National Arts Council vs The Citizen

Ruling by the Press Ombud

Date of articles:                     23 May 2022 (print), 20 May 2022 (online)

Headline of publications:     ‘CEO’s secret deal with council’ (print)  ‘Laptop, cellphone and salary until 65^th birthday: Arts council boss Rosemary Mangope’s golden handshake’ (online)

Authors:                                 Gertrude Makhafola

Summary:

Clause 1.1. – accuracy of statements presented as opinion and fact. Clause 1.8 – requirement to seek pre-publication comment on official records. Clause 1.8 – role of pre-publication comment to verify allegations. Clause 11 – anonymous sources – when justified. Single statement contravening several clauses of the Code – approach to be taken.

Particulars

1. The complainant is the National Arts Council (‘NAC’), represented by Moodie & Robertson Attorneys.
2. The Citizen’s digital editor, Earl Coetzee, and the author of the articles answered on behalf of the publications.

Background

3. The NAC has made headlines for unflattering reasons over the last two years. One of the more prominent controversies was what was colloquially known as the Covid-19 relief funds destined for artists. It is a matter of public record that many artists were extremely upset with the NAC and some of the country’s most well-known artists staged protests at the NAC.
4. There was also an investigation by the Public Protector into complaints of irregularities at the NAC and a forensic investigation by a well-known auditing firm.
5. Rosemary Mangope (‘Mangope’), as the then CEO of the organisation, was in the firing line and was suspended around February 2021.
6. This, then, was the canvas for The Citizen to paint a picture of indignation from artists and politicians. The publication reported, on its website and its print edition, that Mangope ‘left the entity before a disciplinary hearing against her could be concluded’ and did so after she ‘struck a secret multi-million-rand golden handshake with the council’.
7. The online article comprises more than 1800 words setting out the controversies at the NAC, what it termed ‘Mangope’s history of questionable conduct’, the Public Protector’s findings, and the disciplinary hearing of Mangope and the suspended chief financial officer of the NAC.
8. The NAC’s complaints are confined to relatively small portions of the greater article – albeit central ones.

The complaint

9. The NAC alleges breaches of the following clauses of the Press Code:

9.1 Clause 1.1. – requiring accurate, truthful, and fair reporting.

9.2 Clause 1.2. – enjoining the media report in a balanced manner.

9.3 Clause 1.3. – failure to distinguish between fact and opinion.

9.4 Clause 1.7. – the verification of doubtful information.

9.5 Clause 1.8. – the requirement to seek pre-publication comment

9.6 Clause 10 – the principle of headlines that should not mislead readers

10. Although the NAC does not list it separately, a prominent focus of the complaint is the use of anonymous sources. Clause 11.2. of the Press Code says the media ‘shall avoid the use of anonymous sources unless there is no other way to deal with a story and shall take care to corroborate such information’.
11. As with many complaints, the categorisation of the different complaints into breaches of particular clauses of the Press Code is not as clear as one may expect. One sentence or paragraph may contravene two or more clauses of the Press Code. Similarly, an inaccurate statement in an article that makes it into the headline will trigger breaches of clause 1.1. and clause 10.
12. A sensible approach is needed in cases such as the present. The aim is to test the published articles against the word and spirit of the Press Code in a way that holds the relevant publication accountable but without attempting to throw the proverbial book at publications and finding them in breach of a litany of clauses that distorts the true extent of any transgressions.  
13. In essence, the NAC’s complaints may be summarised as follows:

13.1 The journalist got the wrong end of the stick regarding the details of the golden handshake of Mangope.

13.2 The NAC feels aggrieved that they did not have a fair opportunity to comment and their comments were not sufficiently reflected.

13.3 The articles contained inaccuracies from official records.

Analysis

Some common cause facts

14. The complainant and publications both say that the journalist in question did approach the NAC for pre-publication comment. According to the NAC, whose version was not challenged by the publication, the journalist posed the following questions:

14.1 ‘Why did the NAC not proceed with [Mangope’s disciplinary] hearing in April?’

14.2 ‘How far long was Mangope’s contract (if she had a contract)?

14.3 ‘Lastly, was there a golden handshake between NAC and Mangope? If not what was the parting agreement?’

14.4 If there was a golden handshake, which then involves public funds, how much was it?’

15. The NAC’s response to the queries was:

“Ms. Mangope was suspended as CEO in February 2021 and, following a disciplinary process and the subsequent conclusion of a settlement agreement between herself and the NAC in April 2022 she is no longer in the employ of the NAC. The terms of this settlement agreement are confidential and will not be disclosed. The NAC can advise, however, that recent media references to any salary increases, salaries to be paid up until she is 65, bonuses, medical aid and other golden benefits, forming part of the settlement agreement are completely inaccurate and appear to be nothing less than a continuation of a campaign to spread false and damaging information about the NAC”.

