Appeal Hearing Decision: Ms Mbete vs Mail & Guardian

In the matter between:

THE MAIL & GUARDIAN                                                                                      Applicant

and

BALEKA MBETE                                                                                              Respondent

Decision of the Appeals Panel

1. BACKGROUND
   1. The Appeals Panel, consisting of Judge Bernard Ngoepe and two members of the  Panel, Susan Smuts (press representative) and Brian Gibson (public representative) heard two appeals at the offices of the Press Council in Johannesburg on 16 May 2014.

b)    The first appeal was by Ms Baleka Mbete (Respondent) against the Ruling of the Ombudsman dated 29 November 2013 in respect of the headline “Gold Fields bribes Mbete”, accompanied by a story published by the Mail & Guardian (Appellant) on 6 September 2013.

c)    The second appeal was by the Mail & Guardian (M&G) in respect of the further story on the Respondent, published by the M&G on 13 September 2013, against which the Respondent had also lodged a complaint. The headline read “Mbete looks out for Number One – Behind the Gold Fields pickle is a powerful politician who favours progress over principle”. The Ombudsman, issued two separate Rulings, both dated 29 November 2013. In one, he dismissed the complaint relating to the headline to the story of 6 September 2013; in the other, he upheld the complaints relating to the story of 13 September 2013 and imposed a sanction on the M&G.

d)    Both parties had applied for leave to appeal the Ombudsman’s Rulings, which was granted by the chair of the Appeals Panel, Judge B M Ngoepe, on 22 February 2013.

e)    The Mail & Guardian was represented by attorney Willem de Klerk and accompanied by the M&G’s Managing Editor Charmeela Bhagowat, and journalists Stefaans Brummer and Phillip de Wet. Ms Baleka Mbete was represented by attorney Nicqui Galaktiou and candidate attorney, Maria Viskovic, and was accompanied by her daughter, Ms Ipuseng Kgositsile, Mr Brian Mosehla and Ms Zanele Hlatshwayo.

2)    THE COMPLAINT RELATING TO THE STORY PUBLISHED ON 6 SEPTEMBER 2013

a)    It was the Respondent’s case that, right from the beginning, she lodged a complaint against both the headline and the contents of the story of 6 September 2013. The Ombudsman dismissed the complaint against the headline. He held, however, that the Respondent had not originally lodged a complaint against the content of the story itself. Holding that the Respondent could not raise for the first time a complaint about the content at a later stage of the adjudication by the Ombudsman, he declined to entertain this complaint.

b)    We are of the view that the Ombudsman erred in holding that the Respondent did not lodge a complaint against the contents of the story itself right at the beginning. In the same letter in which she conveyed her complaint against the headline of 6 September 2013. The Respondent says, amongst others, the following: “The story that accompanies the headline does not substantiate the bribery claim nor does it evidence of proof of this so-called bribery as alleged by the headline and is therefore defamatory and unfair.”  (Own emphasis).

c)    It is clear that what the Respondent refers to as being “therefore defamatory and unfair” is the story itself; with these terse words, she moved away from the headline and indicted the contents of the story itself. True, the Respondent did not specifically refer to any provisions of the Press Code. It must be borne in mind that she is not a lawyer and might not have been able to formulate the complaint in more precise and detailed terms, which, ideally, she should have done. The Panel holds that the Respondent did in fact also lodge a complaint against the contents of the story of 6 September 2013 right at the outset, albeit not in such detailed terms as one would have preferred.

d)    The question is what should be done given our above finding. Ms Mbete’s complaint against the headline of 6 September was dismissed by the Ombudsman. She has now appealed this as well. We are of the view that the complaint relating to the headline and the content of the accompanying story are so closely intertwined that, once we find that there was a complaint against the content, the two complaints should be heard together and therefore referred back to the Ombudsman. This is because one can never know what the Ombudsman’s ruling would be were he to considered both the complaint about the headline and the one about the content.

e)Accordingly, the Ombudsman’s ruling dismissing the complaint relating to the headline of 6 September 2013, AND his ruling that there was no complaint against the content of the accompanying story, are set aside in their entirety and the matter is referred back to the Ombudsman to reconsider both the complaint about the headline and the content of the story.

