Gayton McKenzie and PA vs News24

SUMMARY

The headlines to the stories in dispute read, McKenzie’s mirage: Money PA leader ‘raised’ for Karoo town was never deposited into its account; and, McKenzie’s millions: The lawyer, the R3m Karoo cash and the PA-linked trust account (published on 10 and 17 June 2023 respectively).

This ruling by Deputy Press Tyrone August was based on the Press Code that became effective on 30 September 2022.

 

The crux of this matter revolved around R3 million that Patriotic Alliance (PA) leader Gayton McKenzie, the former Central Karoo District Municipality (CKDM) mayor, had raised at a Sandton fundraising dinner for service delivery on behalf of the municipality, and whether that money had indeed been spent on those services.

The story also said that McKenzie did not always fulfill promises regarding better service delivery – community swimming pools were unusable, etc.

The second story stated that Eugene Botha, the lawyer who reportedly received millions of rands raised at this function, first told News24 that the money would be donated to the PA. However, according to News24, he later changed his story and said the money was for McKenzie’s “personal capacity”.

The following complaints were inter alia upheld as News24 failed to:

• take sufficient care to report accurately and fairly about the state of a swimming pool, nor did it verify that the pool was not usable;
• identify Schaun Meyers as a DA ward councillor – that brought into doubt the independence and/or professionalism of News24;
• provide any first-hand information to support the claim that newly built sewerage systems broke soon after they had been installed; and
• report that some other ventures were still operational.

The used of the word “mirage” in the headline was also deemed to be misleading.

News24 was directed to apologise for these breaches of the Press Code, to delete the word “mirage” in a headline, to identify the unnamed councillor, and to reduce the number of pictures.

Some of the complaints that were dismissed included that allegations were presented as facts; that news was not obtained honestly and fairly; that News24 did not state that the report was based on limited information; that it did not supplement new information that became available; and that the pictures were misleading.

 

THE RULING ITSELF

Dates of publication: 10 and 17 June 2023

Headlines:

McKenzie’s mirage: Money PA leader ‘raised’ for Karoo town was never deposited into its account

McKenzie’s millions: The lawyer, the R3m Karoo cash and the PA-linked trust account

Author: Azarrah Karrim

Particulars

This finding is based on a written complaint by Mr Charles Cilliers on behalf of Patriotic Alliance (PA) leader Mr Gayton McKenzie and the PA, which includes a number of documents; a written response by News24 investigative reporter Ms Azarrah Karrim, Assistant Editor: In-depth news Mr Pieter du Toit and Public Editor Dr George Claassen (together with a list of questions sent to Mr McKenzie’s spokesperson, Mr Steve Motale); and a further written response by Mr Cilliers on behalf of Mr McKenzie and the PA.

Complaint

The complainants submit that the two articles in question transgress Clauses 1.1, 1.2, 1.3, 1.4, 1.7, 1.9, 2.1, 10.1 and 10.2 of the Press Code:

“1. The media shall:

“1.1 take care to report news truthfully, accurately and fairly;

“1.2 present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarisation;

“1.3 present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such;

“1.4 obtain news legally, honestly and fairly, unless public interest dictates otherwise; …

“1.7 verify the accuracy of doubtful information, if practicable; if not, this shall be stated; …

“1.9 state where a report is based on limited information, and supplement it once new information becomes available; …

“The media shall:

“2.1 not allow commercial, political, personal or other non-professional considerations to influence reporting, and avoid conflicts of interest as well as practices that could lead readers to doubt the media’s independence and professionalism;…

“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.”

1. Summary of articles

Article 1: McKenzie’s mirage: Money PA leader ‘raised’ for Karoo town was never deposited into its account

1.1. The article reports that Patriotic Alliance (PA) leader Gayton McKenzie, the former Central Karoo District Municipality (CKDM) mayor, hosted a Sandton gala dinner to raise funds for service delivery on behalf of the municipality. However, the money was “seemingly” never handed over to the municipality.

1.1.1. According to the article, McKenzie asked the Central Karoo council for permission to host a fundraising event in May 2022 while he was CKDM mayor. He reportedly claimed it was in order to raise funds for the 100-day promises he had made during his inauguration speech the previous month.

1.1.2. The article claims that McKenzie raised R3 million at the dinner, but is yet to use the municipality’s bank account or “financial processes” to account for this money.

1.1.3. It goes on to report that attendees paid their donations into an account belonging to “E Botha and Y Erasmus”, and notes that Botha is a director of E Botha and Y Erasmus Incorporated. Botha, who News24 understands to be a member of the PA, did not respond to a request for comment.

1.1.4. The article further states that, according to the municipality’s annual report, none of the money raised was deposited into the municipality’s coffers and that no donation was listed for the 2022 financial year.

1.1.5. Following complaints from the South African Communist Party (SACP) in July and August 2022, the matter became the subject of an investigation by the Public Protector’s office. However, acting spokesperson Ndili Msoki told News24 that it could not divulge any details of the investigation.

1.2. According to the article, the fundraising event – titled “Bringing New Life to the Desert” – was supposed to raise money to repair swimming pools in Beaufort West, eradicate bucket toilets in the Central Karoo, create jobs and repair potholes on main routes.

1.2.1. When News24 visited Beaufort West last month – a year after McKenzie pledged to deliver services quickly – it reportedly found that roads on main routes were still full of potholes, public swimming pools were unusable and a factory “at the centre of media hype” was now empty.

1.2.2. The article further states that a recent Auditor-General report describes CKDM as one of South Africa’s worst-performing municipalities in terms of finances and governance. It reportedly cannot finance basic services and has been operating for years at a loss of millions of rand.

