News24 vs Gayton McKenzie

Before the Appeal Panel of the Press Council of South Africa

Case number: 32077/11/2024

In the matter between:

News24                                                                                                                Appellant

and

Mr Gayton McKenzie                                                                                     Respondent

Findings

  Background and Context

• On the 14^th of October 2024, News24 published an article entitled ‘Send me! McKenzie’s gravy train to Paris Olympics cost taxpayers R 800 000.’ Mr Gayton McKenzie, the respondent, is a minister in the Government of National Unity. In essence the article written by Mr Jan Gerber stated that Minister McKenzie’s trip to the Paris Olympics cost the taxpayer more than R 800 000. It referred to his intention to stop paying for superfans and to use that money ‘where it is needed most.’ The article then referred to the answers to parliamentary questions posed to Minister McKenzie. It stated that the responses revealed that the amount of R1.8 million spent on Minister McKenzie and his officials exceeded the total of R1.3 million spent on superfans. It recorded than 146 South African athletes attended the games. Quoting directly from the response to the questions, the article indicated that invoices in respect of the cost of sending the athletes were still being processed. However the budget for the support, preparation and delivery of Team SA to the Olympics was R 27 892 000. It also noted a response from the Minister that 8 officials, including himself, went at a total estimated budget of R 1 805 335.74. Extrapolating from these responses, the article stated that on average, around R 191 000 was budgeted per athlete compared to the R1.8 million for Minister McKenzie and his officials. Minister McKenzie, in his written response, confirmed that he had attended the Olympic Games in Paris and that his attendance at the Games cost R804 590.71. This amount comprised ground transport of R 454 005, flight costs of R215 976.36, accommodation of R113 271 and other costs relating to subsistence allowances and insurance.
• This complaint was lodged on Minister McKenzie’s behalf by his special advisor, Mr Charles Cilliers. In essence, Mr Cilliers asserted that the headlines, the contents and the failure to seek the views of the complainant prior to publication amounted to an infringement of a number of provisions of the Code of Ethics and Conduct (the Code). Mr Cilliers submitted that clauses 1.1, 1.2, 1.3 and 10.1 of the Code were infringed and he requested various remedies. The contents of the article drew heavily on answers submitted by Minister McKenzie to the parliamentary portfolio committee on Sport, Arts and Culture in response to questions posed.
• The Deputy Press Ombud (DPO) rejected some of the complaints but upheld four complaints and made orders as to appropriate remedies. Dissatisfied with these findings, News24 made application for leave to appeal against the adverse findings of the DPO that pertain to it. There was no application for leave to appeal by or on behalf of Minister McKenzie in respects of those complaints that were dismissed by the DPO. Therefore the decision on the application for leave dealt exclusively with the application for leave to appeal submitted by News24 in respect of the four adverse findings against it. Judge Bernard M Ngoepe, the Chair of the Appeals Panel of the Press Council of SA, requested that I consider the application for leave to appeal on his behalf. The application for leave to appeal made by the appellant against all four adverse findings made against it by the Deputy Press                                                                                                                                                                                                  Ombud in this matter, was granted.
• At a virtual hearing held on the 27^th March 2025, a panel comprising Ms Helene Viljoen, Mr Tshamano Makhadi and myself heard the oral representations made by representatives of the parties after reading their detailed written submissions. We are grateful to both Dr G Claassen and Mr C Cilliers for their helpful submissions. These are the unanimous findings of the panel.

