Appeal hearing decision (minority): ANC vs Daily Dispatch

Minority Decision by Mahmood Sanglay and Dr Lindsay Clowes on the Appeals Panel with Judge Bernard Ngoepe, Brian Gibson and Henry Jeffreys.

Date of Appeals Panel Hearing:

Wednesday 7 October 2015, Press Council office, 11.00 am to 2 pm

Appellant:

Bongani Siqoko, editor of the Daily Dispatch, represented by Advocate Carol Steinberg, Karien Norval, director of CTH Attorneys and Nikki Stein (pupil).

Respondent:

Gwede Mantashe, Secretary General of the African National Congress (ANC), represented by Krish Naidoo as counsel and Zizi Kodwa, ANC National Spokesperson.

1. The nature of the dispute between the parties as well as the arguments, are set out in the Majority Decision. We will therefore not repeat them in here, unless it is necessary to do so.
2. However, as introductory remarks we wish to express our concern with the procedure of a matter that essentially requires an ethical determination, but which had almost throughout been subjected to—and eclipsed by—legal representations by both parties.
3. In our view this is inconsistent with the stated raison d’être of the Press Council implicit in its aims and objectives, namely to offer a ‘non-statutory avenue for the mediation and adjudication of complaints against the press’, to ‘promote and to develop ethical practice in journalism’ and to ‘establish and maintain a voluntary independent mechanism to deal with complaints about journalistic ethics’.
4. One of the pillars of the council’s dispute resolution mechanism is a commitment to ethical conduct in journalism as indispensable for journalistic practice. The Press Code is subject to the Constitution and we recognise that we are bound to interpret the Code in any way that does not conflict with relevant legislation.
5. The Code was written as an ethical guide for journalists that is consistent with the Constitution and relevant legislation. Therefore, in our Panel hearings we are guided by the Press Code. Hence, the appropriate balance between the right to dignity and reputation on the one hand, and the right to freedom of the press on the other, must be found in and argued by means of the Press Code.
6. We have read the Majority Decision, and agree with it except to the extent, and on the points, indicated below.

The ruling of the Press Ombudsman and application for leave to appeal

Malicious intent

[11]      Malicious intent, as alleged by Respondent, is not proven in their submission. No evidence to this effect was provided by Respondent and the Press Ombud consequently dismissed this complaint.

The deliberations of the Appeals Panel

Failure to return to Mr Mantashe to explain the nature of the alleged influence

[12]       The original complaint of Respondent to the Press Ombud states: ‘In that conversation he [the Daily Dispatch reporter, Siphe Macanda] intimated that it is alleged that the tender was awarded because of Mr Gwede Mantashe’s influence. He [the reporter] was asked about the nature of such influence. Specifically, he was asked whether Mr Mantashe called the Muncipal Manager, or the Mayor, or the Panel responsible for the contract… Mr Gwede Mantashe explained that he wanted to understand the allegation. Mr Macanda then promised to come back with the answer. He never did come back with the answer…’

[13]      The Panel is of the view that the failure of the reporter to come back to Mr Mantashe with an answer is an act of discourtesy. The Press Code does not make provison for this kind of conduct. It is the view of this Panel that ‘acceptable principles of journalistic conduct’ in section 4.7.4 of the Press Code does not include acts of discourtesy such as that of Mr Macanda.

[14]      Moreover, there is a normative obligation on a media interviewee to answer the questions of a media interviewer. The reverse is not the norm. Hence, the discourtesy of the reporter does not constitute failure to meet any obligation in respect of 4.7.4. Consequently the reporter is not in breach of this section of the Press Code.

Unfair headline, photographs and caption

[15]      The Panel carefully considered Respondent’s and Appellant’s arguments relating to the headline ‘ANC faces behind toilet tender scandal’.

[16]      Respondent complains that the headline is misleading, malicious and damaging to the dignity and reputation of the ANC leadership. In particular, Respondent argues that the nexus created between the ‘ANC faces’ and the award of the tender is not supported by the contents of the article.

[17]      It is noteworthy that Appellant in its Heads of Argument extensively argues, in 62 paragraphs and 23 pages, that the Daily Dispatch article is true and accurate, that there are no omissions and that there is no requirement to prove inferences arising from the facts.

1. In contrast, Appellant dedicates only a single paragraph to defend the headline of the article: We submit that it is indeed that [sic] case that the photographs and the headline stand or fall with the article. Should this Appeals Panel find that the article was justified in implying a link between the unlawful award of the tender and the involvement in Siyenza of prominent ANC families, then the photographs and the headline, which reflect that link, cannot fall foul of the Code.
2. The Minority cannot agree that a headline should necessarily ‘stand or fall’ with an article. There are several recent Press Ombud rulings in which the complaint against a newspaper was dismissed in respect of the article’s contents, but upheld in respect of the headlines and photographs.[1]
3. Therefore, Appellant’s claim that the Daily Dispatch’s headline should ‘stand or fall’ with the article is not consistent with precedent in the Press Ombud’s rulings. Indeed the Panel is of the view that this part of the complaint should be considered in some detail.

[21]      The headline consists of the subject ‘ANC faces’, the preposition ‘behind’ and the object ‘toilet tender scandal’. It is the link created between ‘ANC faces’ and ‘toilet tender scandal’ in the headline that warrants closer analysis.