1.3. According to council minutes dated 19 May 2022, McKenzie sought permission from the CKDM to “mobilise funding through approaching financial institutions, public sector and private donors as a strategy of his fundraising initiative”.

1.3.1. The council approved the event on the recommendation that “all funds be accounted [for] and reported by the executive mayor to the mayoral committee and also to the district coordinating forum”. However, there is reportedly no indication that this took place and the municipality did not respond to a request for comment.

1.3.2. According to McKenzie’s spokesperson Steve Motale, the money raised at the gala was paid over to a lawyers’ trust and subsequently spent on various projects in the municipality. He added that the money raised did not cover all the work that was done and that McKenzie paid for additional work himself.

1.3.3. The article reports that no official and transparent process was followed to raise or spend the money. It states that, in terms of the Municipal Finance Management Act (MFMA), any bank account that is separate from that of the municipality must be authorised before it is used and that all revenue must go through formal municipal processes before it is raised and spent.

1.3.4. In response, Motale said that this particular section of the MFMA does not apply to the R3 million raised because McKenzie “did not use the name of the municipality to raise funds” but used his own name even though he sought council permission to host the event.

1.3.5. Motale also pointed out that the bank account that collected donations was “being audited” and that the outcome would be disclosed. He did not identify who was auditing the account or whether it was being done within municipal structures.

1.4. The article goes on to describe the conditions of the Rustdene and Bird Street swimming pools after a visit in May 2023, and reports that a CKDM councillor told News24 that the sewerage systems that replaced the bucket system broke not long after they were installed.

1.4.1. News24 also visited a factory that McKenzie claimed to have opened in Beaufort West and found the premises deserted. Another factory that was supposed to manufacture tar to fill potholes was reportedly “at a standstill”.

1.4.2. According to Motale, these premises were made available to private businesses and investors in order to create jobs and boost the economy in the area. However, he said, some were successful, while others were not – “[l]ike all ventures”.

Article 2: McKenzie’s millions: The lawyer, the R3m Karoo cash and the PA-linked trust account

1.5. According to the article, Eugene Botha – the lawyer who reportedly received millions of rands raised at a Sandton fundraiser by PA leader and former CKDM mayor Gayton McKenzie – told News24 that the money was donations to the PA. However, according to News24 he changed his tune after it sent questions to the party.

1.5.1. Botha, who is also the strategic adviser and lawyer of both McKenzie and the PA as well as the party’s national head of legal affairs, first told News24 that the funds raised would be treated as donations to the party and declared to the Independent Electoral Commission.

1.5.2. The article states that the event was billed as a fundraiser to improve service delivery in the Central Karoo and notes that PA spokesperson Steve Motale had previously told News24 that McKenzie had raised the money in his personal capacity.

1.5.3. The dinner reportedly raised R3 million. However, none of that money was deposited into the municipality’s bank account.

1.5.4. The article goes on to state that , more than a year later, the account that received the donations has yet to be audited and that McKenzie has yet to report back to the council on the fundraising event.

1.5.5. It goes on to claim that, after News24 asked Botha why the PA had not told donors at the fundraiser that the money would not be paid to the municipality but was for the benefit of the PA, he changed his response.

1.5.6. Botha said that he conducted further research on News24’s question about the Political Party Funding Act (PPFA) and concluded that he had been mistaken. The PA’s treasurer-general also informed him that the Sandton donations were for a specific project of McKenzie and not for the PA.

1.5.7. For this reason, he said, the fundraiser does not fall under the PPFA and added that the PA’s name does not appear on the invitation at all.

1.6. According to the article, McKenzie used the services of the law firm E Botha and Y Erasmus to raise funds at the Sandton dinner, and points out that News24 has verified that a mercantile bank account belonging to E Botha and Y Erasmus Attorneys was used to house the donations from the dinner.

1.6.1. The article says that the account belongs to this law firm and that its registration number is 2014/023790/21. It adds that the same company registration number appears on a business-to-business procurement website under the trade name Novate Legal.

1.6.2. The article further notes that Novate Legal is now a separate entity called Gayton McKenzie Business Academy, with the registration number 2018/377253, and that Botha is registered as a director of both entities.

1.6.3. The article also points out that company records show that the registered business address for Gayton McKenzie Business Academy, a residential property in Midrand, was used by Botha as his residential and postal address “in connection with E Botha and Y Erasmus Attorneys”.

1.6.4. According to Botha, he partnered with another lawyer in 2014 to establish Chetty Botha Inc, which traded as Novate Legal. This firm was later instructed to trade under the names of the partners of the firm only, and it eventually became E Botha and Y Erasmus Attorneys.

1.6.5. Botha confirmed that he had volunteered to guide and advise the PA on small businesses, which led to the establishment of Gayton McKenzie Business Academy.

1.6.6. He further said McKenzie had informed him that he was raising funds in his personal capacity “for projects he had identified for the people of Central Karoo” and asked that the trust account of E Botha and Y Erasmus Attorneys be used as an escrow account.

1.6.7. Botha told News24 that they were yet to appoint auditors and that the audit report was only due in August 2023. (The article notes that Motale previously told News24 that the bank account used to collect the donations was “being audited”.)

1.7. According to the article, it is unclear why donors were told the money would be for Central Karoo projects but were instead deposited into an account linked to McKenzie and the PA, and it is also unclear how much of the R3 million was actually spent in the Central Karoo.

1.7.1. It states that, despite a request to do so, McKenzie did not provide News24 with any proof that the money was used for service delivery projects, as he claimed it would be.

1.7.2. Motale told News24 that McKenzie would present a full report to the Central Karoo council in the second week of September on the work that was done and the money that was used, and added that the audit of Botha’s trust account would be completed in time for that.

