Kamjee Magana; Vuyani Ngalwana vs. GroundUp

SUMMARY

The headline to the story in dispute read, Two thirds of reserved judgments in SA courts are late – Judges flouting Chief Justice’s three months rule (published on 27 September 2018).

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

 

The story was about judges who were supposed to deliver judgments within three months – yet reportedly more than two thirds of reserved judgments in South African courts had been outstanding for longer than that.

The Press Council had had received two complaints about the same article that were practically identical, which was why Retief grouped them together.

Kamjee Magana and Vuyani Ngalwana complained that the publication did not verify the incorrect and inaccurate information it had obtained from a judiciary official; the latter added that he had not been contacted for comment.

The Ombud said the central questions were if GroundUp should have:

• fact-checked its information; and
• contacted Ngalwana for comment.

He dismissed the complaint, arguing that:

• the publication received an official reply to its questions by a person who had been mandated to do so, and therefore it had no reason to doubt the accuracy of the information; and
• Ngalwana was not mentioned in the story, which is why he had not been contacted.

 

THE RULING ITSELF

Date of article: 27 September 2018

Headline: Two thirds of reserved judgments in SA courts are late – Judges flouting Chief Justice’s three months rule

Authors of article: Sophia Wilhelm and Tara Osborne

Respondent: Nathan Geffen, editor

Pre script

At first, it appeared that the first complainant was anonymous. However, his name appeared in his email address, and the Public Advocate has established that he was Mr Kamjee Magana.

Complaint                                            

This office has received two complaints about the same article that are practically identical, which is why I am grouping them together:

Both Mr Kamjee Magana and Mr Vuyani Ngalwana complain that the publication did not verify the incorrect and inaccurate information it has obtained from a judiciary official; the latter also complains that he was not contacted for comment.

The text

The story was about judges who were supposed to deliver judgments within three months – yet reportedly more than two thirds of reserved judgments in South African courts have been outstanding for longer than that.

The arguments

MAGANA says the information on which GroundUp based its article “has long changed”, even though it was given by an official from the judiciary. He says some of the judgements referred to in the article have been delivered as far back as 2016. He adds that this fact can be verified with the South African Legal Information Institute (SAFLII). The lack of verification, he says has resulted in the publication of inaccurate information.

NGALWANA says that GroundUp, under the Twitter handle @GroundUp_News, has published false information about him as fact – but it failed to contact him to verify its information.

He argues that journalists should check information they receive from any source before publishing it as fact, especially when such information can potentially have detrimental effects on people’s careers (as in his case).

He specifically ask this office to make a ruling on whether it is permissible for the media to publish (incorrect) information without checking the facts – and then to blame the source for damages that may ensue from that publication.

“If the answer is no, then I ask that the 2 authors and @GroundUp_News be ordered to apologise publicly for their failure to fact check each inaccurate detail that they may have published about each Judge or acting judge on that list,” he concludes.

In later correspondence with the Public Advocate, Ngalwana says the issue is not whether GroundUp’s information was obtained from credible sources, but rather if the information was true.

He says the journalists should have gone through the list they published, found all incorrect information, called each judge who was affected, and publish a prominent apology to them. He adds, “It is a tedious exercise to verify the correctness of information … but one which the reporters should have performed in the first place before going to print.”

GEFFEN says the first complainant does not specify which outstanding judgments in the report have been delivered, nor which parts of the article are incorrect – therefore, it is not possible to assess the accuracy of his allegations.

He says on September 4 the journalist sent the judiciary spokesperson at the Office of the Chief Justice, Nathi Mncube the following message: This is Sophia, the journalist for Groundup. We are investigating the timeliness of judgements in High Courts across the country. We would be grateful if you could send a list of reserved judgements for each High Court in South Africa (that can exclude the Western Cape since we already received that one).

He says Mncube responded on the same day, saying that he was in the process of finalising a new list for approval by the Chief Justice, which was due for 7 September 2018.

On September 5 as well as on September 14 the journalist asked Mncube when he would be able to respond. Mncube replied he would be in a position to do so by September 17.

On that day, Mncube sent the journalist the following email: Enclosed herein please find the reserved judgments information as requested. You are advised to read the Judicial Norms and Standards in conjunction with article 10 of the Code of Judicial Conduct. I trust you will find the above in order.

As this email did not have any attachment, Mncube sent a further message to Wilhelm, saying: I apologize for that omission. The information is until end of July. As I mentioned to you the Chief Justice receives these monthly reports submitted by me in my other capacity as the Head of Court Services.

In addition, the editor continues, the journalists also submitted queries to the judiciary about the status of the judgments of judges Mvundla, Webster and Spilg. These questions remain unanswered

Be that as it may, Geffen says GroundUp received a letter from Mncube in which he asked for the article to be withdrawn.

