Viroshini Naidoo vs News24

SUMMARY

The article in question was headlined, Gupta ‘Fixer’ Kuben Moodley asks court to relax bail to travel to India (published on 8 December 2023).

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

 

The article was a court report about an application by Kuben Moodley to relax his bail conditions to travel to India. He stood accused on charges of fraud, corruption and money laundering.

The complainant was Moodley’s wife, Viroshini Naidoo, who was a former Eskom board member. She contended that she had nothing to do with the court proceedings, hence there was no need for News24 to mention her (and her children). She complained that her privacy, dignity and reputation were tarnished, and that the story was not in the best interests of her children.

The Press Ombud, Herman Scholtz, dismissed the complaint in its totality, arguing inter alia that:

• the article was accurate, impartial, and in the public interest;
• it was relevant to have named the complainant, as she was on the board of Eskom, a company that has been named as one of the most serious Gupta-captured entities by the Zondo Commission, and that she was appointed by the highly discredited Minister Lynne Browne;
• it was relevant to mention the children as Moodley had argued in court that he needed to attend the religious event with his children while they were still young;
• while the children were mentioned, there was no information about their ages, schools, gender, names, surnames, or home suburbs; and
• information that was already in the public domain could not be classified as “private”.

 

THE RULING ITSELF

Ruling by the Press Ombud

Date of article:                    8 December 2023

Headline of publication:   “Gupta ‘fixer’ Kuben Moodley asks court to relax bail conditions to travel to India”

Author:                                  Belinda Pheto

 

1. The complainant is Viroshini Naidoo.

2. News24 is the respondent publication. The publication’s public editor, George Claassen, responded.

3. The ruling is based on written representations by the parties.

4. The Public Advocate declined to accept the complaint as he found no prima facie breach of the Press Code. Naidoo exercised her right to nevertheless request an adjudication.

Background

5. The headline of the article says it all. It is a court report about an application by Kuben Moodley to relax his bail conditions. Moodley stands accused on charges of fraud, corruption and money laundering in the Johannesburg Specialised Commercial Crimes Court sitting in Palm Ridge.

6. It is not Moodley who complains, but his wife, Veroshini Naidoo, who also appears to complain on behalf of her children.

7. Naidoo was mentioned in the report as follows:

“Moodley is married to former Eskom board member Veroshini Naidoo, who was appointed to the board by disgraced former public enterprises minister Lynne Brown.

“Moodley told the court he needed to attend the religious event with his children while they were still young.”

8. According to the report, Magistrate Philip Venter granted Moodley permission to travel to India to attend a Hindu festival.

9. There is no insinuation that the journalist did not report accurately on the court proceedings.

10. The contentious part is that Naidoo would have much rather have been omitted from the report.

Complaint

11. The crux of Naidoo’s complaint is that she had nothing to do with the court proceedings. She is not an accused and therefore did not have to seek the leave of the court to travel.

12. Moreover, Naidoo says, she has not been part of Eskom’s board since 2016 and there was no public interest to mention her. Neither her name nor the children were mentioned in the court papers.

13. She says the publication put her and her children at risk through the reportage.

14. While Naidoo lists various clauses of the Press Code that were allegedly breached, I am mindful that the complainant is a layperson who – very ably – formulated her complaint. The ruling will focus on the most appropriate clauses cited.

15. In broad terms, the complaints centre around clause 3 (privacy, dignity and reputation) and clause 8 (special interest of children)

Privacy and reputation

16. Clause 3.1. requires the media to exercise care and consideration in matters involving the private lives of individuals.

17. In terms of clause 3.3., the dignity and reputation of people are also to be upheld, which may be overridden only if there is a public interest and one of five specified scenarios are present.

18. These scenarios, which must co-exist with public interest, are:

18.1 The reportage of facts that are true or substantially true;

18.2 Protected commentary;

18.3 The fair and accurate reporting of court proceedings or other privileged occasions.

18.4 If it was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct; or

18.5 The article was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party.

19. Naidoo says the journalist “intended to impugn (her) reputation”, there was no public interest to mention her or to infer where she is travelling.

20. She says she received numerous calls from people asking about her alleged trip to India. “It is not my intention to discuss my religious beliefs, customs and whereabouts with anyone. Especially in relation to my minor children.”

21. Claassen says there is no reason not to have named Naidoo. “The relevance is that she was on the board of Eskom, a company that has been named as one of the most serious Gupta-captured entities by the Zondo Commission, and that she was appointed by the highly discredited…Minister Lynne Browne.”

22. The children’s names are not mentioned, Claassen says. “But mentioning them without naming them is indeed relevant because the story of News24 is based on Moodley’s argument in court that he ‘needed to attend the religious event with his children while they were still young’. News24 surely could not have omitted this because it was the main thrust of Mr Moodley’s reasons for applying to have his bail conditions relaxed.”