1.8. The article then recounts News24’s visit to Beaufort West in May 2022, and describes the condition of various community facilities and the state of some services.

1.8.1. According to Motale, the Rustdene pool, tennis courts and the town hall in Beaufort West still needed to be fixed, and would be done before September 2023.

1.9. The article further reports that, according to the Legal Practice Council (LPC), trust accounts must be audited annually.

1.9.1. LPC spokesperson Kabelo Letebele explained that legal practitioners have a right to accept a mandate from any client that approaches them to assist, “provided they can fulfil the mandate, and there is no conflict”.

1.9.2. He added that legal practitioners “are members of society, and as such, they can be part of political organisations and even take the mandate to assist them legally”. The key, he pointed out, was to act in line with the rules, regulations and code of conduct of the Legal Practice Act.

2. Arguments

Gayton McKenzie and PA

2.1. The complainants start off their argument by stating that the media need to do more than merely adhere to the Press Code by performing “a box-ticking exercise” of gaining comment from the subject of critical reportage. They submit that there should be a genuine interest in the truth of what is being reported or else a publication can be accused of displaying an unfair bias towards the subject.

2.1.1. They go on to declare that McKenzie went to the Central Karoo to take up the mayoral position without expecting any personal reward, and mainly to gain experience of working in the public sector and to demonstrate that he and his party stand for “tangible action and service delivery”.

2.1.2. As a result of the goodwill and popularity he generated, they contend, he has become a threat to established parties, in particular the Democratic Alliance (DA). They claim that the DA has repeatedly tried to attack McKenzie’s governance and service record in the Central Karoo.

2.1.3. They contend that the DA’s claims about the failed installation of flushing toilets in the Central Karoo was repeated in Article 1 even though News24 could have gone to inspect the flushing toilets itself had it been interested in the truth.

2.1.4. They also take issue with claims in Article 2 that two swimming pools that McKenzie had promised to fix or had “fixed” were dilapidated, that Beaufort West was full of potholes, that a factory “at the centre of media hype” was vacant and that plumbing that replaced the bucket toilets was broken.

2.2. The complainants dismiss these claims as grossly unfair or untrue, and note that News24 admits in Article 1 that it was unable to access the swimming pool in Bird Street to assess its condition.

2.2.1. They add that, to make matters worse, News24 published a photo of the pool they could not access in Bird Street and incorrectly claimed in a caption that it was outside the Khanya Street swimming pool.

2.2.2. They further claim that, while the Rustdene swimming pool is listed on Google Maps as being on Khanya Street, it is in fact not. Therefore, they submit, it is not clear which “two swimming pools” News24 claims to be in a state of dilapidation after McKenzie had promised to fix them.

2.2.3. They argue that it cannot be the Rustdene pool as McKenzie did not promise to fix it and has been open about the fact that he has not fixed it yet. Nor, they submit, can it be the Bird Street pool as that was indeed fixed and was not in a dilapidated state.

2.2.4. They concede that the Rustdene pool is in a shocking state and claim that it has been neglected for decades. However, they submit that McKenzie never said that he would fix this particular pool, and certainly not within his first 100 days as CKDM mayor.

2.2.5. They go on to declare that McKenzie ensured that two pools in Beaufort West were repaired during his first 100 days – the Bird Street pool and the pool at the town’s Youth Hub, about 1.5km from the Rustdene pool – and a third pool in Laingsburg. They add that a pool in Murraysburg and another in Nelspoort were repaired as well during the remainder of his term as mayor.

2.3. The complainants acknowledge that McKenzie undertook to replace all the bucket toilets with flushing ones in the Central Karoo within his first 100 days as mayor, and submit that this was indeed achieved.

2.3.1. They state that the media were invited to an event at the end of McKenzie’s 100 days in office to see the work for themselves, but News24 either did not attend or did not record what was shown at the time.

2.4. The complainants add that other work – including the provision of clean water to an impoverished settlement near Beaufort West – was partly funded by McKenzie and with the help of supporters and donors.

2.4.1. They submit that McKenzie also arranged for abandoned Transnet buildings to be used by entrepreneurs to create businesses and provide jobs, and contend that many of those businesses were still running.

2.5. They then refer specifically to Article 1, which states that the money that McKenzie raised for projects in the Karoo was never deposited into the CKDM’s bank account.

2.5.1. They submit that News24 was informed that assistance was initially sought from the council to raise funds, but that ultimately the municipality did not contribute anything. It added that McKenzie and the PA also told New24 about looting by municipal officials and that it would have been “unconscionable” to put the donations in their hands.

2.5.1.1. They refer to former municipal manager Dr Sitembele Vatala who, according to them, was arrested for fraud, forgery and uttering – “a fact that News24 chose to omit from their article despite us pointing this fact out”.

2.5.2. They further state that McKenzie did not use the name of the municipality to raise funds, but instead used his own name. The work promised was done, they submit, and the trust account was being audited.

2.5.2.1. They add that News24 “made much” of the fact that the attorney trust account was still being audited, even though this was not unusual and was based on the relevant financial year.

2.5.2.2. Furthermore, they note, the Public Protector has not yet made any findings on the complaint about the donations and argue that the existence of a complaint was not evidence of untoward behaviour.

2.5.2.3. They also state that News24 failed to mention that SACP member Mawonga Furmen, who laid the complaint, was himself found guilty of previously defrauding the municipality.

2.6. The complainants further note that there is no reference to the DA in either of the two articles in question, even though DA’s councillors were “quite obviously” News24’s primary sources. They submit that this omission leaves the reader without the necessary context to understand that most of the allegations were not based on fact but on political lies.

2.6.1. They further contend that it is deceptive to refer to someone simply as a “councillor” without identifying the party they represent and, hence, what their political agenda might be.

