Minority Decision
Press Council of South Africa
Minority Decision by Mahmood Sanglay and Dr Lindsay Clowes on the Appeals Panel with Judge Bernard Ngoepe, Brian Gibson and Henry Jeffreys.
Date of Appeals Panel Hearing:
Wednesday 7 October 2015, Press Council office, 11.00 am to 2 pm
Appellant:
Bongani Siqoko, editor of the Daily Dispatch, represented by Advocate Carol Steinberg, Karien Norval, director of CTH Attorneys and Nikki Stein (pupil).
Respondent:
Gwede Mantashe, Secretary General of the African National Congress (ANC), represented by Krish Naidoo as counsel and Zizi Kodwa, ANC National Spokesperson.
The ruling of the Press Ombudsman and application for leave to appeal
Malicious intent
[11] Malicious intent, as alleged by Respondent, is not proven in their submission. No evidence to this effect was provided by Respondent and the Press Ombud consequently dismissed this complaint.
The deliberations of the Appeals Panel
Failure to return to Mr Mantashe to explain the nature of the alleged influence
[12] The original complaint of Respondent to the Press Ombud states: ‘In that conversation he [the Daily Dispatch reporter, Siphe Macanda] intimated that it is alleged that the tender was awarded because of Mr Gwede Mantashe’s influence. He [the reporter] was asked about the nature of such influence. Specifically, he was asked whether Mr Mantashe called the Muncipal Manager, or the Mayor, or the Panel responsible for the contract… Mr Gwede Mantashe explained that he wanted to understand the allegation. Mr Macanda then promised to come back with the answer. He never did come back with the answer…’
[13] The Panel is of the view that the failure of the reporter to come back to Mr Mantashe with an answer is an act of discourtesy. The Press Code does not make provison for this kind of conduct. It is the view of this Panel that ‘acceptable principles of journalistic conduct’ in section 4.7.4 of the Press Code does not include acts of discourtesy such as that of Mr Macanda.
[14] Moreover, there is a normative obligation on a media interviewee to answer the questions of a media interviewer. The reverse is not the norm. Hence, the discourtesy of the reporter does not constitute failure to meet any obligation in respect of 4.7.4. Consequently the reporter is not in breach of this section of the Press Code.
Unfair headline, photographs and caption
[15] The Panel carefully considered Respondent’s and Appellant’s arguments relating to the headline ‘ANC faces behind toilet tender scandal’.
[16] Respondent complains that the headline is misleading, malicious and damaging to the dignity and reputation of the ANC leadership. In particular, Respondent argues that the nexus created between the ‘ANC faces’ and the award of the tender is not supported by the contents of the article.
[17] It is noteworthy that Appellant in its Heads of Argument extensively argues, in 62 paragraphs and 23 pages, that the Daily Dispatch article is true and accurate, that there are no omissions and that there is no requirement to prove inferences arising from the facts.
[21] The headline consists of the subject ‘ANC faces’, the preposition ‘behind’ and the object ‘toilet tender scandal’. It is the link created between ‘ANC faces’ and ‘toilet tender scandal’ in the headline that warrants closer analysis.
[22] ‘ANC faces’, first part of the headline, refers to actual persons, namely the ANC leaders, in relation to the main topic of the article, the ‘toilet tender scandal’. Furthermore, the leaders are identified through the display of the faces of President Zuma, Mr Mantashe and Minister Zulu beneath the headline. Thus the ‘ANC faces’ in the headline are clearly identified in the photographs.
[23] The link between ‘ANC faces’ and ‘scandal’ in the headline is strong, and stands in sharp contrast with the tenuous link between the ANC leaders and the impropriety associated with the tender. The Minority is of the view that this effect created by the link between ‘ANC faces’ and ‘scandal’ in the headline is therefore irreconcilable with the tenuous nature of this link in the article.
[24] In the appeals hearing Ms Steinberg for Appellant conceded that the newspaper had no evidence of any influence on the municipality to award the tender to Siyenza Group and that political influence by ANC leaders in this tender is not a matter of fact, but of opinion.
[25] It is also useful to consider the effect of the preposition ‘behind’ which connects the two parts of the headline. The meaning of ‘behind’ in this context is analogous with the sense in the expression ‘behind the scenes’. The word similarly conveys the sense of secretly contributing to a process that is out of public view. The link between ‘ANC faces’ and ‘toilet tender scandal’ thus created by the word ‘behind’ suggests covert and clandestine activity by the persons identified in the photographs beneath the headline. The ultimate effect is of secret involvement and manipulation by ANC leaders in the scandal.
[26] All members of the Appeals Panel agree that the link in the article is ‘tenuous at best.’ It is therefore the conclusion of the Minority that the headline does not reasonably reflect the contents of the article.
[28] It is also important to note that all members of the Panel found that the use of the word ‘scandal’ is appropriate, only because it accurately points to actual impropriety in the awarding of the tender to Siyenza Group by the municipality. The Minority is therefore of the view that it is unfair to juxtapose and conflate ‘scandal’ with ‘ANC faces’ because of the tenuous link between the two entities in this case.
[34] Harm to the dignity and reputation of Respondent in the article was unavoidable due to an overriding public interest. Hence the question of avoiding unnecessary harm and to exercise care and consideration with the dignity and reputation of Respondent in the article does not arise.
[35] This is not so in the case of the headline. Harm to the dignity and reputation of Respondent was avoidable had the headline reasonably reflected the contents of the article. The headline therefore caused unnecessary harm because it was written without exercising due care and consideration to Respondent.
[36] Similarly, the photographs and caption do not reasonably reflect the contents of the article. The photographs and the caption together, supported by the headline, reflect a strong link between the members of the ANC leadership and the scandal. This too is irreconcilable with the tenuous link between the two entities in the article.
Decision of the Appeals Panel
[37] In respect of the complaint that Appellant failed to return to Mr Mantashe to explain the nature of the alleged influence, the Appeals Panel finds that the Press Ombud erred in his ruling that Appellant was in breach of section 2.5 of the Press Code. The appeal against this ruling of the Press Ombud should therefore succeed.
[38] In respect of the headline, photographs and caption, the Minority finds that the Daily Dispatch is in breach of section 2.1 of the Press Code in that the headline, photographs and caption were unfair, and of section 10.1 in that they did not reasonably reflect the contents of the article. The Minority would therefore dismiss the appeal against this ruling of the Press Ombud.
Dated: 26 October 2015
Mahmood Sanglay, Member, Press Representative
Dr Lindsay Clowes, Member, Public Representative
[1] The following three such matters were concluded by the Press Ombud’s ruling, without appeal: Koikanyang Inc. and Mr Olckers Koikanyang vs. The Citizen, 11 July 2015; Russell Bell vs. Daily Voice, 8 September 2015 and Panyaza Lesufi vs. The Star, 11 August 2015.