Bongani Mdakane vs GroundUp & Daily Maverick

Mon, Oct 16, 2023

Ruling by the Deputy Press Ombud

Date of publication:

3 August 2023 (both GroundUp & Daily Maverick)

Headline of publication:

Exposed: The Sunday World highly lucrative, suspect partnership with the Lottery

Subtitle: The newspaper got millions of rands of Lottery advertising and also ran stories to counter exposés of corruption (Daily Maverick)

Exposed: The Sunday World’s lucrative partnership with the Lottery

Subtitle: The newspaper got millions of rands of Lottery advertising and also ran stories to counter exposés of corruption (GroundUp)

Note: the editing error in the Daily Maverick headline has been left intact for these purposes

Authors: Raymond Joseph and Anton van Zyl

Particulars

1. The complainant is Bongani Mdakane, a freelance reporter for the Sunday World.
2. He lodged a complaint against GroundUp on August 9, following up with a supplementary complaint against the Daily Maverick on August 16, who had republished the original GroundUp article. The first complaint was given the number 30536, the second was given the number 30541. For these purposes, they are treated as a single complaint.
3. The public advocate first declined to accept the complaint. However, after a forceful argument from the complainant, the matter was passed on for adjudication.
4. A response from GroundUp, on behalf of both publications, was received from editor Nathan Geffen on 27 September.
5. I considered the following documents:

5.1 The complaints;

5.2 The original reports;

5.3 The newspaper’s response to the complaints;

5.4 The complainant’s rejoinder; and

5.5 The correspondence between the public advocate and the complainant surrounding the initial decision to refuse to accept the complaints.

The report

6. The report focuses on a relationship between the Sunday World and the National Lotteries Commission (NLC).  Tens of millions of rands were spent by the NLC on advertising and advertorials, the report says, with a very large proportion going to the Sunday World. As the complaint does not arise out of these matters, it is not necessary to go into more detail here.
7. The brief reference to the complainant comes in the context of a section dealing with a series of favourable articles published by the Sunday World on the NLC, described as puff pieces and, in some cases, press releases dressed up as reports. The report says that Mdakane sent a set of questions to the leader of a group who protested against the NLC, Thapelo Ntlele, which appear to suggest they were put up to it by GroundUp.  The article says this was “exactly the line that the NLC was pushing in order to deflect GroundUp’s reporting on Lottery corruption”.

The complaint

8. In his initial complaint, the complainant does not explain which sections of the Press Code he believes were breached. He mentions his surprise at finding his name in the article, asks how his questions to the protest organiser ended up with GroundUp and describes an interaction with Ray Joseph, the reporter, in late 2021.  But it is not clear which breaches are being alleged. 
9. However, he does say he was not called by the publication this year, which I understand as being a complaint in terms of clause 1.8, requiring publications to seek comment from the subject of unfavourable reporting.
10. He also references a breach of clause 2.1, without further motivation.
11. In the second complaint, Mdakane cites clauses 1.1 – 1.4; 1.8 and 3.3. Again, he does not spell out in which particular respects these were breached. 
12. I have looked closely at the various documents and will in the following identify the elements that are relevant to the provisions cited. I do so to the best of my ability, despite the lack of clarity in the complaints.   

Technical issue: delay in lodging complaint

13. Geffen argues in his response that Mdakane formally lodged his request for adjudication well outside the window of seven days after the public advocate’s decision to refuse acceptance. It should therefore not be entertained, he says.
14. Mdakane clearly intended to request adjudication. Though he did not say so explicitly, he engaged with an extensive exchange of arguments with the public advocate, discussing the merits of the case and the decision. When the request was formally made, the public advocate decided to allow late submission. As the system should be as open as possible, I see no reason to differ with his decision.    Though the complainant is a journalist, he is approaching the Press Council of SA as a member of the public.

Complaint 1: Inaccurate reporting - freelance

Arguments

15. The complainant says he is a freelance reporter, and omitting this fact distorted the truth. 
16. Accordingly, the complainant is understood to allege a breach of clause 1.2 of the Press Code.
17. Geffen responds by pointing out that Mdakane appears frequently in the Sunday World and that he identifies himself on various social media platforms as a reporter for the paper.  Accordingly, it is reasonable to refer to him as such.
18. Mdakane’s rejoinder only obliquely addresses the point, saying that harm to his reputation as a freelancer directly impinges on his livelihood.

Discussion

19. While I accept that Mdakane’s reputation as a journalist is a matter of importance, it is not clear why the fact that he does not have a permanent post with the Sunday World makes such a difference. In any event, nothing written suggested he was permanently employed. The term is simply “reporter”, which can cover both full-time and freelance work.

Ruling

20. This element of the complaint is dismissed.

Complaint 2: Improper motive - Disclosure of why questions were shared

Arguments:

21. The complainant asks why GroundUp did not disclose how they obtained his questions to Ntlele, the protest organiser, suggesting there may be an improper relationship between them.
22. Accordingly, the complainant is understood to be alleging breach of clause 2.1 of the Press Code.
23. Geffen says the source was clearly indicated, and that he cannot speculate on why Ntlele chose to share the exchange.
24.  Mdakane does not return to the issue in his rejoinder.

Discussion

25. The complainant has not made any argument that the newspaper has an improper motive. The fact that a source provided them with his questions does not prove anything of the kind – it is standard journalistic practice.

Ruling

26. This aspect of the complaint is dismissed.

Complaint 3: Privacy and dignity - name in the public domain

Arguments

27. Mdakane refers frequently to the fact that his “name was used in the story”.
28. In his list of breaches, he refers to clause 3 of the Press Code, which deals with dignity and privacy. Though he does not say so, the reference to his name being used is the only possible way in which his complaint may be related to this clause.   
29. Geffen does not address this point directly.

