In the matter between

MAIL AND GUARDIAN - Appellant

And

ROBERT GUMEDE - Respondent

 JUDGMENT

1. On 9 December 2009 the Appeals Panel heard the above appeal, leave to appeal having previously been granted. The Mail and Guardian (M&G) was represented by Advocate D I Berger SC. Mr Gumede was represented by Advocates V Maleka SC and A Bezuidenhout.

2. On  6 August 2009, a panel constituted by the Press Ombudsman (the Ombudsman) handed down a ruling which found that an article published by the M&G on 17 October 2008 under the headline Major ANC donor in graft probe and the street poster Key Zuma Funder in Graft Probe and a second article published on 7 November headlined Gumede "not off the hook", were in breach of articles 1.1,1.2,1,4 and 5.2[1] of the South African Press Code (‘the Press Code") and ordered that the M&G should carry a shortened version of the ruling and an apology, both of which would be provided by the Ombudsman.

3. Both the appellant and the respondent submitted voluminous heads of argument and argued their cases exhaustively before the Panel.

4. The essential grounds for appeal were that the Ombudsman had erred in:

a. Finding that the statement concerning the R600 million tender in the first article was not accurate, on the grounds that the figure was "substantially true",

b. Criticising the reference to Mr Vusi Pikoli in the second article, on the grounds that the reference was factual and justified.

c.  Adopted too critical an approach in regard to omissions in the first article (i.e. failure to mention that the complaint against Gumede had been made by one Sterenborg, with whom he had been engaged in a lengthy and acrimonious legal dispute; and that the complaint had been made more than a year previously and that an initial decision has been taken in June 2007 not to prosecute Gumede).

d. Applying too onerous a test when considering whether the articles breached the media law principle of "reasonableness", arguing that Basson acted reasonably in accepting the word of his anonymous source; that it had had not been necessary to verify the information provided, which proved to be substantially true, that the essence of the respondent's response had been published; and that the respondent had been offered a 750 word contemporaneous right of reply, which had been refused.

e. In finding that the reasonable reader would have been misled by the poster.

f.   In making comments about Basson that were, in the opinion of the applicant, "unwarranted and defamatory".

5. The Appeals Panel is of the view that while the adverse rulings of the Ombudsman's Panel in respect of 4a (The R600 million) and 4b (reference to Mr Vusi Pikoli) may be technically correct in terms of the accuracy requirements of Article 1.1., the references under appeal are substantially correct. The Panel upholds the appeal in respect of these two references only.

6. The Appeals Panel rejects the appeal in respect of 4c, 4d, 4e, and 4f, (i.e. covering all other requirements of Articles 1.1,1.2,1.4 and 5.2).

7. The Appeals Panel finds that while the analysis and rulings of the Ombudsman's Panel may be expressed robustly and colourfully, they are well-founded and suitably indignant as to the injustice perpetrated against the respondent.

8. Taking all the circumstances into account, the Appeals Panel agrees that the editorial treatment of the articles was manifestly unfair and unbalanced, that there were material omissions that could have been remedied by making clear the identity of the complainant and the timing of the complaint and/or seeking verification or comment from the relevant authorities as to the current status of the investigation; and that the gratuitous reference to Mr Zuma in the street poster was incorrect, misleading, unfair to the respondent and even mischievous.

9. The Appeals Panel directs that

a. the rulings of both the Ombudsman and the Appeals Panel shall be published on the Council's website  where it will make a valuable contribution to the ongoing debate regarding the application of the Code and the treatment of anonymous sources by the print media;

b. the attached statement  should be published by the M&G as soon as possible

Dated at Johannesburg this the 3rd of January 2010

RH Zulman - Chairman Appeals Panel

N Woudberg - Member of Appeals Panel

B Gibson - Member of Appeals Panel

Statement to be published by the Mail & Guardian

APPEALS PANEL OF PRESS COUNCIL FINDS AGAINST MAIL & GUARDIAN.

