Ruling by the Deputy Press Ombudsman and two members of the Press Appeals Panel.

October 4, 2010

This ruling is based on the written submissions of Chuene Incorporated, for the SABC, and the Sunday Times newspaper as well as on a hearing that took place on September 29, 2010 in Johannesburg. The panel members who assisted me were Lizeka Mda (press representative) and Brian Gibson (public representative). Bally Chuene represented the SABC and Susan Smuts the newspaper.

Complaint

The SABC complains about a story in the Sunday Times, published on July 11, 2010 and headlined SABC news boss Molefe bans Mbeki - Luthuli House refuses to say if it gave the order.

The broadcaster says that the story, in general:

• is not truthful, accurate and fair;
• does not give news in context and in a balanced manner;
• amounts to distortion, exaggeration and misrepresentation and contains material omissions; and
• fails to publish the facts fairly with due regard to context.

Being more specific, the SABC mentions the following sentences: 

• "Interviews with former President Thabo Mbeki and items about him have been banned on all SABC radio stations and television channels".
• "Sunday Times can reveal that the instruction to stop giving coverage to Mbeki was issued by the public broadcaster's embattled acting Head of News, Phil Molefe."
• "If Molefe's instruction on Mbeki stands, it would make Mbeki the first former Head of State in South Africa to be banned by the public broadcaster."

The broadcaster also complains that:

• despite official denials, the story is nevertheless portrayed as factual;
• the newspaper should have contacted Molefe himself to verify the allegations; and
• the story departs from the principle of reasonableness.

Analysis

The story, written by Moipone Malefane, "reveals" that the SABC has banned interviews with former president Thabo Mbeki on all its radio stations and TV channels. The reason for this is the allegation that "Mbeki's apprearances on SABC TV undermined ANC leader President Jacob Zuma". Molefe reportedly got his instructions from Luthuli House, the ANC headquarters. It is not clear who issued this "instruction" - it is reported that ANC spokesperson Jackson Mthembu phoned Molefe and asked about the reliability of the information. Molefe, through his spokesperson Kaizer Kganyago, then denies these allegations.

We shall now consider the merits of the complaint:

The complaint in general

This part of the complaint will be addressed as we deal with the specific complaints.

The three specific sentences

The SABC says the three sentences in question leave the impression that the public broadcaster is effectively a mouthpiece of the ANC and that it is used to fight the ANC's battles.

Although the complaint does not mention anything in particular about sources, the first issue boils down to the credibility of the sources. We shall therefore treat the three sentences in dispute as one.

In its reply to the complaint, the Sunday Times says it spoke to five employees at the SABC prior to publication, "who all confirmed that Phil Molefe had banned interviews with and reports on Thabo Mbeki". The newspaper says these sources were:

• a senior manager who had attended a meeting of senior news executives where Molefe had informed them of the ban;
• someone who had received an instruction from the head of TV news to carry out Molefe's ban;
• someone who had received a similar instruction from his/her line manager; and
• two reporters who had been told not to report on Mbeki.

The newspaper adds that, after publication, one of its reporters was told by a high-level SABC employee that they had received the instruction to ban Mbeki. Sunday Times also says that it will keep its sources anonymous as they are all employed at the SABC "and identifying them would probably lead to difficulties at work or disciplinary action".

The following need to be considered:

• The first problem concerns the number of unnamed sources mentioned in the story. It is reported that "a senior manager" who was alleged to be at a meeting said that Molefe told them he got his instructions from the ANC.  It is then stated that an "SABC insider" told the newspaper that Molefe had called another meeting where he allegedly demanded to know who had leaked the information to the ANC. This gives the impression that the newspaper used only one (anonymous) source per meeting. Sunday Times says it did verify its information by getting information from other sources - however, that is not reflected in the story. This should have been done. The public needs that information in order to better decide for itself whether or not the article is truthful. The reporter's defence at the hearing that she was scared that these other sources may have been identified if she did mention them is nonsense. She could easily have said that her information was verified by one/two/three other sources, without giving any more detail.
• This placed the panel in the difficult position of having to decide if the claim by the Sunday Times of having had five confidential sources was reasonable, given that only one (or possibly two) sources are mentioned in the story.
• In the event, Chuene argued that the reporter did not do enough research and that it was not enough for her to have spoken to five people. The panel noted that Chuene did not dispute the newspaper's claim that it had five sources; the panel therefore accepted the reporter's explanation.
• The newspaper's argument that all its sources told it the same story has to count for something. When five people, from different levels (ranging from a senior manager, to a line-manager, to reporters) all tell the same story, it indeed becomes reasonable for the newspaper to publish that story.

