupta business partner Salim Essa;

·         The section sub-titled Mabaso and the Duartes was preceded by the following introduction of Mabaso: “Essa is also a former business associate of Malcolm Mabaso, whose mother, Linda Mabaso, is the chairperson of Transnet. Malcolm is now an adviser to [minister] Zwane. Malcolm was a director with Essa in a company called Premium Security and Cleaning Services, but resigned in October 2015, presumably to take up the position with Zwane. Linda Mabaso is said to be close to the Guptas and to [Pres Jacob] Zuma”;

·         The fact that Mabaso’s business and personal life was intertwined with the Duarte family was well-established in the story and the factual basis for that statement had been put to Duarte in detail;

·         The article did not imply that Duarte herself had been in business with Mabaso, as the story quoted her. Mabaso’s connections with the Duarte family did not imply that he had business connections with every member of that family – and besides, the graphic made it clear that the “lines” linking Duarte were family, not business connections;

·         The information regarding the security company and Duarte’s attendance of Mabaso’s wedding showed that the latter was close to the Duarte family. “This is relevant to the import of the article, which … acknowledges that some connections may be ‘circumstantial or minor’ and specifically states that there is no evidence that advisers such as Mabaso are guilty of anything untoward. It is trite in general that family connections may create a perception of bias or conflict of interest, even when there is no suggestion of improper conduct” ;

·         The information on Duarte’s divorce and her daughter’s marriage was a matter of public record and was relevant in that it served to distinguish between her ex-husband’s relationship with Mabaso and her own relationships. “She also provided this information to [the newspaper]”;

·         The fact of Duarte’s marriage was also a matter of public record and was reported “elsewhere” in the context of extreme concern about the sudden appointment of Mr Des van Rooyen as Minister of Finance (given that Whitley had been named as one of two advisers Van Rooyen immediately sought to introduce to the Treasury);

·         Duarte’s statement that she knew Mabaso, but that she was not a shareholder or partner in his Vumela business was reflected in the story and no assertion was made to the contrary; and

·         Duarte is a public figure and the story only once referred to her relationship with the ANC (which was in relation to her identification). “It is not clear exactly how the article has impacted negatively on the dignity and reputation of Ms. Duarte and the ANC, but to the extent that it may have, this is clearly on the basis of a legitimate public interest and it was reasonable for the article to be published because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.”

Duarte responds to the M&G’s reply

Naidoo says Duarte accepts that investigative journalism is necessary and that it is in the public interest to do just that. Her complaint, though, is not that certain individuals (including her family) were allegedly in business with the Guptas or were susceptible to being influenced by them – it is about her being connected to a story which was essentially about such influence.

“Notwithstanding the disclaimers and innuendos that the publication has inserted in the article, the Mail & Guardian should consider the test of the ordinary reader… [They] do not read an article with a magnifying glass and then make a considered decision. [They] in many instances read only the headlines or the opening paragraphs. Moreover, the inclusions of a graphic to accompany an article gives the ordinary reader an opportunity to draw a conclusion from the graphic alone without even reading the article or the innuendos and disclaimers.”

He argues that, taking into consideration the kernel of the article (read: the exercise of potential influence), and then sending a set of questions to Duarte for comment “does not assist the publication with compliance with the Press Code” because she was not the subject of critical reportage. “In fact her complaint is that there was no basis to include her in the graphic representation in the first place because she is not a business woman and it is not stated, alleged or implied that she used or could use her position as the deputy secretary general of the ANC to influence any decision in Transnet or Eskom for the benefit of any party.”

Naidoo adds the newspaper’s defence of “family connections” did not warrant her inclusion in an article about the potential influence on people in positions of power and influence in parastatals and government.

He argues that, for the newspaper to justify Duarte’s inclusion on such speculative grounds, means there was no reasonable basis to include her in the article in the first place. This, he submits, is underscored by the Mail & Guardian’s respons that the graphic linked Duarte only to her son-in-law and ex-husband. The only link for her inclusion, he adds, was her friendship with Mabaso “which we submit is nebulous, unreasonable and unjustified”.

He proposes an apology to Duarte along the following lines:

Ms Duarte supports the efforts by the Mail & Guardian to investigate the relationship between the private sector, public institutions and politicians, even it those investigated are members of her own family. She believes that investigative journalism is necessary to build a strong state founded on principles of sound governance. Duarte works fulltime for the ANC as its deputy secretary general and is not in business. She has friends an family who are in business. Notwithstanding the disclaimers, innuendos and speculative nature of the article headlined The Gupta-owned state enterprises, published on 24 March 2016, the Mail & Guardian accepts that the ordinary reader would or could conclude that Ms Duarte is involved in business and could possibly be susceptible to influence in the future to benefit the Gupta family. The Mail & Guardian extends an apology to Ms Duarte for including her in the article and in the graphic representation.

