Appeal Hearing Decision: Eye Witness vs Mgidlana Gengezi

In the matter between

EYE WITNESS NEWS                                                                                      APPELLANT

AND

1.         Mr Gengezi Mgidlana (“respondent”) lodged a complaint against Eye Witness News (“appellant”) with the Office of the Press Ombud in connection with a story (the second story) published by the appellant on 27 July 2017 under the headline “Nehawu concerned over theft of case file in Gengezi Mgidlana matter”.  The respondent was at the material time Secretary to Parliament.  It was reported that one Ms Holtzman, apparently a parliamentary senior security officer who had been suspended, had taken the respondent to the Labour Court to fight the suspension. The headline suggested that there was a concern that certain documents to be used in the parliamentary inquiry against the respondent had been stolen. In its Ruling dated 9 November 2017, the Ombud and his panel dismissed some of the complaints raised by the respondent, while upholding others; and then imposed a sanction, namely, an apology to the respondent.

2.         The panel’s Ruling had summarized the respondent’s complaints as follows:

“The gist of Mgidlana’s complaint is that the reportage linked the disappearance of stolen documents unfairly and falsely, with ‘evidence’ that could have been used in parliament’s probe into him – creating impression that he had been involved in a criminal act (theft) to make ‘evidence’ against him disappear (adding that the newspaper intended to harm his reputation and damage his character).

“He also complains that the:

•  Headline and picture portrayed a misleading inference; and
• Journalist did not give him an opportunity to respond.

In general, he says that the story flouted numerous clauses of the Press Code …”

3.    The appellant denied the charges, with the following as the gist of its defence:  Regarding the headline, it was contended that it accurately reflected the content of the story.  Concerning the right of reply, the appellant argued that the reportage was not critical of the respondent; that in fact, the subject of the story was the theft of the documents and not him. It was argued that the average reader would not link respondent with the alleged theft of the documents.

4.  After considering the submissions and analysing the facts, the Ombud’s panel held that the applicant breached the following       sections of the Code:

• “ Section 1.8: ‘The media shall seek the views of the subject of critical reportage in advance of publication’
• Section 1.1: ‘The media shall take care to report news … fairly’ and
•  Section 1.3: ‘… Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner …’; and
• Section 3.3: ‘The media shall exercise care and consideration in matters involving dignity and reputation’ ”.

The appellant successfully asked for leave to appeal.

5.         The first story: Mr Mgidlana argues that the story (second story) complained about was a follow-up to the one (first story) which was published by the appellant a few days before; in fact the appellant says a day before.  The headline of the first story read: “Files of Zelda Holtzman case stolen”.  The story went on to say that documents relating to Holtzman’s case “have been stolen from the Cape Town Chambers of her lawyer, Advocate Johan Nortje …. In 2015, Holtzman laid a complaint against … Mgidlana”.  The story went on to say “Mgidlana is now under investigation by Parliament following wide-ranging complaints against him.  Holtzman is due to appear before Parliament’s … Committee to give evidence against Mgidlana. Advocate Nortje says he was preparing his client for the hearing.” The context created by the (first) story was therefore that the documents were stolen while the advocate was preparing for the hearing at which Holtzman was “to give evidence against Mgidlana”.  In this story, both the headline and the story itself states the theft of the documents as fact; not as an allegation.

6.         The headline of the second story also states theft as fact, as opposed to an allegation, although the opening paragraph speaks of “alleged” theft.

