Bheki Khenisa vs. Rustenburg Herald

This ruling is based on the written submissions of Public Advocate Latiefa Mobara, on behalf of Mr Bheki Khenisa, and those of advocate Robert Coetzee, on behalf of the Rustenburg Herald newspaper.

Khenisa is complaining about a story on page 5 in the Rustenburg Herald of 10 June 2016, headlined Former Municipal Manager allegedly blamed for R397m debacle…

Complaint

Khenisa, the former municipal manager in question, complains that the newspaper was in breach of the following sections of the Code of Ethics and Conduct:

·         1.2: “News shall be presented in context and in a balanced manner, without any negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization”; and

·         1.8: “The media shall seek the views of the subject of critical reportage in advance of publication…”

He requests an apology from the newspaper for not asking him for comment.

The text

The story, written by Waldie Volschenk, said that Khenisa became the latest to leave the service of the Rustenburg Municipality after a settlement had been reached.

The municipality reportedly suspended him on 23 December 2015 with full salary pending a disciplinary process, which lasted all of five months.

The main “charge” investigated against him was “that he was apparently to be blamed for the fact that the Rustenburg Municipality had effectively lost R400 million in terms of Municipal Infrastructure Grants (MIGs) or ‘conditional grants’ by the National treasury”.

Volschenk wrote that, according to reports, conditional grants were apparently not used for their intended purposes, such as the upgrade of municipal infrastructure, water and electricity; instead, they were used to cover running costs such as salaries.

The arguments

Coetzee says that there is nothing in the complaint to substantiate a motivation for a breach of Section 1.2 of the Code of Ethics and Conduct. He argues that Khenisa’s request for an apology in the absence of an approach for comment serves to confirm that he had no problem with the contents of the article as such.

He also asks Mobara to provide him with more information, “should the complaint entail more than what was recorded in your e-mail under response”.

Regarding the complaint about a right of reply, Coetzee says the article in dispute forms part of a much larger picture.

In this regard, he mentions the following:

·         Two other, related articles appeared in the same edition of the Rustenburg Herald (Municipalities in financial trouble, and Rustenburg disgraced by the massive irregular overspending of R306 billion);

·         The executive mayor issued a letter, dated June 9 and headlined, Open letter to residents of Rustenburg on recent media reports – Coetzee draws my attention to the “extreme belligerent attitude” of the author towards the newspaper and the journalist;

·         On June 10 the Rustenburg Municipality placed a statement in the Rustenburg Herald (page 18) headlined, Response to media statements: Irregular expenditure of R3 300 019 872.35 setting the record straight; in this document the municipality recorded its response to articles recently published in the Mail & Guardian, City Press and the Sunday Times; and

·         On June 7, Beeld published a story which “recorded essentially the same allegations as were recorded in the article complained of”.

The newspaper says the allegations against Khenisa (therefore) had already been public knowledge by the time the article in dispute appeared “due to the fact that the same information was recorded in at least one other newspaper” (with a larger circulation than the Rustenburg Herald).

He submits that the newspaper “essentially” reported the following with regard to Khenisa:

·         He had left the service of the Rustenburg Local Municipality prematurely subsequent to an agreement of settlement with effect from 31 May 2016, in terms of which he would receive an amount equal to one month’s salary;

·         The settlement had been announced at the monthly council meeting on 31 May 2016;

·         The disciplinary process started on 23 December 2015, when he was suspended with full salary; and

·         The “charges” were noted.

Coetzee contends that none of the allegations made concerning Khenisa were therefore contentious. He adds it is difficult to imagine what possible comment from Khenisa could have made a meaningful contribution to the subject matter of the article.

He also submits:

·         it would have been “impractical” to ask Khenisa for his views on the article; and

·         If the article is regarded as critical reportage, which the newspaper denies, then the exception provided for in Section 1.8 of the Code is applicable.

(This part stipulates that the media are not obliged to seek the views of the subject of critical reportage “where the institution has reasonable grounds for believing that by doing so it would be prevented from reporting; where evidence might be destroyed or sources intimidated; or because it would be impractical to do so in the circumstances of the publication”.)

Analysis

Section 1.2

I agree with the newspaper: The complaint does not address exactly what was wrong, unbalanced or out of context in the story. Khenisa was given the opportunity to explain what he meant, but he never obliged. I have therefore no ground of any sort to find for him on this specific issue.

