Gengezi Mgidlana vs Daily Maverick

9 December 2017

This ruling is based on the written submissions of Mr Gengezi Mgidlana and those of Marianne Merten of the Daily Maverick news website.

Mgidlana is complaining about a story on the Daily Maverick of 10 October 2017, headlined Parliament: Protection Services head Zelda Holtzman dismissed, as well as about a follow-up article of October 12, headlined Parliament: Zelda Holtzman to fight ‘trumped up’ charges that led to her dismissal.

Complaint

Mgidlana complains that the:

·         articles contained information that was not factual or truthful, mainly referring to:

o   his allegedly direct involvement in Ms Zelda Holtzman’s suspension and subsequent dismissal, together with her allegations of trumped-up charges against her;

o   accusations of him having used blue-light vehicles;

o   the recruitment of police officials into Parliament’s protection services (PPS);

o   the statement by Holtzman that nothing was done after she had blown the whistle, except attempts to get rid of her; and

o   him getting the blame for the securitisation of Parliament;

·         journalist:

o   was biased in that she presented allegations by Holtzman in such a way that they seemed factual; and

o   did not afford him a right of reply.

He concludes that the reportage was one-sided, biased and malicious, and deliberately devised to harm his reputation and dignity.

The texts

Both texts, penned by Marianne Merten, were preceded by summaries which adequately described the articles. Those read:

·         The first article: “Parliament on Wednesday announced it has dismissed with immediate effect Zelda Holtzman, the head of its protection services who has been on suspension since July 2015. However, Holtzman said she ‘going to contest’ the decision at the appropriate forum. This follows Sunday’s recommendation for dismissal from an independent disciplinary process chaired by a senior advocate who last week interviewed for a judgeship. Parliament’s decision to sack Holtzman, and her resolve to contest this, is the latest in a saga that has seen Holtzman on suspension for longer than she had been at work.”

·         The second story: “Zelda Holtzman is contesting her dismissal as head of Parliament’s protection services (PPS), it was announced this week after an over two-year disciplinary process. “It’s a natural response because of the injustices I have suffered,” she told Daily Maverick on Thursday, saying the charges were “trumped up”. And the issues she regards central to her removal, the Secretary to Parliament’s use of blue lights and recruitment of SAPS members into the PPS, remain unresolved. Her comments come as the Labour Court is set to hear PPS staff grievances over preferential salary and employment conditions afforded to those recruited from the SAPS.”

Issues for analysis

As many of the issues overlap, and continuously so, it would probably be unwise to analyse each sub-section individually – a better approach would be to identify the issues to be analysed after each sub-section, and come to a proper and holistic analysis at the end of this document.

The arguments

The first article

Holtzman’s suspension linked to Mgidlana

Mgidlana complains that this story contained factual inaccuracies in the following three statements:

Statement 1: The story said, “Parliamentary Protection Services (PPS) head Zelda Holtzman was put on precautionary suspension on 30 July 2015… According to the parliamentary grapevine at the time, these suspensions were linked to disputes between the PPS and Secretary to Parliament Gengezi Mgidlana (over his use of blue lights, break-ins in the parliamentary precinct, and the recruitment of police officials into the PPS).”

Mgidlana complains that these claims suggested that he had been involved in Holtzman’s dismissal. However, these allegations were false and ignored what was in the charge sheet, the decision, the recommendations of the disciplinary hearing against Holtzman, as well as in the relevant media statements issued by Parliament.

Citing all the charges to prove his point (in the disciplinary inquiry document headlined, Findings and Decision), Mgidlana notes that none of the twelve charges against Holtzman was about a dispute between the two of them.

He adds that the 22-page document by the chairman of the investigation, Prof T. Madima, SC, titled Recommendation on Sanction, also did not link Holtzman’s suspension and subsequent dismissal to disputes between them, or with the PPS. 

Mgidlana quotes Madima as saying that, “Zelda Holtzman faced a myriad of charges. Five in the main, with sub-charges, making them twelve in total. Pursuant to a formal process of enquiry into her conduct, I found that Holtzman was guilty of [four charges].”

He says these records do not support Holtzman’s allegations. “Therefore … there is no need to speculate or rely on the rumour mill, [as Merten] has the report based on the record of the proceedings…” The journalist simply ignored this information, he says.

