Motsoasele Leballo and his family vs. Mail & Guardian

SUMMARY

The headline to the story in dispute read, ‘Liberation leader raped me’ (published on 27 October 2017). There were two sub-headlines: Woman who went into exile 41 years ago to become a freedom fighter finally speaks about her ‘journey of unprecedented pain’; and, Female soldiers who experienced sexual assault – or its constant threat – still struggle against the myth of the untouchable men they fought alongside. And they are angry that this culture persists.

This ruling by Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.

 

The article told the story of Sibongile Khumalo who, as a fourteen-year-old, went into exile as a freedom fighter to a military camp in Mozambique. She was quoted as saying, “[My] real troubles started when I met Potlako Leballo [the then PAC president].” She reportedly accused him of sexually abusing her (and other women).

Potlako Leballo’s son, Motsoasele Leballo, and his family inter alia complained that the:

• above-mentioned allegation was unfair and malicious;
• the use of the word “rape” was deliberately misleading;
• story inaccurately / misleadingly reported that all the girls were made to refer to Leballo as “daddy”; and
• journalist did not afford Leballo a right of reply.

The Mail & Guardian did publish a right of reply. However, the family argued that this text was too general and indicated that they wanted to proceed with the complaint.

Retief said the question was when the media would be justified to identify an accused while not knowing for sure whether the accusation was false or not.

After identifying some factors that could not constitute such a right, the Ombud pointed out that the greater the public interest and the higher the public profile of the accused, the more justified the media were to identify an accused. He added that the allegation should be reasonably true; and that the more accusers there were and the more detailed the information was, the more justified the media would be to identify an alleged perpetrator.

Considering the Leballo’s right of reply had already been published, the complaint was dismissed.

 

THE RULING ITSELF

PARTICULARS

Complainants	Motsoasele Leballo (son of the deceased former president of the PAC, Mr Potlako Leballo) and his family
Lodged by	Motsoasele Leballo
Publication	Mail & Guardian
Date of article	27 October 2017
Headline; sub-headlines	‘Liberation leader raped me’ –          Woman who went into exile 41 years ago to become a freedom fighter finally speaks about her ‘journey of unprecedented pain’ –          Female soldiers who experienced sexual assault – or its constant threat – still struggle against the myth of the untouchable men they fought alongside. And they are angry that this culture persists.
Page	Headline on page 1; story on pages 2, 3
Author of article	Carl Collison
Respondent	Beauregard Tromp, deputy editor

Complaint                                            

The gist of the complaint is that the article in dispute unfairly and maliciously identified Mr Potlako Leballo as an alleged (child) rapist.

They also complain that the:

·         headline and sub-headline were deliberately misleading and misrepresenting of what the interviewee had been quoted as saying, especially with reference to the use of the word “rape”;

·         story inaccurately / misleadingly reported that:

o   there was a roster for “women” soldiers to clean Leballo’s “house” in Tanzania;

o   all the girls were made to refer to Leballo as “daddy”; and

·         journalist did not afford Leballo a right of reply.

A right of reply by the complainant was already published. However, arguing that this text addressed matters more in general, the complaint stands.

The text

The article tells the story of Ms Sibongile Khumalo who, as a fourteen-year-old, went into exile as a freedom fighter to a military camp in Mozambique. She referred to her experiences as a journey “littered with unprecedented pain”.

At 15 years old, she was sent on to Tanzania for military training under the Azanian People’s Liberation Army (APLA), the military wing of the PAC. However, she reportedly soon came face to face with “the ultimate physical violation”.

She was quoted as saying, “[My] real troubles started when I met Potlako Leballo [the then PAC president]. There was a roster for the women soldiers to clean his house. Little did I know that some of these women were being abused … I became one of them. He forced himself on me. He was an old man, even then.”

She added that, during her time in the house, all the girls were made to refer to Leballo as “daddy”.

PAC spokesperson Kenneth Mokgatlhe reportedly expressed his “shock” about the allegation, saying there had been no prior reports of sexual assault against Leballo. “This is news to the PAC and only seeks to assassinate the character of the late freedom fighter and his contribution to the African struggle,” he was quoted as saying.

The article also referred to women around the world who had shared allegations of sexual harassment and abuse by well-known individuals.

She later left APLA and joined the ANC’s military wing, Umkhonto weSizwe (MK).