2.6.2. They argue that the overall impression created by the articles is that no substantive work was done in the Central Karoo and that McKenzie or the PA raised millions, but that this money was instead used “for something else”. They regard this as a very serious allegation which could jeopardise McKenzie’s relationship with many people who placed their trust in him and gave donations in order to make a difference in the lives of people in the Central Karoo.

2.6.3. They cite a message on Twitter written by DA MP Leon Schreiber after the publication of Article 2, in which he makes reference to donations received by the PA “under false pretence”.

2.6.4. They submit that it would have been a different matter if News24 had published a report on the allegations of the SACP and the DA. However, they complain, Article 2 was presented as an “investigation” in the “Investigation” section of News24’s website.

2.6.5. They go on to state that News24 did not visit a single settlement to confirm the existence of new toilets nor did it inspect any of the pools that were repaired. They also contend that News24 did not meet any of the business people who set up small businesses in the Transnet facilities.

2.6.6. They contend that the articles were therefore not an investigation, “but the mere passing on of hearsay from the DA”.

2.7. The complainants then summarise what they regard as distortions or inaccuracies in the two articles, and request an apology and correction or, preferably, a retraction of both articles.

2.7.1. They state that the pool in Khanya Street was never inaccessible, as claimed, and that there was in fact no pool in Khanya Street. They speculate that News24 must have been referring to the Rustdene pool, which is not far from Khanya Street.

2.7.1.1. They regard the publication of photographs and descriptions of the Rustdene pool as inappropriate and deceptive. They point out that this pool was never part of McKenzie’s pool-repair programme during his first 100 days or during his year as CKDM mayor.

2.7.1.2. They argue that News24 did not visit a single one of the five pools that were repaired, and instead relied on DA councillors who evidently only took them to the Rustdene pool and another facility that it was unable to enter because it did not arrange access with the municipality.

2.7.1.3. They also deny that the plumbing that replaced the bucket toilets was already broken. They submit that all the toilets were still in working condition when McKenzie stepped down as mayor.

2.8. In conclusion, the complainants identify the clauses of the Press Code that they believe the articles breach.

2.8.1. In relation to Clause 2.1, they add that the “political narratives” of the DA and SACP unduly influenced the two articles and that these were not clearly identified, bringing into doubt News24’s independence and professionalism.

2.8.2. In relation to Clause 10.1, they submit that the use of the word “mirage” in the headline gives the impression that McKenzie engaged in deception and reject this as “malicious in the extreme”.

News24

2.9. The respondents note that the PA takes umbrage with News24’s reporting on services that were not fixed or which broke soon after they were “allegedly” fixed. However, they submit, the PA does not mention the processes that McKenzie followed, or did not follow, to do so.

2.9.1. They further submit that the PA’s complaint is unclear and superficial, and contend that it does not identify any material issues. Instead, they argue, the PA simply has an issue with reporting that is critical of the party and its leader.

2.9.2. They go on to submit that its reporting on money that was not paid into a municipal account for which fundraising was undertaken was in line with the Press Code’s requirements in its preamble to serve society and to be guided at all times by the public interest.

2.10. In response to the PA’s complaint that the swimming pool in Khanya Street was never inaccessible, and that in fact a pool does not exist at this location, the respondents state that News24 visited all the pools mentioned in Article 1 and saw the dilapidation first hand. However, they offer to correct any captions of photographs that incorrectly identify the location of a pool.

2.10.1. They go on to state that the Rustdene pool is located on the corner of Khanya Street and an unnamed street, and that the other pool is located on Bird Street, near the corner of Molteno Street.

2.10.2. They further note that News24 sent a list of detailed questions to Motale, “who chose to act aggressively rather than respond in depth to our questions”. Nevertheless, they point out, his response was carried. (A list of its questions and follow-up questions is included as an attachment.)

2.10.3. With regard to the complaint that photographs of the Rustdene pool were published inappropriately and deceptively, and that DA councillors were their primary sources of information, the respondents deny that News24 reported that “no pools were repaired”.

2.10.4. They reiterate that they sent detailed questions to Motale, in line with the Press Code, and believe that the PA takes umbrage with the fact that News24 made use of “sources as well as boots on the ground reporting”. They argue that the PA cannot add facts after publication.

2.11. The respondents also take issue with the complaint that News24 did not investigate the flushing toilets but relied on hearsay from opposition politicians to arrive at the conclusion that the plumbing that replaced the bucket toilets was “broken”.

2.11.1. They state that, on the basis of this logic, journalists can never use eyewitness sources to describe what they saw. They add that the PA admitted in its response that the plumbing was broken and that News24 had noted the party’s response that the plumbing was fixed, but contend that the work was “shoddy”.

2.12. The respondents submit that the PA fails to deal with the crux of their articles – that McKenzie sought permission from the council to raise money for the municipality, and used the CKDM’s name and his status as mayor to hold the fundraiser.

2.12.1. They contend that he subsequently raised the money in a separate bank account “where there is absolutely no transparency or accountability mechanisms around where the money went and what it was spent on”. They insist that, even though McKenzie claims the money was used to fix certain things in the CKDM, this was not done – or, at best, shoddy work was done.

2.12.2. In response to the complainants’ comment that flushing toilets were installed “courtesy of McKenzie, and using not one cent of taxpayer or ratepayer money”, the respondents ask where that money came from, and state that this was the crux of Article 1.

2.12.3. They also ask why the money raised at the fundraiser was not declared or deposited into the municipality’s bank account. They submit that political leaders need to be accountable and adhere to the proper processes that govern municipalities. If not, they assert, leaders can do what they want with money meant for “the people”.