Given that the reporter claims five independent sources, the use of the word "alleged" in the third paragraph is not consistent with the rest of the story. The sentence reads: "Molefe is alleged to have called a meeting of senior news executives two weeks ago..." The rest of the story states this meeting, as well as the ban, as a fact. The word "alleged" suggests that the reporter was torn between reporting "fact" and "allegations". This tends to weaken the specific source's information.

Nonetheless, the panel is satisfied that two vital criteria regarding the ethical use of sources, namely their credibility and their independence of each other, were both met.

We now turn to the second part of the complaint where the sentences in dispute are said to be untruthful, inaccurate and unfair, and that they deliberately distort, exaggerate and misrepresent the truth.

At the hearing the newspaper admitted that the attribution in the story to a "senior manager" who was at the meeting where Molefe is reported to have said that he got his instructions from Luthuli House was a mistake. According to the SABC, this meeting was attended only by Molefe as well as by Manga and the acting head of radio news, Zolisa Sigabi. The reporter admitted that she did not speak to anybody who was at that meeting. Sunday Times then explained that the meeting in question refers to another meeting (where Molefe was absent).

This mistake clearly diminishes the credibility of the story - not necessarily of the information gained from the senior manager, but indeed of the reportage itself. This reference erroneously beefed up the story, as it was more sensational to have Molefe himself be present than otherwise.

The panel has the following comments to make on the hearing:

At the hearing, Chuene called both Manga and Sigabi as witnesses, who both testified that there was no ban on Mbeki. Both of them also gave evidence that, at a diary meeting on 2 July 2010, the verdict in the Jacki Selebi court case that was expected later that day was discussed. They testified that Molefe, at that meeting, said it was more appropriate to ask Mr Jacob Zuma (being the President) for his comment - as opposed to Mbeki.

(When asked if Molefe's decision to ask Zuma, and not Mbeki, for comment on the Selebi case may not have resulted in a misunderstanding - namely that this one instance may erroneously have been interpreted by her sources as being a "ban" on Mbeki - the reporter was adamant. She denied such a possibility and clearly believed in the veracity of her sources.)

Of concern to the panel was that Chuene did not call Molefe himself (who attended the hearing) as a witness to state unequivocally that on July 2 or any other day he did not instruct that Mbeki should not be featured on the SABC. In fact, in response to a question about this, Chuene said that Molefe "does not want to testify". The panel finds this strange, as he was a key person to the story. This did not help much to convince the panel of the claimed untruthfulness of the newspaper's story.

A vital part of the evidence presented by the SABC at the hearing was the broadcaster's assertion that there could have been no ban on Mbeki as he actually appeared on TV and radio after the alleged ban on him was ordered. Chuene made a strong case that Mbeki was in fact "interviewed live" on both TV and radio on the evening/night of July 2. This meant, he argued, that there could not have been a ban - as the alleged banning order was supposed to have been issued on the morning of July 2. (This "interview" was about Mbeki who wished the Ghana soccer team well in the 2010 World Cup tournament and signed that country's national flag.)

It is important to note that the article did not claim that the alleged ban was ordered on July 2 - the story only says the ban was discussed two weeks prior to publication (without pinpointing a specific date). The SABC's focus on the occurrences of July 2 did not exclude the possibility that a ban could have been discussed at some other time. The fact that footage of Mbeki was flighted on July 2 does not prove beyond any reasonable doubt that there never had been such a ban.

Also: After repeated cross-questioning, the SABC conceded, towards the end of the hearing, that there had not been a "live interview" with Mbeki as Chuene had argued for most of the hearing - there was merely some pre-recorded footage of Mbeki at the Ghana flag-signing ceremony that had been flighted during the evening of July 2. 

Indeed, from the relevant footage, subsequently provided by the SABC at the panel's request, it is clear that Mbeki was in fact not interviewed - it was merely a sound bite.

The panel's conclusion is that Mbeki was not "interviewed live", as Chuene led us to believe, and that it was telling that none of the SABC witnesses had sought to correct him until the panel asked for evidence of the interview.

The panel was left with the impression that the SABC had tried to mislead it regarding the claim that Mbeki had been "interviewed live" after the so-called ban.

