Oupa Segalwe vs Daily Maverick

SUMMARY

The headline to the story in dispute read, Busisiwe Mkhwebane: How to ruin a Chapter 9 institution in 28 months (published on 12 March 2019).

This ruling by Press Ombud Pippa Green was based on the Press Code that was in effect before 30 September 2022.

 

The article in dispute was essentially a commentary on the Public Protector (PP), Busisiwe Mkhwebane. It began by referencing a report in the Sunday Times quoting from court papers filed by Finance minister Tito Mboweni in which he challenged the PP’s finding that Treasury director-general, Dondo Mogajane “had been dishonest by not disclosing that he had a criminal conviction for speeding.” Quoting some sources, it was alleged that the PP’s finding might have been part of a bigger campaign to weaken the Treasury, and that the PP had “a problem”.

Oupa Segalwe, who acted on behalf of the PP, complained that the newspaper refused to give him a right of reply as the PP was a subject of critical reportage.

Green said the complaint was not so much about the merits of the article, but rather if Segalwe should have had a right of reply. She upheld the complaint and directed the publication to give Segalwe an opportunity to put facts before readers that he felt had been overlooked or misrepresented.

 

THE RULING ITSELF

Finding Complaint number 4316

Date of article: 12/03/2019

Headline: Busisiwe Mkhwebane: How to ruin a Chapter 9 institution in 28 months

Author: Stephen Grootes

Online: Yes

Particulars:

This ruling is based on a written complaint by Mr Oupa Segalwe, the spokesperson for the office of the Public Protector, a written response from Ms Janet Heard, managing editor of the Daily Maverick, and further consultations with both Mr Segalwe and Mr Branko Brkic, editor of the Daily Maverick.

Complaint

Mr Segalwe complains about an article in the Daily Maverick written by Mr Stephen Grootes, under the headline “Busisiwe Mkhwebane: How to ruin a Chapter 9 institution in 28 months.” The piece was written as commentary, which is protected in the Press Code, “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.”

Mr Segalwe accepts this, but complains that when he asked for a right of reply, he was refused it. He charges that Daily Maverick has transgressed clause 1.8 of the Press Code, which allows “the subject of critical reportage” comment or a right of reply.

1. The text

1.1 The article, which is essentially a commentary on the Public Protector, Busisiwe Mkhwebane, begins by referencing a report in the Sunday Times quoting from court papers filed by Finance minister Tito Mboweni challenging her finding that Treasury director-general, Dondo Mogajane “had been dishonest by not disclosing that he had a criminal conviction for speeding.” Citing the Sunday Times, Mr Grootes notes the “finding by Mkhwebane may be part of a bigger campaign to weaken the Treasury.”

1.2 Mr Grootes quotes Mr Mboweni as saying that “the Public Protector has a problem… the incumbent has a problem”. He remarks that the “direct and personal attack” is unusual.

1.3 He goes on to note how, at a press conference, Ms Mkhwebane “named and shamed” those who “ignored her findings.” He also described as ”staggering” her report that of 70 findings, a “full 21” are being challenged in court. Adv Mkhwebane announced she had the resources only to challenge 13 of those.

“But the other important number is this,” writes Mr Grootes: in 38 of those 70 cases “remedial action is being ignored”. This is a reflection of a “serious problem” in her office.

1.4 He reminds us of the Constitutional Court’s Nkandla judgment that found remedial action recommended by the Public Protector is “binding”, and the only way not to implement it is to bring a court challenge. Some 21 “organs” are not doing this, meaning “Mkhwebane must be correct”: the departments challenging her in court and not implementing remedial action “are in fact breaking the law.”

1.5 This must be, he argues, because they neither respect not fear her.

He compares Adv Mkhwebane with her predecessor, Thuli Madonsela. “When Zuma refused to implement Madonsela’s remedial action on Nkandla, a variety of constituencies rose to support her and force his hand…Pretty much the whole country was behind Madonsela”.

She was also broadly supported when she began to investigate “state capture” claims. Mkhwebane, on the other hand, lacks a “firm constituency outside Zuma’s acolytes”.

1.6 Mr Grootes recounts the Public Protector’s finding that ABSA should pay back more than R1 billion for a “bailout conducted by the apartheid government”. In that ruling she felt “powerful and righteous enough” to order Parliament to change the Constitution to amend the mandate of the Reserve Bank.

She declined to defend her own findings when Absa and the Reserve Bank took her to court. He argues this means she is not confident about her own findings and that in eight cases, where she has said she does not have the resources to defend them, “her stated reason…may not actually be true; it may be that she does not feel safe in her own findings.”

1.7 This raises “serious questions” about whether the Office of the Public Protector is being damaged.

He writes that although Adv Mkhwebane has said she want to focus “on the people on the ground”, if her office is ignored by government departments, “it is these very same people who will suffer the most…

“If someone is poor and living in a rural area and has been maltreated by a government department, there is very little they can do to get action. The public protector is supposed to be the one place where they can go to get that action. But now that option may well be ruined for a generation.”

1.8 Adv Mkhwebane through “incompetence and clear bias” has damaged the institution.

1.9 He concludes:  “It is in the interest of an overwhelming majority of South Africans to have strong Chapter Nine institutions – and this young democracy should not allow a few criminals and their servants to destroy them.”

2. The Arguments

Oupa Segalwe

2.1 This case centres around the right of reply.

2.2 In response to Mr Groote’s analysis, Mr Oupa Segalwe, the spokesperson of the Public Protector’s office penned a reply, which he asked Daily Maverick to publish.

In it, he objected to the phrase that suggested Adv Mkhwebane was “a criminal or at least a servant of criminals”.

2.3 He recalls an incident almost six years ago (before the 2014 elections) when Mr Grootes had asked then spokesperson for the Zuma presidency and former cabinet minister, Mac Maharaj to interview him to launch his (Grootes’) book, SA Politics Unspun. “I still cringe when I recall the look on Stephen’s face when Maharaj pointed out to him… how poorly-researched and riddled with errors and factual inaccuracies the book was.”

He recounts the event in some detail to make the point that “Stephen seems to parrot all that is said by Adv Mkhwebane’s detractors without bothering to verify the information.”

2.4 He writes that he has spent the past 10 years “as a communications aide for three heads of this Chapter 9 institution, including Adv Mkhwebane “and yet again Stephen has got it wrong.”

The courts have made “scathing judgments” on the reports of at least two other Public Protectors,” notably Adv Lawrence Mushwana in respect of the Oilgate matter and Adv Thuli Madonsela in the National Empowerment Fund matter.

2.5 It is a “problematic notion” that for a Public Protector to err “proves incompetence and warrants removal from office. This is very strange in a country where court judgments get overturned and set aside all the time on the grounds that wrong legal principles were applied.”

He cites the Oscar Pistorius case as an example, where Judge Thokozile Masipa’s verdict of culpable homicide and sentence was appealed by the NPA, set aside, and replaced by the Supreme Court of Appeal with a murder verdict. It was “accepted” that Judge Masipa “had made an error in law..[but]..it would have been inconceivable… to even consider [her]… ‘removal from the bench’.”

2.6 He argues that 38 reports in which the implicated parties have not implemented remedial action were issued by Advocate Madonsela, citing one, the Vhembe Concerned Pensioners Group, which “approached Advocate Mushwana in 2008.. [and] Advocate Madonsela [ruled] in their  favour in 2011.”

2.7 The Public Protector’s office has limited financial resources to defend her rulings with a Legal Services budget of R4-million, which is already over-budget. She “now finds herself having to pick and choose which reports to defend…not because she fears losing the cases”, but because the office does not have the money.

2.8 He also notes that more than 30 000 complaints have come before Adv Mkhwebane. “Stephen and his ilk” single out only two cases, the ABSA/CIEX case and the Vrede case and ignore the rest.

2.9 Her rulings have made a difference in the lives of the “grassroots”, among them:

• a Western Cape woman who was paid R300 000 “in arrear and future maintenance payments after several Maintenance Court orders for the Government Pension Administration Agency to attach a portion of the defaulting father’s pension fell on deaf ears”
• a 73-year-old North West pensioner, still considered a tenant in a house she had paid for in 2008;
• A group of small business people who were owed about R12-million by the Gauteng Provincial government for low-cost housing they were contracted to build in the 1990s.

2.10 Complaints from “the poor” constitute 95% of the office caseload.

2.11 Her rulings have also led to dismissals of “the powerful”, among them Lynne Brown, Des van Rooyen and Malusi Gigaba. She also uncovered “widespread looting” in the Mandela Funeral matter.

2.12 He is not suggesting that the Public Protector be spared from scrutiny but that there should be fairness. “The starting point would be to do some basic research, check facts and acknowledge the truth even when it threatens to stand in the way of pre-conceived, negative conclusions.”

Daily Maverick

2.13 The argument of the publication was fairly straightforward. Ms Janet Heard, managing editor, it said it did not  object to a right of reply but that such a reply “should tackle the substance of the article and [not be] a cheap personal shot at the writer. This is a fair request and standard, internationally accepted editorial practise.”

She says both she and editor Branko Brkic explained this to Mr Segalwe “a number of times.”

“Even a right of reply has to meet basic editorial guidelines, and any suggested edits certainly do not amount to censorship. We expect the same of all contributors and cannot bend the ethical and well-practiced principles for a Right of Reply.”

She writes that “as in any credible media title, a considerable amount of editing takes place in the production process at Daily Maverick to ensure that we don’t publish fake news and that standards and ethics and principles are upheld.”

2.14 She stressed that the offer of a right of reply “still stands as long as it meets basic editorial guidelines that are enshrined in the Press Code of SA”.

The complainant’s article did not meet these standards and “requests to adjust were ignored.”

He then chose to publish it “on a different platform”, being the website of the Office of the Public Protector.”

Further arguments

2.15 In response, Mr Segalwe said this was not the first time Daily Maverick had refused his office a right of reply.

He references a piece written by (former Western Cape premier) Helen Zille after Adv Mkhwebane had made an adverse ruling about her, in which he claims he was not given a right of reply. He said it was not published on the grounds that it was written by him and not Adv Mkhwebane herself.

“We let it slide. But when it happened for the second time in the case of the article by Mr Stephen Grootes we could not take it lying down because, in our view, a clear pattern was emerging.”

2.16 He says he was puzzled by the accusation that his article was a “cheap shot” at Mr Grootes because his point was that the writer had paid “little attention, if any, to the verification of facts.”

He had made reference to the incident with Mac Maharaj as a way of illustrating that Mr Grootes “had previously been found, in a very public manner, to have failed to double-check his facts.” This was the basis for his argument.

2.17 He also says his reply did rebut Mr Grootes’ claims, contrary to what Ms Heard suggests. In addition, this was “public information” which was relevant to his argument.

2.18 “Worse”, Mr Grootes had labelled the Public Protector “a criminal and servant of criminals”, with no substantiation. “The editorial hierarchy of the Daily Maverick saw nothing wrong with this and yet when we call out Mr Grootes for something he admitted to and even undertook to make amends (a matter relevant to our argument), they protested and chose to prejudice the Public Protector.”

2.19 He quotes a letter to him from Mr Brkic, Daily Maverick editor, that he says “shocked us”. In it, Mr Brkic says (among other things): “ We at the DM are committed to publishing ALL rights of reply that are not propaganda and address the issues and not attack the writers’ personality.”

“It was curious for me,” writes Mr Segalwe, “that in Mr Brkic’s view, the Public Protector could be called a criminal and a servant of criminals without basis and yet I could not reference Mr Grootes’ past in respect of failure to double-check facts.”

2.20 He then lays out a number of points, including that:

• The number of reports taken on review “shot up” after the 2016 Constitutional Court judgment that found the Public Protector’s findings were binding and could only be set aside by a court.
• The “upward trend” in review applications began “long before” Adv Mkhwebane assumed office and even Adv Madonsela had raised this development as a “risk and challenge” in her 2015/16 annual report. Before this, the findings were taken by some organs of state to be “recommendations”. Thus taking findings on judicial review is not a sign that the report is of “poor quality” but is “similar to appealing a court judgment.”
• To apply for a review does not mean an applicant will win: for example in the case of the finding on the Nelson Mandela Funeral report, the DG of the Eastern Cape government took her finding on review and lost.
• On the suggestion that meeting with the State Security Agency during the CIEX/ABSA investigation was “wrong”, Mr Segalwe argues that CIEX, the UK asset recovery company, had signed a memorandum of agreement  with its predecessor, the National Intelligence Agency, which was then headed by Mr Billy Masethla. “It is unfathomable how the Public Protector was expected to investigate the conduct of the NIA/SSA without putting questions to them.”
• On her decision not to defend court action relating to her findings: Adv Mkhwebane “herself conceded she had erred…erring comes with the territory and does not equal ‘incompetence”.

2.21 On the claim that those ignoring her remedial action do so “because they do not take her seriously”, Mr Segalwe argues that Mr Grootes seems to suggest that “such people and organs of state are justified in doing that because of views similar to those he holds about the Public Protector…(that) that kind of conduct is justified for as long as it is against this Public Protector…The truth is that, whatever you think of Adv Mkhwebane, it is unlawful to ignore the Public Protector”, since the Constitutional Court ruling.

2.22 The fact that Adv Mkhwebane does not challenge some reports in court is not because she is afraid she will lose but because she has a “meagre” budget of R4-million for such cases.

2.23 On the claim that she has “ruined” the office: since she arrived she has disposed of 34 000 out of 45 000 cases, around half of which were in favour of the complainants. If Mr Groote’s piece was really the “analysis” he professes it to be “he could have made this concession”.

2.24 The Public Protector is “not above scrutiny. But as pundits shine a spotlight on how she has fared thus far, they must try to do so fairly.

“The starting point would be to do some basic research [and] check facts ..”

Mr Brkic

2.25 Mr Branko Brkic, the editor of Daily Maverick, told me Mr Segalwe had “attacked a journalist” rather than dealing with the subject. He had asked him “to play the ball and not the man”.

He also said that after the publication had refused to use the first version of his response, “he launched a Twitter campaign against us as people who censor the truth.

“I sent him messages saying he lied about us; he chose not to react.”

2.26 Mr Brkic said the Daily Maverick would give “everyone a chance” but Mr Segalwe was trying to “destroy the journalist.” His arguments have to be “good, fair and he has to argue in good faith. That is our best doctrine: good faith.”

3. Analysis

3.1 Mr Grootes is an experienced talk-show host and commentator with a background as a political journalist.

He appears on several media platforms – a prime-time talk-show on SAFM, a news show on SABC TV, and writes as a commentator and analyst for the Daily Maverick on a regular basis. He has also recently announced he is going to join the new TV station Newzroom Africa.

3.2 This means he wields considerable influence and that his words have impact.

3.3 As such, if he writes a piece criticizing a person in public office, it is reasonable to expect that that party would ask for a right of reply.

3.4 His article would fall mainly into the class of “commentary” or “analysis” which is protected in the Press Code, thus:

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

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

3.5 Part of Mr Segalwe’s challenge to Mr Grootes is that he has not taken account “of all material facts”. In order to buttress this argument, he refers to the incident in 2014 where Mac Maharaj critiqued his book on the basis of insufficient fact-checking.

3.6 I am not judging here whether Mr Maharaj was correct or not. The point is that Mr Segalwe tried to develop an argument in his reply that Mr Grootes had taken insufficient account, in his commentary on the Public Protector, of the facts.

3.7. Most salient are probably the following:

• That the budget of the Public Protector’s office for legal reviews is limited, and that this did not apply to her tenure alone
• That she has disposed of more than 30 000 complaints, many of which were brought by poor people.
• That 38 reports issued by Adv Madonsela had also been “ignored” by implicated parties, when in the wake of the Constitutional Court decision of 2016, the Public Protector’s findings are binding unless reviewed by a court.

3.8 In Mr Grootes’ comment conclusion that it is in the interests of an “overwhelming majority of South Africans to have strong Chapter Nine institutions – and this young democracy should not allow a few criminals and their servant to destroy them”, it is not clear whether he is referring to Adv Mkhwebane as a “criminal or a servant of criminals”. In any event, this remark should be allowed a right of reply, particularly as the conclusion about “criminals” is not substantiated in the piece.

3.9 This said, I understand that the Daily Maverick editors do not want to turn their pages into a personal “spat” between Mr Segalwe and Mr Grootes. The Maharaj incident, whatever its implications, was some time ago and Mr Segalwe could make his arguments – and lay his facts on the table – without having to reference it.

I am not sure that Mr Grootes, as experienced a commentator and broadcaster as he is, needs such protection, but I understand that such a piece would change the tone of the debate and I acknowledge the editors have a right to maintain that tone.

3.10 Yet Mr Segalwe, representing the office of the Public Protector, deserves a right of reply particularly as he, when one strips away the personal insults, has different facts and views to offer readers.

Finding

Commentary is protected as long as “it has taken fair account of all material facts that are either true or reasonably true”. Mr Segalwe argues this is not the case.

This is not a finding on whether his views  (or Mr Grootes) are true or not, but on whether Mr Segalwe has a right to reply. In terms of the Press Code, clause 1.8, that enjoins the media to “seek, if practicable, the views of the subject of critical reportage”,  Mr Segalwe should be allowed an opportunity to put facts before readers that he feels have been overlooked or misrepresented.

I find that the Daily Maverick is in transgression of this clause.

This is a Tier 2 offence.

Mr Segalwe must be allowed a right of reply on behalf of the Office of the Public Protector.

The reply must focus on the matter at hand, and must be approved by the Ombudsman to ensure it complies with ethical standards and the Press Code.

The Press Council logo and a link to this finding should also be published with the reply.

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].

Pippa Green

Press Ombudsman

December 11, 2019