2.13. The respondents also address the PA’s comments that relate to the party’s rivalry with the DA. They argue that this matter falls outside the ambit of the Press Ombud and that News24’s questions were posed in the public interest and that of taxpayers.

2.14. With regard to the complainants’ reference to the looting of municipal funds by certain officials, the respondents argue that McKenzie seeks to distract attention from the allegation that he did not follow the appropriate processes. They submit that he attempts to do so by referring to allegations concerning Vatala who, they add, has not been arrested and was suspended by McKenzie himself.

2.14.1. They go on to note that the municipality received a clean audit for three years in a row before McKenzie became mayor.

2.14.2. They also note that McKenzie claimed to have raised the money in his personal capacity even though he sought permission and cooperation from the council to raise money for the CKDM. He then used the name of the municipality and his status as mayor to invite donors to the fundraiser.

2.14.3. They further state that, while the bank account in question still has to be audited, no evidence has been made available of “who the donors were, where the money went and how the money was spent”.

2.14.4. They also address the complainants’ point that the existence of a complaint about the donations with the Public Protector’s office does not, in itself, suggest anything untoward. They accept that there is no finding yet, but submit that the fact of the matter is that there is indeed a complaint at the Public Protector’s office and that its investigation is continuing.

2.14.5. With regard to the fact that News24 did not mention that Furmen laid the complaint with the Public Protector, they state that – “politics aside” – the fact of the matter is that a complaint was lodged.

2.15. Regarding the complainants’ challenge to produce evidence that the Bird Street pool was unusable in light of the fact that News24 never gained access to it, the respondents point out that News24 obtained “a bird’s eye view of the pool from the outside” and published these photographs.

2.15.1. They add that they saw garbage surrounding the facility as well as pool tiles that were dumped outside the facility after the wrong paint was used to repaint what was a perfectly functional pool. They state that this pool was now no longer functioning.

2.16. The respondents take issue with the complaint that the overall impression created by its reporting is that McKenzie or the PA raised money but did not do any substantive work in the municipality, and instead spent it on “something else”.

2.16.1. They dispute this and submit that News24 sent detailed questions to Motale and recorded his response in both articles. They further contend that the PA is now providing a slew of “alleged facts” after publication of the articles even though it had the opportunity to do so previously.

2.17. In conclusion, the respondents state that “no provision of guilt is administered”. But, they add, the articles ask questions about the true destination of the money that was raised, why it was not declared in terms of the PPFA and why it was not transferred to the municipality. They submit that no substantive answers were offered.

2.17.1. Instead, they repeat, Motale chose to be “extremely aggressive, insulting, and evasive”, which made it very difficult to get any solid answers from the PA.

2.17.2. They contend that the PA cannot continue to use the Press Ombud’s office to place facts on record as it suits them, and after publication, when they were sent questions before publication but chose not to respond to them.

Gayton McKenzie and PA

2.18. The complainants begin their response to News24’s submission by addressing its argument that they do not address the processes followed by McKenzie to raise money, but focus only on the services that were fixed or that broke down after they were allegedly fixed.

2.18.1. They reply that the money that was spent on services was not public money, and that the processes followed to raise and spend this money were therefore not subject to the Public Finance Management Act (PFMA), the MFMA or municipal laws and processes – something they believe News24 either does not want to acknowledge or is incapable of understanding.

2.19. The complainants reiterate that the Google Maps listing does not accurately provide the location of the pool that News24 refers to as being on Khanya Street. While they concede that this is not a material fact, they submit that News24’s captions are incorrect and confusing.

2.19.1. They go on to contend that News24 only visited a pool that no one in the PA claimed to have fixed, namely the Rustdene pool.

2.19.2. They further state that News24 stood outside the Bird Street pool and took a photograph of its interior from a distance.

2.19.3. They claim that the respondents preferred to spend their time with DA councillors and did not contact either the PA or the municipality, who would have been happy to take them to the five pools that were fixed.

2.19.4. They also submit that the respondents seem totally unaware of the pool at the Youth Hub that was repaired, and suggest that News24’s guides from the DA neglected to take them there.

2.20. The complainants go on to state that, in terms of the audi alteram partem rule, a conclusion can be reached only once the other side of the story has been witnessed. However, they believe, News24 did not comply with this obligation and instead relied on the DA for its information.

2.20.1. Based on this one-sided information, they contend, the respondents addressed “a multitude of hostile questions” to Motale and gave him a tight deadline by which to respond.

2.20.2. They submit that, despite Motale’s best efforts, News24 did not grasp “the reality” that he was trying to convey. They add that Motale was justified in feeling ambushed and that News24 was merely going through the motions in seeking comment from the subject of negative reporting before publication.

2.20.3 They contend that this was unethical and in breach of a number of clauses of the

Press Code.

2.20.4. Regarding News24’s response that it did not say that no pools at all were repaired, and that it contacted Motale for comment, the complainants reply that News24 believes it can get away with biased and inaccurate reporting simply by showing evidence of “some form of communication” with Motale.

2.21. The complainants reject the claim that the plumbing work on the flushing toilets was shoddy. They argue that one burst pipe – “in a project that involved nearly 100 installed flushing toilets” – was not evidence of shoddy work.

2.21.1. They attribute the claim about shoddy plumbing to News24’s reliance on sources who are all DA members. Instead of interrogating the DA’s account, they state, News24 merely repeated what they were told and without disclosing that their sources were from the DA. They argue that this was not responsible journalism.

2.22. In response to the respondents’ claim that the PA failed to deal with the crux of News24’s articles – that McKenzie sought council permission to raise money for the municipality, and that he used the CKDM’s name and his status as mayor to hold this fundraiser – the complainants point out that the council ended up not making any contribution to raising the money.