Findings pertaining to the headlines

• For the reasons stated in his findings, the DPO found that the headline was problematic and misleading and therefore in breach of Clause 10.1 of the Press Code. Part of the reasoning was that the headline, in the opinion of the DPO, suggested or implied that Minister McKenzie had requested to go on the trip. It is not disputed that Minister McKenzie did not make such a request.  The headline to the article read ‘Send me! McKenzie’s gravy train to Paris Olympics cost taxpayers R 800 000.’ Clause 10.1 of the Code provides:

‘Headlines, captions to photographs and posters shall not mislead the public and shall give a reasonable reflection of the contents of the report or photograph in question;’

• Dr Claassen argued that the DPO erred materially in making the findings pertaining to the headlines. He contended that the words ‘send me’ were not placed in quotation marks and that this was done deliberately to convey to readers that these words were not uttered by Minister McKenzie. He submitted that there was a long line of precedents that have held that the use of quotation marks is sufficient to identify the words as an allegation made by, or an opinion of another. According to the appellant, the converse applied and the absence of quotation marks has been held to convey a statement, interpretation or paraphrase by the publication. Reliance was placed on the ruling in AfriForum v Sunday World [1]where the deputy press ombud held:

‘The newspaper is correct in their argument that the absence of quote marks indicates the statements are paraphrase or interpretation.’

• In amplification of this argument, Dr Claassen contended that these words were editorial comment and that the appellant had the right to use a well-known phrase in a mocking or ironic manner. This they argued was a sardonic reference to the “Thuma mina’ speech which was delivered by President Ramaphosa in his first State of the Nation address in February 2018. ‘Send me’ being a direct translation of ‘Thuma mina’.
• Mr Cilliers objected to the ‘Send me’ headline which he described as truly offensive. The essence of his complaint is that the headline suggested that Minister McKenzie requested to go on the trip. It is common cause that there is no evidence that Minister McKenzie asked to go or that he uttered the words ‘Send me’. It was accepted that he went on the trip as part of his official duties. He argued that these words cannot be deemed to be protected editorial comment as, in his submission, it was made with malice and was not made in a manner which clearly appears to be comment. He contended that the argument that the phrase was used in a mocking reference to the Thuma mina speech was concocted after the hearing before the DPO and is therefore being made for the first time at this appeal.
• It is clear from the papers that the appellant in their original response referred to the Thuma mina speech by President Ramaphosa and that Minister McKenzie is now a member of his cabinet. We are of the view that the argument that this is a mocking reference to the Thuma mina speech is not a new argument but simply an amplification and expansion of the original argument made by the appellant. There is also no evidence before us to justify the conclusion that the appellant acted maliciously.
• While the headline is in two parts, it is clear that both parts must be read together. The insertion of quotation marks clearly signifies that it is a statement attributable to a particular person. However, we are not satisfied that the absence of quotation marks, in and of itself, unequivocally renders the statement a protected comment. The statement that Dr Claassen relied upon from the AfriForum ruling, stated that the absence of quotation marks indicates that the statements are a paraphrase or interpretation. Thus, the absence of quotation marks could indicate that the statement is simply paraphrasing someone.
• Both parties agreed with the tenor of the ruling in the Referendum Party v Daily Maverick[2] that:

‘Evolving journalistic practice is making it increasingly difficult to place a piece of journalism into the traditional boxes of “opinion piece” and “news reporting”. It is becoming common-and accepted practice- to publish analytical or interpretive pieces where news reporting is mixed with commentary. … in short, the question is whether a particular statement under scrutiny is a comment or a factual assertion.’

We accept that a particular piece of journalism (in this matter about a high-profile politician) may contain ‘opinion’ and ‘statements of fact’. The issue then is whether the particular statement considered can be regarded as ’opinion or comment’.

• The appellant also placed reliance on clause 7.2 of the Press Code which provides:

‘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.’

The submission in this context was that the headline was protected comment and even if it casts aspersions on Minister McKenzie, it fell within the safe harbour of Clause 7(2) of the  Press Code.

• The key question in this context is how would the ordinary reader of the publication understand the headline. Would they understand the headline ‘send me’ as a mocking reference to the Thuma mina speech or would they interpret it as a request, that is paraphrased, by Minster McKenzie to be sent to the Paris Olympics? In making this determination, the following test[3], appropriately adjusted, is useful:

‘The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words… to convey a meaning defamatory of the plaintiff…. The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the court must take account not only of what the words expressly say, but also of what they imply.’

