Hasina Kathrada vs Times Live
SUMMARY
The headline to the story in dispute read, Mkhize’s associates Mather and Mitha ‘tried to duck Digital Vibes SIU probe’ (published on 29 September 2021).
This ruling by Deputy Press Ombud Herman Scholtz was based on the Press Code that was in effect before 30 September 2022.
Hasina Kathrada complained about a picture that appeared alongside an article on Times Live. The article itself was not challenged. She said the picture was damaging to her reputation – the article (which did not mention her) was about people who tried to duck an enquiry by the Special Investigations Unit (SIU). She argued the picture was misleading as it implied that she was also under investigation.
One of the women in the picture was her sister, who was implicated in the article.
Scholtz noted that Kathrada was finding herself in a storm after rendering services for Digital Vibes – who had been making headlines about allegations regarding the SIU.
He argued that, if the headline, sub-headline, and contents of the article left any doubt as to who the “(Zweli) Mkhize associates” were that allegedly “ducked the SIU”, there might have been merit in Kathrada’s complaint. But that was not the case – the reportage explicitly identified the other two women as Mkhize’s two “associates”. This was how the reasonable reader would have understood it, he opined.
The Deputy Ombud said it was uncommon for people unrelated to a particular story to be part of an otherwise relevant picture accompanying the article. “The picture is a supplied image of three women who appear to be friends or friendly with each other at some sort of occasion or event. It is not a picture of a crime scene or the dock of a courtroom.”
He admitted that, given the limited information available to readers, the reasonable reader might have been perplexed by Kathrada’s inclusion in the picture. “However, the reasonable reader is not morbidly suspicious and would not jump to a conclusion that she also allegedly failed to cooperate with the SIU. After all, readers of Times Live were not even aware that Kathrada is part of the bigger Digital Vibes/SIU saga.”
The complaint was dismissed.
THE RULING ITSELF
Complaint 9293
Ruling by the Deputy Press Ombud
Date of article: 29 September 2021 (online)
Headline of publication: “Mkhize’s associates Mather and Mitha ‘tried to duck Digital Vibes SIU probe’.”
Author: Amanda Khoza
Particulars
- A complaint was lodged about a picture that appeared alongside an article on Times Live. The article itself is not challenged.
- The ruling is based on written representations by Hasina Kathrada (“Kathrada”) and Susan Smuts (“Smuts”), managing editor of the respondent publication.
Complaint
- Kathrada, a former journalist and now independent communication consultant, is currently finding herself in a storm after rendering services for Digital Vibes. It is a well-known fact that the latter has been making headlines due to allegations forming the subject matter of an investigation by the Special Investigations Unit (“SIU”).
- The above-mentioned is evident from the submissions by the parties. However, all indications are that readers of Times Live are unaware of Kathrada’s former involvement with Digital Vibes or scrutiny by the SIU. I will return to this aspect later.
- Kathrada’s complaint is succinct:
“This article does not mention me. It puts those who tried to ‘duck the SIU inquiry’ in bad light. The photo accompanying the article is one of the two people mentioned in the headline, and myself. The caption indicates that I am Mather’s sister.
“This picture is damaging to my reputation. It implies that I was involved in non-cooperation with the SIU, which is untrue.”
- Phrased differently, Kathrada is of the view that the picture used alongside the article is misleading the public as it implies that she is one of the Mkhize associates who was not cooperating with the SIU.
The picture in context
- The picture depicts three women and is captioned:
“Tahera Mather’s sister Hasina Kathrada, Naadhira Mitha and Tahera Mather. Image: Supplied.”
- It appears directly below the headline which reads:
“Mkhize’s associates Mather and Mitha ‘tried to duck Digital Vibes SIU probe’.”
- Also above the picture is a sub-heading which reads:
“Tahera Mather and Naadhira Mitha used Digital Vibes as a ‘front’ to hide the fact that they were bidding for the NHI and Covid-19 communication contract: SIU”
- Directly below the picture and caption is the introduction to the article:
“A damning Special Investigating Unit (SIU) report has revealed how Tahera Mather and Naadhira Mitha, who are close friends and associates of former health minister Zweli Mkhize, initially refused to answer questions relating to the probe.”
- Very little revolves around the remainder of the contents of the article. It is common cause that Kathrada is not mentioned in any way.
Submissions from the parties
- Smuts says Kathrada is not mentioned in this particular article, but she is “certainly part of the story”. This, Smuts says, is because Kathrada is identified in an affidavit by the SIU’s Hesti le Roux as having received potentially irregular payments. Times Live therefore sees no reason to remove Kathrada’s picture but offers to “spell out” her involvement in the caption.