2.22.1. They also submit that there is greater accountability in the attorney trust account than in a municipal account, and point to the Auditor-General’s reports on most of South Africa’s municipalities over the last 10 or 20 years in support.

2.22.2. They again take issue with News24’s response that services were either not fixed or that the work that was done was shoddy. They question how News24 arrived at this conclusion and argue that it did not look at any of the pools that were fixed, nor did they look at the flushing toilets or water tanks.

2.23. The complainants then respond to News24’s question about where the money came from that was used to install flushing toilets and why this money was not deposited into the municipality’s bank account.

2.23.1. They state that this money was “private funds”, and that it was spent on improvements to the lives of vulnerable people. They suggest that News24 should have attempted to seek the views of just one beneficiary.

2.24. In response to the respondents’ claim that many of the PA’s complaints concern its political rivalry with the DA, and that this fell outside the ambit of the Press Ombud’s office, the complainants insist that News24 “was pushing a DA agenda at the expense of the PA – and never once declared this”.

2.25. The complainants deny that they referred to Vatala’s arrest in order to distract from News24’s contention that they did not follow due process with the fundraiser, and take issue with News24’s response that she was not arrested. They repeat their claim that Vatala was arrested and note that they sent News24 reports “that would have enlightened them on the facts”.

2.26. The complainants dispute the suggestion by News24 that the money that was raised was not spent “on what it should have been”. They deny this and argue that News24 found no evidence to prove this.

2.26.1. They reiterate their view that News24 did not visit any of the projects on which the money was spent. As a result, they believe, News24 was conveniently able to arrive at the conclusion that nothing was done.

2.27. The complainants take issue with News24’s response to the complaint that it did not mention that Furmen was behind the complaint to the Public Protector about the fundraiser, and state that “the politics of things in South Africa are hardly ever an ‘aside’”. They dismiss such a view as naive.

2.28. The complainants deny that the Bird Street pool is unusable and submit that News24 only took the word of the DA. They contend that photographs “of something from the outside” does not prove much, but add that the tiles that were outside the pool should have been removed and note that the municipality has since done so.

2.29. In response to the question of why the money that was raised was not declared in terms of the PPFA, the complainants submit that the relevant legislation that applies in this matter is the PFMA – not the PPFA.

2.30. The complainants refute the respondents’ claim that they use the Press Ombud’s office to place facts on record as it suits them, and after publication, when they were sent questions beforehand but did not respond to these.

2.30.1. They submit that they have the right to approach the Press Ombud’s office for recourse when they feel they have been wronged.

2.30.2. They go on to ask what the facts are that they placed on record through their complaint that News24 was not aware of previously, and ask how Motale could have been responsible for providing these when he comprehensively answered all the questions that were put to him.

2.30.3. They further contend that Botha also went out of his way to try to be helpful and give News24 insight into the matters in question. However, they believe, News24 was determined to advance a certain narrative.

2.30.4. They conclude by claiming that News24 was aggressive towards them (not the other way round), and state that respect and courtesy will be reciprocated.

3. Analysis

3.1. I would like to start off by making two observations.

3.1.1. Firstly, the complainants argue that the two articles in question breach nine clauses of the Press Code. However, their complaint does not systematically identify the breaches in each article, but instead raises a number of issues in no particular order.

3.1.1.1. Furthermore, these issues sometimes overlap. As a result, those aspects of the complaint which relate to Clauses 1.3, 1.4 and 1.9 of the Press Code are sufficiently covered by aspects of other clauses identified in the complaint and will therefore not be addressed separately.

3.1.2. Secondly, the complainants make various claims about the PA and the DA. However, it must be emphasised that the Press Ombud’s office does not concern itself with issues relating to political contestation between parties.

3.1.2.1. Its sole mandate is to ensure adherence by subscriber members to the Code of Ethics enshrined in the Press Code.

3.2. The crux of this matter revolves around money that McKenzie raised at a fundraising dinner to pay for certain services in the CKDM and whether that money was indeed spent on those services. I will address these aspects in turn.

3.2.1. The Council minutes of 19 May 2022 note that it is imperative that McKenzie embark on “a fund-raising initiative” with the assistance of the CKDM, and record that the Sandton dinner was to be the first fundraising event as part of this initiative.

3.2.2. However, according to the complainants, the Council ultimately did not contribute to the fundraising initiative at all and McKenzie used his own name to raise the funds.

3.2.3. The official invitation invites potential guests to “join the new District Mayor of the Central Karoo, Councillor Gayton McKenzie, … to share in the invigorated mission and vision of the heartland of South Africa”.

3.2.4. Because McKenzie used his own name to raise funds at the dinner, the complainants contend, there was no obligation to deposit the money into the CKDM’s bank account.

3.2.5. However, what complicates this argument is that the invitation refers to McKenzie in his official capacity as District Mayor and specifically uses his official designation as Councillor.

3.2.6. Nevertheless, it is not for the Press Council to make a determination on whether or not the complainants were legally entitled to deposit the money into an attorney trust account rather than into the CKDM’s bank account.

3.2.7. That is a matter that falls under the jurisdiction of government and its relevant law-enforcement agencies, and is outside the ambit and expertise of the Press Ombuds office. In fact, as noted earlier, the matter is already the subject of two complaints lodged with the Public Protector’s office by the SACP.

3.2.8. It is also for the government and its relevant agencies to determine which particular legislation applies to the money raised at the Sandton dinner and whether the complainants acted in compliance with the relevant legislation.

3.2.9. The complainants claim that they did not want to place the funds in the hands of municipal officials whose financial probity was open to question. They point out that they intend to account for the money and submit that the attorney trust account into which the money was placed was currently being audited.

