Baleka Mbete and the ANC vs. Mail & Guardian – 2

This ruling is based on the written submissions of Ms Baleka Mbete, National Chairperson of the ANC and Ms Nicqui Galaktiou (on her behalf), and Charmeela Bhagowat, managing editor of the Mail & Guardian newspaper.

Complaint

Mbete and the ANC complain about the headline of a story in the Mail & Guardian (‘Gold Fields bribed Mbete’ – US investigators have concluded that a R25-million share handout to Baleka Mbete constituted corruption by Gold Fields, which then buried the findings, 6 September 2013).

The complaint is that the headline was deliberately misleading and defamatory, and that it was presented in isolation (not based on the story).

Text

The story said that US investigators had concluded that a R25-million share handout to Mbete constituted corruption by Gold Fields.

Analysis

The headline

Mbete’s arguments

Galaktiou argues that:

• Mbete was not bribed by Gold Fields or anyone associated with that company, or regarding the BEE transaction in question;
• the story did not substantiate the allegation, rendering the headline unfair and defamatory;
• the allegation was published without any due regard to her rights in law as a South African citizen; and
• the content of the story was contradictory, yet the newspaper still published its headline.

She concludes that the headline has caused Mbete, her family and the ANC unwarranted harm.

The M&G’s response

M&G replies that the only real question is whether the headline reasonably reflected the contents of the story (based on Section 10.1 of the Press Code). “If the report itself was justified, which is common cause as it is not complained about, and the headline reasonably reflected it, the complaint must fail.”

Bhagowat argues that Mbete omitted to state that the headline had been:

• presented as reported speech by the use of quotation marks (signifying an allegation or an opinion); and
• accompanied by a subtitle that both attributed the reported speech to an identified accused, and gave context to the accusation.

She adds that the introductory paragraphs of the story summarized the salient aspects of the story, and that the same key elements were found in the headline and subheading – both included the statement that US investigators made a finding of bribery against Gold Fields in relation to Mbete, and in respect of a share allocation to her.

The newspaper also says that it merely reported a credible allegation and inference in the public interest.

Mbete’s reply to the newspaper’s response

In her response to the above, Mbete:

• maintains that the story did not accuse her of bribery, but merely included such an inference (“…the law firm made no finding against Mbete, whose complicity would depend on her actions and state of mind” – she cites several other references to the word “inference” in the M&G’s response to the complaint);
• points out that the M&G itself, on page 2 of its response to the complaint, stated that:
  • the finding of legal culpability did not extend to her – which was also reflected in the subheading, where it was “clear that the finding was that the handout ‘constituted corruption by the mining company’”; and
  • although it was outside the investigator’s mandate to make any finding of criminal liability against Mbete, a substantial case was “inferred” against her on this level.

From the above, Mbete argues that the newspaper itself believed that the allegation of bribery was only inferred, which was contradictory to the headline. She also says: “On the one hand the M&G said that Gold Fields was found to have committed corruption by bribing [her] but on the other hand she was not complicit and no finding of legal culpability was made against her… There was no evidence of bribery.”

She adds: “It is not acceptable for a newspaper to hide behind quotation marks when making serious allegations such as one of bribery especially when such accusation is not supported in the body of the story”; and, “The press is given enormous leeway with the use of quotation marks but in this instance it cannot be exonerated as the headline is distorted and [is] not a reasonable reflection of the contents of the story.”

Mbete concludes that, if the newspaper wanted to be accurate and fair, the headline should instead have stated that there was an allegation that Gold Fields had bribed her.

My considerations

Please note that Mbete did not complain about the story itself. However, in later correspondence she argues this case, to which the newspaper responds. I cannot entertain these arguments as she had ample time and opportunity to complain about it, and it would be unfair toward the newspaper to add material arguments to the original complaint.

That means that the M&G, quite correctly, stated: “If the report itself was justified, which is common cause as it is not complained about, and the headline reasonably reflected it, the complaint must fail.” (emphasis added)

I therefore agree with the newspaper’s argument that the only real question that remains is whether the headline reasonably reflected the contents of the story .

From the complaint, and accompanying arguments, it is clear that Mbete understands this principle (as she consistently argues that the headline was not supported by the contents of the story).

A close scrutiny of the story is now appropriate to establish if the headline reasonably reflected the content of the article.

The story indeed made it clear that Gold Fields had increased Mbete’s share “by about R25-million from a previously near-eligible value”.

Based on that, as well as on the rest of the contents of the story, I cannot but conclude that both the main headline and the sub-heading indeed reasonably reflected the content of the article.

It is also worth noting that the headline indeed did not state the bribery as fact, and that the sub-heading pointed to wrong-doing by Gold Fields (and not by Mbete).

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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman