Family of the late Joe Modise vs. Daily Maverick


Wed, Jul 11, 2018

Ruling by the Press Ombud

11 July 2018

PARTICULARS

 

Complainants

 

 

Family of the late Mr Joe Modise, former Minister of Defence

 

 

Date of article

 

 

11 April 2018

 

Headline

 

 

 Winnie Mandela and the Arms Deal revisited

 

 

Author of article

 

 

Terry Crawford-Browne

 

 

Respondent

 

 Crawford-Browne, for Daily Maverick

Complaint                                            

In general, the late Joe Modise’s family complains that Daily Maverick (DM) was sullying struggle icons (including him), that the article presented rumours about him as fact, and that the story was designed to lower the latter’s standing in the estimation of right-thinking readers.

In particular, the family complains that the following sentences were false and/or misleading:

·         “As even militarists acknowledged, there was no conceivable foreign military threat to justify huge expenditures on armaments”;

·         “Even more sensational are suggestions of ANC involvement because [the late Mr Chris] Hani was allegedly about to expose the [now late] Joe Modise’s corruption and connections with the British”;

·         “As Andrew Feinstein recorded in his book After The Party, not only did Trevor Manuel pressure him to drop the Scopa investigation into the arms deal, but declared: ‘We all know JM (as Joe Modise was known). It’s possible that there was some shit in the deal. But if there was, no one will ever uncover it. They’re not that stupid. Just let it lie. Focus on the technical stuff, which was sound’ ”;

·         “Six weeks before that report was tabled in Parliament, I was informed by those ANC intelligence operatives that Modise was being deliberately but slowly poisoned so that ‘dead men could tell no tales’. To my astonishment, Modise then died as if on schedule”; and

·         “Shortly before that 1999 election, ANC intelligence operatives who were working with Mandela contacted me. Their leader told me: ‘We’ll tell where the real corruption is around the arms deal. Joe Modise and the leadership of Umkhonto weSizwe see the arms deal and other government contracts as an opportunity to replace the Oppenheimers as the new financial elite… The arms deal was allegedly the payback to Modise from Mbeki for removing Hani from contention as successor to Nelson Mandela as president of the country.”

The family also complains there were no reasonable grounds to refer to the late Ms Winnie Madikizela-Mandela in the article, and adds that the writer did not contact the family for comment, or verified his facts.

The text

The article started as follows: “The death of Winnie Madikizela-Mandela, the charging of former president Jacob Zuma and French arms company Thomson CSF/Thint/Thales with corruption, and the 25th anniversary of the assassination of Chris Hani have combined to bring South Africa’s arms deal scandal back into renewed focus.”

Against this background, Crawford-Browne made several statements about Modise’s alleged (corrupt) role in the arms deal, his own death (read: as a result of poisoning), as well as about his part in the assassination of Mr Chris Hani.

My mandate

As this office is not a court of law or a commission of inquiry, I cannot pronounce on the rights or wrongs of Crawford-Browne’s statements and allegations – my mandate starts and finishes with the question whether or not the content of the article was congruent with requirements set by the Press Code.

My test would therefore be one of reasonableness, in line with the well-known Bogoshi court case (Bogoshi vs. National Media Ltd, 1994).

I have recorded much of the arguments from both sides, not because all of them impact on my finding, but as it is important to understand the context. At the same time, though, I have omitted several arguments that were not strictly relevant to the complaint (again from both sides).

Interested readers can obtain the relevant documentation/arguments from my office.

The arguments

In general

In response to the general complaint, as outlined above, Crawford-Browne replies as follows:

He calls this complaint a futile attempt by the family to re-write history – he says it has been “heavily documented” that Modise was hated, even detested, by Umkhonto weSizwe (MK) soldiers in exile – which means that he was not one whose standing in the estimation of right-minded readers could be lowered.