23. News24 says it was reporting on a privileged occasion, being court proceedings.

24. In reply, Naidoo takes exception to the reference to Eskom. She says her husband’s criminal trial involves Transnet and not Eskom. Moreover, the Zondo Commission made no negative findings against her. According to her, she has been requested to be state witness in Eskom matters and she has been exonerated.

25. Naidoo says the children were not part of the initial application. “(Mr Moodley’s) advocate simply mentioned the timing may have been relevant to their age, however this was not the ‘main thrust’ of the application.” It is therefore common cause that the children were discussed during the court proceedings – albeit in argument from the bar.

26. I will first deal with the aspect of privacy.

27. This consideration can only come into play where actual private information is divulged.

28. This office has repeatedly held that information that is already in the public domain cannot be classified as “private” and that there could be no reasonable expectation of privacy. (See: Dr Maiendra Moodley vs News24) Naidoo’s marriage relationship with Moodley is not private. Neither is it private that Naidoo served on Eskom’s board during a controversial period.

29. The closest to “private” information being shared, is that minor children would apparently travel to India for an unspecified Hindu festival.

30. Not all personal information or particulars about individuals’ lives are equally private. Some information is of such private nature that the media will never be justified in disclosing such information while other information cannot be classified as truly private. The question is not only what an individual’s subjective expectation of privacy is. This is to be tempered through an enquiry of what is objectively reasonable to arrive at a reasonable expectation of privacy.

31. In my view, the privacy of Naidoo and the minor children were not infringed at all and this ought to be the end of the enquiry.

32. If I am wrong in that finding, any minimal invasion of privacy was justified in terms of the Press Code.

33. Naidoo concedes that the children’s involvement was argued in court. As indicated above, there is no suggestion that the journalist did not report on the court proceedings accurately and fairly. There is similarly no suggestion that the court proceedings were not in the public interest. It most definitely was.

34. I am also in agreement with Claassen that the existence of the children could not have been ignored under these circumstances.

35. Any privacy infringement (if it existed), was therefore justified under clause 3.1.3. of the Press Code.

Reputation

36. Naidoo says she is “constantly maligned by journalists for no wrong-doing on (her) part”. Her former involvement with Eskom is consistently brought up without valid reason.

37. Again, the test for defamation is an objective one, being the so-called reasonable reader test.

38. In this matter, Moodley wanted to take his children (and presumably his wife) to India for a religious festival. The Magistrate reportedly “questioned the timing of the trip, saying it looked like a convenient time for a family vacation”.

39. In this context, Naidoo’s name is mentioned as Moodley’s wife and that she happens to be a former state-owned company board member during the state capture era as well.

40. Says Claassen: “News24’s report does not state that she is implicated in her husband’s alleged crimes, but merely that she was on Eskom’s board and appointed by the disgraced Brown.”

41. I agree. A reasonable reader would not seek to draw inferences beyond what is stated in a report and read the article as a whole (See: Hasina Kathrada vs Times Live)

42. A complaint that Naidoo’s reputation was impacted cannot be upheld.

Children

43. The complainant specifically complains about the best interest of children and the duty of the media protect children.

44. Clause 8 of the Press Code reads:

“In the spirit of Section 28.2 of the Bill of Rights the media shall:

8.1 exercise exceptional care and consideration when reporting about children. If there is any chance that coverage might cause harm of any kind to a child, he or she shall not be interviewed, photographed or identified without the consent of a legal guardian or of a similarly responsible adult and the child (taking into consideration the evolving capacity of the child); and a public interest is evident;

8.2 not publish child pornography; and

8.3 not identify children who have been victims of abuse or exploitation, or who have been charged with or convicted of a crime, without the consent of their legal guardians (or a similarly responsible adult) and the child (taking into consideration the evolving capacity of the child), a public interest is evident and it is in the best interests of the child.

45. Naidoo provided some detail about how the reportage has affected her children negatively. I do not repeat the details as the complainant specifically requested it not to be published.

46. This office has taken a strong stance about the identification of children when, for example, their parents were accused in criminal cases. In Jason Rohde vs You, the then Press Ombud said it can be accepted that the identification of children amidst a criminal trial involving their parents would add to the children’s trauma.

47. However, therein lies the difference: the children in this matter were not identified. There is no information about their ages, their schools, gender, names, surnames, or home suburbs.

48. It is only the children’s existence – which was germane to the court proceedings – that is mentioned.

49. While I sympathise with the plight of children of prominent members of society who find themselves under media scrutiny, it is unfortunately a reality. Every child whose parent – prominent or not – is accused of a crime can be expected to face challenges in their communities where several people are bound to know about their parent’s conduct, whether it is published in the mass media or not.

50. The ethical duty of the media is not to amplify the trauma of the children unnecessarily through conduct such as the Rohde matter where pictures of the children were published.

51. News24 did not cross the line in this matter.

Conclusion

52. The complaint is 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

19 June 2024