The editor says he refused to do so, as the major part of the story remained in the public interest. Instead, he says, Groundup has:

• published the following additions to the article at the top thereof and before the text of the original article: After publication of this article we received complaints that the list provided by the spokesperson for the judiciary is inaccurate. It contains many judgments which have actually been delivered. At 14:22 on Friday 28 September we received this letter from the spokesperson: [Mncube’s letter inserted] We have decided to keep the article below on our site with the proviso that it is inaccurate as a result of being given the wrong information by the judiciary. We have also removed the document provided by the judiciary. Some on Twitter have accused GroundUp of sloppy journalism for not fact-checking the judiciary’s document, but it is our view that journalists should not have to check the accuracy of documents provided by reputable official bodies concerning their own internal data. The fault for the inaccuracies here lies solely with the judiciary, not GroundUp. Journalism would be impractical under those circumstances. We have encouraged those who disagree with our position to lodge a complaint with the press ombudsman;
• removed the PDF of the document received from the Chief Justice’s office (which was previously posted with the article);
• published Mncube’s letter in full; and
• published a post script below the article in the in the following terms: UPDATE at 14:08 on 28 September: Our attention has been drawn to errors in the PDF document linked to in the article. The document was provided by the spokesperson for the judiciary, who is solely responsible for it. We have notified him of the errors and will run an update if we receive corrected version of the document.

Geffen adds that GroundUp also published, on its own accord, the following correction that is unrelated to the complaint: CORRECTION: The headline of the article was changed to indicate that it is two-thirds of reserved judgments that are late. A paragraph explaining this point was added.

In addition, he continues, the publication has also conducted random checks of some of the cases mentioned in the Judiciary report. For example, a search of the words AMM Da Silva and Ndauki on Saflii indicates that no judgment has been published in Saflii relating to this matter that is one of the Judge Webster judgments. GroundUp has in a random search been unable to find any of the pre-2016 judgments listed in the report.

The editor adds that GroundUp has further established that the judgments published on Saflii are not a complete list of judgments handed down in the High Courts.

He argues that, from these facts, it is apparent that the article was substantially based on:

• a document that was provided to GroundUp by the judiciary spokesperson in the office of the Chief Justice of RSA in his official capacity;
• email queries made to official spokespersons; and
• previous reports which were identified as such in the article.

He also asserts that other investigations conducted by GroundUp before publishing the article did not and could not have revealed that the report officially provided by the office of the Chief Justice was flawed or out-dated.

The editor says: “Based on the information provided by the Judiciary Spokesperson in the Office of the Chief Justice of RSA, the report was accurate as at 15 July 2018 and there is no information to dispel the accuracy. The Judiciary Spokesperson in the Office of the Chief Justice of RSA’s complaint was that a later report would become available and submitted on 3 October 2018. (To date this has not been received.) Groundup has given the commitment that it would update the article when the new report becomes available and repeats the commitment.”

Geffen therefore submits that:

• the article, was an accurate reflection of a document that GroundUp received from an official Judiciary Spokesperson in the Office of the Chief Justice of RSA; and
• it was reasonable for GroundUp to rely on the document provided to it by the Judiciary Spokesperson in the Office of the Chief Justice of RSA, especially in view of the fact that it was provided on request of a formal media inquiry. Moreover, Mncube specifically said that: Chief Justice receives these monthly reports submitted by me in my other capacity as the Head of Court Services.

He contends it is not a publication’s duty to verify facts and statistics formally provided by the Chief Justice’s office in response to a media request that GroundUp was entitled to rely upon.

He argues: “The suggestion that we should have contacted each person mentioned on the list is impossibly onerous. If one takes the time for searching for a telephone number, calling judges and advocates who are in court or consulting during the day, and asking them about each judgment it would have taken weeks, if not months. Furthermore, the spokesperson has insisted that all media direct questions for judges through him. GroundUp attempted to do so in respect of the two active judges mentioned in the article, but received no further response from the spokesperson or the judges.”

The editor also points out that:

• Ngalwana was not mentioned in the article;
• only someone who had lifted his name from the hundreds of names in the document supplied by Mncube would have picked up on his name (that was mentioned only once); and
• GroundUp removed the list in which his name appeared.

In conclusion, Geffen says it encouraged Ngalwana to lodge a complaint with this office, because there was an important principle to establish: Should reporters have to fact-check an officially provided document by a reputable institution containing only information about that institution’s internal processes?

“It is GroundUp’s view that the answer is definitively no, and that it would be impractical to do journalism if the answer is yes,” he says.

Analysis

The central questions are if GroundUp should have:

• fact-checked the information on the list; and
• contacted Ngalwana for comment.

Information verified?

Should GroundUp have verified the information it received from Mncube?

The answer to this question is an emphatic “no” – the publication received an official reply to its questions by a person who had been mandated to do so, and therefore had no reason to doubt the accuracy of the information. The media certainly are not obliged to fact-check such information.

A case could be made out that information garnered from an anonymous source should be corroborated, as stated in Section 11.2 of the Press Code, as journalists may have reason to doubt the credibility of the information and the agenda of its source.

Therefore, if GroundUp had reason to believe that the information could be false, I would have expected the publication to verify the veracity of the data – or, if not possible, to state that it could not do so.

However, that does not apply to an official response by a person who is properly mandated to hand out data to the media.

If some of the information was incorrect, as in this case, the messenger should not be blamed for it – it was the fault of the person who provided the data.

Secondly, far from of blaming GroundUp, I instead have to commend the publication for:

• all the action it took (as documented above) when it came to its attention that some of the information contained in the list was incorrect; and
• not withdrawing an article that was in the public interest.

Right of reply

My considerations regarding Ngalwana complaint about a right of reply are that his name:

• was not mentioned in the story – why ask someone for comment if that person is not mentioned? and
• appeared on the list – which came from an official source and not an anonymous one, and GroundUp therefore (at least at first) had no reason to doubt its accuracy.

Finding

Both complaints are 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