• We are of the view that the reasonable person of ordinary intelligence will reasonably understand the words to be paraphrasing a request by Minister McKenzie to be sent to the Paris Olympics. The Thuma mina speech was delivered in February 2018 and the article was published in October 2024, some six and a half years later. Given the lapse of time, it is most unlikely that the ‘reasonable person of ordinary intelligence’ will draw the conclusion that this is a mocking reference to the Thuma mina speech. The Thuma mina speech has become a distant memory for most people even though reference has been periodically made to it. Had the words “Thuma mina’ itself been used then it is possible that a different conclusion may have been reached. Secondly the statement ‘Send me’ is immediately followed by the comment ‘McKenzie’s gravy train to Paris Olympics cost taxpayers R 800 000.’ This is a direct criticism of Minister McKenzie.  A reasonable reader reading both parts of the headline simultaneously is likely to conclude that the ‘Send me’ was a paraphrase of a request by Minister McKenzie to be sent to the Olympics as the second part of the headline makes a direct reference to him. We are satisfied that the close proximity between the comment criticizing Minister McKenzie and the ‘Send me’ statement supports the conclusion that the reasonable reader is likely to conclude that this was a request by Minister McKenzie to be sent to the Olympics.   There is also no reference directly or indirectly in the body of the report to the Thuma mina speech which could have alerted the reasonable reader to the possible ironic reference in the headline to that speech.
• We are of the view that the second part of the headline is protected comment and falls within the purview of Clause 7(2) of the Code. Both textually and contextually, this is a comment and is quintessential political speech. It is clearly a comment on a politician spending, what was generally accepted, an excessive amount on an overseas trip despite an earlier promise to trim expenditure and spend money where it mattered. The publication chose to comment by using the term ‘gravy train’. It is permitted, in terms of the Code, to express its sentiments in an ‘extreme, unjust, unbalanced, exaggerated and prejudiced manner’. In this instance, the costly perks of the job are reflected as being part of the ‘gravy train.’ The article noted the minister’s commitment to cut expenditure on superfans and to put the money to better use. It then details the amount that was expended on the Minister’s travel. These are issues of pressing public interest, especially in an environment of fiscal austerity that is directly impacting on the lives of people and on the ability of the state to deliver on its constitutional and legislative responsibilities. The comment takes fair account of the material facts stipulated in the article. We are satisfied that the comment ‘McKenzie’s gravy train to Paris Olympics cost taxpayers R 800 000’ is protected comment as stipulated in clause 7(2) of the Press Code. Once that conclusion is reached, it is in a safe harbour and the protected comment cannot then simultaneously be in breach of Clause 10.1 of the Code.
• In summary, our view on the headline is that the reasonable reader would interpret the word ‘Send me’ to a be a paraphrase of a request by Minister McKenzie to the sent to the Paris Olympics. The second statement in the headline is a protected comment. As the article does not mention any request by Minister McKenzie to be sent to the Olympics, this aspect of the headline is in breach of Clause 10.1 of the Code. The statement will have the impact of misleading the public and does not give a reasonable reflection of the contents of the report. The second part of the headline is protected comment and thus the DPO’s findings that it breached Clause 10.1 of the Press Code are set aside.

Findings on the assertion that the Minister was in Paris with an eight-person support team at a cost of more than R 1.8. million

• The total amount spent on all eight officials, some of whom were in Paris for other activities and did not accompany Minister McKenzie on the trip, was R 1.8 million. The DPO found that only one support staff member accompanied Minister McKenzie. The conclusion was that this misrepresentation of fact, whether intentional or otherwise, was a breach of Clause 1.2 of the Press Code.
• Mr Cilliers complained that the appellant conflated two separate answers to two separate questions and made incorrect conclusions in the process. He argued two separate questions had been posed to the Minister and these had been answered accurately and that the appellant must be held responsible for reaching incorrect conclusions. The appellant’s main submission in this regard was that this aspect of the reportage was based on answers supplied by the Minister in response to questions posed by parliamentarians.
• It was not disputed that the following responses were provided to the questions posed:

Questions:

‘What is the total number of officials in (the minister’s) department who attended the 2024 Olympic games, and what was the cost involved?’

