Panel: Franz Kruger, Press Appeals Panel (Press Representative); Ethel Manyaka, Press Appeals Panel (Public Representative); and Joe Thloloe, Press Ombudsman.

Complaint: Mr Roberts complained about a story in The Weekender on November 17-18, 2007 that carried allegations that he had plagiarised work by lawyer Anthony Brink in his biography of President Thabo Mbeki, Fit to Govern: The Native Intelligence of Thabo Mbeki.

There were three legs to the complaint:

• Roberts alleged there were factual errors in the main story on page 2 headlined Authors in plagiarism war. He said the newspaper had not given him the opportunity to respond to any of the contents of this story.
• The graphic next to the main story carried the allegations levelled against him by Brink but his detailed responses were not included in the graphic, even though his picture and that of Brink were at the bottom of the graphic and "gave the impression that readers were being treated to a feast of claim and counterclaim".
• Roberts argued that the newspaper's poster that weekend, Suresh Roberts Caught Cribbing, elevated Brink's allegations to the status of fact.

The Weekender denied it had contravened the Press Code and said it had published what it believed reasonably to be true and had had regard to a number of sources, opinions and the works themselves as evidence.

Analysis

The panel heard oral evidence and arguments on January 29, 2008.

The article was a report on Anthony Brink's online book Lying and Thieving in which he makes the allegations that Roberts "cut and pasted" material from his books into the Aids chapters in the Mbeki biography. 

From the evidence, on the morning before the article was published the editor of The Weekender and author of the story, Peter Bruce, e-mailed 10 samples of the alleged plagiarism to Roberts for his comment. Five of the samples are in the graphic.

Roberts's responses to the allegations reached Bruce at 18h44 - forty-four minutes after the deadline for the graphic. The graphic was headlined JE T'ACCUSE and was highlighted to stand out on the page.

Roberts had not been told about the deadline for the graphic, and it therefore did not include his responses.

Bruce incorporated some of the responses in the main story and they are at paragraphs 22 to 25 of the 32 paragraphs of the main story - two thirds down. Bruce told the panel he believed the quotes he used captured the essence of what Roberts was saying. Excluded were Roberts's references to the footnotes in his book and his argument: "The obvious scholarly practice is to quote the original source. Where the original source could not be quoted, so that Brink was the best authoritative source, he was in fact credited...."

Another issue raised by Roberts on the graphic is the use of the phrase "Roberts picks up the theme in FTG..." Roberts said that suggested as fact that he picked up the theme, as Brink had alleged.

On the main story, Roberts argued that the newspaper did not ask him "a single factual question" related to it and it contained "numerous factual inaccuracies" and lists:

• "Fit to Govern author may face criminal prosecution";
• "Fit to Govern was meant to be...a powerful tool in the ANC succession battle with Jacob Zuma";
• "During Roberts's case against the Sunday Times Brink had sat in the gallery as a gesture of support for his friend";
• ‘Right away they (Roberts and Brink) hit it off, says Brink in a new book";
• "Quite how or why the two men fell out is unclear";
• "Brink insists that Mbeki does deny the link (between HIV and AIDS)";
• "Brink reports ...that Roberts has found the manuscript of Just Say Yes, Mr President: ‘Brilliant, fucking brilliant.' He recalls that when Roberts showed him the draft AIDS chapters for Fit to Govern, he was dismayed to see many of the quotes he had spent years collecting for Just Say Yes, Mr President, in Roberts's work. ‘I can't help it,' he quotes Roberts replying. ‘Your writing is infectious.'";
• "The saga also...threatens to split one of the support communities around Mbeki...";
• "(Christine Qunta) also acts for Brink, who first introduced Qunta and Roberts"; and
• "(Roberts's) relationship with Essop Pahad is said to have cooled".

Taking what Roberts called "factual inaccuracies" in turn:

1. Criminal charges: The newspaper quotes the threat made by Brink and states that the allegations could see Roberts facing criminal charges. The subhead on Page 1 says author may face criminal prosecution. Nowhere was it stated as fact that Roberts was going to face criminal charges. The panel finds it was not necessary for The Weekender to get Roberts's reaction to this threat.

2. Fit to Govern as a tool in the ANC's succession battle: It is not unusual for readers of books to speculate on authors' motives, especially when the books are political. Roberts may have started work on Fit to Govern in November 2003, as he submitted to the panel, "before there was any question or hint of a ‘succession battle'" but it was published during the heat of that battle. It is not unreasonable for The Weekender to put its interpretation on the story. It was not necessary that Roberts's side of the story be sought before this interpretation.

3. Brink had sat in the gallery as a gesture of support: In his Lying and Thieving Brink says that's what he did. This same information was published before in the Sunday Times and was not challenged. It is now in the public domain and The Weekender had no obligation to get Roberts's side on this.

4. The two men hit it off: The newspaper clearly states its source. There was obviously a relationship between Brink and Roberts even if Roberts now says he regarded Brink with caution.

5. How and why the two men fell out is unclear: Brink does state his version in Lying and Thieving but the newspaper is not putting that forward as fact but rather says it is "unclear". There is no obligation on the newspaper to solicit Roberts's reason for the fall out.

6. Brink insists that Mbeki does deny the link (between HIV and AIDS): The paragraph before this one states that in Fit to Govern Roberts portrays Mbeki's approach to Aids as "thoughtful and cautious but insists he has never denied the link between HIV and Aids". The other side of the story is included and there was no obligation on the newspaper to get Roberts's additional information.