Listing a number of questions he says Merten should have raised with Holtzman (but did not), Mgidlana also argues that the reporter uncritically accepted her allegations at face value.

Regarding the reference to the suspensions being linked to the recruitment of police officials into the PPS, Mgidlana says the decision to improve security was taken by the Rules Committee – and that he was merely directed to implement it on 30 July 2015. At that time, Holtzman was already suspended and therefore she was not part of the process.

Merten replies that the sentence in question was not presented as a statement of fact, and denies that she has made any claim to this effect. She says the reference to the “parliamentary grapevine” was based on dozens of interactions with MPs as well as staff at Parliament, not only at the time of Holtzman’s suspension, but also subsequently – which made it reasonable to consider her reportage on this matter as truthful. She says despite her best efforts to obtain statements on the record, staffers declined − many of them citing fears of retribution. She denies the article suggested that Mgidlana was involved in Holtzman’s dismissal. She says both articles stated that Holtzman had been found guilty on four of the 12 charges, and the article of 10 October extensively quoted from the independent disciplinary hearing report with regards to the sanction recommendation of dismissal, and a final written warning. The reporter argues, “This provides the proper context as per the Code not only to the dismissal, but also the speculation that has since 30 July 2015 surrounded the matter.” Merten says not only were the findings and recommendations included in both articles, but it also contained the report’s description of Holtzman’s conduct before the hearings. This, she argues, presented her dismissal in context.

Mgidlana says Parliament did issue some relevant statements and updates, which were not reflected in the story and which in turn meant that the proper context was lacking. This “imbalance by material omission” was deliberately caused, he asserts.

He says that Merten, who was part of the parliamentary press gallery and was based in Parliament, should have known of the existence of these statements.

He says the reference to “grapevine” means that the story was based on rumour. He argues that by presenting one view (a rumour) while ignoring the facts left the reader with the impression that it was factual. “It is my submission that Ms. Merten’s deliberate action amount to presenting these rumours as fact.”

He acknowledges Holtzman’s right to say whatever she likes, as well as Merten’s prerogative to report on the matter. The issue, he says, is Merten having produced one-sided reportage in that it ignored “existing facts”.

Regarding Merten’s argument that she has “made no admission of basing the two articles on gossip”, Mgidlana says she nevertheless admitted that the sentence in dispute was not a statement of fact (but an allegation). He calls this “contradictory” and “puzzling”. He adds, “Put differently, Ms. Merten might not have made an admission of basing the two articles on gossip, but by her own admission, the articles do contain information received through a ‘parliamentary grapevine’.” However, those were rumours, not (corroborated) facts, and she should not have based her story on such.

Mgidlana says Merten, in fact, has substituted the findings of the hearing with her own version on what the charges stated and what the finding actually was, without providing any evidence; he wants to know why that was the case.

Issues for analysis

According to the “grapevine” Holtzman’s suspension was linked to disputes between her and Mgidlana. The question is, how justified was the reportage of this link, if even only presented as an allegation, while existing evidence seemed to suggest that there was no such link.

To hone in more precisely:

·         Could the reference to the “grapevine” have underplayed the evidence contained in the documentations titled Findings and Decision, and Recommendation on Sanction? Did the article, notwithstanding the use of the word “grapevine” suggest that Mgidlana was in some way involved in Holtzman’s dismissal?

·         Did the article omit material information (read: ignored what was in the charge sheet, the decision, the recommendations of the disciplinary hearing, as well as the relevant media statements issued by Parliament)?

Statement 2: “Amid these tensions, according to City Press, the PPS demanded an end to official transport requests and the repeal of the hire of SAPS members, while Mgidlana instructed his deputy Baby Tyawa to investigate. A week later the two were suspended.” (Emphasis added.)

Mgidlana reiterates that the decision to recruit or to physically remove disruptive MPs from Parliament was taken by that institution, and not by him.

He quotes from his instructing memo to Tyawa dated 31 July 2015, in which he did not say anything about the recruitment of police officers to the PPS – he says his memo only mentioned identification of and external recruitment of suitable critical skills through headhunting.

He asks why Holtzman would have issues with him about a decision he did not take; and why he would have any issues, personal or otherwise, with her and treat her unfairly for allegedly raising matters duly decided by a competent body.

