Ruling by the Press Ombud
6 June 2017
This ruling is based on the written submissions of Ms Nicole Gohari of Stein Scop Attorneys, on behalf of Mr Tebogo Leballo and Ms Faheema Badat, and those of Beauregard Tromp, deputy editor of the Mail & Guardian newspaper.
Leballo and Badat are complaining about an online article in Mail & Guardian of 31 March 2017, headlined Gupta-linked bank bid now in Gigaba’s hands.
Complaint
The following sentence is in dispute: “Then there is the need to interrogate the bona fides of the bank’s new executives who include two current Trillian executives: Tebogo Leballo and Faheema Badat.”
They complain that this statement:
· was false in that they were not “executives” of Habib Overseas Bank; and
· cast them in an unfavorable light (as somehow having been associated with impropriety, by implication or innuendo).
They add that the newspaper did not ask them, or Trillian Capital Partners, for comment.
The text
The article, penned by Jessica Bezuidenhout, dealt with litigation brought by Vardospan Ltd against the SA Reserve Bank, the Registrar of Banks and others, to expedite approval of its planned acquisition of Habib Overseas Bank.
Apologies already published
On May 16 (after the complaint had been lodged with this office), the Mail & Guardian apologized (twice), the texts of which read:
· In an article titled: “Gupta-linked bank bid now in Gigaba’s hands” published 31 March 2017, the story looks to unravel the decisions now facing Finance Minister Malusi Gigaba in approving or denying the takeover of Habib Overseas Bank. The article stated that Mr Tebogo Leballo and Ms Faheema Badat were new executives at Habib Overseas Bank. Mr Leballo and Ms Badat are in fact proposed as non-executive directors in a proposed new structure for the bank, pending approval of the takeover. The Mail & Guardian regrets the error and apologises to Mr Leballo and Ms Badat; and
· A previous version of this article, published on March 31 2017, stated that Mr Tebogo Leballo and Ms Faheema Badat were new executives at Habib Overseas Bank. Mr Leballo and Ms Badat are in fact proposed as non-executive directors in a proposed new structure for the bank, pending approval of the takeover. Separately, the article should also have been marked as “news analysis”. The Mail and Guardian regrets the error and apologises to Mr Leballo and Ms Badat.
I commend the newspaper for apologizing, and I am certainly not going to ask it to repeat these apologies. However, the complainants are not satisfied with the apologies and ask for a further apology, as well as a retraction and the removal of their names from the story.
I shall therefore focus on only the remaining issues.
What remains to be adjudicated
The M & G has apologized for:
· reporting that Leballo and Badat were appointed as new executives at Habib Overseas Bank, stating that they had instead been proposed as non-executive directors, pending approval; and
· not marking the piece as “news analysis”.
Based on the initial complaint, as well as later correspondence, the following remains:
· Failing to ask them for comment;
· Unfair questioning of their integrity;
· Removing their names from the story, and amending the apology to state that they have withdrawn their names from the list of possible non-executive directors (already in November 2016); and
· The apology for not identifying the piece as “news analysis” – as, the complainants say, it was a news article.
The arguments
Not asked for comment
Leballo and Badat complain that the journalist should have verified her information with them or with Trillion, in which case her article would probably not have been incorrect.
Tromp says there was no need to ask the complainants for comment; neither was the newspaper obliged to do so, as:
· they were not the subject of critical reportage – each was mentioned once, and there were no allegations against them, neither in the article nor in the court papers used for the article;
· no facts relating to the complainants were in dispute – “Leballo and Badat first dispute their association with Habib in their complaint to the Ombud. Up to that time there appeared to be nothing contested about their involvement”; and
· the newspaper drew information from public documents submitted under oath to explore the implications of a contested transfer of the ownership of a bank.
Analysis
I agree with Tromp on this issue. I do not accept that either Leballo or Badat was the subject of critical reportage – not in the context of the entire article, and certainly not as far as the sentence in dispute goes.
Unfairly questioning their integrity
Leballo and Badat complain that the sentence in dispute, as well as the article as a whole, portrayed them in an unfavorable light (as somehow having been associated with impropriety), inter alia also because the text said their bona fides were yet to be established.
Tromp submits there is no basis for this part of the complaint – the article explained there was a need to interrogate Leballo’s and Badat’s bona fides. This, he argues, is a legal requirement for the transfer of bank ownership, as the credentials of executives (and in particular affiliations with other banking institutions, have to be verified before a transfer can take place).