16. It further appears to be common cause between the parties that the Public Protector and the forensic investigation made adverse findings against the NAC. However, the exact nature of the findings is in dispute.

The ‘inaccurate’ details of the ‘golden handshake’

17. The NAC objects to the following sentences in the news reports:

17.1 That the former CEO ‘struck a secret multi-million Rand handshake’

17.2 The allegation that the former CEO is ‘at home earning a free salary until she turns 65’ and that she can ‘continue to use the council’s laptop and cell phone as she sees fit’.

18. The following statements were presented as facts in the headlines and in the articles:

18.1 That there was a secret deal between the CEO and council (print)

18.2 That fellow managers halted the hearing (print headline)

18.3 That Mangope would get a laptop, cell phone and salary until her 65^th birthday (online)

18.4 That the NAC and Mangope struck a secret multi-million-rand golden handshake (body of both articles)

19. Other statements were presented as allegations:

19.1 That Mangope threatened to spill the beans during the last leg of her disciplinary hearing (body of both articles)

19.2 That Mangope will be earning a salary until she turns 65 and would have the use of the council’s laptop and cell phone (body of both articles)

19.3 That Mangope would get a salary until 65 (print headline)

20. These statements, the NAC says, is ‘completely inaccurate and untrue’. This is a somewhat vague statement as it implies an unqualified denial of every aspect of the quoted sentences. As will be elaborated on below, it surely cannot be in dispute that there was a monetary settlement agreement, also known as a ‘golden handshake’.
21. Equally unhelpful is the publication’s response which did not specifically stand by, or disavow, the statements.
22. The journalist’s response was as follows:

‘More enquiries led to a source inside NAC [from] whom I requested information about the Mangope agreement. She told me she didn’t have the actual agreement, but heard from those close to managers that Mangope was allowed to continue using her work cell phone and laptop and that she was going to continue her salary right into her 60’s.’

23. The editor’s response was:

‘The Citizen’s reporter acted in good faith and spoke to multiple sources who made similar claims regarding the supposed golden handshake paid to Ms Mangope. This, combined with the sudden manner in which the disciplinary process against her was stopped, prompted our reporter to dig into the package, and found that there had also been previous mention of the package made in other publications.

He proceeded to state that the NAC refused to provide details and the dissatisfaction with the secrecy was also the subject of parliamentary activity.

24. This, the publication says, means the publication was ‘justified in publishing the article, as it involved public funds for which the NAC refused to account.’
25. I accept that the NAC was less than transparent at the time in their handling of Mangope’s departure and that there was justification for the indignation expressed by several parties in the article. 
26. However, the ‘previous mention of the package’ made in another publication which I was referred to, cannot substantiate the allegations made – let alone any statements of fact. This office has held that journalists cannot blindly rely on earlier publications as such publications may also be incorrect. As a previous Ombudsman held in Edrees Hathurani vs City Press (13 August 2017): ‘Surely, one cannot rely on an underlying assumption that the media’s reportage on a certain matter has to be accurate just because it was reported.’
27. Justification for, or reasonableness of publication as raised by The Citizen also has little to do with the question of whether a statement is accurate or not. As Appeal Judge Hefer said in the important judgment of National Media Ltd and Others v Bogoshi[1] where the defence of so-called reasonable publication to an action for defamation was entrenched in our law[2]:

‘Ultimately there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a licence to lower the standards of care which must be observed…’