The arguments

Leballo says the article identifies his father as an alleged rapist – but it did not do the same when dealing with a similar allegation by singer and former ANC MP Jennifer Ferguson against a well-known personality. This, he claims, was deliberately unfair and malicious, and amounted to character assassination.

He says that the words “rape” in the main headline and “sexual assault” in one of the sub-headlines do not occur in the article itself, and argues that the use of those words are therefore misleading – and deliberately so, he adds.

He argues that this amounts to condemning and finding a man guilty of a serious crime without the opportunity of defending himself, or producing any corroborating evidence to this effect. Moreover, it also implies that the woman was raped as a child (she was 14 or 15 at the time).

Leballo also denies there was a roster for “women soldiers” to clean his father’s “house”. He says:

·         the Tanzanian government provided his father with a house-man who had been responsible for all household duties; and

·         his father lived in a flat on the third floor (and not in a house).

Regarding the reference to the word “daddy”, Leballo says this was an honorary title, such as “baba”, “tata”, “ntate” and “oom”, when literally translated.

He adds that the journalist did not verify which months in 1977 Khumalo had been in Tanzania which, he says, could have made either the corroboration or dismissal of the allegations easier.

Tromp says much of the complaint hinges on the question of whether Khumalo was indeed raped by Leballo, as she claims in the article.

He emphasises that the M&G regards the accusation of rape most seriously and does not lightly accuse a person of this “most heinous crime”. He argues that, despite the fact that the dead cannot be defamed, the newspaper understands that it still has to adhere to certain ethical obligations in the course of its reporting.

The deputy editor says Khumalo told the newspaper that Leballo had “forced himself” on her. He says that, against the backdrop of what had preceded and followed this quote, this statement affirmed that rape was the issue.

The use of quotation marks in the main headline indicate that the newspaper was merely paraphrasing and/or summarising a part of its story, he adds.

He says that a second source has confirmed Khumalo’s account of events.

Tromp says because the story was concerned with Leballo as the PAC president, the M&G sought a response to the allegations from the organisation itself – which was duly represented in the article.

Tromp argues that the reportage on pages two and three of the same edition spoke to a culture of sexual abuse within two of the foremost SA liberation organisations. “The abuse suffered by female liberation fighters is a topic that has not been fully interrogated as we pore over our dark past, and falls well within the mandate of the M&G,” he submits.

He also points out that the M&G has commissioned opinion pieces from renowned commentators and specialists in the same edition “to further interrogate our responsibilities as media in reporting on sexual assault and specifically rape. A closer reading of all these pieces suggest that we have fulfilled our mandate well.”

In response to comments by Leballo on his reply, Tromp elaborates as follows:

·         The particular subheading was not confined to Khumalo’s story, but rather spoke to the broader theme of sexual assault in camps – which is also the theme of the second story;

·         As a deceased person cannot be given a right of reply, the M&G did consult what it considered to be the appropriate person or entity in this regard (the PAC);

·         Leballo’s account of his father’s movements and residency are disputed by Khumalo;

·         Khumalo spoke to the journalist in English, and therefore she translated events and terms to that language, which does not put her in dispute with Leballo on this issue;

·         The newspaper did not identify Ferguson’s alleged rapist, as the journalist did not give that person a right of reply, while the reporter offered the entity responsible for the history of the PAC the opportunity to respond; and

·         In South African parlance, a flat or an apartment is often referred to as a house, even if Khumalo could have referred to a free-standing abode.

Analysis

Identified

This issue is a hugely complicated one, which has some serious ethical (and legal) implications.

On the one hand, the media should exercise its freedom of expression in the interest of the general public and, in doing so, give voice to the voiceless; on the other hand, no right is absolute and no freedom is limitless (which is why there is a Press Code in the first place), and individuals have the right to fair and responsible reportage.

The dilemma always is this: A false accusation would unnecessarily tarnish a person’s reputation for life – so when would it be justified to identify an accused while not knowing for sure whether the accusation is false or not?

On the other hand, if the media refuse to identify each and every accused for fear of causing unnecessary harm, it would cause unnecessary harm in itself, as some valid accusations would be ignored and victims’ trauma may be perpetuated.

In my finding in the matter of Lwandile Fikeni vs. Wits Vuvuzela, made on 21 November 2017, I asked the same question, albeit in a different form – I asked if the media should protect an alleged perpetrator, or rather give preference to an accuser.