He cites some examples to back up his allegation of corruption against Modise. He says:

·         Stephen Ellis, in his book External Mission: The ANC in Exile, has exposed how Modise was a “big time crook” (http://www.pressreader.com/south-africa/sunday-times/20150816/282175059851529);

·         Paul Holden and Hennie van Vuuren in their book, The Devil In The Detail, stated: “Claims of corruption would haunt the MK in exile. Most, if not all, centred on the role played by the ever-present bête noire (someone who is particularly disliked and avoided) of frustrated soldiers, Joe Modise.  Allegations of corruption surrounded Modise almost the entire time he was present in exile.  In 1969, for example, Modise was singled out by Chris Hani and his collaborators in the stinging memorandum that preceded Hani’s suspension from the ANC”; and

·         R.W. Johnson’s book South Africa’s Brave New World records the ANC’s conference in Durban in 1992: “[It] was a disaster for Mbeki.  Hani had emerged as the most popular figure and [Cyril] Ramaphosa had been cheered in as secretary-general. The outcome was a nasty shock for all those [including Modise] who had placed all their bets on an Mbeki leadership.”

Crawford-Browne adds that operatives of the old apartheid security police have “universally” agreed that Modise had been a police informer. He adds that, as MK commander, Modise had also been primarily responsible for “brutal torture” inflicted on dissidents in camps such as Camp Quatro.

He says that, no sooner had Modise returned from exile, than he began to meet with foreign arms sales dealers.

According to him, the greatest threat to Modise’s position was Hani: “Modise sold off a cache of MK weapons for US$2.5 million in 1993, and pocketed the money. Hani learned of the deal, confronted Modise and warned him that if he did not inform the ANC about it then he, Hani, would [do so].  Two weeks later Hani was shot dead.”

He adds that journalists who probed the matter came to believe that there were two separate conspiracies to kill Hani – one by Janusz Walus and Clive Derby-Lewis, the other by enemies within the ANC.

Conversely, Crawford-Browne says those familiar with Modise and his methods found it hard to believe that he would not have planned to dispose of Hani – and that it was entirely possible that Modise had aided the efforts of Walus and Derby-Lewis without their even knowing about it.

After Hani’s death, the way was clear for him to become Minister of Defence, which was good news for some international arms companies.

He concludes, “Thus, according to Johnson and many others, the arms deal was Mbeki’s pay-back to Modise for political support in eliminating both Hani and Ramaphosa.”

Crawford-Browne also provides me with links to several articles written between 2001 and 2011 by “three of South Africa’s most noted and esteemed investigative journalists” (he mentions the names of Martin Welz, Nic Dawes and Sam Sole in this regard), with their exposés of the corruption in the arms deal scandal and, in particular, the roles of Modise and his close associates, the so-called “greasy brotherhood”.

The family replies that Crawford-Browne’s references to Ellis, Holden, van Vuuren and Johnson merely serve to illustrate the basis of their complaint. They say the motives of these journalists were questionable and some of their work widely discredited, and cannot be regarded as a factual or an adequate support for allegations of corruption against Modise.

They assert that this response was “a deliberate attempt to mislead the Press Council”.

Analysis

Given the nature of the text, the article was always going to be subjective in that Crawford-Browne was putting forward his version of events based on his own experience and interpretation – which (by the mere nature of it) was viewing events through a specific lens.

Because the text was clearly opinion and not hard news, Section 7 of the Press Code applies in the adjudication of this complaint. This section reads:

7. Protected Comment

7.1.  The media shall be entitled to comment upon or criticise any actions or events of public interest.

7.2.  Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it:

          7.2.1.  expresses an honestly-held opinion;

          7.2.2.  is without malice;

          7.2.3.  is on a matter of public interest;

          7.2.4.  has taken fair account of all material facts that are substantially true; and

          7.2.5.  is presented in such manner that it appears clearly to be comment. 

Clearly, Section 7 gives the media much freedom to express their own opinion, or to publish those of others. As always, though, there are limitations to this freedom (as set out in sub-sections 7.2.1 – 7.2.5 of the Code), all of which should be met before such comment can be pronounced as “protected”.