Mgidlana says a number of correspondences with the media and media statements by Parliament clarified the issue of strengthening the PPS.

He concludes, “[a] careful reading of the media articles and Parliament’s responses in a number of media statements would show that the claims that (the) suspension of Holtzman … [was] linked to the recruitment of police officials into the PPS are baseless, devoid of any truth and inappropriate.”

Merten says that, to the best of her knowledge, the cited City Press article has not been disputed – in any event, any dispute Mgidlana may have with this article is beyond the control of Daily Maverick. She says it is generally accepted ethical journalistic practice to reflect interviewed persons’ views by way of quoting them, or accurately summarising such views without quotation marks. She states, “As a journalist, I make no such claims or accusations as alleged in the complaint. It cannot be suggested that by quoting Ms Holtzman’s own words, I ‘uphold’, ‘endorse’, ‘sustain’, ‘support’ and/or ‘declare(s) in consort with’ (or ‘besotted’ with her, as the complaint later states)… That patently cannot be the understanding of a quote in a news article (or analysis).” Merten asserts that the quotations in question were presented alongside Parliament’s comment and details of the independent disciplinary findings/recommendations report.

Mgidlana says Merten was part of the parliamentary press gallery, and as such she would have received numerous statements issues by Parliament in this regard. He says for the journalist to state that the City Press article has not been disputed by Parliament is wrong.

Be that as it may, he says that the reporter was missing the point – it was not about whether the article was disputed or not, but rather about her uncritical reporting. He reiterates that the decision to physically remove disruptive MPs was taken by Parliament and not by him.

Statement 3: “Holtzman appeared before a disciplinary hearing, which in June 2016 found her guilty of four of the total of 12 charges. These include gross insubordination and insubordination for not answering five questions as twice requested by Tyawa, failure to resolve divisions between herself, her deputy and PPS staff, and failure to submit a business plan.”

Mgidlana says Madima stated in his Recommendation and Sanction document that Holtzman “faced a myriad of charges, five in the main, with sub-charges, making them twelve in total. And … pursuant to a formal process of enquiry into her conduct, I found that Holtzman was guilty of Charges 3.3 and 3.4, Charge 4.1 and Charge 4.4”.

Again, he says, these charges had nothing to do with him.

Issues for analysis

This issue is being dealt with in other parts of this adjudication and does not need any specific input at this stage.

The follow-up story

‘Trumped up’

The story quoted Holtzman as saying that the charges against her were “trumped up”.

Mgidlana complains that this claim was devoid of any truth and deliberately one-sided, adding that it was calculated to ex post facto exonerate her – while she had been provided a legitimate and fair hearing, and had been found guilty and subsequently dismissed by Parliament.

Asserting that due processes were followed throughout, he says Holtzman did not challenge the legitimacy of the hearing, or raise the allegation of trumped-up charges against her, or of Parliament charging her – or, if she has, those assertions were not sustained (not in either of the relevant documents, namely Findings and Decision document, dated 17 April 2016, or Recommendation on Sanction, dated 8 October 2017).

He asserts it was only once the decision to dismiss her were made that she made this allegation.

If Holtzman did not accept the outcomes of a due process, or if she was trying to cast doubt on the verdicts, she could appeal the decision with the organization, or take the matter to court, he adds.  

Mgidlana stresses that the recommendations against Holtzman were upheld without any involvement from him – a fact known to Merten, and yet she still opted to be selective about facts, to distort them and to echo fabrications by Holtzman.

Merten says the statement in question was clearly attributed to Holtzman, which she was justified to do. She adds that neither article stated, or claimed, that Mgidlana had been involved in the decision to dismiss Holtzman – in fact, both articles stated he was on special leave. She reiterates that she in no way affirmed and/or asserted Holtzman’s claims by quoting her, and denies that either of the articles made any statement to undermine, question or set aside the independent disciplinary processes.

Mgidlana says the heading of the second article (Parliament: Zelda Holtzman to fight ‘trumped up’ charges that led to her dismissal) was a decision by the publication and therefore Daily Maverick cannot hide behind a source this time.

