Palesa Lebitse vs City Press


Wed, Jan 13, 2021

Particulars

Complaint number: 8323

Date of article: 27 September 2020

Headline: Woman set to be charged for ‘extorting’ Masondo

Online: Yes

Author of article: Setumo Stone

Respondent: Rhodé Marshall, managing editor

 

1.  Complaint                                            

1.1 Ms Palesa Lebitse complains that the:

1.1.1 newspaper did not give her a right of reply prior to publication, nor did it furnish her with the National Prosecuting Authority (NPA) report on which the story was based (if at all it existed, which she doubts) which reportedly painted her as an extortionist;

1.1.2 story falsely mentioned a “negotiated settlement” between herself and Deputy Finance Minister, David Masondo;

1.1.3 journalist should have asked why an entity that is empowered to make decisions would make a report, but not act on it;

1.1.4 newspaper did not protect her identity as a victim of a sexual offence; and

1.1.5 story named her, in contravention of the Criminal Procedures Act (CPA), as someone who was going to face criminal charges for extortion.

1.2 She asks for a retraction and an apology.

 

2. Sections of the Press Code complained about

The media shall:

  • 1.1: take care to report news truthfully, accurately and fairly;
  • 1.7: verify the accuracy of doubtful information, if practicable; if not, this shall be stated;
  • 1.8: seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated;
  • 3.3: exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:
    • 3.3.1. the facts reported are true or substantially true; or
    • 3.3.2. the reportage amounts to protected comment based on facts that are adequately referred to and that are either true or reasonably true; or
    • 3.3.3. the reportage amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or
    • 3.3.4. it was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct; or3.3.5. the content was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party; and
  • 3.4: not identify rape survivors, survivors of sexual violence which includes sexual intimidation and harassment…

 

3. The text

3.1 The story was about the review of criminal cases between Masondo and Lebitse. A senior NPA official reportedly recommended in a report that she should answer to a common-law offence of extortion.

3.2 The senior NPA prosecutor of the Gauteng branch reportedly wrote a report, dated August 17, in which Masondo and his family were also advised to consider applying for a protection order against Lebitse.

3.3 Setume Stone wrote the prosecutor concluded that Masondo’s version was supported, “including that he had never had a romantic relationship with Lebitse, that they had only had consensual sex once (using protection), that he was not responsible for her pregnancy and that he had never insisted that she terminate her pregnancy – only that a paternity test be done”.

3.4 The charge of extortion reportedly related to a sting operation by the Hawks on August 17 the previous year, “when Lebitse accepted a bag of cash from undercover police officers who she thought were people sent by Masondo to deliver part of the R300 000 they had both negotiated as a settlement for her psychological care because of the termination of her pregnancy”.

3.5 In the 15-page report, “which City Press has seen”, the senior prosecutor reportedly stated the contents of the WhatsApp messages showed that Lebitse had insisted on having a romantic relationship with Masondo, but he had been unwilling to entertain the idea.

3.6 Stone added, “The report also stated that, according to medical records, Masondo had to be absolved of responsibility for the pregnancy because the child would have been conceived in about October 2018, while the consensual sex he had had with Lebitse had taken place months earlier, in July. ‘Lebitse refused to do a paternity test, as demanded by Masondo, and terminated the pregnancy instead,’ read the report.”

3.7 Based on the content of some text messages, the senior prosecutor reportedly concluded that Lebitse “sought to achieve advantage(s) by exerting pressure with threats, harassment and intimidation of both Masondo and his wife”.

3.8 Stone added, “Masondo further expressly indicated that he paid her the requested amount of R300 000 to end her torment of him, his family and siblings, which she undertook to do if payment was made”.

3.9 The prosecutor reportedly concluded, “I respectfully submit that all the elements for the crime of extortion are satisfied and that the text messages contradict Lebitse’s version in all material aspects, to the extent that her version cannot be true and must be rejected.”

 

4. The arguments

4.1 No right of reply; not furnished with report; false statement

4.1.1 Lebitse complains that she was not given a right of reply, nor was she furnished with the NPA report (if at all it existed) prior to publication, which painted her as an extortionist.

4.1.2 She also queries the existence of the report and adds that the story falsely mentioned a negotiated settlement between herself and Masondo, which “clearly contradicts their story that I extorted money from him”.

 

 

4.1.3 Rhodé Marshall says it was in the public interest to publish the story and that the NPA report that formed the basis of the story dealt with matters that were serving before the criminal justice system. She submits that the contents of the NPA report have been fairly and accurately reported on and therefore, both Lebitse and Masondo would have an opportunity in the right forum in the criminal justice system to either confirm or dispute the contents thereof.

 

4.1.4 She says Lebitse previously requested the newspaper to furnish her with a copy of the NPA report. She says it was explained to Lebitse that City Press received the leaked report under strict confidentiality arrangements and the publication was therefore not in a position to supply her with a copy.  “The position still stands. The confidential report is a property of the NPA. City Press therefore has no authority to distribute it to third parties,” she submits.