It is important, though, to weigh up these limitations against each other, as in a certain context one such limitation may carry more weight than the others do. In this case, public interest in the arms deal evidently is of overriding importance. I do not believe that this needs any further argument.

Also beyond dispute, to my mind, is that the column has adhered to Section 7.2.1, 7.2.2 and 7.2.5 of the Code – Crawford Browne’s opinion certainly was honestly-held and without malice (read: no intent to cause harm), and the text was clearly presented as opinion.

The remaining section (7.2.4) needs my attention, though (the question if Crawford-Browne has taken fair account of all material facts that are substantially true).

In this regard, the following considerations will guide my adjudication of this matter:

·         If the media present an allegation as an allegation, there cannot be any onus on them to ensure that the statement is “substantially true” – an allegation, per definition, does not lay claim to the truth;

·         That being said, though, the media are not at liberty to publish just any allegation, as it may be devoid of any truth, which in turn may render such a statement unfair, unnecessarily harmful, and even defamatory. Before publishing a potentially harmful allegation, then, the media should at least take “all material facts” into account – which, if reasonable, would justify publication; and

·         If the media publish a statement as fact in an opinion piece, the onus is on them to prove that that statement is “essentially true”.

It is with these distinctions in mind that I shall now proceed with caution, while looking at the column both holistically, and in detail.

In more detail

‘No conceivable military threat’

The sentence in dispute read, “As even militarists acknowledged, there was no conceivable foreign military threat to justify huge expenditures on armaments”.

The family complains it was misleading of Crawford-Browne to repeat the claim that he put forward in his August 2010 letter to Scopa chairperson Themba Godi – and thereby demean Modise’s intentions for pursuing an arms deal.

On the contrary, they say, the SAAF, Navy and Army identified the need to update main equipment in order to effectively execute their combined constitutional mandate – as detailed in the 1996 White Paper on Defence and the Defence Review process of 1998.

They say several high-ranking officers testified at the Seriti Commission that much of the equipment of the SADF was either aged to a concerning condition, or at the end of its life cycle by the early 1990s.

Crawford-Browne denies that he has misled Godi – he says his claim was the very premise of the 1996 Defence White Paper which specifically declared that South Africa was already over-armed relative to its neighbouring countries, and that alleviating the legacies of poverty from the apartheid era was the country’s priority. 

He says there was no Parliamentary approval for the arms deal acquisitions, and asserts that Cabinet’s approval in November 1998 for expenditure of R29.8-billion completely “blew the budget” of what Treasury had estimated as affordable, less than five months earlier.

He goes to lengths to explain why he believes the Seriti Commission “proved such a whitewash”, and adds that Modise’s argument that the acquisition of weapons would stimulate the economy was irrational.

He says former Secretary of Defence Pierre Steyn – and previously head of the Air Force – was portrayed as a liar when he testified that he had resigned because of the obvious illegality of Modise’s “visionary approach”.

The family says Crawford-Browne’s assertions that there was no Parliamentary approval for the arms deal procurements and that these acquisitions “blew [the] budget” were not supported by documented evidence. They accuse him of deliberately trying to mislead this office.

Analysis

Crawford-Browne referred to “militarists” whose opinion it was that there had been no conceivable foreign military threat to justify huge expenditures on armaments. I have no reason to dispute that these military people were of such an opinion, and therefore cannot blame the writer for citing, and agreeing, with them.

Even if he was wrong, he had a right to his views.

Modise’s family and others are free to be of a different opinion on this matter.

Corrupt

The family complains that the article has falsely, baselessly and maliciously accused Modise of corruption.

They state that law enforcement authorities had investigated the arms deal between 2000 and 2009 They submit that Modise’s role in it has been scrutinised by the Auditor-General, the Public Protector, the National Director of Public Prosecutions, the Joint Investigation Team, the Scorpions, the London Metropolitan Police (United Kingdom), the Serious Fraud Office (United Kingdom), the SAPS, and the Seriti Commission – with no improper or unlawful conduct ever found on his part.

