Patriotic Alliance vs News24

SUMMARY

The headline to the opinion piece in dispute read, Welcome to the City of Clowns (published on 30 January 2023).

This ruling by Press Ombud Herman Scholtz was based on the Press Code that became effective on 30 September 2022.

 

In this opinion piece, Adriaan Basson inter alia wrote, “McKenzie and the PA have been blunt about the fact they are in it for the tenders”; and, “Their aim will be squarely to capture departments with the highest budgets and opportunities for rent-seeking.”

The complaint was against those two statements, with the central question having been whether they were presented as facts (in which case Basson would have had to prove his case), or as opinions (to which he was entitled, but conditionally so). The PA was convinced it was the former option, while News24 took the opposite view.

After noting that an erroneous statement could not be passed off as protected comment, even if it appeared within the context of an opinion piece, the Ombud said the sentences in question were nestled in-between a mountain of interpretive comments.

The Ombud then argued, “For the reasonable reader, it must be unfathomable that any politician would use the words, ‘I’m in it for the tenders’, and would therefore not attach a literal meaning to the sentence. A reasonable reader will know that it is an interpretation of the author.”

Having accepted that the sentences in dispute were opinions and not statements of fact, the questions were whether the subject matter was in the public interest and whether the comment was indicated as such, whether there was malice, and whether Basson took fair account of all material facts that were true or reasonably true.

Scholtz found in favour of News24, inter alia because Basson’s opinion was not devoid of any factual basis.

 

THE RULING ITSELF

Complaint 9740                                                                                      

Date of article:                    30 January 2023

Headline of publication:   “Welcome to the City of Clowns”

Author:                                  Adriaan Basson

Particulars

1. The complaint is about an editorial or political analysis piece penned by News24 editor-in-chief, Adriaan Basson (“Basson”).

2. Charles Cilliers (“Cilliers”) made submissions on behalf of the Patriotic Alliance.

The complaint

3. This complaint requires an unscrambling of a dish of fact and opinion prepared with a political stick blender and seasoned to a level that does not fall within the complainant’s taste.

4. One of the few aspects the parties agree on, is that the piece in question is an opinion piece. The complaint centres around an interpretation of Clause 7 of the Press Code, which reads:

“7.1 The media shall be entitled to comment upon or criticise any actions or events of public interest; and

7.2 Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all material facts that are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.”

5. It is not advanced on behalf of the Patriotic Alliance (“PA”) that the subject matter was not in the public interest or that Basson acted with malice.

6. Instead, the essence of the complaint is whether two sentences in the piece amounted to factual statements within the opinion piece and, if so, whether those statements of fact are true.

7. The election of Thapelo Amad of the Al Jama-ah party as mayor of Johannesburg led to the opinion piece.

8. Basson wrote:

“Welcome to the city of clowns, where Amad, whose party received 9 961 or 1% of votes in 2021, was inaugurated with the golden chain on Friday, flanked by an ex-bank robber in Patriotic Alliance (PA) leader Gayton McKenzie and provincial ANC leader Panyaza Lesufi.

“Lesufi and McKenzie looked like proud parents of a school prize-giving as they pulled off one of the craziest ever stunts in South African political history (by unseating the DA’s Mpho Phalatse).”

9. None of the political parties were spared in the opinion piece. The EFF is said to have their eye on municipal manager positions “to be close to the action where tenders are awarded”. Basson wrote the “ANC will have stiff competition from its coalition parties…to lay its grubby hands on the largest contracts”. He criticised the DA and ActionSA for their “seeming inability…to get their act together” and attributes this in part to “personal baggage” of personalities within those parties. Last but not least, the following was said about the PA:

“McKenzie and the PA have been blunt about the fact they are in it for the tenders. Their aim will be squarely to capture departments with the highest budgets and opportunities for rent-seeking.”