Discussion

30. Mdakane has not made any argument for being entitled to privacy in the context of his activities as a journalist, which are by their nature conducted in public.

Ruling

31. This element of the complaint is dismissed.

Complaint 4: Inaccurate reporting – a campaign by the NLC

Arguments

32. Mdakane says the claim that his questions were part of a “fightback scheme driven by the NLC” was not truthful or accurate.
33. Though he does not say so, this can be seen as a potential breach of clauses 1.1, 1.2 and 1.3 of the Press Code.
34. Geffen argues that the article does not make this claim, and that the statement linking Mdakane’s questions to an alleged agenda by the NLC is an opinion by the writers. This they are entitled to express, he says.
35. Mdakane does not address this point again in his rejoinder.

Discussion

36. Taken as a whole, the article produces extensive evidence of an initiative by the NLC to counter critical reporting through paid advertisements and favourable reporting, mostly in the Sunday World. The evidence includes NLC documents, patterns of advertising spending as well as patterns in the coverage given to the NLC.  The conclusion that this amounts to a campaign by the NLC seems justified.
37. Does this mean that Mdakane can be associated with the campaign? The writers point out the similarity between his questions and a narrative they say is being advanced by the NLC.
38. Is this an opinion, as argued by Geffen? It appears in the context of an article that is clearly identifiable as reportage, though it is not unprecedented for an individual statement of opinion to appear in such a context (just as a factual claim may appear in an opinion article.)  The statement certainly sits somewhere on the spectrum between fact and comment, though not nearly as far towards comment as Geffen argues. It is not simply a factual claim, but nor is it the expression of a view as one might find in a column.
39. In a literal sense, the statement simply points out similarities between the questions submitted and a narrative advanced by the NLC. Readers are left to draw their own conclusion – though in context, the conclusion that Mdakane’s questions serve the NLC initiative is difficult to miss. The statement is perhaps most accurately characterised as analysis, in that it pointed out parallels as significant. It was easily recognisable as such.
40. Accordingly, I find no breach of clauses 1.1, 1.2 or 1.3 of the Press Code.
41. I will return to the question of whether a reply was required.

Ruling

42. This element of the complaint is dismissed.

Complaint 5: Failure to obtain a response

Arguments

43. Mdakane argues that he had the right of reply as he was the subject of unfavourable comment. 
44. In this case, it is clear where the alleged breach lies: clause 1.8 of the press code.
45. Geffen argues that comment was sought during an exchange between Joseph and Mdakane in 2021, which Mdakane himself referenced in his complaint.
46. Geffen also argues that the article as a whole deals with the Sunday World, and the newspaper’s responses were canvassed and presented.
47. In the correspondence with the public advocate, Mdakane says this was not enough, and that he was entitled to respond as an individual. He also says other journalists mentioned in the report were contacted for comment. The fact that he was not approached amounts to unfair treatment. However, this does not appear from the report as published – no comments from individual reporters are included. 
48. In a later part of the email exchange, Mdakane cites the precedent of the complaint of Janine Julius Nale vs City Press (complaint 7711, ruling dated June 11 2020). In that case, the acting assistant press ombud, Johan Retief, found it was insufficient for comment to be obtained from the employer – the complainant should also have been given an individual opportunity to respond.

Discussion

49. GroundUp had an obligation to seek comment to balance its reporting, and discharged this by approaching the Sunday World’s owner and two former editors.  The responses are reflected in the piece.
50. However, the question is whether Mdakane should have been approached in his individual capacity too, or whether, as Geffen argues, the approach to the newspaper was sufficient as it was the subject of unfavourable reporting.
51. The fact that the complainant is a journalist and that the report concerns journalistic conduct should, for the moment, be put to one side.  The fact that the Press Council system holds editors responsible for what is published does not apply in reverse.  The complainant needs to be treated as an individual.
52. The analogous situation is where the name of an employee comes up in the context of a report alleging improper behaviour by an organisation. Generally, in such a situation, comment by the organisation is enough. (As argued above, whether that employee is full or part-time is not material.)
53. Significantly, Mdakane’s own account of the 2021 exchange has him referring the reporter to the newspaper for answers, suggesting that at least at that point he preferred the Sunday World to speak on his behalf.
54. With respect to the Nale case, what played an important role was that the complainant was not given full details of the claims against her. It should also be noted that the allegations mostly consisted of complaints contained in a letter from the minister at the time, Lindiwe Sisulu, which the ruling found was accurately reflected.
55. In this case, it appears from Mdakane’s account of the 2021 exchange that he knew the nature of the allegations being investigated, and specifically referred them to the Sunday World.
56. In any event, it should be noted that the Press Council system does not operate on a system of strict precedent. Each case is considered in its own context.
57. The 2021 exchange also represents an attempt to get Mdakane’s views, as Geffen argues.  However, it was a long time ago, and nothing of the exchange is reflected in the published report that we are dealing with here:  readers do not know that Mdakane denies being part of the NLC campaign.
58. I cannot find the publication in breach on this count. However, now that Mdakane has expressed his objection so forcefully, it would be fair to bring that to the attention to readers.

Ruling

59. This element of the complaint is dismissed.

Rulings

60. I dismiss the complaint against GroundUp and the Daily Maverick.   
61. As a result, the rules do not allow me to direct the publications to take any action. However, I ask them to consider the inclusion of a note at the end of the existing reports, reflecting Mdakane’s strongly expressed objection to being linked to the NLC campaign.  Since he has now expressed himself so strongly on the matter, it would be fair both to him and to readers to include reference to that fact.

Appeal

62. 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

Franz Krüger
Deputy Press Ombud
16 October 2023