What is well-documented, the family submits, is that Modise had cautioned the South African Air Force Command Council meeting of April 1998 that the least expensive procurement options may not necessarily be the best options towards enabling South Africa’s defence industry to participate in the global defence market over the long term.

Crawford-Browne says the Joint Investigation Team’s (JIT) report tabled in Parliament in November 2001 was mildly critical of Modise.  Richard Young, however, instituted legal proceedings to obtain the draft report, and on examination discovered that hundreds of pages had been excised that were highly critical of Modise’s conduct.

He says the JIT report confirmed that Modise had intervened with what he termed a “non-costed visionary approach” in order to favour BAE/Saab, which had repeatedly failed the tendering requirements.  Indeed, the South African Air Force in July 1997 informed the government that BAE’s proposals were both too expensive and unsuited to South Africa’s requirements. 

Regarding Crawford Browne’s assertion that allegations of corruption surrounded Modise almost the entire time he was in exile, the family submits it is worth noting that disinformation was actively created and disseminated by the apartheid regime through Strategic Communications (Stratcom / Stratkom), as well as by other state organs and allied interests.

“Though we acknowledge that rumours persist to this day as the unfortunate legacy of these targeted efforts, we take exception to the re-branding and re-circulation of slanderous allegations against Joe Modise that originated in the apartheid era, within the media infrastructure of a democratic South Africa,” the family states.

The family adds that:

·         the ANC has repeatedly raised the matter of targeted disinformation against key members of the organization, including Modise; and

·         it was factually incorrect to suggest that Modise intervened on behalf of non-costed procurement option from BAE that had failed tender requirements. They say all procurement options under the arms deal had been costed, and add that this information was previously communicated to Crawford-Browne.

Analysis

The questions are if Crawford-Browne has stated it as:

·         fact that Modise was corrupt – and if so, it this was essentially true; or

·         an allegation – and if so, if this was justified.

The relevant sentences read:

·         “Even more sensational are suggestions of ANC involvement because Hani was allegedly about to expose the [now late] Joe Modise’s corruption and connections with the British”;

·         “…ANC intelligence operatives who were working with Mandela contacted me. Their leader told me: ‘We’ll tell where the real corruption is around the arms deal. Joe Modise and the leadership of Umkhonto weSizwe see the arms deal and other government contracts as an opportunity to replace the Oppenheimers as the new financial elite. The arms deal is just the tip of the iceberg that also concerns oil deals, the taxi recapitalization process, toll roads, drivers’ licences, Cell C, the Coega harbour development, diamond and drugs smuggling, weapons trafficking and money laundering. The common denominator is kickbacks to the ANC in return for political protection”; and

·         “The arms deal was allegedly the payback to Modise from Mbeki for removing Hani from contention as successor to Nelson Mandela as president of the country.”

From these three statements, it is only the first one that could be interpreted as a statement of fact – the second bullet merely quoted “ANC intelligence operatives” who had made certain statements in this regard, while the third bullet explicitly used the word “allegedly”.

I agree it would have been better if the first bullet specifically referred to Modise’s “alleged” corruption (despite the fact that the word “alleged” did appear earlier in the same sentence, and could even be interpreted as referring not only to Hani’s intentions, but also to Modise’s “corruption”).

Putting away my microscope for a moment, though, and interpreting the column holistically, I also need to take into account that the other statements referring to Modise’s “corruption” were all qualified – and indeed, that the column as a whole was presented as opinion.

Having weighed up these considerations, I believe that the reasonable reader should have understood that Modise’s “corruption” was presented as an allegation, and not as fact – despite the rather unfortunate wording in the first sentence.

Having made this decision, the question now becomes if Daily Maverick was justified in publishing the allegation that Modise had been corrupt.