10. The above passage is the only disputed paragraph in the piece.

11. Cilliers says:

“News24’s editor-in-chief claims in his opinion piece that it is a fact that the leaders of the PA have openly stated that they are seeking opportunities for rent-seeking through tenders in the departments with the largest budgets.

“Yes, it’s an opinion piece, but even opinion pieces must be factual when they claim to be relying on proven facts in their statements. What Basson wrote was not phrased as opinion, but rather as fact, and many readers would assume that he was basing his comment on some hard evidence that he may have come across.”

12. Cilliers challenged News24 to “kindly provide the factual evidence and basis for his assertions”. Failing this, the PA demands and apology and correction.

13. Basson replied that the sentences in question are in line with clause 7.2. of the Press Code as he has taken fair account of all material facts that are either true or reasonably true before he expressed an honestly held view. Basson proceeded to list previous news reports he says contributed to the basis for his view.

14. The first is an article that appeared in the Sunday Times on 25 October 2020 containing the following passage: “Riverlea, let me show you power. I do not play with power,” he [McKenzie] told a crowd, adding that when he joined the city’s governing coalition he had said he “wanted the department of economic development”. “I prayed. I said God, if we could just get the department of economic development, because all the jobs for our people are there.”

15. In another example, which appeared in Rapport on 12 February 2023, McKenzie was quoted as saying: “Die DA sê hulle is nie hier vir mag nie. Nou wat soek jy in die politiek? Die politiek is a magspel, moenie die mense bef*k nie! Kerk is vir bid, ’n netbaltoernooi vir netball, politiek vir mag! Corné Mulder sê vir my hy was 25 jaar in die opposisie en jy doen niks vir die mense nie. My mense werk vandag in die Johannesburg in!”

16. In another example, Basson quotes from a podcast hosted on the Herald Live website on 18 November 2021 in which McKenzie was interviewed about the PA’s decision to enter into a deal with the ANC. He reportedly said: “Die mense wat vir my gestem het, hulle kan nie wag vir 5 jaar vir werke nie, hulle sit al 15 jaar sonder werk. Hy weet nie waar sy volgende bord kos gaan af kom nie, hulle het nie geld in die bank nie. Ek kan vir hulle niks beteken in die opposisiebanke nie… Ek praat met Corné Mulder en hy sê vir my hy was 33 jaar in die opposisiebanke en hy’t niks vir sy mense beteken nie… Dit worry my, ek het nie tyd vir dit nie, ek worry nie oor mense se waardes nie, want onse waardes verskil.”

17. In response, Cilliers reiterated that he is complaining because Basson “referred to something as a ‘fact’ when this is very far from proven”. Cilliers did not challenge the accuracy of quotes attributed to McKenzie. He did, however, say that it is Basson’s interpretation from those quotes that McKenzie and the PA are after tenders and not a proven fact. “Gayton is just saying he is trying to improve people’s lives. Surely that’s what we would want all politicians to try to do.”

18. In summary, Cilliers stated: “You cannot make up facts as you please and hope you can get away with this just because you happen to be writing an opinion piece.”

Analysis

19. As already stated, the deceivingly simple questions are:

19.1 Did Basson state it as a fact that the PA and its leaders have stated they are “in it for the tenders”?

19.2 Did Basson state it as a fact that the PA’s aim is “squarely to capture departments with the highest budgets and opportunities for rent-seeking?”

20. The Press Code draws a hard line between commentary and news reporting. It is, in fact, a requirement in Clause 1.3 of the Press Code to distinguish factual reporting from opinions, allegations, rumours or suppositions.

21. Clause 7 itself contains the important rider that a publication may only seek refuge in the protection afforded by that clause if the comment or criticism is “presented in a manner that it appears clearly to be comment”.