3)    THE COMPLAINTS RELATING TO THE STORY PUBLISHED ON 13 SEPTEMBER 2013

a)    As summed up by the Ombudsman, the complaint was that the story erroneously reported that the Respondent “had been accused of having exploited state funds and that she had reportedly paid back her share” and that she “received an illegal driver’s licence in 1997.” The complainant denied these assertions and said the story cast aspersions on her integrity and standing in society.

b)    In his Ruling, the Ombudsman found that:

i)      The M&G did not have sufficient justification to accuse Ms Mbete of exploiting state funds and that she had paid back her share (in breach of Articles 2.1.[1] and 7.3[2] of the Press Code);

ii)     The M&G was unfair to Ms Mbete in that it did not point out “the other half of the truth” in respect to the illegal driver’s licence, namely that she had not been found guilty on this matter (in breach of Articles 2.1.and 2.2.[3]of the Press Code); and

iii)    That the article cast aspersions on Ms Mbete’s integrity and dignity without sufficient justification (in breach of Article 4.2.[4] of the Press Code).

c)    As a sanction the Ombudsman crafted an apology to be published by the M&G.

d)    The M&G sought leave to appeal against the three Rulings and the Sanction. The application was opposed by the Respondent.

e)    On 22 February 2013, the chair of the Appeals Panel, Judge B M Ngoepe, granted the Applicant leave to appeal both the findings and the sanction.

f)     Having heard the Heads Of Argument presented by both parties, the Panel dealt first with the “two pillars” that were claimed by the M&G to be the facts “truly stated” that underpinned it’s “fair comment” that Ms Mbete was somebody who would put “political progress before principle” i.e. :

i)      “……. her treatment of the Travelgate scandal – when MPs and travel agents defrauded the institution – while she headed Parliament. Mbete (herself accused of having exploited state funds, although she reportedly paid back her share) chose to  make the problem go away rather than pursue action against those involved”; and

ii)     “Revealed to have been the recipient of an illegal driver’s licence in 1997, Mbete declared that she had been “too busy” to queue for the real thing.”

g)    The First Pillar

i)      Mr De Klerk stressed that in regard to the first pillar the sting of the article (i.e. that Ms Mbete put “political progress before principle”) rested on both the points made, namely that she had chosen to “make the (Travelgate) problem go away” (which had not been challenged by the Respondent) and that she stood “accused of having exploited state funds” (which was the primary focus of the complaint).

ii)     Ms Galaktiou confirmed that the specific phrase in the First Pillar that had caused her client particular offence was the section in brackets, namely “(herself accused of having exploited state funds, although she reportedly paid back her share)”, which was described as simply untrue.

iii)    Confirming to the Panel that the “accusation” (of abusing state funds) had specifically been in regard to the Travelgate matter, Mr De Klerk argued that the M&G had relied on a 2008 interview of its then editor-in-chief with Bernard Kurz, an attorney representing Parliament at the time who had interrogated MPs implicated in the fraudulent use of travel vouchers, who had told the M&G that he had written to various MPs who “appeared” to owe money”. Ms Mbete had submitted “proof of payment” to him. Quoting the Supreme Court of Appeal, Mr De Klerk also argued that his client was also justified by in repeating the similar claim made in various other media articles over many years because “there are circumstances when the mere repetition of certain claims will be lawful, if it is reasonable to do so in the particular way and at a particular time.”[5]

iv)   Ms Galaktiou demonstrated in her response, however, that not only had the Scorpions issued a statement in 2004 that, according to the information at its disposal, it was not investigating Ms Mbete in connection with Travelgate but that all but one of the political parties in Parliament had subsequently approved a resolution expressing full confidence in Mbete and rejecting calls for her to recuse herself from the Travelgate matter. She had also lodged a successful complaint against the Sunday Times before the Press Ombudsman. The Sunday Times had apologised and retracted similar allegations against her regarding Travelgate.

v)    The Panel noted that the Sunday Times apology made it clear that any money refunded by Ms Mbete to Parliament in respect of travel costs had been voluntarily tendered by her in respect of a trip from China to Vietnam by herself and her daughter.

vi)   Mr De Klerk argued that the Sunday Times apology was not freely available.

vii) The Panel has concluded that although the M&G was justified in commenting on Ms Mbete’s “treatment” of the Travelgate saga, the newspaper was remiss in not having researched the alleged “exploitation of state funds” more thoroughly and for perpetuating an untruth. The Panel therefore upholds the ruling of the Ombudsman in respect of the breach of Article 2.1. of the Press Code. The Appeal in respect of Article 7.3. (Comment) is, however upheld for reasons that will become evident later in this ruling.

h)    The Second Pillar

i)      In regard to the Second Pillar, Mr De Klerk demonstrated to the Panel that it was common cause that Ms Mbete had been in possession of an invalid licence. The ANC had issued a statement accepting her apology and commitment to return the invalid licence. Since the M&G had not asserted that Ms Mbete had intentionally and fraudulently procured an illegal licence there was no need to record – as demanded by the Ombudsman in his ruling – that she had not been found guilty on this matter.