He says nowhere did the article explain that this is a quotation from Holtzman. “The heading does not say Zelda says she is going to fight trump up charges against her, it is a report by the publication that Ms. Holtzman will fight charges,” he reasons.

He explains that the phrase “trump up charges” indicates that one is questioning the legitimacy of the process in its entirety.

However, he says, in that case there should be solid reasons for doing this. He adds that Merten used those words without thought and has provided no explanation for them.

Issues for analysis

Blue lights; recruitment of SAPS members

Mgidlana complains that Merten ignored various statements issued by Parliament on these matters, implying that Holtzman’s version was accurate – without providing any evidence, and merely repeating unsubstantiated and false claims and accusations.

Sentence 1: The story quoted Holtzman as saying the “issues she regards central to her removal, the Secretary to Parliament’s use of blue lights and recruitment of SAPS members into the PPS, remain unresolved”.

and

Sentence 2: Merten quoted Holtzman as saying, “The (disciplinary) process was used to avoid the fundamental issue – my report on the blue lights.”

Mgidlana says that Merten, as a parliamentary reporter, should know that the strengthening of the capacity of the PPS or recruiting of SAPS members was a political decision taken by a competent parliamentary body in a multi-party forum. He points out that Holtzman was not an MP, or a member of the Rules Committee or the National Assembly, and says she did not participate in any of the relevant meetings.

Parliament asked him as the Accounting Officer to execute the decision to strengthen security, which was his job (not his decision), he says.

He says it is “mind boggling” that a political decision might be central to the institution of a disciplinary hearing and lead to the dismissal of an employee. He argues that, when this argument is taken to its logical conclusion, all political parties represented in Parliament (through their collective decision to strengthen the PPS) were central to Holtzman’s dismissal, which is “absurd”.

He refers to the following media statements:

·         30 July 2015: Parliament announced that Holtzman was placed on precautionary suspension with full pay and with immediate effect; the suspension was said to be implemented to enable investigation of alleged security breaches and other issues affecting the PPS in an environment free of any perception of possible bias; and

·         8 October 2015: Parliament stated that Holtzman was placed on precautionary suspension after “allegations of serious misconduct”; the suspension “was to ensure that the investigation into the said allegations proceeded without any hindrance and in a fair manner to the parties involved … and the investigations have revealed allegations of breaches of security, insubordination and failure to carry out management responsibilities”.

He says that these statements did not link Holtzman’s suspension to the use of blue lights or the recruitment of SAPS members into the PPS. Also, neither did Parliament state that regarding her dismissal.

Rather, in its media statement of 11 October 2017, Parliament inter alia pointed out that the recommended sanctions of dismissal related to Holtzman’s:

·         refusal to provide written responses and a report to her manager, in terms of a lawful instruction for her to do so;

·         gross insubordination and a breakdown in the pivotal workplace relationship of trust between an employee and employer;

·         failure to produce a business plan in support of Parliament’s strategic plan (a statutory requirement) and to submit an annual budget; and

·         failure to take steps to address divisions in the PPS, including between herself and her deputy.

From this, Mgidlana asserts, it is clear that he had nothing to do with Holtzman’s dismissal – it was based on her failure to properly lead and manage her section.

He reiterates that a disciplinary process was initiated against Holtzman to investigate several charges of serious misconduct, and that he had nothing to do with her alleged report.

He adds the view that the disciplinary process was used to avoid the so-called blue-lights report remains Holtzman’s opinion and belief and was not backed up by facts as they unfolded in the CCMA, the Labour Court and the disciplinary process in Parliament. He argues that Merten should have reported on those facts, instead of referring to unsubstantiated allegations made by Holtzman.

In effect, Mgidlana argues, the reporter set aside the outcomes of all the tribunals against Holtzman and basically replaced them with her, or Holtzman’s, version of the truth (which was not confirmed by the outcomes of the tribunals).