3.2.10. According to Botha, the audit report is due in August 2023, and Motale says that McKenzie is scheduled to appear before the CKDM during the second week of September to present “his full report of the work done and money used” (Article 2).

3.2.11. Despite conflicting claims by Botha and Motale on the appointment of auditors, it would be premature to make any pronouncements on the complainants’ commitment to account for the money raised.

3.3. According to the Council minutes of 19 May 2022, the purpose of McKenzie’s fundraising initiative was to raise funds for certain “quick-win projects”. These included the repair of damaged swimming pools, the eradication of bucket toilets and the repair of certain potholes.

3.3.1. News24 refers to the Rustdene and Bird Street swimming pools in Article 1, with several accompanying photographs, and states in Article 2 that “[t]wo swimming pools McKenzie had promised to fix or had ‘fixed’ stood in a state of dilapidation” (this is presumably a reference to the Rustdene and Bird Street pools).

3.3.1.1. However, the complainants deny that the Rustdene pool was ever included on McKenzie’s list of pools to be fixed and identified the two Beaufort West pools targeted for repair within his first 100 days in office as the Bird Street and Youth Hub pools – which, they submit, were indeed repaired.

3.3.1.2. News24 does not make any reference to the Youth Hub pool in its articles, nor does it offer any explanation in its response why it does not do so.

3.3.1.3. The complainants further point out that, by News24’s own admission, it was unable to access the Bird Street pool and contend that it was therefore not in a position to assess its condition.

3.3.1.4. News24 does indeed not provide any conclusive evidence that this pool is not functioning; it did not gain access to the pool and merely states as a matter of fact that it is not functioning. The tiles and other garbage dumped outside the pool do not necessarily mean that the pool itself is not functioning or is unusable.

3.3.1.5. There are thus grounds to conclude that News24 did not take sufficient care to report accurately about the state of the Bird Street pool, in breach of Clause 1.1 of the Press Code, nor did it verify that the pool was not usable, in breach of Clause 1.7.

3.3.1.6. By the complainants’ own admission, the reference to the location of one pool – namely, Rustdene – as being on Khanya Street is not material. Furthermore, News24 did make an effort to confirm the correct location of the pool by consulting Google Maps and cannot be held responsible if Google Maps incorrectly identified the location.

3.3.2. The complainants further deny that the installation of flushing toilets was a failure, and argue that News24 did not inspect these toilets.

3.3.2.1. There is some merit in this claim. Article 1 simply quotes an unidentified CKDM councillor that “shoddy work to install sewerage systems to replace the bucket system had broken not long after it was installed”.

3.3.2.2. One of the questions News24 sent to Motale also suggests that it did not have any first-hand information to support this claim. It merely states that “News24 understands that the plum[b]ing installed by a contractor has already fallen apart because of the shoddy job that was done” (my emphasis).

3.3.2.3. Furthermore, in their response to the complaint, the respondents simply point to “eye-witness sources”, but do not provide any first-hand information to support the claim in Article 1 that the sewerage systems that replaced the bucket toilets broke soon after they were installed. That is both unfair (a breach of Clause 1.1) and a failure to verify its information (a breach of Clause 1.7).

3.3.3. News24 maintains that many roads were “riddled” with potholes when it visited Beaufort West in May 2023 (Articles 1 and 2), while the complainants claim that the potholes were fixed (Article 1).

3.3.3.1. However, the complainants do not offer any explanation as to why News24 found so many potholes a year after McKenzie promised to fix those on the main routes in the Beaufort West area.

3.3.4. According to Article 1, only one factory – “established long before McKenzie became mayor” – was still in operation at the Harding Avenue premises in Beaufort West. However, Motale rightly points out in the same article that it is in the nature of business that some ventures succeed, while others do not.

3.3.4.1. Furthermore, News24 does not dispute the complainants’ claim that some ventures are still operational elsewhere. The fact that News24 visited one factory in Harding Avenue, and found the premises deserted (apart from one factory), does not mean that McKenzie did not make any efforts to provide assistance to other local businesses elsewhere or that they all failed as well.

3.3.4.2. This aspect of the report is therefore unfair (in breach of Clause 1.1) and not adequately verified (in breach of Clause 1.7).

3.4. For the reasons outlined under point 3.3, there is insufficient evidence to support News24’s blanket statement in Article 1 that, when it visited Beaufort West in May 2023 to assess the work McKenzie had promised to do in his first 100 days as mayor , “the services had already collapsed”.

3.4.1. It rightly qualifies this claim in Article 2 by stating that “some services had already collapsed” (my emphasis).

3.5. The complainants do not provide any evidence that the SACP unduly influenced the content of either of the two articles. The party is only mentioned once – in relation to the complaints lodged with the Public Protector’s office about the funds raised in Sandton (Article 1).

3.5.1. No evidence whatsoever is provided of any other “SACP submissions”, whether explicitly or implicitly, in either article.

3.6. However, there is some merit in the claim that the DA’s “submissions” are not fully disclosed. Schaun Meyers is not identified as a DA ward councillor in Article 1. This omission is peculiar and is deemed to be in breach of Clause 1.2 of the Press Code in that it presents Meyers as being an impartial source when he is clearly not.

3.6.1. It is also unclear why the CKDM councillor quoted in Article 1 is not named (see point 3.3.2.1).

3.6.2. It is hard to avoid the impression that omitting Meyers’ party affiliation and quoting an unidentified source was deliberate. This omission and the unexplained use of an anonymous source bring into doubt the independence and/or professionalism of News24, and risks being in breach of Clause 2.1 of the Press Code.

3.6.3. However, in the absence of additional and conclusive evidence, the omission of Meyers’ party affiliation is deemed to be a breach of Clause 1.2 (see point 3.6 above).