- It is apposite to state that the existence of the SIU’s allegations against Kathrada is seemingly not in dispute. Kathrada describes herself as “a respondent in the SIU’s affidavit into the matter” and denies any wrongdoing.
- Kathrada says “it is defamatory in the extreme to suggest…(she is) guilty of an obstruction of justice by ‘ducking the SIU’” and that the picture accompanying the article did just that.
- Apart from these, the parties made several submissions that appears relevant at face value but does not take the matter further. For example, Times Live claims that Kathrada was earlier approached for comment and says she declined to do so. Kathrada denies this, saying she informed a Sunday Times journalist who approached her that the matter is sub judice and that she will rather give her side of the story at the SIU Tribunal where she expects to receive a fair hearing. Kathrada also bemoans the fact that Sunday Times, sister publication of Times Live, used the same picture on 2 August 2021 and that she also complained to Sunday Times at the time.
- The difficulties with these submissions are two-fold. Firstly, the Sunday Times article (and picture) is not before me and not the subject of this complaint. Secondly, a debate about Kathrada’s alleged involvement and whether her comment was sought on those allegations all comes to naught if this was never reported for readers of Times Live and/or Sunday Times.
- Expecting readers to puzzle out for themselves how Kathrada fits into the picture, so to speak, is unrealistic. For purposes of this complaint, and absent any allegation to the contrary, I will therefore accept that an ordinary reader had no background whatsoever about Kathrada’s involvement in the SIU investigation when the article was published.
Analysis
- The relevant clause of the Press Code is Clause 10:
“10.1. Headlines, captions to pictures and posters shall not mislead the public and shall give a reasonable reflection of the contents of the report or picture in question; and
10.2. Pictures and video/audio content shall not misrepresent or mislead nor be manipulated to do so.”
- The office of the Ombud and Appeals Panel have consistently applied the test of the “reasonable reader”, the well-known construct of a reader that is not overly critical, sensitive, and suspicious in considering complaints. (See, for example, the Appeals Panel decision in Mail & Guardian vs Duarte, Jessie, 21 June 2016).
- In Mail&Guardian it was also accepted that the reasonable reader would read the article in context, including the headline and the images, rather than seizing on specific aspects.
- This principle was also applied in the Appeals Panel decision of Rapport vs Jan Blohm (15 October 2018) where the panel also elucidated the application of the construct within the context of Clause 10 by accepting the so-called “bane and antidote” rule.
- In my view, the current complaint is a case where the “bane and antidote” rule is applicable. The bane is of course the fact that Kathrada’s face appears on a picture used alongside an unflattering story. The antidote, in my view, is the headline, sub-headline and introduction of the story. The bane and the antidote must be taken together.
- If the headline, sub-headline, and contents of the article left any doubt as to who the “Mkhize associates” were that allegedly “ducked the SIU”, there might have been merit in Kathrada’s complaint. This could arguably have planted a seed for readers that Kathrada is one of the “associates” who allegedly did not cooperate with the SIU.
- But there is no doubt for the reasonable reader. The headline, sub-headline and introduction to the story explicitly identify Tahera Mather and Naadhira Mitha and only them as the two “associates” of Mkhize who allegedly “tried to duck” the SIU investigation.
- The caption to the picture did not counteract this. It is a bland caption following the journalistic practice of identifying people in pictures as they appear from left to right. To the left is Hasina Kathrada, who is only identified as “Tahera Mather’s sister”, then Naadhira Mitha and to the right is Tahera Mather.
- Once it is accepted that a reasonable reader would not think Kathrada tried to “duck” the SIU, the entire basis of the complaint falls away. The picture then did not mislead readers, as is prohibited in Clause 10 and did not insinuate something sinister and unjustified.
- For reasons already stated, I suppose for the moment that Kathrada is not related to this particular story despite the indications that she probably is part of the larger Digital Vibes/SIU kaleidoscope.
- It is not uncommon for people unrelated to a particular story to be part of an otherwise relevant picture accompanying the article. The picture is a supplied image of three women who appear to be friends or friendly with each other at some sort of occasion or event. It is not a picture of a crime scene or the dock of a courtroom.
- At worst, given the limited information available to readers, the reasonable reader might be perplexed by Kathrada’s inclusion in the picture. However, the reasonable reader is not morbidly suspicious and would not jump to a conclusion that she also allegedly failed to cooperate with the SIU. After all, readers of Times Live were not even aware that Kathrada is part of the bigger Digital Vibes/SIU saga.
Conclusion
- For the reasons given above, the complaint stands to be dismissed.
Appeal
The Complaints Procedure lays 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].
Herman Scholtz
Deputy Press Ombud
9 December 2021