Arguing that this was a false contrast I stated, “Those who were expecting a blank choice from me for the one and against the other would be disappointed, as I firmly believe that it depends on the context – which means that yes, there could be cases where identification may be justified, and others where it would not be the case.”

The following factors, amongst others, cannot constitute a right to identify an alleged perpetrator:

·         If someone’s identity is already in the public domain, it does not follow that such identification may be repeated (kudos to the M&G for not doing so in the Ferguson matter) – if it was wrong to identify an alleged perpetrator, even on social media, it would likewise be wrong for the media to repeat such identification. In legal terms, it is accepted that the repetition of defamation is also defamation; translated into the ethical sphere, the repetition of the causing of unnecessary harm to someone’s reputation will also unnecessarily tarnish that person’s reputation – which would go against the letter and the spirit of the Press Code;

·         A right of reply, though always helpful, does not in itself justify the media to identify an accused – if an allegation is false and a subject denies it, the stigma will remain, despite any denial to this effect; and

·         The fact that the accuser has identified herself or himself cannot give the media a free hand to identify the alleged perpetrator as well.

The factors which, in conjunction with each other, may justify the media to identify an accused, from an ethical perspective that is, are the following:

·         The greater the public interest (“understood to describe information of legitimate interest or importance to citizens”, as  depicted in the Preamble to the Press Code) and the higher the public profile of the accused, the more justified the media are to identify an accused; this goes to accountability and responsibility, which may reach such a stage that public interest can outweigh that of the individual;

·         An allegation should be reasonably true, as provided for in Section 1.3 of the Press Code (which does not entail a guilty verdict, of course);

·         A right of reply, if at all possible;

·         The more detailed the information provided by an accuser, the more justified the media would be to identify an alleged perpetrator; and

·         The more accusers there are, in the present and in the past, especially if they are independent of each other, the more justified the media would be to identify an accused.

Honing in on the complaint itself, I believe that public interest in this matter has indeed outweighed that of the individual – Leballo was the president of the PAC at the time, and his accountability and responsibility should not be in question.

I also take into account that the M&G did give the PAC a right of reply (see my comments on this issue below), that the accusation might have been reasonably true, and that there was another source (who later declined to speak for fear of reprisal).

While it is true that the words “rape” and “sexual assault” are used in the headlines and not in the text, the phrase “he forced himself on me” occurs – and, given the context not only of this particular article but also of the others which form part of the “package”, I believe the M&G was justified in paraphrasing this issue in the way it did (as indicated by the use of quotation marks in the main headline).

In conclusion, I need comment on some statements made by Tromp:

·         According to him, much of the complaint hinges on the question of whether Khumalo was indeed raped by Leballo. That cannot be correct. The issue, from a media ethical perspective, is not whether the allegation is true or not, but rather whether the newspaper was justified in reporting the allegation as an allegation. This office cannot be called upon to decide whether or not her accusation is true, and neither can the media – that is for a court to decide. If Leballo expects that from me, he is mistaken as well;

·         I sincerely appreciate his remark that, despite the fact that the dead cannot be defamed, the newspaper understands that it still has to adhere to certain ethical obligations in the course of its reporting. Such a profound ethical “instinct” is indeed rare; and

·         His comment that the newspaper did not identify Ferguson’s alleged rapist as the journalist did not give that person a right of reply should be welcomed, but also be qualified. While it is indeed important to ask for comment, this alone does not provide the necessary green light for identifying an alleged rapist (as argued above).

Inaccuracies in the story: women soldiers, house, ‘daddy’

I cannot expect a journalist to verify the specifics of the information in instances such as these – that would render reporting totally impossible. As long as the reporter has attributed these allegations to his source, which he did, I am satisfied that he has not overstepped the parameters set by the Press Code.

No right of reply

I am not sure why the complainant is unhappy about the fact that the newspaper did not ask his father for comment, as clearly that would have been impossible. I assume that he rather means that he, or one of his family, should have had a right of reply.

I agree that that would have been preferable – but I also note that the M&G has asked the PAC for comment. This was necessary, as the allegation had been directed at Leballo in his capacity as president of that organisation.

In addition, I take into account the Leballo’s right of reply has already been published. That, to my mind, has sufficiently addressed the matter.

Finding

The complaint is dismissed.

Appeal

The 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