3.7. The complainants object to the word “mirage” in the headline of Article 1, McKenzie’s mirage: Money PA leader ‘raised’ for Karoo town was never deposited into its account, and submit that it is malicious and gives the impression that McKenzie engaged in deception.

3.7.1. The Collins English Dictionary: Millennium Edition describes the word “mirage” as “something illusory” and, in turn, describes the word “illusory” as meaning “deceptive or unreal”.

3.7.2. The use of the word “mirage” in the headline, then, suggests that it was deceptive of McKenzie to raise money for the CKDM, but not deposit this money into the municipality’s bank account.

3.7.3. However, according to the complainants, they informed News24 before publication of Article 1 that the municipality did not contribute anything to the fundraising event and furthermore that, in view of financial misconduct by certain municipal officials, they believe it would have been inappropriate to place the donations in the hands of the municipality. The article duly records their claim that it would have been “unconscionable” to entrust the municipality with the money raised.

3.7.4. It is therefore misleading for News24 to present the fact that the money was not deposited into the municipality’s account as a disclosure of major significance in the headline, with the implication that this was improper, when it was informed prior to publication of the article that the complainants had reservations about the financial probity of the CKDM. Moreover, this viewpoint was reflected in the article.

3.7.5. Also, Article 1 notes the complainants’ view that the money that was raised was not municipal money. As noted earlier, whether or not this was indeed the case still needs to be determined by the relevant authorities in terms of the applicable legislation (see points 3.2.7 and 3.2.8 above).

3.7.6. By News24’s own admission, “no provision of guilt is administered. But questions are asked as to the true destination of that money, why it was not declared in terms of the PPFA or why the money was not transferred to the municipality” (see point 2.17).

3.7.7. Accordingly, the use of the word “mirage” in the headline is deemed to be in breach of Clause 10.1 of the Press Code.

3.8. The complainants believe that News24 is in breach of Clause 10.2 by publishing photographs of the Rustdene pool when, according to them, it was not among the pools earmarked for repair by McKenzie within his first 100 days as CKDM mayor.

3.8.1. Be that as it may, it appears that News24 included the Rustdene pool in the list of pools selected for repair in good faith on the basis of information at its disposal. There are no grounds to suggest any deliberate intent to mislead or misrepresent.

3.8.2. However, it does need to be clarified in Article 1 that the Rustdene pool was mistakenly included in the list of pools to be fixed during McKenzie’s first 100 days in office. This is not disputed by News24 in its response to the complaint.

3.8.3. It is therefore recommended that the number of photographs of the Rustdene pool be reduced from the current nine as the undue focus on this pool perpetuates the impression that it was indeed earmarked for repair during McKenzie’s first 100 days in office. The relevant captions of any remaining photographs should be amended accordingly as well.

4. Finding

The complaint that the article is in breach of Clause 1.1 is upheld (see the reasons set out under points 3.3.1.5, 3.3.2.3, 3.3.4.1 and 3.3.4.2 of my Analysis).

The complaint that the article is in breach of Clause 1.2 is upheld for the reasons set out in point 3.6 of my Analysis.

The complaint that the article is in breach of Clause 1.3 is dismissed for the reasons set out in points 3.1.1 and 3.1.1.1 of my Analysis.

The complaint that the article is in breach of Clause 1.4 is dismissed for the same reasons set out in points 3.1.1 and 3.1.1.1 of my Analysis.

The complaint that the article is in breach of Clause 1.7 is upheld (see the reasons under points 3.3.1.5, 3.3.2.3, 3.3.4.1 and 3.3.4.2 of my Analysis).

The complaint that the article is in breach of Clause 1.9 is dismissed for the reasons set out in points 3.1.1 and 3.1.1.1 of my Analysis.

The complaint that the article is in breach of Clause 2.1 is dismissed (see the reasons under points 3.6 and 3.6.3 of my Analysis).

The complaint that the article is in breach of Clause 10.1 is upheld for the reasons set out under points 3.7.1 to 3.7.7 of my Analysis.

The complaint that the article is in breach of Clause 10.2 is dismissed for the reasons set out in point 3.8.1. However, the recommendations made under points 3.8.2 and 3.8.3 must be implemented in order to correct any misleading impressions created by the use of nine photographs of the Rustdene pool.

Firstly, News24 is required to publish, as a new and separate article, an apology to the complainants for breaching Clauses 1.1, 1.2, 1.7 and 10.1 of the Press Code. The apology should be linked to the two articles of 10 and 17 June 2023, and should also be published below the two original articles. A note should be published between the headlines and the text of the original articles, stating that the Deputy Press Ombudsman had made a finding about the articles, and referring readers to the apology below the articles. The headline of the apology should contain the words “apology”, “Gayton McKenzie” and either “Patriotic Alliance” or “PA”, and the text of the apology should:

• be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
• be published online as well as on all platforms where the article complained about was published;
• refer to the complaint that was lodged with this office;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
• be published with the logo of the Press Council; and
• be approved by this Deputy Press Ombud.

Secondly, the June 10 article should be amended:

The headline should be amended, and the word “mirage” deleted, as there is no legal finding that McKenzie engaged in deception by not depositing the funds raised at the Sandton dinner into the CKDM’s bank account.

Councillor Schaun Meyers should be identified as a DA councillor.

The CKDM councillor who is not named should be identified, unless there is a valid reason, but his or her party must be identified.

Thirdly, the number of photographs of the Rustdene pool in the June 10 article should be reduced in view of the erroneous inclusion of this pool in McKenzie’s list of pools earmarked for repair during his first 100 days in office as CKDM mayor. Where appropriate, the captions should be amended accordingly as well.

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]

Tyrone August

Deputy Press Ombudsman

14 August 2023