BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

IN THE MATTER OF

MPOFU MICHAEL (O.NO THE PREMIER OF THE WESTERN CAPE) APPELLANT

VS

THE CAPE TIMES - RESPONDENT

MATTER NO:

DECISION OF THE APPEALS PANEL

 [1] On 20 November 2015 the Cape Times (respondent) published a story with the headline “Zille’s spook had grabber!” The essence of the story was that a certain Mr Scheepers had been hired by Ms Hellen Zille, Premier of the Western Cape, to “spy” on certain members of her own Executive, Councillors of her own party and even members of the opposition in the Western Cape. This person was reported as having been found with an instrument, called a “grabber”, supposedly to be used to listen into those people’s cellular telephone conversations, or perhaps, even record them.

[2] Mr Michael Mpofu, (appellant) lodged a complaint against the above story and its heading; he did so in his capacity as the spokesperson for, and thus on behalf of, the Premier. He complained that it was not true that Mr Scheepers was Zille’s spy; or a spy at all. His services were acquired by the Western Cape Provincial Government, and not by Ms Zille. The acquisition of Mr Scheeper’s services followed an open tender process, and was minuted in the provincial cabinet meeting. He was therefore not to render services to Ms Zille herself. Secondly, in any case, the person was not to work as a spy, but to “debug” cellular telephones in case they were bugged. His services were acquired after National Intelligence refused to give an assurance that the phones were not “bugged”. In essence, the complaint was that respondent violated articles 2.1, 2.2 and 2.3 of the Code.

[3] In his Ruling of 15 February 2016, the Ombud dismissed the complaint. The applicant sought, and obtained, leave to appeal the Ruling.

[4] Immediately after the Ombud’s Ruling, the respondent published a story with the headline “WE BEAT ZILLE AND HER SPOOK”. This was on 17 February 2016, being reference to respondent’s success before the Ombud. This prompted certain additional submissions by the appellant, primarily aimed at requesting hearing of the appeal to be expedited. Otherwise, not much turns on these further submissions because to the extent that they constitute a fresh complaint, its validity would in any case depend on whether or not the Ombud’s Ruling is upheld.

[5] We do not share the Ombud’s view that the services required were for spying purposes. The brief was to ascertain whether the cellular telephones of the people concerned were “bugged”, and if so found, to have them “debugged”. The appellant is correct to argue that it is too high a jump from “debugging” to “spying”, and that “debugging” is the very antithesis of spying. There are several considerations, all of which are either common cause or cannot be disputed, militating against the statement that Mr Scheepers was required to spy on people, or that he was Mrs Zille’s spy; to mention some:

5.1 The contract was for a very specific purpose and of limited duration, namely, to establish if the phones were “bugged” and, if so, “debug” them. Once that was done, his services in terms of the contract would come to an end.

5.2 The “debugging” was to be done with the knowledge and consent of the people holding the phones; surely it is not in the nature of espionage to have it done with the knowledge and the consent of the person to be spied upon!

5.3 There was a confidentiality clause in the contract that Mr Scheepers (in fact his company), would not disclose information he would have come upon; that is, he would not pass it on.

5.4 The contract was awarded on the basis of an open tender; contracts to render spying services cannot be subject to that kind of tender.

5.5 The contract was entered into not between Mrs Zille and Mrs Scheepers, but between him and the government of the Western Cape. In this respect, the Ombudsman was correct to hold that the headline stated as a fact that the person was Mrs Zille’s spy. The decision to acquire such services was that of the provincial cabinet and indeed so minuted in the relevant cabinet meeting.

[6] Respondent sought to argue that it was right to speak of “Zille’s spook” because she was the head of the government. But that is not the context in which the statement was made; the context was that Mr Scheepers was Ms Zille’s spy in her personal capacity. In fact, in an attempt to bolster this, respondent argued that Ms Zille had supported Mr Scheepers in his attempt to get back the “grabber” from the police who had apparently taken it. It was also argued that Ms Zille appeared to have had knowledge of the contents of Mr Scheepers’s affidavits in his “grabber” case before they were served. This was of course mere speculation as she might have gotten the information from other sources, given her position. All these arguments were advanced to support the statement that Scheepers was Ms Zille’s spy, as opposed to being her spy in her capacity as the Premier, as respondent now seeks to argue.

[7] One of the most controversial challenges to media self-regulation is the use of anonymous sources. In this instance the newspaper made use of a single " police source" - and placed great store on the information thus gathered without testing the veracity with premier Zille's spokesperson. Because of the controversy that usually accompanies the use of anonymous sources, journalists should take extra care to verify information and grant the target of the information sufficient opportunity to confirm or deny the allegations against them and report such responses. This is particularly important in the case of a single source being used. The newspaper failed to do so in this instance which in the circumstances is not a small matter, especially given the serious, but speculative, conclusions subsequently drawn from the gathered information.

The crux of this matter is the newspaper's consistent treatment of the story as one of "spying" by constantly referring to Mr Scheepers as "Zille's spy". This was despite the fact that the whole process of acquiring the services of Mr Scheepers and his company was a matter of public record in which the intentions of the Western Cape government were very clear throughout, and could in fact be viewed as an "anti-spying" action; in other words, to bring information out in the open rather than oppress it through secretive means.

[8] The appellant asked for a reprimand and an apology and a retraction on the front page, given also the headline of 27 February 2016; a right of reply was also asked for. The respondent did not oppose these, but contested only the merits of the case.

[9] For the reasons given above, we are of the view that the respondent breached articles 2.1, 2.2 and 2.3 of the Press Code. Accordingly, the following orders are made:

(a) The appeal succeeds

(b) The Ombud’s Ruling of 15 February 2016 is set aside.

(c) The Cape Times must apologise for and retract the statement that Mr Scheepers was Zille’s “spook”.

(d) The apology and retraction must be on the front page.

(e) Ms Hellen Zille be given the right of reply, and her reply be published on the same date of the apology and the retraction referred to in paragraph (c) above.

(f) A draft of the apology and retraction to be submitted to the office of the Ombud of the Press Council for approval prior to publication of same.

(g) All the steps mentioned in paragraphs (c) to (g) above to be accomplished within 14 days of the transmission of this Decision to the parties.

Dated this 25 day of June 2016

Judge B M Ngoepe, Chair, Appeals Panel

Dr L Clowes, Member, representing the Public

Mr Jeffreys, Member, representing the Press

Issued by the Press Council, 25 June 2016