Be that as it may, let us be clear: From the evidence at its disposal, this panel cannot decide whether or not a ban on Mbeki was indeed imposed. We therefore turn to the well-known National Media Ltd and Others vs Bogoshi court case (1998). The following quote from the verdict is crucial to our ruling: "The publication in the press of false defamatory statements of fact will be regarded as lawful if, in all the circumstances of the case, it is found to be reasonable..." [28]

We are satisfied that the newspaper's reportage on this matter was indeed reasonable, based on the uniformity of the information provided by five different sources independently of each other.

Despite official denials, the story is nevertheless portrayed as factual

The complaint is that the journalist, despite an official denial by the broadcaster's spokesperson Kaizer Kganyago, nevertheless used sources in the SABC and portrayed a false story as being factual.

Unfortunately, the newspaper did not respond to this part of the complaint in its written submission.

However, the panel feels that the newspaper had the right to portray the story as being factual despite Kganyago's denial. This indeed provided balance to the story, as both the information gained from the sources and Kganyago's denial were published.

The second part of this complaint, namely that the article portrays a false story as being factual, has already been dealt with.

Molefe was never contacted to verify the allegations

The SABC says that the journalist should have contacted Molefe directly to verify the authenticity of the allegation. Besides, the broadcaster continues, where a journalist relies on anonymous sources, attempts should be made to verify the story - in this case, the SABC says it should have been verified with Molefe himself.

The Sunday Times argues that its reporter approached the SABC's official spokesperson, who told her that he would speak to Molefe and get his response - which he did. The newspaper argues that it was therefore not necessary to speak to Molefe himself.

The panel feels that there was no need for the reporter to get Molefe's comment - his spokesperson did that on her behalf. This is standard journalistic practice.

Note at this point again how peculiar this situation is: The SABC complains that Molefe was not given a chance to comment - yet at the hearing, when Molefe's testimony may have been crucial, he declined to do so.

The story departs from the principle of reasonableness

The SABC also quotes from the Bogoshi case. It says that the following parts of the judge's verdict are relevant:

• "...the tone in which a newspaper article is written, or the way in which it is presented, sometimes provides additional and perhaps unnecessary sting."
• "What will also feature prominently, is the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information will also feature prominently."
• "Ultimately, there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a licence to lower the standard of care which must be observed before defamatory matter is published in a newspaper."

From this, the SABC concludes that the article in dispute is a "drastic departure from the principle of reasonableness for which the Sunday Times is obliged to embrace and adhere to".

The newspaper did not reply to this part of the complaint in its written submission.

The panel has already decided that the reporter should have mentioned that it had more than one source per meeting. This indeed lowered the "standard of care" that journalists should strive for. The same applies to the mistake about mixing up meetings that the newspaper has admitted to in respect of claiming that her source attended a meeting with Molefe present.

For the rest, the newspaper's reportage is found to be reasonable.

Finding

The complaint in general

In respect of the general complaint that the story is not truthful, accurate and fair; that it does not give news in context and in a balanced manner; that it amounts to distortion, exaggeration and misrepresentation and contains material omissions; and that it fails to publish the facts fairly with due regard to context: The complaint is dismissed save for the sentence that says that a senior manager "was at the (Molefe) meeting" is not truthful or accurate. This is in breach of Art. 1.1 of the Press Code: "The press shall be obliged to report news truthfully, accurately and fairly."

The specific complaints

All the specific complaints are dismissed as the reportage was found to be reasonable.

Use of sources

However, the panel finds that that Sunday Times should have published its claim that it had used five sources who all told the newspaper the same story. This omission is in breach of Art. 1.4 of the Press Code that states: "Where there is reason to doubt the accuracy of a report...it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such report."

Sanction

Sunday Times is reprimanded for not stating that it had properly verified its information as well as for being inaccurate regarding the claimed presence of a source at the meeting where Molefe was present. The newspaper is directed to correct this mistake and properly inform its readers of the number and credibility of its sources that verified the information.

The newspaper is directed to publish a summary of this finding (not the whole ruling). Our office should be furnished with the text prior to publication.

Please add the following sentence at the end of the text: "Visit www.presscouncil.org.za (rulings, 2010) for the full finding.

Appeal

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at [email protected].

Johan Retief: Deputy Press Ombudsman

Lizeka Mda: Press Appeals Panel (press representative)

Brian Gibson: Press Appeals Panel (public representative)

Issued by the Press Council, October 4 2010

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