Appeal Hearing Decision: Mail & Guardian vs Vivian Reddy

SUMMARY

The headlines to the story in dispute read,  Zuma pals clinch nuke deal – What appears to be the first contract for SA’s mooted nuclear build has been quietly inked; and Zuma pals score first nuke deal – When debate still rages about the nuclear build programme, a tender has already been awarded to a close family friend of the president (published between 16 and 22 September 2016).

This ruling by the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

The introductory sentence of the story stated, “Shantan Reddy, the son of Zuma’s friend Vivian Reddy, has clinched what appears to be a landmark deal for the country’s controversial multibillion-rand nuclear programme.” The journalist added that, although there was no suggestion of wrongdoing on the part of Reddy or his company, the contract set off alarm bells because the government continued to deny that it had entered into any nuclear deal.

The gist of Vivian Reddy’s complaint was that the reportage falsely and without any substantiation suggested impropriety on his part in that:

• his son’s company (trading as Empire Technology) had been awarded a contract because of his “connection” to Pres Jacob Zuma; and
• Reddy himself had somehow been implicated in the alleged deal because of Empire Technology’s links with his Edison Power Group.

The Ombud directed the M&G to apologise to Reddy senior for unfairly and without the necessary substantiation involving him in its story via its headlines and the publication of his picture, thereby raising concerns about corruption without any proper grounds – and unfairly causing unnecessary harm to his reputation. The publication then successfully applied for leave to appeal.

The Appeals Panel overturned the Ombud’s ruling and instead found that the publication had breached Section 10.1 of the Press Code, as the headline did not reasonably reflect the contents of the article. The problem was with the word “pals” – plural, while only one person was involved.

The Mail & Guardian was directed to publish a correction to the headline to remove any reference to “pals” in the plural

THE RULING ITSELF

In the matter of

MAIL & GUARDIAN                                                                                     APPELLANT

AND

[1]     This is an appeal by the Mail & Guardian (“appellant”) against the Ruling of the Ombud of the Press Council of South Africa dated 30 November 2016 in which the Ombud ruled in favour of Mr Vivian Reddy (“respondent”).  The Ruling followed a complaint lodged by the respondent in relation to an article which appeared in the appellant’s edition of 16 September 2016 with the headline “Zuma pals clinch first unclear deal”.  The first sentence of the article read: “Shantan Reddy, the son of President Zuma’s friend Vivian Reddy, has clinched what appears to be a landmark deal for the country’s controversial multibillion-rand what nuclear programme”.

[2]     The respondent’s complaints, as summarized by the Ombud were the following:

“?       His son’s company (trading as Empire Technology) had been awarded a contract because of his ‘connection’ to Press Jacob Zuma; and

?        Reddy himself must somehow have been implicated in the alleged deal because of Empire Technology’s links with his Edison Power Group”.

The appellant raised several points in its defence.  In particular, it denied any statement or suggestion in its article that the respondent was corrupt. In his Ruling, the Ombud found that the article implied that respondent was corrupt; something which the appellant vehemently denied. Respondent cited a number of clauses of the Press Code, which he argued were breached.

[3]     For a start, it is important to note that there are certain material facts which are not in dispute; for example:

3.1    That the company of the respondent’s son had a contract awarded to it;

3.2    That there were some queries raised regarding the regularity of such an award;

3.3    That the respondent is, and has publicly proclaimed or admitted that, he has been a close friend of President Zuma for a long time.

[4]     The real question, succinctly put, is whether, on the spectrum of the admitted facts, it is correct to say that corruption on the part of the respondent is implied, as the Ombud found.

[5]     The article said that the respondent’s son was the sole director of the company which was awarded the tender in respect of the nuclear programme, describing him (the son) as the “son of flamboyant power and property mogul Vivian Reddy, a long-time friend of the president”, and then immediately thereafter proceeded to say the following: “Although there is no suggestion of wrongdoing on the part of Reddy (the respondent) or his company, the awarding of this contract has set off alarm bells …”. (Own emphasis).

5.1    The above emphasized portion amounts to an express disavowal by the appellant of any suggestion of wrongdoing on the part of the respondent.  But, argues the respondent that is belied by subsequent references by the appellant to several allegations of irregularities. Respondent argues that the article, read as a whole, implies corruption on the part of the respondent, the disavowal notwithstanding. We do not agree with the respondent. The appellant states in so many words that no wrong doing is being levelled against the respondent; indeed, the disclaimer could hardly have been clearer. In dismissing the disclaimer, the respondent relies on a number of statements made in the article, which allege irregularities.

5.2    The article does indeed allege a number of irregularities. It says “the awarding of this contract has set off alarm bells with industry experts and politicians”.  The article then went on to raise a number of alleged irregularities or issues which had set off these “alarm bells”. As it will be apparent from these allegations, they all appear to be directed against the government, and not the respondent. We deal with some of them to illustrate the point. The fact that the “government continues to maintain that it has not entered into any nuclear deal” is given as the first trigger of “alarm bells”. Others include the following: that the issuance of the contract would be highly irregular considering that “the minister of energy is on record stating that no deal has been signed…”; the deputy president said that “South Africa will not commence on nuclear if it can’t afford it”; that the “energy department did not provide any clarity on this lucrative deal”; admissions by the department that the tender was never advertised, and later with an explanation that this national contract was awarded on the back of a provincial tender in the Free State. All these “alarm bells” or references to apparent irregularities have one thing in common, namely, that they do not point a finger at the respondent, but at the department; indeed, they do not even point a finger at the president with whom respondent is a self-confessed close friend of many years. In light of the foregoing, it is hard to see any basis for an argument that appellant suggested or implied corruption on the part of the respondent; even leaving aside the appellant’s express exoneration referred to above.

[6]     Much has been said above how a reasonable reader would understand the article.  Neither the appellant nor his son can award tenders to themselves.  On the face of it, alleged irregularities would have been committed by those who, firstly, awarded the tender and, secondly, failed to follow the correct procedures. There is no suggestion that the respondent or his son played any role in that. An inference of corruption against the respondent can only be made if it would be the only reasonable inference that can be made from the proven facts; if there are more than one probable inferences, it would have to be the most probable one. It cannot be. In light of the disclaimer and the fact that allegations of irregularities and queries implicate the government, we neither see the need nor the basis for such an inference.

[7]     At the hearing of the appeal, the respondent argued, in the alternative, that the Appeals Panel should find that the appellant breached clause 10.1 of the Press Code in that the headline does not “give a reasonable reflection of the contents of the report”.  This is because the heading speaks of “Zuma pals” (own emphasis), whereas the content point to only one person who allegedly benefited.  Initially, appellant sought to argue that the point could not be entertained as there was no cross-appeal by the respondent against the Ombud’s Ruling. Appellant conceded though that respondent had also lodged a complained based on the breach of the clause, but argued that because the Ombud did not make a ruling thereon, respondent should have lodged a cross-appeal.  We do not agree. On the present facts, the Ombud could not have made a ruling on clause 10.1 once he upheld the main complaint based on clause 1.1. and related clauses. In any case, appellant has offered to make the necessary correction. It is clear that the headline is not consistent with the content.

[8]     For the reasons given above, the appeal succeeds. The appellant is also found to have breached clause 10.1 of the Press Code. The following Order is therefore made:

8.1    The Ruling of the Ombud of the Press Council made on 30 November 2016, that the Mail & Guardian breached clauses 1.1, 1.2 and 3.3 of the Press Code or any other clause, and the sanction imposed, is hereby set aside;

8.2    The Mail & Guardian has breached article 10.1 of the Press Code;

8.3    The Mail & Guardian must, with an appropriate context, effect and publish a correction to the headline to its article of 16 September 2016 to remove any reference to “pals” in the plural;

8.4    Within three days of receipt of this Decision, a version of the draft correction must be submitted to the Director of the Press Council, for his approval prior to its publication;

8.5    The correction as approved by the Director to be published by the Mail & Guardian in its first edition following the Director’s approval.

Dated this 5th day of April 2017

Panel Members: Judge B M Ngoepe, Chair; Ms S Smuts, Press Representative; Ms C T Mohlala, Public Representative.