Ruling by the Press Ombud
27 March 2019
Particulars
Dates of article: 9 December 2018 (Notes from the House) and 12 December 2018 (Daily Maverick)
Headline: Secretary to Parliament, objects to being called ‘corrupt’ (Notes from the House); and: Gengezi Mgidlana, suspended Secretary to Parliament, objects to being called ‘corrupt’ (Daily Maverick)
Author of article: Moira Levy, editor of Notes from the House
Respondents: Levy, and Marianne Merten, from the Daily Maverick
Complaint
Mr Gengezi Mgidlana, Secretary to Parliament who is suspended pending an investigation by the institution into various charges of mismanagement and the abuse of power, complains that the author of the article was conflicted and that that had adversely influenced her reporting.
Regarding the article, he complains it falsely stated the allegations as fact that:
· his travelling with his spouse had been irregular, that he had used or requested blue lights, and that he had requisitioned transport for his children;
· he had paid himself a bonus and had granted himself a bursary; and
· he had been disgraced and corrupt, and that his practices and behaviour had been “dodgy” (i.e. dishonest and unreliable).
He adds that the publication did not:
· report relevant statements issued by Parliament and by him, thereby omitting material information; and
· verify the accuracy of information with him or with anybody else.
In conclusion, Mgidlana complains that the reportage has unnecessarily impugned his professional dignity.
The text
The article said the “disgraced” Mgidlana had declared himself aggrieved after the EFF’s Mr Floyd Shivambu had called him corrupt in a Parliamentary debate in 2017.
He reportedly raised his objection to Shivambu’s comment in a letter, dated 29 November 2018, that was published in Parliament’s regular “Announcements, Tablings and Committee Report” (ATC) of 5 December 2018. Mgidlana also claimed in this letter that the statement had impugned his good name, character, dignity and reputation.
Levy continued: “Gengezi Mgidlana is the man who, among other dodgy practices, spent R4-million of taxpayers’ money in two-and-a-half years for travel for his wife and himself, awarded himself an ex-gratia payment of more than R71,000 that he was not entitled to, gave himself a R30,503 study bursary just months into the job while denying bursaries to most other staff, and various other dodgy behaviours such as the illegal use of blue light security cars, including to get his kids to school.”
The journalist inter alia added:
· “In the latest twist, Mgidlana earned an annual performance bonus worth R56, 000… for the little more than two months he spent at work during the 2017/18 financial year”; and
· Parliament “has not offered an explanation for performance bonuses … awarded to a handful of other senior managers.”
The complaint in more detail
Journalist conflicted
MGIDLANA complains Levy was conflicted because she believed she had lost her job as an employee of Parliament because of him. He explains that, while she was the media officer of Parliament, she wrote articles against him – which, at the time, brought her in conflict with her line manager.
He adds the union she belonged to (Nehawu) campaigned to get rid of him, and says that the journalist took part in this lobbying, while at the same time seeking to present herself as an objective journalist.
He says DM was aware of this conflict of interest – and yet, the publication endorsed her unethical behaviour by publishing her article.
He says the reportage was a result of “mob psychology” and described it as “tyrannical”, as the journalist assumed the role of accuser and the determiner of facts.
He concludes: “It is quite clear that a personal vendetta has been allowed to fester and cloud judgement of the journalist concerned and the publication in reporting objectively on this story.
This led to the Daily Maverick and the journalist publishing a highly unbalanced article, with deliberate known factual errors or lies to the reader and impugning my professional integrity and dignity.”
MERTEN acknowledges that the DM did err in not disclosing that Levy was a former staff member of Parliament’s communications service and that she is the founding publisher / editor of Notes from the House (where the article was first published).
She says the DM always discloses such information to guard against any claims of conflict of interest. In this instance, though, this information was omitted. She says the publication will ensure that this does not happen again.
LEVY does not respond to this accusation. However, she does say she sourced her story from Parliament’s Announcements, Tablings and Committee Reports (No 183 of Wednesday 5 December 2018), which contained a letter written by Mgidlana.
She says this letter was in response to a ruling by the Joint Standing Committee on Powers and Privileges permitting him to reply to a comment about him made in the committee by Shivambu. This letter, she adds, was a public document – which meant that she could publish the information contained in that letter.