7. Brink reports ...that Roberts has found the manuscript of Just Say Yes, Mr President: "Brilliant, fucking brilliant." He recalls that when Roberts showed him the draft AIDS chapters for Fit to Govern, he was dismayed to see many of the quotes he had spent years collecting for Just Say Yes, Mr President, in Roberts's work. "I can't help it," he quotes Roberts replying. "Your writing is infectious." - The newspaper accurately reported what Brink alleges but as this is at the core of the accusations, the newspaper should have sought comment from Roberts.

8. The saga also...threatens to split one of the support communities around Mbeki...: This is interpretation that is not uncommon in political writing and it was not necessary for The Weekender to seek Roberts's side.

9. (Christine Qunta) also acts for Brink, who first introduced Qunta and Roberts: Brink does concede that he did not introduce Qunta and Roberts - he says he suggested to Roberts that he should use Qunta's legal services. Qunta was already acting for Brink. The Weekender committed a minor mistake that did not reflect badly on Roberts.

10. (Roberts's) relationship with Essop Pahad is said to have cooled: This is interpretation that is common in political writing. The newspaper was not obliged to seek Roberts's comment.

On the "factual inaccuracies" the panel finds that the only omission was the newspaper not seeking Roberts's comment on "Brilliant, fucking brilliant..." The main story was an interpretative one that did not oblige the newspaper to seek Roberts's side.

The two outstanding questions we have to deal with now are: Were the accusations of plagiarism and Roberts's responses to them reported accurately, fairly and in a balanced manner? Did the poster elevate allegations into fact?

Bruce argued: "The code makes no provision for comment to be carried with equal status, in as many words or any other quantitative test. Comment was invited, obtained and published."

There might not be a quantitative test, but can the reasonable reader come away with the impression that Roberts was treated fairly in the article? The graphic JE T'ACCUSE jumps out at the reader and you would expect in all fairness to hear Roberts's defence in it. If it his side of the story had been at the top or near the top of the main story, it would have counterbalanced the graphic but its position so far down does not strike the panel as being fair.

On the phrase "Roberts picks up the theme in FTG..." in the graphic, it is possible that the newspaper was confirming Brink's allegation but it could also have been a narrative technique linking a common theme between Brink's work and that of Roberts. The panel does not make a finding on this.

The Weekender did try to make amends for it's omission in the week after publication when it offered Roberts space - 800 words - to respond to the allegations but he declined, choosing to complain to the Press Ombudsman instead. Roberts's response was: "Why he (Peter Bruce) thinks that, having given up the bulk of my last Friday in order to answer detailed queries which he then ignored, I would now repeat the exercise, is beyond me.

"At this stage, the horse having bolted, and Bruce having written his extremely damaging story, the only issue is that of the relevant apologies and corrections."

The panel finds it was a fair offer in the circumstances.

The treatment of the story and the poster appear to have been coloured by the newspaper's conviction: "The Weekender believes that the publication was true or at least that they reasonably believed the facts to be true. The evidence appears on a balance of probabilities in relation to the plagiarism charge to bear fruit. The same applies to the billboard."

Bruce repeated this at the hearing: "The poster was true - he (Roberts) is a plagiarist."

The evidence the newspaper had when it published the story appears to have been Brink's persuasive book and the responses from Roberts.

Roberts's responses to some of the allegations were that he quoted from the original sources and that Brink "never owned the quotation" and he (Roberts) properly acknowledged the ownership". Roberts does not confront the issues of cutting where Brink cut, using identical ellipses and making the same transcription errors.

At the hearing, Bruce cited the work of Dr James Myburgh, researcher and editor of Politicsweb, who a few days after the publication of The Weekender article, published his A plagiarist defrocked? on his website [see here.]

This was an authority Bruce did not have at the time he wrote his story but it did confirm his belief that Roberts is a plagiarist.

After examining 17 samples of the alleged plagiarism, Myburgh concluded: "...there is compelling evidence that Roberts simply cut-and-pasted quotes and sections from Brink's manuscripts. The same quotes with the same cuts and the same ellipses are arranged - in a number of instances - in the same order in Brink's work and Fit to Govern. In at least two cases Brink's minor transcription errors are carried across into Roberts's work. In all but one of the cases examined and listed Roberts failed to reference Brink's work (and even there the reference was partial). On many occasions Roberts seems to have simply copied Brink's attribution, and then pasted it into his own as the reference."

At the hearing Roberts argued that Brink's Just Say Yes, Mr President manuscript is a work in progress - a "moveable feast" - that can be changed to support the allegations of plagiarism.

Roberts has however not answered Brink's version that he gave him copies of Just Say Yes, Mr President and Debating AZT. If he does have the earlier version and can show how the manuscript has changed since, he would have made a convincing argument. In the absence of that evidence we find The Weekender's belief that Roberts was a plagiarist reasonable.

The poster was a fair reflection of the story.

Finding

The panel unanimously finds that The Weekender is not in breach of the South African Press Code and the complaint is dismissed.

Within seven days of receipt of this ruling, any of the parties may apply to the chairman of the Press Appeals Panel, Judge Ralph Zulman, for leave to appeal. The applicant shall fully set out the grounds for the appeal.

Source: The Press Council July 16 2008