Answers:

‘A total of 8 officials including the minister’ and ‘a budget of R 1 805 335. 74 was approved by the minister for officials travelling to the Olympics.’

• It is clear that one support staff accompanied Minister McKenzie to the Olympics while other officials were in Paris with the task of setting up and managing the Ekhaya Gardens facility at the Olympics. The Ekhaya Gardens project predated the incumbency of Minister McKenzie. The issue before us in this regard is whether the obligation to ‘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 omission or summarization’ was breached on the facts of this case.[4]
• Section 55(2) of the Constitution [5]provides:

‘The National Assembly must provide for mechanisms-

• To ensure that all executive organs of state in the national sphere of government are accountable to it; and
• to maintain oversight of-
• the exercise of national executive authority …’

One of the means that the National Assembly adopts to ensure accountability and oversight over the executive authority is through the questions posed to the members of cabinet. The answers given in response to the questions posed are expected to be comprehensive, accurate and containing all material facts thus enabling members of the National Assembly to discharge effectively this central constitutional responsibility of holding the executive organs of state to account and to maintain oversight. Members of the National Assembly are entitled to rely on the accuracy and comprehensiveness of these answers as are members of the media and the public. Answers to parliamentary questions are an important means of enabling Parliament to hold the Executive branch to account and to be able to effectively exercise its oversight role. It is reasonable to expect that the members of the Executive branch exercise due care and take all reasonable steps to ensure that the answers provided are considered, accurate and comprehensive.

• In this instance, Minister McKenzie and his team responded to the questions posed and the appellant relied on the answers provided. The direct answer to the question ‘What is the total number of officials in (the minister’s) department who attended the 2024 Olympic games?’ was ‘a total of 8 officials including the minister…’ This was an unequivocal response to a direct question. It is difficult to understand the reason for the Minister not providing a more comprehensive response along the line provided at this hearing by Mr Cilliers which indicated that some officials were in Paris with the task of setting up and managing the Ekhaya Gardens facility at the Olympics. The official response to the National Assembly was sparse and scant. Presumably the information provided by Mr Cilliers at this hearing was available when the answers were provided. However, those responding to the question on behalf of the Minister chose to provide this non-comprehensive response. They chose not to refer to what were clearly material facts. Members of the National Assembly, the media and the public were completely entitled to rely on the answers as a considered, comprehensive and accurate response to the questions posed. The inaccuracy in the reporting was due to the insufficiency of the information provided by the Minister. Thus, the inaccuracy was caused by the incompleteness of the answers provided and the Minister and his department must take responsibility for that. Mr Cilliers submissions, that the appellant conflated answers to separate questions and reached an incorrect conclusion, are unpersuasive. The report is a reasonable reflection of that which the Minister had conveyed to the National Assembly. The fact that there were more than one question and answer provided does not detract from the report being a reasonably accurate account of the answers provided. We are satisfied that the appellant had not intentionally or negligently departed from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarizations. The adverse findings made by the DPO against the appellant in this regard are set aside.