The reporter says she researched the matter for background information, and used some information published in the DM that helped her to provide context for her article.
She submits her only omission was in failing to cite the source of some of the background information she had used to provide context to her story.
Analysis
The following issues are at stake:
· The journalist herself; and
· The DM, that has published an article by a journalist about whom a claim is made that she was conflicted.
I am puzzled by Levy’s silence in this regard. Mgidlana’s allegation is a serious one and therefore, at the very least, I have expected some kind of response from the journalist.
While I am not going to speculate on the reason(s) for her lack of response, I need to state that there could hardly be any “conflict of interest” in any case – in order to have such a scenario, one has to have at least two “opposites”. Levy is not working for Parliament anymore, and therefore there are no “opposites” anymore. No “conflict”, therefore.
However, it is possible that, instead, she had an axe to grind with Mgidlana. From the latter’s complaint, it is clear that he had this in mind as well.
However, this is so personal a matter that it would be difficult for me to pronounce on it. Let the proof of the pudding lie in the eating, though – meaning, let me continue to adjudicate the complaint on its merits.
DM, from its side, has admitted it has made a mistake by omitting to state that Levy was a former staff member of Parliament’s communications service, and that she was the founding publisher / editor of Notes from the House). While I appreciate this admission, Merten unfortunately did not inform me as to why this mistake has occurred.
Be that as it may, the same argument goes for the DM. In addition, given her undertaking to publish the necessary information in future, as well as her prompt admission convince me that, I am willing to accept that this omission was an honest mistake at the time – and leave it at that.
False statements
As a general comment, everyone should be clear that it is not for this office to decide whether Mgidlana is guilty or not – that is for Parliament to conclude. My task is confined to determining if the reportage was justified. More to the point, I need to establish if the article stated the allegations against him as allegations (with which there cannot be anything wrong, provided that these were reported correctly), or if they were portrayed as fact (which would amount to trial by media, as the investigation was still underway).
Grouping his complaint into three sections, I now turn to the specifics of Mgidlana’s complaint.
Travelling with spouse; blue lights; transport for children
Levy reported: “Gengezi is the man who … spent R4-m of taxpayers money in two and a half years for travel for his wife and himself… and [was involved in] various other dodgy behaviours such as the illegal use of blue light security cars, including to get his kids to school.”
MGIDLANA says his travels with his wife were all within policy (as confirmed by an audit), and that bursaries were handled by the HR Committee (which was cleared by the Auditor-General).
He says all his trips referred to were official. He says Daily Maverick has detailed information from Parliament on these matters, and this information is available to all on the Parliamentary website. He calls this a “clear case of trial media”.
Neither the DM nor Levy responds to the part of the complaint, save for MERTEN saying that the case against Mgidlana has been well-aired in public – he was suspended and disciplinary hearings were underway.
Analysis
Again, whether Mgidlana’s actions with regard to travelling were within parliamentary policy (as he argues) is not for me to say. My mandate is to determine whether the reportage was justified or not.
In this regard, the statements cited immediately above presented the allegations against Mgidlana as fact – which it should not have done, as Parliament was still investigating the matter.
This turning of question marks into exclamation marks was neither accurate nor fair, it certainly was misleading, and it amounted to trial by media.
I find this quite inexplicable, as both Levy and the DM were fully aware of this situation. Therefore, they were equally at fault on this particular issue.
Bonus; bursary
The article inter alia said:
· “Gengezi … awarded himself an ex gratia payment of more than R71,000 that he was not entitled to, gave himself R30,503 study bursary just months into the job while denying bursaries to most other staff…”;
· Mgidlana has earned an annual performance bonus worth R56,000. This is for the little more than two months he spent at work during the 2017/18 financial year, while he was on suspension for abuse of power and serious misconduct”; and
· “Parliament has not been able to explain why he received a bonus.”
MGIDLANA denies ever having received a performance bonus as Secretary to Parliament. This, he says, was confirmed by Parliament in a statement in October 2018. He argues the statement that Parliament could not explain why he had received a bonus can therefore not be true. He also points to Parliament having “provided clarity on erroneous, malicious and wrong statements made by Daily Maverick and … Levy”.