[22]      ‘ANC faces’, first part of the headline, refers to actual persons, namely the ANC leaders, in relation to the main topic of the article, the ‘toilet tender scandal’. Furthermore, the leaders are identified through the display of the faces of President Zuma, Mr Mantashe and Minister Zulu beneath the headline. Thus the ‘ANC faces’ in the headline are clearly identified in the photographs.

[23]      The link between ‘ANC faces’ and ‘scandal’ in the headline is strong, and stands in sharp contrast with the tenuous link between the ANC leaders and the impropriety associated with the tender. The Minority is of the view that this effect created by the link between ‘ANC faces’ and ‘scandal’ in the headline is therefore irreconcilable with the tenuous nature of this link in the article.

[24]      In the appeals hearing Ms Steinberg for Appellant conceded that the newspaper had no evidence of any influence on the municipality to award the tender to Siyenza Group and that political influence by ANC leaders in this tender is not a matter of fact, but of opinion.

[25]      It is also useful to consider the effect of the preposition ‘behind’ which connects the two parts of the headline. The meaning of ‘behind’ in this context is analogous with the sense in the expression ‘behind the scenes’. The word similarly conveys the sense of secretly contributing to a process that is out of public view. The link between ‘ANC faces’ and ‘toilet tender scandal’ thus created by the word ‘behind’ suggests covert and clandestine activity by the persons identified in the photographs beneath the headline. The ultimate effect is of secret involvement and manipulation by ANC leaders in the scandal.

[26]      All members of the Appeals Panel agree that the link in the article is ‘tenuous at best.’ It is therefore the conclusion of the Minority that the headline does not reasonably reflect the contents of the article.

1. Whilst the contents of the Daily Dispatch article complies with section 2.1 of the Code by reporting ‘news truthfully, accurately and fairly’ the headline fails to comply with section 10.1 of the Code, that is, it fails to give a ‘reasonable reflection of the contents’ of the article.

[28]      It is also important to note that all members of the Panel found that the use of the word ‘scandal’ is appropriate, only because it accurately points to actual impropriety in the awarding of the tender to Siyenza Group by the municipality. The Minority is therefore of the view that it is unfair to juxtapose and conflate ‘scandal’ with ‘ANC faces’ because of the tenuous link between the two entities in this case.

1. The Minority found that there is also some empirical basis for concluding that the juxtaposition and conflation is unfair. The article largely deals, in 89% of its contents (based on word count), with the matter of a questionable tender involving Siyenza Group and the municipality. Only 11% of the article deals with the family relationship between the ‘ANC faces’ and persons involved in Siyenza Group.
2. The significance of these percentages is that the word count has more than statistical value. It is also an indication of actual substance in the article. Reference to the ‘ANC faces’ in the article does not have any substance beyond an actual family relationship. However, reference to actual impropriety, which is the basic substance of the article and 89% of its total contents, is limited to Siyenza Group and the municipality.
3. Appellant agrees that no impropriety can be attributed to the ‘ANC faces’ on the basis of a family relationship.
4. Therefore reference to ‘ANC faces’ in the headline, once again, does not fairly reflect the contents of the article, both in respect of measure and in respect of substance. This, in the view of the Minority, is just cause for Respondent’s complaint that the headline caused unnecessary harm to the dignity and reputation of the ANC leadership.
5. In her submission at the appeal hearing Appellant’s counsel insisted that ‘if it is true it cannot be defamatory’ and that the law requires a complainant to ‘live with’ inferences that are ‘damaging to its reputation’ are misleading. Appellant is articulating a legal precept, and fails to recognise that the headline does not meet the requirement of fairness as prescribed in section 2.1 of the Code. Hence, the Ombud and his Panel were correct to rule that the headline is unfair.

[34]      Harm to the dignity and reputation of Respondent in the article was unavoidable due to an overriding public interest. Hence the question of avoiding unnecessary harm and to exercise care and consideration with the dignity and reputation of Respondent in the article does not arise.

[35]      This is not so in the case of the headline. Harm to the dignity and reputation of Respondent was avoidable had the headline reasonably reflected the contents of the article. The headline therefore caused unnecessary harm because it was written without exercising due care and consideration to Respondent.

[36]      Similarly, the photographs and caption do not reasonably reflect the contents of the article. The photographs and the caption together, supported by the headline, reflect a strong link between the members of the ANC leadership and the scandal. This too is irreconcilable with the tenuous link between the two entities in the article.

Decision of the Appeals Panel

[37]      In respect of the complaint that Appellant failed to return to Mr Mantashe to explain the nature of the alleged influence, the Appeals Panel finds that the Press Ombud erred in his ruling that Appellant was in breach of section 2.5 of the Press Code. The appeal against this ruling of the Press Ombud should therefore succeed.

[38]      In respect of the headline, photographs and caption, the Minority finds that the Daily Dispatch is in breach of section 2.1 of the Press Code in that the headline, photographs and caption were unfair, and of section 10.1 in that they did not reasonably reflect the contents of the article. The Minority would therefore dismiss the appeal against this ruling of the Press Ombud.

Dated: 26 October 2015

Mahmood Sanglay, Member, Press Representative

Dr Lindsay Clowes, Member, Public Representative