28. When the accuracy of a particular statement is in dispute, it is incumbent upon the parties to assist the Press Ombud to decide whether the statements are accurate or not. When the complainant, as in the current matter, say every word written was baseless and untrue and the publication does not defend parts or all of the disputed statements, the basic premise must be that the publication has no defence to those allegations.
29. I am mindful of the valid limitations to the investigative or inquisitorial mandate of the office of the Press Ombud. The issue whether the Press Ombud is permitted to conduct his or her own investigations was raised in the Appeals Panel matter of Spotlight Publications and Sadmon Projects and Consulting CC (13 March 2020). The Appeals Panel found it unnecessary to decide this issue, but I am of the view that the Ombuds Panel should not embark on their own investigations and, in principle, confine themselves to the information provided by the parties and the issues as delineated by the parties.
30. However, this does not mean that the Ombud Panel cannot – and indeed should not – take a robust approach to analyse the information placed before them and should ignore matters of public record simply because it was not explicitly placed before them. This is naturally subject to the principle that no injustice should occur by doing so.
31.  The NAC itself refers to the ‘settlement agreement’, which terms were ‘confidential’ at the time, in its response to the publications and this office. It therefore appears illogical to entertain an interpretation of the complaint that it is ‘completely untrue and inaccurate’ that there a) was a golden handshake, and b) that it was ‘secret’.
32. Furthermore, it is a matter of public record that the NAC and Mangope has since the publication of the articles in question released details about the settlement agreement that revealed that Mangope was given six months’ salary as part of the settlement agreement.
33. I therefore find that it was accurate to state as fact that Mangope and the NAC entered into a (then) secret golden handshake agreement.
34. The statement that it was a ‘multi-million Rand’ handshake stands on a different footing. No support for this description was provided and I therefore find that it was inaccurate and in breach of clause 1.1. of the Press Code.
35. It was similarly inaccurate to report as fact that Mangope would receive her salary until the age of 65 and would be allowed the use of the NAC’s laptop and cell phone. I am mindful that the statements were presented as allegation in the body of the articles, but this does not detract from the issue that it was also reported as fact. It does not assist the publication in this case to say that it was (also) presented as allegation.
36. The journalist’s response is also at variance with what was reported as allegation. The articles stated that Mangope would allegedly be receiving her salary until the age of 65. The journalist’s response to this office is that she received second-hand information that Mangope would continue to receive her salary ‘well into her 60’s’.

The motivation for discontinuing the disciplinary hearing

37. The NAC also complains about the statement in the articles that the former CEO’s hearing was halted by managers and the relevant charges against her were dropped because she ‘threatened to spill the beans during the last leg of her disciplinary hearing, vowing what she “would not go down alone”’.
38. This, the NAC says, is also a contravention of clause 1.1. as it is inaccurate. Furthermore, the NAC says it is in contravention of clauses 1.3. (failure to distinguish between facts and opinions) and the NAC takes issue with the anonymous sources used. 
39. Clause 1.1. requires the media to report truthfully, accurately and fairly. In the context of quotations attributed to someone else – whether in direct speech or through paraphrasing – the question is whether the journalist quoted the source accurately and fairly.
40. I have no reason to suspect that the sources did not tell the journalist what she reported.
41. A more pertinent consideration is whether this statement was presented as fact while it was an allegation by the ‘sources within the NAC’, i.e. whether the statement breached Clause 1.3.
42. Clause 1.3. reads:

“[The media shall] present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such.’

43. The articles did not report the statement relating to the reason for the discontinuation of the disciplinary hearing as fact. It attributed the statement to ‘sources at the NAC’. The sentence in question was followed by direct quotation of the ‘source(s)’ underscoring the fact that it was an allegation by the ‘source(s)’. The statement did not breach clause 1.3.
44. Which brings us to the final leg of this section of the complaint, being the anonymous sources.
45. The NAC says the journalist appeared to use a ‘single source’. Such an allegation, if true, could potentially place the publication foul of clause 11.2. requiring the media to avoid the use of anonymous sources unless there is no other way to deal with a story, ‘and shall take care to corroborate such information’.
46. It is clear from the common cause facts that the NAC was not prepared at the time to disclose any information about the settlement agreement. The use of anonymous sources was therefore the only way the journalist could report on the matter which was of clear public interest.

47. Moreover, I don’t have reason to disbelieve the journalist that she approached at least one (female) ‘source inside the NAC’ and ‘another NAC employee’ to corroborate the information. The fact that the corroborated version is still disputed by the NAC is not of relevance for determining compliance with Clause 11.
48. According to the NAC, the statement in question also breached clause 1.7. to ‘verify the accuracy of doubtful information, if practicable; if not, this shall be stated’. Verification is different to corroboration.
49. I am not convinced of the merit of the latter submission. Firstly, the statement was not presented as fact. Secondly, the view expressed by the ‘sources’ that the real reason for the discontinuation of the disciplinary hearing is not palpably far-fetched in the broader context of the story.
50. What the journalist did not do, was to properly attempt to verify the allegations with the NAC itself. This is, however, an overlap with the issue of pre-publication comment (clause 1.8) and more appropriately dealt with under that section.

Pre-publication comment

51. The importance of, and functions of, the journalistic requirement for pre-publication comment have been stressed in recent decisions, notably Ramatlakane vs Sunday Times and TimesLive (Complaint 9443, 17 May 2022) and Gemfields Ltd and Montepuez Ruby Mining Limitada vs The Continent and Mail & Guardian (Complaint 9294, 10 February 2022).
52. It is based on fairness towards the subject of critical reportage, but also forms a vital part of a journalist’s toolkit to verify information.
53. The NAC rightly complains that the journalist did not put all pertinent allegations to them for comment prior to publication. If the journalist had, the NAC would have been able to respond to the source’s allegations about the reason for the discontinuation of the disciplinary proceedings. This was a breach of clause 1.8 of the Press Code.
54. Equally meritorious is the NAC’s complaint about the print edition’s reflection of the NAC’s comment in which it specifically denied reports that Mangope would receive a salary until the age of 65 and would be allowed continued use of the NAC’s equipment.
55. The editor concedes as much when he says ‘the full response was unfortunately cut from the print edition during [sub-editing]’. A publication, especially a print publication with strict space limitations, is not expected to reproduce the verbatim response of a subject of critical reportage. But the published comment must give a fair account of the comment. It was a breach of section 1.8. not to include the NAC’s denial of a core aspect of the article – that Mangope would receive a salary until the age of 65 and have continued use of equipment.
56. The online article did quote the response by the NAC’s chairperson more fairly. It specifically notes the denial of the NAC that Mangope ‘was offered a salary and other benefits until she turned 65’. The online version did not breach clause 1.8 on this score.
57. Lastly, the NAC raises a complaint in terms of clause 1.8. against the online article ‘in that although pre-publication comment was sought from the NAC in respect to certain issues, no comment was sought in respect to any of the material published under the subheading ‘Public Protector finds against Mangope’.
58. This is not disputed by the publication.
59. Chief amongst the allegations that ought to have been put to the NAC for a response, is the following:

“(Nyathela) said the alleged corruption at NAC was fuelled by the unfettered access to the surplus funds.

‘They adopted that policy to implement a looting scheme…’

60. These allegations were made within the context of Nyathela approaching the Hawks and National Prosecution Authority. It is not presented as a finding of the Public Protector, which could have rendered the statement one made during a privileged occasion. The NAC should have been afforded an opportunity to comment on this prior to publication. It is a breach of clause 1.8 of the Press Code.
61. The remainder of the sentences complained of by the NAC were direct or indirect reporting from the Public Protector’s findings.
62. The issue of whether a publication is obliged to seek pre-publication comment based on official documents and proceedings during privileged occasions such as court proceedings, tribunal hearings, and the like, was dealt with in the matter of Siyabonga Gama vs Sunday Times (Complaint 8901, 16 June 2021). It is not necessary to seek pre-publication comment, provided of course that the reportage from the official documents such as the Public Protector’s report, is accurate and fair. With specific reference to official documents, the Ombud held in Forensic Data Analysts, Keith Keating vs Daily Maverick (1 June 2018):

‘When a journalist reports on Parliamentary processes…the reporter’s only task is to truthfully and fairly reflect what was said…’

63. In my view, and to avoid an overly technical approach that would effectively lead to a ‘duplication of complaints’ noted above, this part of the complaint is more properly dealt with as a complaint about the accuracy of the reportage from the Public Protector’s report.

Were official records quoted correctly?

64. Lawyers for NAC flagged the following three sentences as problematic:

64.1 ‘The NAC adopted the policy in 2015 to enable it access to surplus funds instead of returning the money to Treasury as is legally required.’

64.2 ‘Mangope falsified an application for funding using [the SA Roadies Association’s] profile without his knowledge.’

64.3 That the Public Protector directed the NAC to ‘amend the surplus policy, align it with Treasury regulations and block NAC staff access to the funds.’

65. The NAC says the first sentence is inaccurate in that it ‘creates the impression that the Public Protector made a finding that the Expired Projects and Surplus Funds Policy was adopted with the explicit intention to facilitate some form of impropriety or to skirt Treasury Regulations’ and that this was not a finding of the Public Protector.
66. I do not agree that this sentence creates the impression that the surplus policy ‘was adopted with the explicit intention to facilitate some form of impropriety’. The statement is that the NAC adopted a policy to retain surplus funds and that this policy formed part of the Public Protector’s investigation.
67. On the ‘falsification’ of the Sara application, the sentence should be viewed in its proper context. What The Citizen reported was not a finding of the Public Protector, but the following:

‘(Freddie Nyathela, president of non-profit organisation SA Roadies Association) further alleged (in the Public Protector complaint) that Mangope falsified an application for funding using Sara’s profile without his knowledge’

68. There is, of course, a difference between submitting an application without someone’s knowledge and falsifying an application. In my view, this is the real difficulty of the NAC with the sentence.
69. The NAC referred me to paragraphs 5.1.45 & 6.1.2 of the Public Protector’s report. These paragraphs read:

‘However, the problem with the CEO’s proposal was that she had used the Complainant’s (Nyathela’s) documents from a rejected application despite having not yet formally communicated the rejection, as well as having not notified him of the proposal to EXCO.’