He adds that Levy and the Daily Maverick deliberately misled readers by referring to the cost of living increases as a performance bonus.
Regarding the statement that he had granted himself a bursary, he says there is no evidence of his involvement in the granting of such money, and that he denied other deserving staff access to bursaries. He says both the Daily Maverick and Levy know that Parliament has a human resources department and a bursary committee that deal with these matters – and that this matter was put to rest by the Auditor-General.
He says Levy and Nehawu forum-shopped these matters with the Executive Authority of Parliament, the Joint Standing Committee on the Oversight of Parliament, the Public Protector and the court of public opinion through the media platforms – and none of these platforms or competent tribunals proved or declared that these accusations were correct.
“The fact is, there is no basis for these allegations…”, he comments.
Regarding the issue of the R56 000 adjustment and the comment that parliament has “not been able to explain”, MERTEN says this was an “oversight” that DM did not pick up in the editing process.
The journalist adds that, in the interest of fairness and to ensure all arguments are covered, DM is willing to include an update to the 12 December story that Parliament did in fact later offer an explanation, and in so doing disputed the article. She says the DM will also include a link to the press statement from Parliament.
LEVY does not respond to this part of the complaint.
Analysis
Again, Levy presented allegations that were still under investigation as fact. The question marks keep on returning as exclamation marks. And again, this was neither accurate nor fair. And again, both Notes from the House and the DM were equally at fault.
I welcome Merten’s response though. It is refreshing to see that a publication does not try to defend the indefensible.
Disgraced; corrupt; dodgy
Levy wrote:
· “Disgraced Secretary to Parliament Gengezi Mgidlana…”;
· “Mgidlana might not think he should have been labelled as corrupt, but clearly somewhere, somehow, there is corruption afoot”; and
· “Gengezi is the man who, among other dodgy practices…”
MGIDLANA says that no competent body has ever found these statements to be true and argues there was no basis to call him “disgraced” and to label his practices and behaviour as “dodgy” – which have a connotation of dishonesty and unreliability.
He says Levy’s suggestion that he was “somehow” involved in corrupt practices, even though she did not have any evidence to this effect, or corroboration from a decision of a competent body, amounted to “the gravest violation of any person’s rights” – to be accused on heinous crimes without any shred of evidence provided by one’s accusers.
Neither the DM nor Levy responds to this part of the complaint.
Analysis
Levy took it upon herself to state that Mgidlana had been involved in “dodgy practices” and that he had been “disgraced” – instead of saying that he was allegedly involved in dodgy practices, and of suggesting that he would be disgraced if found guilty.
Then came the deadly blow. Levy stated: “…clearly somewhere, somehow, there is corruption afoot…”
With this statement, Levy has finally turned her back on responsible (read: accurate and fair) journalism by assuming the role of accuser, judge and executioner. It is one thing to state that someone’s actions are dodgy, or that that person is disgraced – it is quite another to paint your colors to the mast by stating, without hesitation, that “clearly” corruption was afoot.
First the journalist built a strawman by presenting allegations against Mgidlana as fact, then she shot it down by accusing him of corruption. By this time, the reporter was so caught up in her plight to portray him as corrupt that she did not see the abyss that was right in front of her.
Yes, it is true that Parliament may find Mgidlana guilty – which is when Levy can state the allegations as fact. At the time of publication, though, this amounted to reckless and irresponsible journalism of the worst kind.
And yet again, both publications were equally at fault on this issue.
Material information omitted
MGIDLANA complains the reportage distorted, exaggerated and misled readers by ignoring that the Joint Standing Committee on Powers and Privileges has sustained his complaint against being (unfairly) called corrupt, and reduced the matter to a “self-declaration” – thereby distorting the essence of the facts.
He says Levy omitted this information in order to project him in a negative light.
(He says this act provides for any person aggrieved by statements made by a Member of Parliament to write to the relevant authority in order to have their complaint addressed by the relevant committee.)
Mgidlana adds that the article also omitted to report previous statements made by both Parliament and him, and therefore solely reflected Levy’s views.
Neither the DM nor LEVY responds to this part of the complaint.
Analysis
The information provided to me by Mgidlana does not support his claim that the relevant standing committee has sustained his complaint against being called corrupt. What it did, was to allow his letter to be published in the ATC.