22. In practical reality, the divide between an opinion piece and news reporting can be more of an elastic band than a fixed line. Nevertheless, the distinction is fundamental and it remains necessary to distinguish between them and to treat them according to their character and function. As was observed in the matter of Siyaya TV v amaBhungane (Complaint 9691, 8 February 2023), “interpretative” statements, or author’s “comment”, within a news report cannot be judged as opinions under Clause 7 as those statements are not clearly identified as such. In those cases, the statements stand to be judged within the context of news reporting.

23. In cases such as the present where the article is an opinion piece, Clause 7 is applicable rather than the clauses dealing with news reporting. The headline itself proclaims the article an opinion of Adriaan Basson, the capacity in which he wrote the piece is identified at the end of the article, and the article in its entirety takes the form of political analysis of recent events.

24. The water gets muddied as not every sentence within an opinion piece is always an opinion. The Appeals Panel, in Goss Marlon vs News24 (Matter 8524/02/2021, 11 June 2021), already raised the issue. In that case, the complaint was about a book review, which is by its nature an opinion piece, but the Appeals Panel questioned whether quotations from a book within the review is covered under the protections for commentary. The Panel said:

“What is protected under 7.2. is a ‘comment’. The disputed words are, technically not a comment. They have been transplanted, exactly as they are, word for word, from the book; such an exact reproduction does not constitute a comment at all.”

25. In my view, the inclusion of non-comment statements within an opinion piece does not render the opinion piece a hybrid of an opinion piece (judged by Clause 7) and news reporting (judged by other clauses such as Clause 1 dealing with gathering and reporting of news). The opinion piece retains its character and different sentences cannot be strictly compartmentalised into “news reporting” and opinion writing. It does not mean that the accuracy of any factual statements within the opinion piece is irrelevant because the article is covered by Clause 7 rather than Clause 1. This is why clause 7.2. contains a safeguard: the author must have taken fair account of all material facts that are true or reasonably true. It is a slightly relaxed yardstick from the requirement of Clause 1.1. that news reporting must be true and accurate without any qualification. The difference in the requirements aims to strike a balance between stimulating expression of opinions while emphasising that facts do still matter – also in opinion pieces.

26. In a matter that bears some resemblance to the current complaint, DA and John Steenhuisen vs Sunday Times and TimesLive (Complaint 9305, 28 October 2021), Deputy Press Ombud Tyrone August considered an opinion piece in which certain claims were made about the DA and Steenhuisen. The complainants took issue with the following sentence in the opinion piece: “The point here is not to write about DA Leader John Steenhuisen, a legend of a mampara who told the media this week that the vigilante killers of Phoenix, Durban, will always be his heroes and he will not apologise for idolising them.” The publication conceded that those were not Steenhuisen’s words in the media interview referenced. They did, however, contend that the words were not intended to be a factual account of the interview and remains protected under Clause 7. The argument was rejected by stating:

“An erroneous statement cannot be passed off as protected comment, even if it appears within the context of an opinion piece.”

27. Importantly, the Deputy Ombud held that the opinion piece in question did not meet the requirements of clause 7.2 in that a fair account of all material facts needs to be taken. In that matter, it turned out that Steenhuisen said exactly the opposite in the media interview in question. Steenhuisen said anyone involved in vigilantism is part of the problem and he does not condone vigilante activity. The publication “acknowledge(d) that (the) article would have transgressed the Press Code for failing to report accurately and truthfully if it was presented as a news story”. However, the issue was not whether the publication indeed transgressed Clause 1.1 (as the article cannot be judged in terms of the news reporting clause). The issue was that someone cannot be said to have taken fair account of material facts, as required by Clause 7.2., if the author premised his opinion on an untruth.

Were the sentences statements of fact or opinion?

28. To identify whether a statement is one of fact or opinion is far more complex than many would expect. In fact, the Constitutional Court, in DA vs ANC and Another 2015 (2) SA 232 (CC) referred to the “fact/opinion continuum”. The Court held:

“On closer consideration, one finds that this clear-cut boundary between a factual statement and an opinion may well be something of a fiction. Whereas extremes on both ends of the fact/opinion continuum are easily identifiable, in reality there is no clear line somewhere in the middle that makes this a binary inquiry. Saying that a government “ruined our economy” or “took us into a war” looks as if it is a factual assessment, but it is readily apparent that it may rather be an assessment of policies, according to criteria, numbers and statistics which people on different sides of the political spectrum disagree about. It is a matter of opinion, even though it is presented in a factual manner.”