The deputy editor notes that the complainants appear to be concerned with the use of the phrase “bona fides”. He submits, “In this context it is a simple synonym for ‘credentials’ or ‘CV’, as court documents have it. The Mail & Guardian and others commonly use [the phrase] ‘bona fides’ to refer to official paperwork in phrases such as ‘diplomatic bona fides’.”
Analysis
I have already stated above that I do not believe that the text portrayed Leballo or Badat in an unfavorable light – it merely stated that their bona fides were still to be established. Tromp’s explanation regarding “bona fides” in this regard is reasonable.
Removing of names
Leballo and Badat say they had no role to play in Habib Overseas Bank – whether before or after Verdospan’s takeover – and ask for the removal of their names from the article (as they were “not relevant” to the story). They add that they have already, in November 2016, withdrawn their names from the list of possible non-executive directors.
Tromp denies that the complainants had “no role to play” in HOB – he says they were both named as executives in public documents, properly before a court, and submitted under oath. He argues, “Most directly among those documents, the Registrar of Banks, on a letterhead of the South African Reserve Bank, writes that Vardospan had submitted the ‘summarised CV details’ of Leballo and Badat as part of the process of applying for permission to take control of Habib. Put plainly, there is every indication in the papers that Vardospan itself put forward the names of Leballo and Badat as executives.”
The deputy editor also says the complainants made no effort to explain their claim that the article’s references to court documentation were “out of context”. “For instance, it does not explain why the legal representatives of the Reserve Bank would perjure themselves, or by what mechanism the names of Leballo and Badat appeared in documents. Nor does the complaint detail any efforts to dispute this information, which remains in the public domain through court documents. The Ombud, then, is being asked to find that the Mail & Guardian breached the Code by reporting – accurately – information that was before a court and in the public domain,” he adds.
He remarks that, if Vardospan submitted Leballo’s and Badat’s names without their knowledge, it may amount to fraud, “and we invite the complainants to speak to us in that regard as the basis of a follow-up article”.
The deputy editor says the M&G is perturbed by the complainants’ suggested remedy that their names be removed from an updated version of the article. “This would be a highly unusual step, and one we believe should not be taken lightly. The complainants’ details appear in public documents. Their involvement – even if properly disputed, which we submit is not the case – remain of import. Scrubbing their names from the online record would not be in the public interest,” he argues.
Analysis
Leballo’s and Badat’s request to have their names withdrawn from the article is not as “highly unusual” as Tromp states – this office frequently gets such requests.
Section 1.11 and 1.12 of the SA Code of Ethics and Conduct are relevant. They read:
· “[In] the event of an apology or retraction, the original [online] article may remain, but the publisher must…”; and
· “No person shall be entitled to have an article removed which falls short of being defamatory, but is alleged by such person to be embarrassing.”
I am not persuaded that the reference to Leballo and Badat placed them in a bad light, let alone that it was defamatory.
However, I also need to take Section 1.9 of the Code into account, which states, “Where a news item is published on the basis of limited information … the reports should be supplemented once new information becomes available.” (Emphasis added.)
It was for this reason that I asked Tromp if he disputed Leballo’s and Badat’s statement that they had withdrawn their names from the list of proposed non-executive directors – if so, I wanted to know on what basis; if not so, I asked whether the M&G has reported that fact in a later article.
Tromp responded as follows: “Court papers show that their names were put forward as potential non-executive directors. This was not done in a cursory fashion. Ms Badat in particular is mentioned in a letter from the Registrar of Banks, in the context of her position at Trillian and the focus on that company as a result of state capture reports. Later, after [she] raised her concerns with us via your office and later our CEO, we were made aware that her (Badat’s) name and that of Mr Leballo dropped off in subsequent papers. We are amending the online correction to reflect this.”
I am satisfied that this will meet the requirements of the SA Code of Ethics and Conduct.
‘News analysis’
Leballo and Badat reject the apology that the piece should have been marked as “news analysis”, as they say it was not such – they submit that was “clearly” a news story.
Tromp rejects this, saying the article was a connecting-the-dots piece, “and by our own standards should have been clearly labeled as ‘news analysis’.”
Analysis
I cannot agree with the complainants on this issue – Bezuidenhout’s piece hardly put forward anything new; it was not new(s).
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