It follows that Levy did not omit the “material information” that Mgidlana is referring to.
Information not verified
MGIDLANA says he was the subject of critical reportage in Levy’s article, which meant that she was obliged to give him a right of reply, which she did not do – and neither did she verify the information with Parliament.
I have had no response by either the DM or Levy to this part of the complaint.
Analysis
If Levy merely reported the allegations made against Mgidlana as allegations, there was no need for her to ask him for his side of the story – the matter has been in the public domain for a long time, and it should have been clear that he was contesting the allegations made against him.
However, that is not what the reporter did – in fact, she pronounced him guilty. Having done so, her reporting boiled down to presenting (new) news, which means Mgidlana became the subject of critical reportage and therefore she should have asked Mgidlana for comment.
Professional dignity impugned
MGIDLANA complains that the untruthful, inaccurate and unfair reportage has severely impugned his professional integrity and dignity.
Neither the DM nor Levy responds to this part of the complaint.
Analysis
Having stated all the allegations against Mgidlana as fact, it follows that Levy’s reportage has indeed severely impugned his dignity and reputation – and possibly unnecessarily so. This goes for both publications.
Concluding remark
I am left with one outstanding matter – the question if Levy had an axe to grind with Mgidlana.
It is impossible for me to determine the reason(s) behind Levy’s reportage, which is why I am not going to uphold this part of the complaint (even though Mgidlana certainly could be forgiven for believing that the reporter was biased against him).
Let my finding on the article itself be enough.
I am willing to say, though, that stating the allegations against Mgdlana as fact, having known full well that the investigation was still underway, could only have been deliberate. The reason for this, as I have stated above, is not for me to say.
Finding
Journalist conflicted
This part of the complaint is dismissed.
False statements
Travelling with spouse; blue lights; transport for children
These statements should have been presented as allegations and not as fact.
This is in breach of the following sections of the Press Code:
· 1.1: “The media shall take care to report news truthfully, accurately and fairly”;
· 1.2: “The media shall present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion … or misrepresentation…”; and
· 1.3: “The media shall present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such.”
Bonus; bursary
These statements should have been presented as allegations and not as fact.
This is also in breach of Sections 1.1, 1.2 and 1.3 of the Press Code, as cited above.
Disgraced; corrupt; dodgy
These statements were presented as comment and were all in breach of Section 1.1 of the Code that states: “The media shall take care to report news truthfully … and fairly.”
Material information omitted
This part of the complaint is dismissed.
Information not verified
Having presented allegations against Mgidlana as fact, the publications presented those as (new) news, and made him the subject of critical reportage. They were in breach of Section 1.8 of the Code that states: “The media shall seek the views of the subject of critical reportage in advance of publication…”
Professional dignity impugned
The publications are in breach of Section 3.3 of the Code that says: “The media shall exercise care and consideration in matters involving dignity and reputation…”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The reporting, as a whole, amounts to a Tier 2 offence. The statement that “…clearly somewhere, somehow, there is corruption afoot…” is a Tier 3 offence.
Sanction
Both Notes from the House and the Daily Maverick are directed to apologise to Mgidlana for untruthfully / inaccurately / unfairly:
· stating as fact the following allegations as fact: “Gengezi Mgidlana is the man who, among other dodgy practices, spent R4-million of taxpayers’ money in two-and-a-half years for travel for his wife and himself, awarded himself an ex-gratia payment of more than R71,000 that he was not entitled to, gave himself a R30,503 study bursary just months into the job while denying bursaries to most other staff, and various other dodgy behaviours such as the illegal use of blue light security cars, including to get his kids to school”;
· labelling him as “disgraced” and calling his actions “dodgy”:
· reporting that “…clearly somewhere, somehow, there is corruption afoot …”;
· not giving him a right of reply prior to publication; and
· not exercising the necessary care and consideration regarding his dignity and reputation.
The publications are directed to publish this text at the top of the article, with a headline containing the words “apology” or “apologises”, and “Mgidlana”.
The text should:
· be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
· refer to the complaint that was lodged with this office;
· end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
· be published with the logo of the Press Council (attached); and
· be prepared by the publication and be approved by me.
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