Merten replies that neither article stated that Mgidlana had directly involved himself in the recruitment of police officers to the PPS. The memo referred to was not made available at the time, or subsequently until this complaint, as another source of news as per the Code. She says Mgidlana argues he only issued the directive for the implementation of the decision of the rules committee to strengthen the Parliamentary Protection Service. “This assertion comes against the backdrop of much earlier talk of plans to second/hire police officers was rife in the parliamentary precinct at the time, not only among staff but also MPs. Many employees and politicians expressed concern over this to me, privately for fear of being victimised if quoted,” she submits. Merten adds that: ·         the statement was a direct quote; ·         the second article carried Mgidlana’s denial of claims of wrongdoing “in congnisance of previous Parliament media statements in the appropriate place within the article”; ·         Parliament’s media statement on Holtzman’s suspension merely referred to “allegations of serious misconduct” – without providing any details beyond this broad statement; and ·         the charges Holtzman faced, and on which she was found guilty, subsequently emerged in media reports. The reporter says that both articles, but particularly the first one, even went beyond what was stated in the referenced media statement of Parliament. She refers to the first story which stated: ·         “Holtzman appeared before a disciplinary hearing, which in June 2016 found her guilty of four of the total of 12 charges. These include gross insubordination and insubordination for not answering five questions as twice requested by Tyawa, failure to resolve divisions between herself, her deputy and PPS staff, and failure to submit a business plan”; and ·         “On 8 October in the written decision seen by Daily Maverick, Madima recommended dismissal for Holtzman’s failure to submit a business plan as part of the parliamentary planning and budgeting process, described as the ‘gravest’ of all guilty counts.” The second article also read: ·         “In mid-2016 it became public that she had been found guilty on four of the 12 charges − gross insubordination, insubordination, failing to resolve tensions in the PPS and failure to submit a business plan”; and ·         “On 8 October 2017 the independent disciplinary inquiry recommended Holtzman’s dismissal on the insubordination counts and for failing to submit a business plan, while recommending a final written warning for not resolving PPS divisions. Parliament announced its decision to fire Holtzman on Wednesday.” Merten says a full reading of both articles by a reasonable reader shows the nub is Holtzman’s dismissal following independent disciplinary proceedings based on a range of sources of news, including the report of independent disciplinary proceedings and comments from Parliament. She says blue lights are mentioned in a sentence sketching the background to the disciplinary process in line with the Code’s requirements of fair, balanced and truthful reporting in context and with clear attribution.

Mgidlana’s relevant responses to this issue are reflected in other parts of this adjudication.

Issues for analysis

The issue is not whether it was true that the allegation of Mgidlana’s use of blue lights and the recruitment of SAPS members into the PPS were central to Holtzman’s suspension and dismissal – that was Holtzman’s opinion (and Merten has presented it as such), and it is not for this office to make a finding on that matter. The central question is whether the journalist presented this in a manner that a reasonable reader would think the allegation to be true.

Sentence 3: The journalist wrote, “In the first half of 2015 word emerged that … Mgidlana repeatedly had requested official transport, with blue lights, for himself and relatives”.

Mgidlana says this statement is false, and states he is concerned that Merten continued to report on those rumours notwithstanding numerous statements released by Parliament (which rejected these claims as false) and regardless of a lack of evidence to support them.

He cites a media statement, dated 5 July 2015, in which Parliament said it had noted with concern false claims in the media that he had demanded “blue-light” treatment as he believed he was entitled to it.

He says Parliament inter alia stated that:

·         he had never asked for either the installation or use of blue lights in the parliamentary owned 2005 model Audi which he used for official business;

·         the 10-year-old car was part of a parliamentary pool of cars which were driven by officials to reduce the hiring of cars for official business;

·         it was standard practice that officials, including him, used official vehicles or a hired car while on official duty;

·         Parliamentary Protection Services (PPS) were staff members – they did not form part of the police service or of the VIP protection service;

·         he was not provided police or VIP protection, nor had he asked for such a service;

·         in the course of his work, he was sometimes required to be accompanied by his spouse as part of official representation at official functions – and Parliament's travel policy provides for that; and

·         when he and his wife had to travel, they did so in the same car; and when there was a need to coordinate their trips separately, such arrangements were made accordingly.

In another media statement on the same blue-light issue, dated 19 July 2015, Parliament reiterated the above and called the reportage “wrong, incorrect, mischievous and malicious”. 

Yet Merten still decided to ignore the above, without providing any additional evidence to the contrary, and even while another investigation was still underway, he says.

He adds that Merten on more than one occasion referred to the use of blue lights, as opposed to the alleged use of blue lights.