The finding relating to the statement that the Minister travelled with eight officials and thus by implication breached provisions of the Ministerial handbook

• The DPO’s finding in this regard was that as the report incorrectly stated that the Minister had travelled with a support team of eight people to the Olympic Games, by implication it suggested that he had breached the Ministerial Handbook which stipulates that the Minister should travel with no more than two support staff. He therefore ruled that this was a breach of Clause 1.2 and required an appropriate apology. Dr Claassen challenged this finding on the basis that News24 never asserted that the Minister had acted contrary to the Ministerial Handbook. Mr Cilliers contented that a distinction should have been drawn between support staff and officials. The answer indicated that 8 officials accompanied the minister.
• The answer must be interpreted in the light of the question posed. The Minister was specifically asked ‘What is the total number of officials in (the minister’s) department who attended the 2024 Olympic games, and what was the cost involved?’ The answer drew no distinction between officials and support staff as it should have. The response provided should have indicated that some officials were in Paris with the task of setting up and managing the Ekhaya Gardens facility at the Olympics and that the Minister travelled with one support staff. Instead a generic and bald response was provided. For the reasons stated earlier in these findings, these answers lacked the comprehensiveness and specificity that is required of answers to parliamentary questions.  Given the generic tenor of the response to the questions, it was not unreasonable for the appellant to conclude that eight officials accompanied the Minister to the Olympics. Once again, there was no reason provided for the failure to provide a full explanation to the National Assembly. The implication that the Minister breached the Ministerial Handbook was caused by the paucity of the response. In the context of the questions posed and the answers given, to draw a difference between support staff and officials would be tantamount to making a distinction without a difference. The appellant was entitled to rely on the answers which it did and it reasonably reflected the essence of the answers in the report. For these reasons we are of the view that the appellant did not breach Clause 1.2 as there was no intentional or ‘negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omission, or summarization.’ Thus the adverse findings made by the DPO against the appellant in this respect are set aside.

The failure to mention that the athletes were accommodated without costs in the Olympic village

• The DPO found that a flawed comparison was made between the expenses incurred by Minister McKenzie when travelling to the Olympics with that incurred in respect of the athletes. The DPO based his conclusion on the fact that the athletes were accommodated free of charge whereas the accommodation costs that the Minister incurred were taken into account. The appellant objected to these findings claiming that it was unfair and unjustified. It was contended that it was not the objective of the article to draw a forensic comparison between the expenses incurred by the Minister and that which was incurred in respect of the athletes. Dr Claassen submitted that the article sought to give an overall cost perspective based on figures submitted to Parliament. Mr Cilliers supported the findings of the DPO and argued that by omitting reference to the free accommodation provided to the athletes, the appellant acted unreasonably. He contended that there was a lack of fairness in the comparison and that it was done to discredit the Minister and provoke public anger.
• We find that the lack of reference to the athletes being accommodated free of charge was neither relevant nor material. In this respect we respectfully disagree with the DPO. The ministerial response in this regard was quoted in full in the article. The response made clear that as at the time of replying, invoices were still being processed and hence the Minister was unable to quantify the cost per athlete. The response then stated that the amount budgeted for the support, preparation and delivery of Team SA was R 27 892 000 00. In another response, it was confirmed that 146 South African athletes attended.  Extrapolating from these answers submitted to Parliament, the article, concluded that R 191 000 00 was budgeted per athlete compared with the cost of R1.8 million incurred by Minister McKenzie and his officials. It then went on to state that the cost of Minister McKenzie’s flight was more than the average spend on the athletes. Dr Claassen is correct in his submission that this was not a forensic analysis of the complete and actual costs incurred by Team SA of being at the Olympics versus the costs of sending the Minister and officials to the event.
• In our view it is clear that the comparison is between the overall amount budgeted for the athletes compared to the overall amount budgeted for the Minister and his team. It is the actual budgeted cost to the taxpayer of sending the athletes compared to the cost incurred in respect of the Minister that is being contrasted and reflected upon. The figures themselves are based on answers supplied to Parliamentary questions and the contention that this part of the article was not based on answers supplied is without merit. These figures reflect the actual costs incurred as disclosed by the Minister. No reference was made to the athletes being accommodated without costs at the athletes’ village. However,this fact is not relevant to the analysis and comparison that was being made. The issue being reflected upon was the overall amounts that were budgeted and spent on the athletes in comparison to that budgeted and spent on the Minister and his team while attending the Olympics. Similarly, no comparison was made of the stipend paid to the Minister compared to any stipend, if any, that was offered to the athletes. Similar arguments could be made in respect of transportation of the athletes while at the Olympics.  It may or may not be that the athletes were transported without cost while at the games and the costs of the Minister’s ground arrangements was significant. The purpose was not to engage in a line item by line item comparison but rather to look at the overall costs budgeted for sending the athletes in comparison to that incurred by the Minister and his team. The fact that the athletes received free accommodation does not make this a flawed comparison.  Further if the issue of the athletes being accommodated free of charge was material and significant, we would have anticipated that reference would have been made to that in the answers provided in response to the Parliamentary question. We therefore conclude that the appellant’s omitting any reference to the athletes being accommodated without charge was not a material omission as this fact was not relevant to the particular comparison and analysis that was being made. Thus, the DPO’s adverse finding that this is a breach of clause 1.2 of the Press Code is set aside.

Conclusion:

10. The first part of the headline ‘Send me’ is in breach of Clause 10.1 of the Press Code and the findings of the Deputy Press Ombud in this regard are upheld.
11. The second part of the headline is protected comment and as such not in breach of Clause 10.1 of the Press Code or any other provision. Consequently, the findings of the Deputy Press Ombud in this regard are set aside.

• The assertion in the article, that the Minister was in Paris with an eight-person support team at a cost of more than R 1.8 million, was not in beach of Clause 1.2 or any other provision of the Press Code. Consequently, the findings of the Deputy Press Ombud in this regard are set aside.

1. The related findings by the Deputy Press Ombud that the assertion in para iii) implied that the complaint had breached provisions of the Ministerial handbook and that a correction and apology is required, are also set aside.
2. The omission of any reference in the article to the athletes being accommodated for free does not amount to a breach of Clause 1.2 or any other provision of the Press Code. Consequently, the findings of the Deputy Press Ombud in this regard are set aside.
3. The sanction and apology determined by the Deputy Press Ombud are set aside.

• The respondent is directed to issue an apology for the breach of Clause 10.1 of the Press Code as referred to in para i) above.
• In drawing up the apology, the appellant is to have regard to the comments and conclusions reached in this matter and to refer to the finding that a reasonable reader may draw the conclusion that the headline ‘Send me’ referred to a request by the respondent. The apology is to state that there is no evidence that the respondent requested to be sent to the Paris Olympics.

1. The apology must remain on the landing page for one day together with a link to the main article.
2. The appellant must, within 5 days of receipt of this Order, email a copy of the draft apology to the respondent and to the Executive Director of the Press Council.
3. Within 3 days of receipt of the draft apology, the respondent must submit its comments, if any, to the Executive Director of the Press Council.

• Within 5 days after the 3 days referred to in paragraph xi) above, the acting Chairman of the panel will, in the event the parties do not agree thereon, determine the final version of the apology and the date for publication.
• The appellant is also required to correct the version that the respondent was accompanied by a support team of eight officials.

Dated at Durban on the 13 of April 2025

Prof. K Govender, Acting Chair, Appeals Panel

Concurred by:

Ms H Viljoen, Member, Appeals Panel, Public Representative

Mr Tshamano Makhadi, Member, Appeals Panel, Press Representative.

 

 

 

 

 

 

 

 

[1] . https://presscouncil.org.za/2025/01/14/afriforum-vs-sunday-world

[2] https://presscouncil.org.za/2024/05/05/referendum-party-vs-daily-maverick/

[3] . Corbett CJ in Argus Printing and Publishing Co Ltd and Others v Esselen’s Estates 1994(2) SA 1(A) 20E-G

[4] . Clause 1.2 of the Press Code.

[5] . Constitution of the Republic of South Africa 1996