ii)     Apart from stressing that the Moldenhauer Commission of Enquiry (which had investigated widespread corruption in Mpumalanga’s regional driver licence testing centres in 1997) “did not find Ms Mbete culpable in any way”, Ms Galaktiou emphasised her client’s particular indignation at the second element of Second Pillar statement, namely that “……. Mbete declared that she had been ‘too busy’ to queue for the real thing.”  The proper context of this statement was that she had informed the Commission that “I don’t have time to stand in queues. I am not required to stand in queues at airports and things”.  She had not said, as claimed in the article, that she was “’too busy’ to queue for the real thing” and denied that she had jumped the queue in order to obtain an illegal driver’s licence.

iii)    The Panel concluded that the licence issued to Ms Mbete had clearly been illegal. There was no obligation for the M&G to explain how she had come to possess the licence. She had confirmed her reluctance to stand in queues at the Moldenhauer Commission.

iv)   By majority of two, with Ngoepe J dissenting, the Panel found that it was fair comment for the M&G to have described the situation as it did. For the sake of convenience, the view of Ngoepe J on this point is stated here briefly: the M&G were not entitled to say that Mbete said she was too busy to queue for the “real” thing, because this would imply that she knew that the licence was going to be illegal; this would be inconsistent with the findings of the Moldenhauer Commission.

v)    The majority of the Panel is persuaded that the Ombudsman erred in his ruling in respect of the Second Pillar and the Appeal is therefore upheld.

i)      Reputation and Dignity

i)      Having ruled on the two pillars that were used by the M&G to “demonstrate” that Ms Mbete was somebody who would “put political progress before principle”, the Panel must then turn its attention to the third leg of the Ombudsman’s ruling, namely that the article cast aspersions on Ms Mbete’s integrity and dignity in breach of section 4.2. of the Press Code. This deals with the obligations of the media in regard to a person’s dignity and reputation.

ii)     The Ombudsman ruled that the M&G had failed to provide “sufficient justification” for its comments about Ms Mbete. Because one of the facts relied on was incorrect and the other only “half true”, the commentary “stood on shaky ground”

iii)    Article 4. states that the dignity or reputation of an individual may only be overridden only in the following circumstances:

(1)  “The facts reported are true or substantially true”,

(2)  It is “fair comment based on facts that are adequately referred to and that are true or substantially true”; or

(3)  The article was “prepared in accordance with acceptable principles of journalistic conduct and in the public interest”.

iv)   Mr De Klerk argued that the facts relied on were substantially true, and that the opinion was published in the public interest. The Ombudsman had not paid adequate attention to the greater freedom allowed by Article 7 of the Press Code, which allows for greater latitude in the expression of public opinion, comment or criticism as long as it:

(1)  Is “fairly and honestly made”;

(2)  “Appears clearly as comment”;

(3)  Is “made on facts truly stated or fairly indicated and referred to”;

4. Is “an honest expression of opinion made without malice or dishonest motives”; and

(5)  “Take (s) into account all available facts which are material to the matter”.

v)    Mr de Klerk further referred the Panel to High Court rulings that “public men” should not be “too thin-skinned”[6]; and that “The law’s reluctance to regard political utterances as defamatory stems from the recognition that right-thinking people are  not likely to be greatly influenced in their esteem of a politician by derogatory statements made about him…..”[7]

6. On balance the Panel would be inclined to support the Ombudsman’s ruling were Ms Mbete to have been an ordinary citizen and not a high profile political figure whose role in both the Travelgate and driver’s licence issues has been the subject of intense and robust public debate and speculation over many years. The Panel accepts that politicians should regard the “slings and arrows” of hostile, extravagant and even misguided political commentary as an occupational hazard

vii)The Panel, by a majority of two with Ngoepe J dissenting, therefore upholds the Ombudsman’s finding regarding the issue of the driver’s licence but concludes that the Ombudsman erred in ruling that the article “cast aspersions on Ms Mbete’s integrity and dignity without sufficient justification” (in breach of Article 4.2. of the Press Code). The Appeal is therefore upheld.

viii) This decision holds good, even though the Panel has ruled that the second half of the First Pillar used by the M&G to justify its comment was found to be flawed.

j)     The appeal against the sanction

i)      The M&G has appealed against the Sanction imposed by the Ombudsman that it should publish a lengthy apology in respect of all three elements of the original complaint.

ii)    By majority, Ngoepe J dissenting, the Appeal is partially upheld in that the M&G must apologise to Ms Mbete only for perpetuating the oft-repeated allegation that she “had been accused of having exploited state funds” (in respect of Travelgate) when there was ample evidence that this allegation is untrue. (Ngoepe J holding that the appeal against the Ombudsman relating to the driver’s licence, be dismissed and the Ombudsman’s finding be upheld).

Dated this 17^th day of June 2014.

Judge Bernard Ngoepe (Chair of Appeals)

Brian Gibson (Public Representative)

Susan Smuts (Press Representative)