And

‘The CEO submitted a proposal for the partnership funding to EXCO using the Complainant’s documents from the rejected application without his knowledge and consent. However, this was not a falsified/forged application as alleged by the Complainant.’

70. While Nyathela therefore clearly alleged falsification of an application during the Public Protector’s investigation, the Public Protector explicitly found this not to be the case.
71. The Citizen’s reportage of the allegation of forgery without reporting that the Public Protector found this not to be case, is a material omission and distortion of the facts. This is a breach of clause 1.2. of the Press Code.
72. Moving on to the third sentence, being the Public Protector’s directive to amend the surplus policy and to ‘block access of NAC staff access to the fund’, the complaint is directed at the latter part of the sentence.
73. According to the NAC, this created the impression that that ‘NAC staff were in some way able to access the funds for their own personal gain which is completely inaccurate and misleading’. This is a matter of interpretation and I am not convinced that the reasonable reader would have attached an interpretation of ‘personal gain’ to the published sentence.
74. I was again referred to paragraph 7.1.2.1.2 of the Public Protector’s Report where the recommendation was recorded:

‘Amend and strengthen the Expired Projects and Surplus Policy in order to close the gaps that exist in it, so as to prevent the NAC staff and other NAC stakeholders from exploiting the Policy contrary to the ethos of fairness, equity, transparency, competition and cost effectiveness as enshrined in the section 217 of the Constitution of the Republic of South Africa.’

75. The Public Protector referred to ‘exploitation’ of the policy by NAC staff and other NAC stakeholders due to the ‘gaps that exist(ed)’. Although the publication’s paraphrasing is sailing close to the wind, I am of the view that the phrasing is not a material departure from what the Public Protector indeed recommended.

The headlines

76. Finally, the NAC complains about the headlines.
77. The print publication’s main headline was:

‘CEO’s secret deal with council’

78. The sub-headlines read:

‘GOLDEN HANDSHAKE: Despite allegations against her, she ‘will get salary until 65’

‘Fellow managers halted hearing when she vowed to “never go down alone”’

79. I already found that it was accurate to refer to a golden handshake as fact. The ‘salary until 65’ was correctly presented as allegation, but the allegation that the hearing was halted by managers should not have been stated as fact and is misleading.
80. The main headline of the online article was:

‘Laptop, cellphone and salary until 65^th birthday: Arts council boss Rosemary Mangope’s golden handshake’

81. The references to a laptop, cell phone and salary until Mangope’s 65^th birthday as facts are incorrect and therefore misleading.

Conclusion

82. The publication breached clause 1.1. of the Press Code by reporting that the NAC offered Mangope a ‘multi-million Rand’ golden handshake, that Mangope would receive a salary until the age of 65 and would continue to have use of a work laptop and cell phone. Furthermore, the publications distorted the facts with its omission that the Public Protector found that Mangope did not forge Sara’s application for funding, even though she found it to have been improper.
83. The publication further breached clause 1.8. of the Press Code by not giving the NAC sufficient opportunity to respond to allegations of corruption by Nyaletha and the alleged contents of Mangope’s settlement agreement, and not adequately reflecting the NAC’s comment in the print article.
84. The publication breached clause 10 of the Press Code through misleading headlines. 
85. The infringements are Tier 2 (serious) infringements.
86. The publication is directed to:

86.1 Publish an apology to the NAC for the breaches as described above. The apology shall refer readers to the full ruling on the website through a hyperlink (online) and to www.presscouncil.org.za in the print edition.

86.2 The print apology is to be published on page 2 or on the same page as it appeared in the original publication. The online apology is to appear at the top of the online article.

86.3 The headline and contents of the online article should be rectified in line with the findings above with a note to readers that the contents were changed.

86.4 The wording of the apologies and the rectifications to the online article shall be approved by the Press Ombudsman before publication.

Appeal

The Complaints Procedure lays 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 Khanyim@ombudsman.org.za.

Herman Scholtz

Press Ombudsman

15 August 2022