 

4.1.5 The managing editor also submits that the allegations against Lebitse as contained in the report were not new – in fact, they have been in the public domain for many months. “Several other stories have carried the said details together with her name and pictures. The City Press story is therefore merely reporting on an assessment of the allegations within the criminal justice system,” she argues.

 

4.1.6 Marshall also denies that the story contradicted itself – the dispute whether the said money involved amounted to extortion or a settlement, she says, is a matter for the criminal justice system to decide.

 

 

  1. In her response to Marshall’s reply, Lebitse denies that:
    1.  it was in the public interest to mention her name – identifying her, she argues, was merely an attempt to humiliate her;
    2. the case of extortion was serving before the criminal justice system (in other words, that the case was under review) – she says it only considered cases that she had opened against Masondo. She says the National Director of Public Prosecutions (NDPP) had only requested the extortion docket in order to consider its contents, and not to review the outcome of its decision (which was to decline to prosecute her);
    3. she made any representations to have the case reviewed – “I would not make representations to have a favourable outcome to be overturned, that makes no sense. The NPA have confirmed that they are only reviewing cases against Masondo and nothing else”;
    4. the NPA knew about the report which City Press relied on – she says she approached the NPA in this regard;
    5. a report existed which said that she was to be charged “because since my unlawful arrest I never once appeared in court, [and] the NPA refused to prosecute me from the onset”; and
    6. there were previous reports that mentioned her name or published her picture relating to the NPA charging her for extortion. “There have been no negative reports against me until now,” she submits.

4.1.8 Reiterating that City Press was required to give her a right reply in terms of the Press Code (as the article was negative towards her), she adds that she has it “on record” that Stone and Masondo were friends.  

4.1.9 Finally, she says she was not able to judge if the newspaper’s story was balanced, as she did not have a copy of the said report.

 

Analysis

4.1.10 The crux of Lebitse’s complaint is whether the report on which the story was based really existed – and if so, whether Stone’s article fairly represented its content; also of importance is the question whether City Press was dutybound to give her a right of reply to the content thereof prior to publication.

4.1.11 Therefore, I asked Marshall if she would be willing to furnish me with a copy of the alleged NPA document – and if not, if she could send me a copy of the front and back pages. In that case, I would at least have established that such a report existed. The first prize, though, was to peruse the whole report – which would have enabled me to establish if Stone fairly reflected its content.

4.1.12 I have duly received the front and back pages of a document which I believe is the relevant one. The document, dated 17 August 2021 is from the “Sexual Offences and Community Affairs Unit”, and is signed by an official.

4.1.13 The back page contains the gist of what the journalist reported – it says an NPA official recommended that Lebitse answer to a “common-law offence of extortion”. It also states that Masondo be “advised of his remedy for a protection order”, inter alia for himself, “in terms of the Domestic Violence Act 116 of 1998” (as correctly reported by Stone).

4.1.14 While City Press did not provide me with the full report (it was under no obligation to do so), the editor did send me enough evidence to accept that such a report exists, and that the crux of the reporting is accurate. It may well be true that the official NPA spokesperson does not know of the existence of the report – but that does not mean that the report does not exist.

4.1.15 As I have not seen the rest of the report, I am not in a position to rule on the rest of the statements quoted from that document.

 

  1. The other issues are whether:
    1. City Press should have shared the NPA report with Lebitse: Marshall’s response to this matter hits bull’s-eye, and I see no need to belabour this matter any further – confidentiality means just that, doesn’t it;
    2. the newspaper should have given her a right of reply prior to publication: The answer is “no”, because as the editor rightly states, Lebitse will have the opportunity in the right forum in the criminal justice system to either confirm or dispute the contents of the NPA report;
    3. the mentioning of a “negotiated settlement” between her and Masondo was false and contradictory to the allegation of extortion against her: I am not in a position to decide whether the statement in question was false, but it certainly was not contradictory – the one concept does not necessarily exclude the other;
    4. it was in the public interest to identify Lebitse: The short answer to this is a resounding “yes”, as the other party to the issue was a prominent public figure – which put her into the limelight as well; and
    5. it was nonsensical to report that she made representations to have a “favourable outcome” to be overturned: Again, the one concept does not necessarily exclude the other – it is quite possible that the outcome was partially favourable to her, which means she could have tried to overturn the part that was less favourable to her.  

4.1.17 Lastly: Lebitse’s allegation in her response to Marshall’s reply to her complaint that Stone was “friends with David Masondo” begs for comment. This invariably implies that their alleged friendship has, or could have, influenced the journalist in writing his story. This is an extremely serious allegation – one that Lebitse does not make in her initial complaint. Because City Press never had the opportunity to respond to it, it would be unfair of this office to deal with this allegation.

4.1.18 Based on the evidence in front of me, though, it will take much to convince me that the journalist allowed his “friendship” with Masondo to influence his reporting.

