Appeal Decision: Luvo Makasi and Boqwana Burns vs City Press

SUMMARY

The headline to the story in dispute read, Nomvula’s ‘Ben 10’ calls the shots (published on 19 February 2017).

This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.

 

The article said that the Minister of Water Affairs and Sanitation, Nomvula Mokonyane, was allowing her young male companion (Luvo Makasi, 32) to call the shots in her department – so much so that he was giving orders to her director-general. The story listed several examples of an allegedly untoward relationship between Mokonyane and Makasi.

Makasi and Boqwana Burns Attorneys (BBA) complained that the:

• journalist had not given them enough time to respond to questions;
• reporting was inaccurate and / or unfair and / or deliberately dishonest; and
• newspaper allowed commercial, political, personal or other non-professional considerations to influence or slant its reporting.

The Ombud dismissed the complaint, upon which Makasi and BBA applied for leave to appeal.

Judge Ngoepe dismissed the application, mainly because the:

• allegations were presented as allegations and not as facts;
• newspaper’s sources (plural) were credible – they from people within either the Ministry or the Department or both;
• headline was in quotation marks to show that it was attributable to some sources, as opposed to stating it as a fact; and
• newspaper gave Makasi enough time to respond.

Considering the above, the judge said it would be well-nigh impossible to make the inference that non-professional considerations had influenced or slanted the article.

 

THE RULING ITSELF

In the matter of

LUVO MAKASI AND BOQWANA BURNS                                             APPLICANT

AND

[1]     In its edition of 19 February 2017 City Press (“respondent”) published an article with the headline “Nomvula’s ‘Ben 10’ calls the shots”.   Luvo Makasi and Boqwana Burns Attorneys (“applicants”) lodged a complaint with the office of the Press Ombud about both the heading and the content of the article.  All the parties understand “Ben 10” as reference to Mr Makasi. The article made allegations of improper relationship between Luvo Makasi (“Makasi”) and the Minister of Water Affairs, Ms Mokonyane.  It alleged that as a result of the improper relationship between the two, Makasi, an attorney in the Boqwana Burns firm of attorneys, was running the Department, or at least very influential in the taking of decisions, such as the awarding of tenders even though he was not an employee of the government. In this respect, it was alleged Makasi visited Limpopo; including its water board and the mayor of Polokwane. In its paragraph 4, the letter of complaint summed the complaints as follows:

“4.1   Failure to obtain the views of the subject of critical reportage pursuant to clause 1.8 of the Code of Ethics and Conduct for South African Print and Online Media ……;

4.2    Inaccurate and/or unfair/ deliberately dishonest reporting; and

4.3    Allowing commercial, political, personal or other non-professional considerations to influence or slant reporting.”

[2]     In his Ruling dated 29 March 2017, the Press Ombud correctly captured the applicant’s complaints as follows:

“?       They were not given enough time to respond to questions;

?    The reporting was inaccurate and/or unfair and /or deliberately dishonest … and

?        The newspaper allowed commercial, political, personal or other non-professional considerations to influence or slant its reporting”.

In its defence, respondent denied all the accusations.  The Ombud dismissed the complaints, hence this application for leave to appeal.  I will deal with each complaint.

[3]     That the reporting was inaccurate etc…

In dening the accusation, the respondent pointed out that it had relied on a number of sources.  I find some of the allegations of an improper relationship between Mr Makasi and Ms Mokanyane somewhat discomforting to deal with, but sometimes the call of duty imposes such an obligation; nevertheless, I propose doing so only to the extent that it is strictly necessary. The Ombud took trouble to deal with this complaint analytically and systematically.  There are two fundamental considerations.  Firstly, the material allegations made are, throughout the story, presented as just that: mere allegations; for example, visits by Mr Makasi to Limpopo, what transpired at the Irene meeting, visit to the mayor in Limpopo; visits to Iran and New York.  The reader would understand all these as being mere allegations, and not as proven facts.  However, one must add that even allegations cannot just be plucked out of the air, which brings me to the second point. In almost all instances the article refers not just to one source, but to several sources some of whom, it should be added, are said to be senior people in the Department; for example, the statement that “seven highly placed sources including senior officials, contractors and others close to Mokanyane – as well as a legal opinion and a letter City Press obtained …”.  The impression one gets is that the information came from people within either the Ministry or the Department or both.  It would be hard to find fault with the Ombud’s Ruling in this respect.  Finally, the headline was indeed in quotation marks to show that it was attributable to some sources, as opposed to stating it as a fact.

[4]     Commercial, political, personal or other non-professional considerations to influence or slant its report

4.1    In light of what is said in paragraph 3 above, it would be well-nigh impossible to make the above inference.  If there was any hidden or non-professional motive, it cannot be reasonably inferred precisely because of what is said in paragraph 3. Add to that the fact that there have in the past been similar reports about some of the Department’s projects, especially in Limpopo.  The affidavit by one Mabunda, which is relied upon by the applicants, made as it was just the day before the publication of the story, raises more questions which one does not need to go into.

[5]     Not given enough time to respond

5.1    At 13:58 on 17 February 2017, Mr Makasi received an email from the journalist asking for a response to some 44 questions by 12:00 the next day (18 February 2017).  The intention was to publish the story the following day, 19 February 2017; which was what happened.  An extension of time to respond was asked to until Tuesday, February 21.  This request was turned down by the journalist at 20:52.

5.2    At first blush, one may say 44 questions were too many for the time given.  But there is one fundamental point which the Ombud canvassed so well and fully, that it does not have to be gone into in detail: The questions were grouped under different headings, which could be dealt with separately. Says the Ombud: “The journalist grouped his questions into three headings: The nature of Makasi’s relationship with Mokonyane (four questions), the Irene meeting (six questions) and other issues (34 questions).”

5.3    The first set of questions needed no researched answers.  On the contrary, one would have thought that answers could be given by Mr Makasi on the spot.  It is important to note that these questions were the core of the complaint relating to the alleged improper relationship; therefore, a finding that no extension until Tuesday the next week was needed and therefore that Mr Maksi was given enough time, is fatal to a core complaint on which the applicants cannot succeed on appeal. Questions about the Irene meeting too, could not have required 4 days to answer.  Regarding the rest of the questions on other issues, see paragraph 5.4 infra.

5.4    The refusal to grant the extension had to be considered against:

5.4.1      The threats to the journalist;

5.4.2      The fear that the publication of the article could be muzzled;

5.4.3      The concern raised by a sudden emergence of the affidavit made by a certain Mabunda, which was attested to on the very eve of the publication.

[6]     For the application to succeed, the applicants have to show reasonable prospects of success before the Appeals Panel.  For the reasons given by the Ombud in his Ruling, and those that I add above, the applicants have no reasonable prospects of success, and the application is therefore refused.

[7]    It took longer than usual to finalize this application, and apologies to the parties. Some of the documents emailed to me bounced back, as a result, the application slipped out of my attention for some time.

Dated this 6^th day of June 2017

Judge B M Ngoepe, Chair, Appeals Panel