In this regard, the following considerations are important:

·         While it is true, as the family submits, that no institution has ever found Modise guilty of corruption, it is also true that he has not been exonerated of corruption either. Whether the family likes it or not, there still is a cloud surrounding the arms deal – and Modise will remain a part of that cloud until proven otherwise;

·         The family has not produced any evidence of Modise’s innocence;

·         Given Crawford-Browne’s extensive experience in the arms deal, I have no reason to believe that he has not taken all material facts into account; and

·         While allegations to this effect are still in the public domain, the matter remains in the overwhelming public interest.

In conclusion, and taking all of the above into consideration, I firmly believe that Daily Maverick was justified in publishing the allegation as an allegation as it has passed the test of reasonableness.

Trevor Manuel

The sentence in dispute stated: “As Andrew Feinstein recorded in his book After The Party, not only did Trevor Manuel pressure him to drop the Scopa investigation into the arms deal, but declared: ‘We all know JM (as Joe Modise was known). It’s possible that there was some shit in the deal. But if there was, no one will ever uncover it. They’re not that stupid. Just let it lie. Focus on the technical stuff, which was sound’.”

The family says it was factually incorrect and deliberately misleading to promulgate, as if fact, the claim that Manuel had made certain defamatory remarks regarding Modise. They say Manuel denied under oath at the Seriti Commission that he had made any of the promulgated remarks.

Crawford-Browne says this issue derives from Feinstein’s book, which he merely quoted. He adds that he has received affidavits on the veracity of the statement in question. 

He says he was present at the Seriti investigation when Manuel was cross-examined by advocate Annamarie de Vos of the Legal Resources Centre. He says Manuel did not deny that he had made any of the promulgated remarks regarding Modise – he “arrogantly blustered”, though, that “JM” could also have stood for Julius Malema or Jabulani Moleketi.

Analysis

Crawford-Browne is correct – he merely quoted from Feinstein’s book. Surely, he was justified to do so (as long as he has attributed this as such, which he did.)

Poisoned

The story said: “Six weeks before that report was tabled in Parliament, I was informed by those ANC intelligence operatives that Modise was being deliberately but slowly poisoned so that ‘dead men could tell no tales’. To my astonishment, Modise then died as if on schedule.”

The family denies that Modise was poisoned. They state no factual support for that allegation exists, “the grotesque nature of which, we have not previously encountered in reputable media fora”.

Crawford-Browne says that an ANC operative told him Modise’s cancer was not as far advanced as would be “politically convenient”, given the pending publication of the JIT report – and accordingly, his death was being “speeded up” with poisoning because “dead men could tell no tales!”

As if on schedule, he says, Modise died within ten days after the report had been tabled.  He adds that there was a history of poisoning amongst the ANC in exile (and reiterates that many MK soldiers hated him because of his brutality and corruption).

The family again categorically denies that Modise was poisoned and that he was involved in Hani’s death, adding that there was factual substantiation to these allegations.

Analysis

It may, or may not, be true that Modise was poisoned. However, the column did not state this as fact – it attributed this allegation to ANC intelligence operatives. If this office sanctions Daily Maverick for publishing such an allegation, we may as well throw the media’s freedom of speech out the window.

Hani’s death

Crawford-Browne stated: “Shortly before that 1999 election, ANC intelligence operatives who were working with Mandela contacted me. Their leader told me: ‘We’ll tell where the real corruption is around the arms deal. Joe Modise and the leadership of Umkhonto weSizwe see the arms deal and other government contracts as an opportunity to replace the Oppenheimers as the new financial elite… The arms deal was allegedly the payback to Modise from Mbeki for removing Hani from contention as successor to Nelson Mandela as president of the country’.”

Crawford-Browne says Ms Limpho Hani has stated many times that she does not believe that Walus was alone in the assassination of her husband. He adds that the TRC and other investigations have failed to resolve numerous unanswered questions about Hani’s murder, and states that the recently released book by Evelyn Groenink (Incorruptible) implies that neighbours have reported British intelligence “sweepers” at the scene.

