Ruling by the Press Ombud
14 May 2018
PARTICULARS
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Complainant
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Adv Tintswalo Makhubele |
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Lodged by
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Makhubele |
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Date of article
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18 March 2018 |
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Headline
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‘Conflicted’ judge refuses to leave Prasa |
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Online
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Yes |
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Author of article
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Setumo Stone
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Respondent
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Dumisane Lubisi, managing editor |
Complaint
Makhubele complains that:
· save for putting statements to her extracted from a “legal report” (which she could not have responded to for fear of breaching client-attorney confidentiality), the newspaper did not ask her any specific questions about her continued stay at the Passenger and Rail Agency of South Africa (Prasa); and
· conclusions drawn in the article had no factual basis; these conclusions were that she had:
o refused to leave Prasa;
o been stubborn;
o made statements which were not included in her Whatsapp conversations with Stone; and
o been hard-pressed to explain why she had continued staying on at Prasa.
She adds that the reportage has damaged her reputation as an individual as well as a judge of the High Court.
The text
The article said that Makhubele was hard-pressed to explain why she had continued staying on at Prasa as interim board chairperson, despite former Pres Jacob Zuma’s confirmation of her appointment as a judge in November last year, to come into effect on January 1.
“Unless the president shifts her appointment as judge to April 1, her continued stay at Prasa may be deemed to be in breach of the judicial code of conduct,” Stone wrote.
He added that, unless Pres Cyril Ramaphosa revoked Zuma’s appointment timeframes and shifted the appointment, Makhubele’s continued participation at Prasa might be deemed a breach of the judicial code of conduct.
“Her being a judge and working on Prasa’s board may be considered a breach of the separation of powers between the judiciary and the executive. Prasa is a state-owned entity run by the department of transport,” he stated.
Stone cited a legal opinion by law firm ENSafrica that Makhubele had commissioned on the matter, confirming that she had effectively become a judge on the day of her appointment, although she could be excused because she has not taken “active service”.
The journalist reported that, when approached for comment, Makhubele said that Prasa was “bound by attorney-client privilege and as such [she could not] divulge the nature of opinion sought from their attorneys”, adding that she did not want to discuss the matter further. “She said her appointment, as well as other members to the interim board, were done by the minister ‘in consultation with Cabinet (and) any questions in this regard must be directed to the relevant authority’,” she was quoted as saying.
The arguments
No specific questions
Makhubele says, “[There] was never a question about why I am not leaving Prasa, or whether anyone (authorised) has told me to do so. If there was such a question from Mr. Stone, I would have answered him.”
Lubisi submits:
· Stone did not put any specific questions to Makhubele, as the intention was to put the findings of a legal opinion and the accompanying allegations to her – he merely requested a general comment from Makhubele on those matters;
· Conversely, Makhubele never requested that “specific questions” be put to her, neither did she object that no specific question had been put to her or sought clarity on any issue;
· The journalist offered Makhubele an opportunity to comment on the legal opinion’s findings about the legality of her continued stay at Prasa, and on the Minister’s failure to terminate her position; and
· Instead of stating that no one has ever requested her to vacate her position, Makhubele chose not to respond directly to the findings of the report.
He concludes that the complaint has no basis, and argues that the article merely reflected the contents of the legal report – which the journalist did put to Makhubele prior to publication.
Makhubele replies it is bizarre to say that Stone did not put specific questions to her – it is clear from his correspondence that he did do that, and he requested her to respond before his deadline.
Analysis
It is true that Stone did not specifically ask Makhubele about her continued stay at Prasa. However, the crux of the matter is if the nature of his questions to her was specific enough in this regard.
Referring to the legal report that Makhubele had obtained from ENSafrica, I note Stone mentioned the possibility that her appointment might have been unlawful and that, if she did not tender her resignation, she ran the risk that the matter could successfully be challenged in the Constitutional Court. The inference that her continued stay at Prasa was illegal was inherent in both the letter and spirit of the journalist’s communication with her.
I therefore agree with Lubisi – Makhubele did have an opportunity to comment on the legality of her continued stay at Prasa. I can see no reason why she could not have told Stone that she had already resigned (see below). The fact that she did not do so was not the newspaper’s fault.
I do not buy her argument that she could not have responded to this specific issue due to “client-attorney confidentiality”.
False conclusions
Refusing to leave Prasa; stubborn; hard-pressed to explain
Makhubele says she has resigned from Prasa on March 16 – before Stone sent her his questions (and therefore also before publication).
She adds the extracts from the legal opinion that Stone has sent to her did not justify the conclusion that she had “refused” to leave Prasa, or that she had been “stubborn”. She adds, “The journalist drew his own conclusions, which are not supported by the ‘legal report’ as he called it”.
She says the statement that the longer she served on the Prasa board “the greater the risk of a successful constitutional challenge” did not justify a conclusion that she had refused to leave Prasa or that she had been stubborn.
She also says that Stone has admitted that the article contained inaccuracies, offered to change the web version regarding the headline and captions, and blamed sub-editors for the final product. She argues that these sub-editors have to respond to this situation.
Makhubele refers to the media release of 19 March 2018, which was drafted on her behalf and carried her consent, which “set the record straight with regard to the appointment of the Interim Board and my stay at Prasa. It gave answers that would have been given to Mr Stone if he had asked why I was still at Prasa”.
Analysis
I am breaking off Makhubele’s argument right here, as the rest of it is irrelevant (and consequently so also Lubisi’s responses to those arguments).
The point is that, if she had communicated to Stone that she had already resigned, there would have been no reason for City Press to report that she had refused to leave Prasa, that she had been stubborn, and that she had been hard-pressed to explain why she had stayed on at that organisation.
Because she did not communicate the fact that she had already resigned, she has no ground to complain about the allegations – the newspaper was justified to publish them based on the information at its disposal.
If City Press does not report the new situation, Makhubele would have reason to complain that the newspaper is in breach of Section 1.9 of the Press Code. This section states, “Where a news item is published on the basis of limited information, this shall be stated as such and the reports should be supplemented once new information becomes available.”
Finding
The complaint is dismissed.
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
Press Ombud