Apology to Mr Robert Gumede

The Appeals Panel of the Press Council of South Africa has upheld the ruling of the council's Ombudsman that the Mail and Guardian and one of its reporters erred in its reporting of allegations against businessman Robert Gumede.

Complaints against the newspaper by Mr Gumede relate to two articles by Adriaan Basson, the first published on October 17, 2008, under the headline Major ANC donor in graft probe and the second, on November 7, 2008, under the headline Gumede ‘not off the hook'. In addition to the two articles, Gumede objected to an M&G poster which read, Key Zuma funder in graft probe.

The articles alleged a criminal case of corruption had been opened against Gumede and that, as chairman of listed information technology company GijimaAST, he had bribed Telkom executives to win a R600 million tender.

The Ombudsman ruled that the articles were unfair, inaccurate and unbalanced in that there were material omissions in the presentation of the known facts. The poster was misleading. The M&G appealed the ruling of the Ombudsman (which is available on the Press Council website: www.presscouncil.org.za ).

The crucial test applied by the appeals panel, headed by ex-Appeals Court judge Ralph Zulman, was: were the reports and the poster fair to Gumede?  The panel found they were not.

Basson, who said he had based his initial report on information received from an anonymous source, was found by the panel to have been slipshod in his reporting in that he did not try to confirm this information with the police or the National Prosecuting Authority (NPA).

If he had he would have discovered that the complaint had been laid by former business associate, John Sterenborg, with whom Gumede has been engaged in a long and acrimonious business dispute and that, on the basis of initial investigations, the NPA had decided not to charge Gumede long before the first article appeared. Sterenborg was unhappy with this decision and laid a further complaint which the police once again investigated, which was the subject of the second article, attempting to justify the first.

The panel respected Basson's confidence in his source but pointed out this did not absolve him from the responsibility of attempting to confirm the allegations with official organs - i.e. the police and NPA - or making it clear that he was relying on a single anonymous source.

In addition, the ordinary reader would probably have formed a different opinion if the antagonistic role of Sterenborg had been more clearly stated in the two articles.

Regarding the poster, the panel ruled it contravened clause 5:2 of the Press Code which states posters should not mislead the public. Gumede had made it clear in public and in response to questions from Basson before publication of the two articles that he had never given donations to President Jacob Zuma (as stated on the poster).It was no secret that he had made donations to the ANC - not only during the tenure of Zuma but also former party presidents Oliver Tambo, Nelson Mandela and Thabo Mbeki. He said he had also made donations to other political parties.

The use of Zuma's name on the poster was, the panel said, incorrect, misleading, unfair to Gumede and possibly mischievous.

In directing that the Mail & Guardian publish this ruling and apologise to Gumede, the Appeals Panel was mindful of the fact that, apart from Sterenborg's possibly vexatious complaints, there is no evidence that Gumede bribed Telkom or anyone else and that the NPA has recently declined for a second time to pursue Sterenborg's complaints against Gumede.

The appeal against the original ruling of the Ombudsman was rejected, save that:

-          Reference to the "R600 million Telkom tender" was, in the absence of firm evidence to the contrary, found to have been "substantially accurate"; and

-          The naming of the then director of the NPA (Mr Vusi Pikoli) in the second article was factually correct, albeit gratuitous.

The appeal in respect of these two statements alone was upheld.

Taking all the circumstances into account, the Appeals Panel considered that the treatment meted out to Gumede by the Mail & Guardian was patently unfair and that he is due an apology by the M&G, which we hereby tender.

[1]Article 1.1.: "The press shall be obliged to report news truthfully, accurately and fairly" ;

Article 1,2: "News shall be presented in context and in a balanced manner without any intentional or negligent departure from the facts";

Article 1,4:"Where there is reason to doubt the accuracy of a report and it is practical to verify the accuracy thereof, it shall be verified"; and

Article 5.2.: "Posters shall not mislead the public and shall give a reasonable reflection of the reports in question".

Issued by the Press Council, January 15 2010

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