He says the issue whether Modise was involved by way of British and/or South African elements in Hani’s assassination gained credence in a report in January 1997 by Stefaans Brümmer and Hazel Friedman in the Mail and Guardian, including the suggestion that Madikizela-Mandela believed that ANC leaders had conspired with National Party agents to eliminate Hani. (See https://mg.co.za/article/1997-01-31-new-evidence-in-hani-death-plot.)

Quite possibly, he concludes, there were actually two conspiracies. He admits that these remain allegations but says that, given that the assassination nearly derailed South Africa’s transition to democracy, these extremely serious allegations still require thorough investigation.

Crawford-Browne also submits that the Seriti Commission’s fifth term of reference required it to investigate “improper influences” relating to the arms deal, which would include bribery and the possibility of BAE’s link to Hani’s assassination.

More to the point, he says that amongst many allegations concerning the arms deal is the question whether it was a payback to Modise from Mbeki for his role in Hani’s assassination (and thus his removal as a candidate to succeed Pres Mandela). He adds that Hani publicly opposed the proposed arms deal because of the corruption it would unleash.

Crawford-Browne says in his book Eye on the Money (2007) he recounted how ANC intelligence operatives approached him in June 1999 saying, “[but] we’ll tell you where the real corruption is around the arms deal.  Joe Modise and the leadership of [MK] see the arms deal and other government contracts as an opportunity to replace the Oppenheimers as the new financial elite’.”

The family replies that Crawford-Browne does not present any facts or evidence to support or justify his claim that Modise was in any way involved in Hani’s death.

Analysis

I am repeating what I have said under the previous sub-headline (with regards to Modise’s death, now applying this to Hani’s death): It may, or may not, be true that Modise was involved in Hani’s death. However, the column did not state this as fact – it attributed this allegation to ANC intelligence operatives. If this office sanctions Daily Maverick for publishing such an allegation, we may as well throw the media’s freedom of speech out the window.

Winnie Madikizela-Mandela

The family complains there were no reasonable grounds on which to mention the name and legacy of Madikizela-Mandela. They submit, “We feel strongly that the Madikizela and Mandela families should be allowed the opportunity to mourn the loss of Ms.Winnie Madikizela-Mandela in peace and [we] view it as highly insensitive and opportunistic of Mr. Crawford-Browne to evoke her memory for personal gain at such a time…”

They say that:

·         contrary to what was stated in the article, Madikizela-Mandela made no public statements regarding the appropriateness of the arms deal; and

·         Crawford-Browne based Madikizela-Mandela’s inclusion on his allegation that she had been a contributor to the dossier presented by Ms Patricia de Lille as reported evidence of corruption in the arms deal – while the latter has publicly denied in 2014 that the former had any involvement with said dossier.  (Crawford-Browne responded that he had received his information from other sources.)

They conclude, “However, in characteristic fashion, Mr Crawford-Browne now resumes the already debunked allegation that Ms. Winnie Madikizela-Mandela confirmed his allegations in ‘a telephone conversation to De Lille’ (https://www.biznews.com/global-citizen/2018/04/13/winnie-arms-deal-whistle-blowing/). Here again, the Daily Maverick has neglected its duty to take reasonable care that news reported via its platform is done so truthfully, accurately and fairly.”

Crawford-Browne replies it is a well-established fact that the September 1999 “Memorandum to Patricia de Lille MP from ‘Concerned ANC MPs’ ” (the so-called de Lille dossier) has unleashed national interest into the arms deal scandal.  The ANC intelligence operatives who issued it were working with Madikizela-Mandela as the leader of those “concerned ANC MPs”, he says.

He says he had known of Madikizela-Mandela’s leadership of this group from other sources, including her staff, before he introduced the information from ANC intelligence operatives to de Lille.