Analysis

The first issue, and the crux of the complaint, is the question of whether ordinary readers would or could have concluded that Duarte could have exercised influence for the benefit of the business interests of the Gupta family (because of her links with them).

Pillay’s argument that the article was about existing relationships with the potential of influence, while not claiming that this potential was in fact realised in any untoward manner, is, with respect, partly missing the point. The issue is not whether influence has been realised or not – instead, Duarte complains about her inclusion in a network of links with the Gupta family that facilitates the potential of influence for the benefit of that family.

This is underscored by the first few sentences of the article, which I repeat here: “More than a dozen people linked directly or indirectly to the [Gupta] family and its closest allies can exercise extraordinary influence over the two parastatals and related government policy, such as in mineral resources…”

The fact that the journalists added that the links had been indisputable in some cases, and circumstantial or minor in others, that there had been no evidence of the named people having done anything untoward, or that the story used caveats, does not mitigate the fact that Duarte was portrayed as having had the potential to act untoward.

This is accentuated by the fact that she was included in the graphic. Its headline read, Linked to the Guptas – Relationship of political and parastatal players to the family.

Pillay’s argument that the graphic only linked her to her son-in-law and ex-husband (which were family, and not business connections) and not directly to the Gupta family loses sight of the headline under which her picture appeared. (Duarte was categorized with people who had political relationships with the Guptas).

I therefore cannot accept Pillay’s argument on this issue; I have little doubt that the ordinary reader would have interpreted both the graphic and the text to have meant that Duarte had some kind of relationship with the Guptas, and that she was in a position to influence business decisions for the benefit of that family.

The M & G had its opportunity to defend this position in its response to the complaint, but it did not do so.

This leaves me with only one option, which is to decide that this reportage was not justified. I therefore agree with Naidoo’s argument that the newspaper’s defence of “family connections” did not warrant Duarte’s inclusion in an article about the potential influence on people in positions of power and influence in parastatals and government.

It follows I believe that this reportage was unfair and that it has caused unnecessary damage to both Duarte’s and the ANC’s dignity and reputation.

Please note that this is not a decision that Duarte had no links with the Guptas – that may or may not be true. What I am saying, though, is that for the newspaper to have created the impression that she had links with the Guptas which were of such a nature that she could have realized the potential to misuse her influence to benefit that family, it should have been able to put forward some sort of credible substantiation to this effect – which it did not do, not even when given the opportunity to do so. This leaves me with no option but to find that the reportage was not justified and indeed unfair.

I do not dispute that the matter itself was of legitimate public interest (as argued by Pillay), but – for the reason stated above – I do not believe that “it was prepared in accordance with acceptable principles of journalistic conduct” as stated in Section 3.3.4 of the Code of Ethics and Conduct.

The references to issues that, to Duarte’s mind, were immaterial to the story, cannot be in breach of the Code of Ethics and Conduct – they were all true and gave some background to the issue (as explained by the editor).

The remaining issue is Duarte’s complaint that the article falsely stated that Mabaso’s business and personal life was intertwined with her family – suggesting that she was in business with the former (as part of the family). Having studied the text in question intently, I do not believe it suggested that Duarte herself was in business with Mabaso.

Finding

The Mail & Guardian has created the impression that Duarte had links with the Guptas that facilitated the potential use of her influence to the benefit of that family – without the necessary substantiation of such an impression.

This is in breach of the following sections of the Code of Ethics and Conduct:

·         1.1: “The media shall take care to report news…fairly”; and

·         3.3: “The media shall exercise care and consideration in matters involving dignity and reputation.”

The rest of the complaint is dismissed.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).

The breach of the Code of Ethics and Conduct as indicated above is a Tier 2 offence.

Sanction

The Mail & Guardian is directed to apologise to Duarte, both in its printed edition (on the same page as the offending reportage) and on its website, for having created the impression, unfairly and without the necessary substantiation, that she had links with the Guptas that facilitated the potential use of her influence to the benefit of that family.

The text, which should be approved by me, should:

• start with the sanction; and
• end with the sentence, “sit www.presscouncil.org.za for the full finding”.

The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.

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 Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombud