Daniel Khanyile and Sibusiso Mkhize vs. Daily Maverick

SUMMARY

The headline to the story in dispute read, CoGTA in the Works: Department’s irregularity-riddled tender awards exposed (published on 7 June 2018).

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

 

The article was about an urgent application that had come before the Pretoria High Court that reportedly revealed that the Department of Co-operative Governance and Traditional Affairs (CoGTA) “may be fiddling with the most important public employment programme in the country”. This reportedly could even have been indicative of fraud that compared in size, scope and societal damage to the heyday of state capture.

Khanyile and Mkhize complained that the report quoted a source to the effect that they had been implicated in an investigation, but without affording them a right of reply.

Retief said there was no debate on whether Khanyile and Mkhize were the subject of critical reportage, as the quotes did put them in a negative light.

He argued it was generally accepted that, if a publication dug up the past, and the response of a subject was in the public domain, that publication was not required to ask that person for comment yet again. “However, if a publication sees it fit to rake up the past, then it is also obliged to report fairly in that both the allegation and the response should be presented once again. Journalists should not do the one without the other. So therefore, Daily Maverick should either have asked the complainants for their comment, or it should have reported their earlier comments. It did neither,” he concluded.

Daily Maverick was directed to:

• apologise to Khanyile and Mkhize either for not asking them for comment, or for not reporting their earlier comments; and
• report their comments accordingly.

 

THE RULING ITSELF

Lodged by: Bongani Khanyile Attorneys

Date of article: 7 June 2018

Headline: CoGTA in the Works: Department’s irregularity-riddled tender awards exposed

Author of article and respondent: Kevin Bloom

Complaint                                            

Khanyile and Mkhize complain that Bloom quoted Ms Juanita Pardesi, CEO of Seriti, to the effect that they had been implicated in an investigation without affording them a right to reply.

The text

The article was about an urgent application that came before the Pretoria High Court in April that reportedly revealed that the Department of Co-operative Governance and Traditional Affairs (CoGTA) “may be fiddling with the most important public employment programme in the country”.

This could even be indicative of fraud that compares in size, scope and societal damage to the heyday of state capture, Bloom wrote.

He reported that, in 2008, a government-funded social programme designed to provide a safety net to the poor and unemployed (known as the Community Work Programme, or CWP) was launched.

However, in April 2018, the Seriti Institute (a non-profit organisation that had formed a core part of the CWP pilot programme and had acted as an implementing agent since the CWP’s inception) lodged an urgent interdict against CoGTA regarding alleged irregularities in the North Gauteng High Court, as well as against four non-profit companies to whom the new CWP contracts had apparently been granted.

Ms Juanita Pardesi, Seriti’s CEO, reportedly said: “Three of the four implicated staff left [Seriti’s] employ before finalisation of the forensic audit and the fourth Mr Daniel Khanyile was disciplined by [Seriti] and dismissed in 2017. As I pointed out earlier, Mr Sibusiso Mkhize, who was one of the implicated staff members and who left [Seriti’s] employ before finalisation of the forensic audit, now heads the CWP operations of an implementing agent which the Department has appointed to the Eastern Cape province, knowing full well that he was implicated in corrupt and fraudulent activities [emphasis Pardesi’s].”

The arguments

Bloom says he did not contact Khanyile and Mkhize for comment because their part in the forensic investigation was a matter of public record (in the form of an annexure in the responding affidavit court papers presented by Mr George Seitisho).

The complainants dispute the document that Bloom relied on was a matter of public record – they say that they were busy requesting Seriti for the report that was used to defame them. They add that this document was never disclosed to them, nor were they interviewed about it.

Analysis

There is no debate on whether Khanyile and Mkhize were the subject of critical reportage, as the quotes put them in a negative light. On the face of it, therefore, Daily Maverick should have afforded them a right of reply (see Section 1.8 of the Press Code).

A proper interpretation of this section is required, though. It is generally accepted that, if a publication digs up the past, and the response of a subject is in the public domain, that publication is not required to ask that person for comment yet again. However, if a publication sees it fit to rake up the past, then it is also obliged to report fairly in that both the allegation and the response should be presented once again. Journalists should not do the one without the other.

So therefore, Daily Maverick should either have asked the complainants for their comment, or it should have reported their earlier comments. It did neither.

It is irrelevant whether the matter was on public record or not – the issue was Khanyile’s and Mkhize’s right to be heard as well.

Finding

Daily Maverick is in breach of Section 1.8 of the Press Code that says: “The media shall seek the views of the subject of critical reportage in advance of publication.”

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).

The breach of the Press Code as indicated above is a Tier 2 offence.

Sanction

Daily Maverick is directed to:

• apologise to Khanyile and Mkhize either for not asking them for comment, or for not reporting their earlier comments (whichever applies in this case); and
• report their comments accordingly (if indeed they still want to comment).

The newspaper is directed to publish the apology at the top of the page where the offending article appears, with a headline containing the words “apology” or “apologises” and Khanyile’s and Mkhize’s names.

The text 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;
• 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 (attached); and
• be prepared by the publication and be approved by me.

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].

Johan Retief

Press Ombud