 

4.2 Inaccurate, unbalanced, unverified; neglecting to ask essential question

 

  1. Lebitse complains that the:
    1. report the newspaper relied upon was inaccurate, unbalanced and unverified; and

4.2.1.2  journalist should have asked why an entity that is empowered to make decisions would make a report, but not act on its own report.

 

 

4.2.2 Marshall replies that the office of the Press Ombud does not have a mandate to determine whether the NPA report might not exist. She adds that, to date, the NPA has yet to refute the existence of a report attributed to their office. She submits Lebitse did not provide rational grounds to dispute the existence of the NPA report. Besides, “before publication City Press made sure of its authenticity”.

 

4.2.3 The managing editor also argues that it is for the NPA to explain what to do with the report – “and City Press is similarly interested in the answer”.

 

 

4.2.4 Lebitse replies that the NPA has confirmed that the “report” on which the newspaper’s story was based did not exist.

 

Analysis

4.2.5 I am not sure what Marshall means by stating that this office does not have a mandate to determine whether the NPA report exists or not. It is important for me, is it not, to establish if such a report exists and, if at all possible, what its contents are. I have no other way of determining whether Stone’s article has breached the Press Code or not.

4.2.6 Please note that I am not investigating the matter – I am merely trying to establish if the reportage was reasonable, accurate and fair. Investigating would imply that I am taking the matter further in order to establish the truth of what was reported. That is not this office’s mandate; my mandate starts and finishes with an attempt to establish whether the reporting was reasonable at the time of publication.

4.2.7 What I am sure of, is that the Press Ombud does not have the mandate to force the newspaper to reveal the content of the NPA report. That is exactly why I askednot ordered – City Press for a copy of the report.

4.2.8 The question if the content of the NPA report was inaccurate, unbalanced and unverified is not for this office to decide, neither is it the media’s responsibility to do so. City Press had this document in its possession, and the newspaper was squarely within its right (and duty) to report what it contained. The newspaper’s responsibility was only limited to reflecting the contents of the report accurately and fairly.

4.2.9 Secondly, and with respect, Lebitse clearly did not think through her claim that the journalist should have asked why an entity that was empowered to make decisions would make a report but would not act on its own report. The article quoted NPA spokesperson Sipho Ngwema as saying that the report was not final. It is not reasonable to expect an institution to act on a report that is not final; equally, it would be unreasonable for the media to ask such a question.

 

4.3 Victim of sexual offence identified; CPA contravened

4.3.1 Lebitse complains that the newspaper did not protect her identity as a victim of a sexual offence – which was “in contravention of the Criminal Procedures Act”.

4.3.2 She says the CPA protects victims of sexual violence from being named; the Act also protects suspects in alleged extortion cases who have not pleaded before the court from being named by the media. If she was going to be charged, she should remain unidentified until she has appeared in court and pleaded, she argues.

 

 

4.3.3 Marshall submits the story was a report on allegations of extortion, “which does not fall under the category of sexual offences”. She points out that the Press Code does not prohibit the media from naming suspects of alleged extortion. 

 

4.3.4 Lebitse replies there is another article in City Press which linked her to another case where she was a victim of sexual assault.

4.3.5 She adds that she was arrested in a sting operation. However, she was never charged, and therefore she also did not plead – which was why she should have never been named.

 

Analysis

4.3.6 It is not for the office of the Ombud to decide whether the media have broken a law – in this case, the CPA. That is for a court to decide. My only concern in this regard is the question whether City Press was in breach of Section 3.4 of the Press Code that says, “The media shall not identify rape survivors, survivors of sexual violence which includes sexual intimidation and harassment…

4.3.7 Unfortunately, Lebitse does not furnish me with an example of a story that portrayed her as a victim of sexual assault. I tried to Google such a story, but my attempts were unsuccessful.

4.3.8 In any case, even if there were other stories regarding sexual violence against her, I do not believe that a reasonable reader would necessarily have identified her as a victim of a sexual offence by reading the article in dispute.

4.3.9 The real question is whether the story identified Lebitse as a survivor of sexual violence. It did not. Moreover, Lebitse’s allegation was not accompanied with any motivation.

4.3.10 Her statement that, if she was going to be charged, she should remain unidentified until she has appeared in court and pleaded is also unfounded. The media have every right to identify a person who is suspected of a crime, but who has not yet been charged. By her own testimony, she has never been charged – she was only arrested. 

4.3.11 In her response to the newspaper’s reply to her complaint, Lebitse says that the headline of the article was misleading.

4.3.12 However, she did not include this matter in her initial complaint, and City Press therefore was not asked to respond to it. It would therefore be unfair of me to make any kind of a finding about the headline.

4.3.13 Moreover, the time to complain about the issue has long since lapsed.

 

5. Finding

The complaint is dismissed.

 

6. Appeal

The 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 Khanyim@ombudsman.org.za.

 

Johan Retief

Acting Press Ombud