29. The relevant test remains how a reasonable reader would interpret the sentences: as fact or as opinion.

30. This office has recognised the relevance of the fact that political discourse has unique characteristics that require consideration in applying various provisions of the Press Code. (See, for example, DA & John Steenhuisen vs EWN, Complaint 9340, 3 December 2021, where political statements were considered in the context of the requirement to seek pre-publication comment).

31. It is also applicable within the context of applying the reasonable reader test. The reasonable reader is accustomed to robust political discourse and the blurry lines between facts and opinions – especially in an era where outlandish claims are common and parliamentary privilege is used to the maximum. As the Constitutional Court said in DA vs ANC & Another referenced above:

“In a pre-election environment people are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint. In modern-day democracies spoilt by a multitude of media opportunities, political parties formulate punchy, provocative and less than accurate sound-bites all the time, and are given a wide berth to do so.”

32. Cilliers concedes in his submissions that the PA has been accused in political discourse of rent-seeking. He says “it certainly is an accusation that has been made by the party’s enemies and detractors” but, to paraphrase Cilliers’ argument, he feels Basson cloaked such an opinion as a fact and journalists are to be held to different standards than politicians. He says: “It is one thing for opposition political leaders to speak such drivel in pursuit of votes but quite another when a respected journalist heading up the most influential SA website says it.”

33. It is true that the media is voluntarily held to standards not applicable to politicians by subscribing to the Press Code. However, it is less clear to me that a reasonable reader would place a statement elsewhere on the “fact/opinion continuum” based primarily on who makes the statement: a politician or a political analyst. To my mind, if it makes any difference, a reasonable reader would generally lend towards a default position of understanding statements by a political analyst as an opinion for the mere fact they are further from the fire than politicians.

34. It is within this context that I consider whether the reasonable reader would interpret the two sentences in question to be a statement of fact or opinion.

35. Sentence 1 reads: “McKenzie and the PA have been blunt about the fact they are in it for the tenders.”

36. From Cilliers’ submissions, it appears as if much weight is placed on the inclusion of the word “fact” in this sentence. In my view, a literal interpretation of the word is misplaced. Nothing hinges on the use of the word “fact” within the sentence. The fact of the matter is that this word, “fact”, is often used as part of expressions without conveying a literal meaning. To borrow from, and extend on, the examples used by the Constitutional Court, someone may just as well have said “(the fact is) the government ruined our economy” or “(the fact of the matter is) government took us into war” without turning those opinions and judgments into statements of fact.

37. Secondly, the sentence in question does not make any specific claims of what McKenzie and the PA have said, as was the case in DA and John Steenhuizen vs Sunday Times and TimesLive discussed above. It might have been perceived differently by a reasonable reader if the statement attributed certain identifiable words or specific instances to McKenzie or PA leaders (as was the case in DA & John Steenhuisen where Steenhuisen was reported to have said XYZ during a specific media interview).

38. Thirdly, it is relevant that the author wrote the piece not in his capacity as a journalist reporting news, but as a journalist writing an opinion piece. A reasonable reader knows the difference between these two forms of journalism. The sentences in question are nestled in-between a mountain of interpretive comments, such as: the “1% mayor” “who believes polygamy will lead to a more ‘stable’ society”, the “city of clowns”, “it is no secret that whenever the EFF has been close to power, they have had their eye on the municipal manager position”, the “grubby hands on the largest contracts”, etc. A reasonable reader is therefore already primed to read commentary and opinions rather than expecting news reporting.

