Appeal Decision: News24 vs Adriano Mazzotti
SUMMARY
The articles in question were headlined, Top cop attending EFF gala a ‘shameful, offensive’ slap in the face of South Africans – Public Interest SA (published on 30 July 2023); and, Adriaan Basson| It’s easy to criticise Malema, but what about the thousands of EFF supporters? (published the next day).
This ruling by the Appeals Panel was based on the Press Code that became effective on 30 September 2022.
News24 applied for leave to appeal against a ruling by the Adjudication Panel chaired by the Press Ombud, dated 16 February 2024. The ruling was on complaints lodged by Adriano Mazzotti.
He originally complained that the first article incorrectly stated that it was he who had donated money, and not his company Carnilinx; that a donation (of R200 000) was to the EFF and not to its leaders (to register for the general elections); and that he (or the company, for that matter) “donates”, when the donation was made only once.
Immediately below the text a picture of him, his wife, and Julius Malema, with hid wife. The statement accompanying the picture conveyed the false idea that he had been involved in extracting and smuggling minerals, he added. He also said that he was not given a right of reply.
Regarding the second article, Mazzotti was irked by the following statement: “Malema’s biggest known funder is a confessed cigarette smuggler, Adriano Mazzotti and Carnilinx, who was proudly acknowledged by Malema at the EFF’s fundraising dinner on Thursday.”
The Panel agreed that the statement that Carnilinx “donates” money to the EFF and its leaders was misleading as it conveyed the false impression of a continuing exercise.
The wording “that Malema is funded by Mazzotti and Carnilinx” was found to be a statement of fact, and not as an opinion – which made it false.
The Panel News24’s application for leave to appeal.
THE RULING ITSELF
BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between
NEWS24 APPLICANT
and
ADRIANO MAZZOTTI RESPONDENT
DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
- This is an application by News24 (applicant) for leave to appeal the Ruling by a panel chaired by the Ombud of the Press Council, dated 16 February 2024. The Ruling was on complaints lodged by Mr Adriano Mazzotti (respondent) against the applicant in respect of two online articles published by the applicant. The first article was published on 30 July 2023, headlined “Top cop attending EFF gala a ‘shameful, offensive’ slap in the face of South Africans – Public Interest SA”. The second article was published on 31 July 2023, with the headline “Adriaan Basson| It’s easy to criticise Malema, but what about the thousands of EFF supporters?”
- It deserves to be mentioned that unlike in many instances where for that matter attorneys are used, the respondent’s attorneys formulated the complaints succinctly without being unduly overdetailed and voluminous.
The complaints
- The one particular part in the first article on which complaints were based was the following:
“Khan was seated with Mazzotti who has admitted to tax authorities that he and his company Carnilinx, which donates money to the EFF and some of its leaders was involved in cigarette smuggling.” The respondent’s complaint was that the statement was false and incorrect in certain respects: firstly, that it was the respondent who donated money, and not his company Carnilinx; secondly, the donation (R200,000.00) was to the EFF and not to its leaders, which money was for the party to register for the general elections; thirdly, it was incorrect to state that the respondent (or the company for that matter) “donates”, when the donation was only once; fourthly, respondent argued that he was not given the right to respond prior to publication. In the circumstances, the respondent contended that the applicant acted in breach of clauses 1.1, 1.2, 1.7 and 1.8 of the Press Code.
- The respondent also complained about the following statement in the first article:
“The willingness of certain political parties to associate with and support individuals involved in unlawful extraction and smuggling of Sub-Sahara Africa’s precious minerals is a clear display of moral depravity, Khaas said.” This statement was placed immediately below a photograph depicting the respondent, his wife, Mr Malema and his wife, captured standing together in an apparent conversation; there is a note at the bottom of the photo indicating it had been taken by the applicant; the note reads: “Adriano Mazzotti seen with Julius Malema at the EFF’s gala dinner event.”
They are, in the photo, standing in an apparently luxurious reception area with a seemingly expensive carpet. Briefly, the complaint was that whereas Mr Khaas had made certain statements regarding the respondent, the applicant failed to verify the information given to it by Mr Khaas. It was argued, amongst others, that the photo conveyed that the respondent was one of the people extracting and smuggling minerals, whereas he had nothing to do with that. Here too it was complained that the respondent was not given the right to reply. It was therefore alleged that the applicant breached clauses 1.1, 1.7 and 1.8.
- Regarding the second article, the respondent was irked by the following statement:
“Malema’s biggest known funder is a confessed cigarette smuggler, Adriano Mazzotti and Carnilinx, who was proudly acknowledged by Malema at the EFF’s fundraising dinner on Thursday …”. The complaint here is that, as in the case of the complaint in paragraph 3 above, the statement was incorrect in the following respects: it was the respondent who donated money, and not Carnilinx; the money was R200,000.00 to the EFF as a political party to register for the elections and not to Malema personally; the applicant was also challenged to show that the respondent was the “biggest known funder”. It was therefore argued that the applicant breached clauses 1.1, 1.2 and 1.7.