7.         The matter must be considered against the fact that both the headline and the content of the first story, as well as the headline of the second story, stated theft as a fact. The appellant argues that an average reader would not, from the second story, link the respondent with the theft of the documents. The mistake the appellant makes is to leave out of account the first story. The second story is a follow-up story to the first one and must be considered with the first one; after all, a follow-up story is precisely that: it is meant to be read in conjunction with or against the background of the previous one.  Once this is done in the present case, as it must be, an average reader will, firstly, see the only or main purpose of the second story as identifying the perpetrator of the theft reported in the first story; secondly, in light of the prominence given to the respondent and his picture and the connection to Holtzman, the respondent is cast to an average reader as the only probable prime suspect. Unless the purpose of the second story was to show some link between the respondent and the theft, the second story becomes no story as the issue of theft of the documents had already been sufficiently reported on and covered in the first story. The impression the appellant seeks to create, namely, that the second story was about NEHAWU’s “concern” was a clever but poorly devised smokescreen which does not bear scrutiny, as the next paragraph shows.

8.         The headline “Nehawu concerned over theft of case file in Gengezi Mgidlana matter” promises the reader a story about Nehawu’s concerns about the theft of a case file, and an explanation of what the Gengezi Mgidlana matter is.

The opening paragraph of the story keeps the promise in the headline alive: “The Nehawu National Health Education & Allied Workers Union (Nehawu) says it is concerned that private documents that could have been used as evidence in the probe against Secretary to Parliament Gengezi Mgidlana were allegedly stolen.” The only difference here is that the theft that was asserted in the headline has now been reduced to an allegation.

However, the story crumbles when the union does get to express itself. Its spokesperson says it has no concerns: “We don’t know what’s contained in that evidence that was taken but we’ve got reputable evidence that we’ve submitted to the audit committee as a union… our case isn’t disrupted, it is still as strong as it was before. So we’re confident that we’ll get the outcome that we’re looking for.” (Parliament’s Internal Audit Committee is the body that is investigating Mr Mgidlana.)

In the end the appellant fails to keep the promise of the headline: this turns out to be a non-story after all, unless its true purpose as a follow-up story was to link somebody with the theft reported in the first story.

Was the appellant desperately trying to get a new angle to a story it had told very clearly a few days before under the headline “Files on Zelda Holtzman Case Stolen?” The conclusion is inescapable that the new angle is to link somebody with the theft.

9.         There is another important consideration. Respondent pointed out that the documents in question were in fact publicly available. The appellant did not dispute this; in fact that probably explained NEHAWU’s lack of concern. Yet this information was not contained in the story, and no explanation has been given for this omission. The importance of the disclosure of this information is that it could have removed from the mind of a reader any possible motive on the part of the respondent. Publishing respondent’s picture by itself was not problematic; but given the context explained above, the picture, together with the story, served to accentuate an angle that casts the respondent as a probable suspect.

10.      In the circumstances, this was a case where the respondent should have been given the opportunity to respond. In all probability, he would have distanced himself from the theft reported (as a fact) and also pointed out to the reader the important fact which the appellant did not disclose, namely, that the documents were in any case publicly available. Although the panel of the Ombud might have followed a different reasoning, we are of the view that the findings and the sanction of the Ruling are correct.

11.      The appeal is therefore dismissed, and the following Orders are made:

11.1 The Ruling of the panel of the Ombud dated 9 November 2017 and the sanction imposed are hereby confirmed.

11.2 The content of the sanction imposed as well as the manner of its publication must be as directed in the Ruling.

11.3 The proposed content for publication must be submitted by the appellant to the respondent and the Director of the Press Council for the latter’s prior approval within seven working days of the date of this Decision.

11.4 The respondent to submit to the Director of the Press Council, if he so wishes, a response to the proposed publication within 5 days of receipt thereof. 11.5 In the event the parties do not agree on the content of the sanction to be published, the Director of the Press Council will have the final say.

11.6 The Director of the Press Council will decide as to when the sanction should be published

Dated this 7th day of May 2018

Judge B M Ngoepe, Chair, Appeals Panel

Ms C Mohlala, Member, Public Representative

Mr J Thloloe, Member, Media Representative

For the appellant: Mr Tebogo Mokoena

Ms Kathy Katopodis

For the Appellant: Mr Gengezi Mgidlana

Mrs Lerato Mgidlana