He concludes, “[My] respect for Madikizela-Mandela was specifically also the reason that I chose to pay tribute to her in the article for her role in exposing the arms deal corruption which Modise … unleashed upon the citizens of South Africa.”

The family maintains that Crawford-Browne used the name and legacy of Madikizela-Mandela at the time of her passing to regain relevance in popular discourse – they say the latter made no public remarks regarding the arms deal, and the ANC has denied allegations that she had any involvement with the de Lille Dossier. The family asserts that Crawford-Browne, as a matter of record, perjured himself under oath at the Seriti Commission by claiming de Lille to be the source of his allegations against Madikizela-Mandela.

Analysis

The article referred to Madikizela-Mandela in the following ways:

·         “The death of Winnie Madikizela-Mandela, the charging of former president Jacob Zuma and French arms company Thomson CSF/Thint/Thales with corruption, and the 25th anniversary of the assassination of Chris Hani have combined to bring South Africa’s arms deal scandal back into renewed focus”;

·         “Winnie Madikizela-Mandela was a member of the parliamentary Defence Committee. On the occasions that I met her, I found her not only elegant and beautiful. More pertinently, she was also eloquently incisive in her concern that such spending represented nothing less than the betrayal of the struggle against apartheid by returning ANC exiles. Following her passing, Archbishop Desmond Tutu said in his tribute to her: ‘She refused to be bowed by the imprisonment of her husband, the perpetual harassment of her family by security forces, detentions, bannings and banishment. Her courageous defiance was deeply inspirational to me, and to generations of activists’”;

·         “Mbeki was corrupted by and obsessed with power, which brought him into collision with Winnie Mandela who refused to submit to his dictates. In turn, he described her as ‘undisciplined!’”;

·         “It was the ‘inziles’ who carried the struggle against apartheid in the 1980s – Winnie Mandela, Tutu, Boesak in particular – whilst ANC exiles in Lusaka and elsewhere were still asleep and dreaming of how to loot South Africa once they came to power”;

·         “Under threat by Judge Seriti of being held in contempt, I reluctantly revealed at the Seriti Commission in 2014 that Winnie Mandela was the leader of those ‘concerned ANCs’”; and

·         “If a new political climate dedicated to eradication of corruption is finally to emerge under President Cyril Ramaphosa, then cancellation of those fraudulent BAE contracts (and recovery of the monies plus very substantial damages) would signify that he is indeed serious. In the process, such a decision would also acknowledge and honour the huge contribution that Winnie Madikizela-Mandela made in exposing the arms deal scandal.”

Having quoted these statements, let me be short and sweet: I do not believe that the Modise family has the standing to complain about references to Madikizela-Mandela – and even if they had, the column has in no way referred to her in a derogatory way (or “sullied” her as a struggle icon, to use the family’s word).

Not asked for comment

The Modise family complains that Crawford-Browne did not contact them for comment.

Crawford-Browne says libel lawyers investigated and tested the content of his book (Eye on the Money, 2007) prior to publication, and no libel litigation has arisen during the subsequent eleven years.  He argues, “There was therefore no reason to contact the Modise family.”

Analysis

It is not normal journalistic practice for a columnist to ask for comment before publishing an opinion.

Post-script

I have considered using Section 6 of the Press Code in this adjudication as well. This section reads:

 

6. Advocacy

6.1. Members are justified in strongly advocating their own views on controversial topics, provided that they treat their constituencies fairly by:

6.1.1.  making fact and opinion clearly distinguishable;

6.1.2.  not misrepresenting or suppressing relevant facts; and

6.1.3.  not distorting the facts.

I have decided against it, though, as the column could not be regarded as representative of Daily Maverick’s opinion – it was Crawford-Browne’s “advocacy” (a well-known activist on this subject), and not necessarily that of the publication.

In any case, even if I had included this section in my adjudication, I would not have come to a different conclusion.

Finding

The complaint is dismissed.

Appeal

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.

Johan Retief

Press Ombud