- The respondent asked that the applicant be ordered to correct the above statements and to apologize.
Applicant’s response
- In its response to the complaint set out in paragraph 3 above, the applicant did not contest it, but offered to rectify. Regarding the complaint set out in paragraph 4, the essence of the applicant’s argument was the following: the complainant had in the past admitted to the smuggling of cigarettes and tobacco products; minerals in this context, argued the applicant, refers “interchangeably with the meaning of the word ‘resources.” In response to the complaint in paragraph 5, the applicant said that the statement was an opinion piece. The applicant also argued, in effect, that there should not be any distinction between donating to Malema as an individual on the one hand, and, on the other hand, to the EFF as a party; that is, there should be no distinction made between the two. That was the crux of the argument.
The Ruling
- The Ruling made certain findings; however, for the purpose of this application, I only deal with the ones in respect of which leave to appeal is sought, namely paragraphs 104.1, 107.1 and 107.2. In doing so, I do not intend to repeat the points made in the Ruling.
- Re paragraph 104.1 of the Ruling: The Ruling found that this statement was in breach of clauses 1.1, 1.3 & 1.7 by stating as a fact in the first article that Carnilinx donates money to the EFF and its leaders. The applicant referred to, and sought to rely on, an affidavit made 10 years ago by the respondent stating that it was Carnilinx which donated money to the EFF. The respondent countered that it had been repeatedly publicly stated that the affidavit was corrected. Another problem with the statement is that, by using the word “donates”, an impression of a continuing exercise is conveyed while there was only one act of donation done a long time ago for a singular specific purpose, namely, registration for particular elections. I believe the Ruling dealt with this complaint correctly. The complete sentence says the donation is to the “EFF and its leaders”; excising the admittedly incorrect part, namely, “and its leaders”, does not assist the applicant.
- Re: Paragraph 107 of the Ruling: It says the applicant is in breach of clause 1.1 in two ways.
10.1 Firstly, sub-paragraph 107.1 says the applicant did so by stating “as a fact that Malema is funded by Mazzotti and Carnilinx”. In other words, the issue is whether the statement is put as a fact or an opinion. In its application for leave to appeal, the applicant in effect says that the Ruling left open the question whether or not the statement is an opinion or a fact, and that “the matter cannot be left undecided; it is a necessary building block for a considered finding on the statement complained of”. There is nothing left open or undecided, nor is there a need for the clarification of anything by the Appeals Panel. As the Appeal Panel has repeatedly stated, for a statement to be an opinion, it must, as the Code demands, be clearly so presented. In truth the finding of the Ruling is that this was not done. Irrespective of where the “opinion” is located (and nobody is burdening a publication with a duty to place it in a particular section) it must be clearly presented as an opinion. The finding is that this was not done.
10.2 Sub-paragraph 107.2 of the Ruling says clause 1.1 was breached by implying “that Mazzotti/Carnilinx is a current and major funder”. Of course Carnilinx did not make a donation, let alone being a current or major funder.
11. I should have indicated earlier that whereas the applicant specifically restricted itself to paragraphs 104.1, 107.1 and 107.2 of the Ruling in this application, its submissions are not presented in a manner that is clinically alignment to these paragraphs. I therefore deal with some of the sub-headings created by the applicant in its application, under which some submissions were made:
11.1 “Malema’s biggest known funder”: To the extent that the applicant seeks to argue that the statement is an opinion piece, there is no merit. The applicant says the author “expressed the opinion that based on what is known (applicant’s own underlining), he believes Mazzotti to be the biggest funder.” As the respondent indicates, in an attempt to bolster its argument that what is said is an opinion piece, the applicant now seeks to say the author “believes” Mazzotti to be the biggest funder. This qualification was not used in the article.
11.2 “Conflation of individuals and entities”: To bolster its application for leave to appeal, the applicant says that it “seeks the opportunity to clarify the matter of conflation before the Press Appeals Panel”. This argument is based on the startling proposition that we should not distinguish between an individual who has shares or interest in a company on the one hand, and the company itself on the other hand; or between the leader of a political party on the one hand and the political party itself on the other hand. The argument, from a legal point of view, is unsound. Whether there have previously been conflations which people did not complain about, is irrelevant and does not change the law.
- I am satisfied that the Ruling properly dealt with the issues raised and was correct in the findings it made. The applicant has no reasonable prospects of success on appeal. In the circumstances; the application is dismissed.
Dated this 26th day of March 2024.
Judge B M Ngoepe, (Retired Judge President): Chair, Appeals Panel