Section 1.8

The crux of this matter is Khenisa’s complaint that the story amounted to “critical reportage”, which means that the newspaper was obliged to ask him for comment; Rustenburg Herald argues the opposite.

This compels me to define what constitutes “critical reportage”, and what not.

Several factors are in play here. These are inseparable and should therefore be interpreted in each other’s light, yet I need to distinguish between them in order to come to a reasonable understanding of this issue.

Firstly, if a story is not likely to lower the public image of a subject, such reportage cannot be labelled as “critical reportage”. It may be that the reportage is “innocent” and possibly positive towards someone. For example, if someone has been chosen to play for Bafana Bafana, reportage on that player’s selection is not likely to harm that person – and therefore, there is no need to ask him for comment (the media are, of course, free to approach the player for comment, but there is not ethical need for it).

On the other end of the stick, one can say text that unnecessarily lowers a subject’s public image does constitute “critical reportage”.

The importance of the Preamble to the Code cannot be underestimated in this regard. I quote: “As journalists we commit ourselves to the highest standards, to maintain credibility and keep the trust of the public. This means [always] avoiding unnecessary harm…” (Emphasis added.)

Clearly, if the media could cause someone unnecessary harm by their reporting (which they should not do in any case), the Code requires journalists to ask that person for comment.

But the same stick also has some middle ground, for there may be instances when reporting can justifiably lead to the lowering of a person’s public image (on which the media are free to report).

For example, if a mayor has been convicted of rape, the media may freely report on the matter without worrying about lowering that person’s image any further – that official has lowered his or her own image, and the media are merely the messengers in such a case. The condition, of course, is always that such reportage should be accurate and fair. In law, it is recognised that one cannot defame somebody with the truth, given that the truth is in the public interest. Applied to media ethics, this means the press may report freely in a negative way about a subject, as long as the report is true and at the same time in the public interest (and both these conditions have been established).

In a certain sense it is the media’s duty to help lowering such a mayor’s public image.

This will be negative reporting as far as the mayor is concerned, but it does not contain the possibility of unnecessarily harming that official’s public image and reputation – which means, in terms of Section 1.8 of the Code, that the media are not obligated to ask the mayor for comment.

The (to some maybe surprising) conclusion is that “negative” reporting is not always equal to “critical” reporting.

But I need to delve even deeper, for what about cases when the outcome of a matter has not yet been settled?

Taking the example above a few steps back: the mayor has not yet been convicted, but has been accused of committing rape.

So, while these rumours and allegations are swirling about town, it still is not certain that this official is guilty. In such a case reportage on the matter may be allowed, but on condition that the subject is asked for comment – for this may amount to critical reportage (read: causing the mayor unnecessary harm).

The litmus test for “critical reportage” is whether the text is likely to cause unnecessary harm to the relevant subject. This can happen when a case is still being decided, meaning that the truth has not yet been established.

As stated above, all of these considerations should be considered, not in isolation, but in relation to one another.

In this complaint, I should now throw all of the above into one pot and thoroughly stir and cook it, so that the ingredients have an opportunity to mix before being dished up on a plate.

Applied to the complaint at hand, these are my considerations:

·         The reportage was negative towards Khenisa;

·         A settlement has been reached between him and the municipality, which means that the matter has been finalised;

·         Reporting on the finalization of the matter was not likely to cause Khenisa some unnecessary harm (as all indications are that he has accepted the settlement); and

·         He has not pointed out to me a single instance where the story was wrong.

Based on the above, the article cannot justifiably be labelled as “critical reportage” – the issue has been finalised, the subject matter of the story was not in dispute, and the reportage was not likely to tarnish Khenisa’s reputation unnecessarily.

This means that the newspaper was not under any obligation to ask Khenisa for comment.

Having said that, though, I also need to make a few cautionary remarks.

From time to time, Rustenburg Herald’s argument seems to border on the conviction that, if other newspapers have published a subject’s views, it was relieved of the obligation to do so as well. Nothing is further from the truth. I have had numerous examples, over the years, of newspapers that had merely copied information from other publications without independently verifying the facts. This is a dangerous practice, as a statement is not true just because it has been published.

I also do not understand Coetzee’s claim that it would have been “impractical” to ask Khenisa for his views on the article, nor his argument that the exceptions in Section 1.8 of the Code were applicable in this case.

Finding

The complaint is dismissed.

Appeal

Our 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