39. Lastly, I consider the contents of the sentence itself and how a reasonable reader would interpret it. For the reasonable reader, it must be unfathomable that any politician would use the words, “I’m in it for the tenders”, and would therefore not attach a literal meaning to the sentence. A reasonable reader will know that it is an interpretation of the author.

40. Sentence 2 is an even clearer expression of opinion: “Their aim will be squarely to capture departments with the highest budgets and opportunities for rent-seeking.”

41. The use of the future tense (“will”) is a very clear indication to a reasonable reader that this is not a statement of fact, but an opinion/prediction/criticism. Nothing that is yet to happen can be stated as a present-day fact, except perhaps to state that humans will eventually die.

42. Once it is accepted that the sentences in question are opinions, the only question is whether the publication complied with Clause 7.1. and 7.2. I already stated that the subject matter is in the public interest and the comment is indicated as such. There is no accusation of malice. What remains, is whether the author took account of all facts that are true or reasonably true.

43. Clause 7 closely resembles the common law position about protected commentary. However, the Press Code does not explicitly require that the facts relied upon must either be stated in the opinion piece or be so notorious that a reasonable reader would know them.

44. The Appeals Panel, in Goss Marlon quoted above, held that the drafters of the Press Code were very specific in the formulation of Clause 7. It held that the drafters deemed it fit to list the six instances of comments that are protected and that only those six instances are protected without any elasticity. By the same token, the Press Code arguably does not require the publication (as the common law does) to state the facts upon which the comment is based or that the facts must be notorious. If it did, the Press Code would have stated it as such. All the Press Code requires, is for the author to take “fair account of all material facts that are either true or reasonably true”.

45.  A previous Ombud, in Renaldo Gouws vs News 24 (Complaint 4428, 21 June 2019), held that the “taking account of material facts” is a “broad definition”. Considerable latitude was allowed in the “fiery rhetoric” in that matter without placing too much of a burden on an author to show that every material fact have been considered. To do that would be to stifle debate and free speech. What is needed, is for the author to have taken “fair account” of the facts. In my opinion, what is of more relevance is not how many facts the author considered and whether he or she considered every conceivable fact, but whether the author conveniently disregarded certain facts or relied on untruths that would justify the stripping of the protection afforded to honestly held opinions.

46. In the current complaint, the following were stated to the readers in the opinion piece:

46.1 The City of Johannesburg has a budget of R70 billion;

46.2 “ActionSA wanted the DA to accept the PA’s demands for two portfolios in the mayoral committee: economic development and roads and transport. Both come with lucrative tender opportunities. The DA refused…”

47. The above statements are not challenged in the complaint.

48. Outside of what is stated in the opinion piece, Basson quotes examples where McKenzie referred to the “power” to be acquired by joining a governing coalition rather than sitting in the opposition benches and that McKenzie “wanted the department of economic development” “because all the jobs for our people are there”.

49. Cilliers has a different interpretation of McKenzie’s quotes. He may be right or wrong. But he is not pointing to any material facts that have been disregarded in expressing the opinion or untruths relied upon. The entire point is that Basson expressed his opinion that those (undisputed) quotations bluntly show the motives of the PA. Whether Basson’s interpretation is right or wrong is also of no consequence to invoke the protection afforded to honestly held opinions.

50. Basson’s opinion is not devoid of any factual basis. It appears to be a fact that McKenzie made controversial comments in the past. Basson’s reliance was also not on “facts” that are clearly untrue. This is a key differentiator from the Deputy Ombud’s decision in John Steenhuisen & DA. The author in that matter demonstrably misquoted Steenhuisen and disregarded the fact that Steenhuisen explicitly criticised vigilantism in the media interview relied upon.

51. I am therefore satisfied that Basson took fair account of all material facts that are either true or reasonably true in the expression of his opinion.

Conclusion

52. It follows that the commentary is protected by Clause 7 of the Press Code and the complaint is 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

Press Ombud

27 March 2023