He reiterates that neither of the articles provided facts on his alleged use of blue lights – there was no reference to any internal parliamentary documentation detailing the requests by him, and no exact date, day and time when the alleged use of blue lights took place. He asks that Merten must provide evidence to this effect.

The same goes for the alleged dispute between him and Holtzman, he says – and asks why Merten’s articles were not anchored on facts and specifics.

He concludes, “It is quite clear that Ms. Merten has lost a very good amount of objectivity required by the Press Code and has sacrificed key principles in order to present her biased views and those of her benevolent contributor on the matter.”

Merten replies that the cited sentence was not presented as a statement of fact. She says the sentence talked directly to a prevailing sentiment and belief amid parliamentary staff as discovered in many interactions with staff, although efforts to obtain on-the-record statements were unsuccessful as staffers declined, citing fears of retribution. The issue of the blue lights, even though Mgidlana describes it as a “rumour”, has remained in the public domain: it emerged in various parliamentary platforms, including the institution’s 2017 Budget Vote debate, and in several meetings of the Joint Standing Committee on the Financial Management of Parliament, and is also part of the complaints to the Public Protector (including by Nehawu). The reporter says that, in the interest of balance, accuracy and fairness, it was made clear in the second article that the blue lights were at best a tangential issue in the independent disciplinary process – it was mentioned in a sentence sketching background to the disciplinary process. Furthermore, the article of 12 October showed the blue-lights issue emerged only “obliquely” in one of the insubordination counts for which dismissal was recommended, i.e. Holtzman’s failure to answer five questions from Tyawa. The article stated: “(Holtzman), if indeed she was no longer in charge of driving services – could simply have informed the DSTP in response to the request,” it said upholding the gross insubordination and insubordination guilty verdicts.” She also notes that Mgidlana does not dispute that the use of blue lights, among other allegations, are subjects of the Public Protector’s complaints and a probe by Parliament’s audit committee.

Mgidlana says the mere fact that this matter has “remained in the public domain and on public record and emerged in various parliamentary platforms” does not make it truthful or a fact – which is what Merten did in her reporting. He disputes this allegation.

                                                         Issues for analysis

The statement in question was presented as an allegation, or a rumour – Merten wrote “word emerged” that Mgidlana repeatedly had requested official transport, with blue lights.

The same issue is at stake here as in the “grapevine” talks that Holtzman’s suspension was linked to disputes between her and Mgidlana. Again, the question is, how justified was the reportage of this rumour, even if presented only as an allegation, while evidence existed (according to media releases by Parliament) that there was no truth to this rumour – and whether there was any chance that reasonable readers would have interpreted it as fact.

‘Nothing was done after whistle-blowing’

After quoting Holtzman as saying that she had raised the issue of blue lights with the presiding officers a month before her suspension, and that no inquiry followed, Merten continued: “There were laws about this, yet nothing was done after her whistle-blowing, according to Holtzman.”

In this part of the complaint, Mgidlana contests the statement that Holtzman was a whistle-blower.

He says there is no record of her having made any submission as a whistleblower under the Protected Disclosures Act No. 26 of 2000, and asks Merten to provide evidence in this regard. “It is not clear what specific provisions of the Act Holtzman believed the Secretary to Parliament committed or was likely to commit. In what way was the Secretary to Parliament going to do that whilst he was driven by officials under Holtzman management responsibility? And it is not clear what would have been the miscarriage of justice?”

He also argues that, if Holtzman’s actions amounted to whistle-blowing, the provisions of the Protected Disclosures Act protecting whistle-blowers against occupational detriment would have kicked in. The independent disciplinary process could have picked up that Holtzman was a whistle-blower and it would not have allowed her subjection to occupational detriment. In fact, if Holtzman was really a whistle-blower, her legal representatives would have challenged the occupational detriment (being subjected to any disciplinary action and being suspended and dismissed) facing her and they would have invoked provisions of the Protected Disclosure Act protecting whistle-blowers. 

He concludes, “Therefore, it is wrong and malicious for Merten to retrospectively characterize Holtzman as a whistle-blower since her actions are not in terms of the Act. This is done specifically to malign my character, professional integrity and dignity directly violating provisions of the Press Code…”

Merten says she did not assert that Holtzman was a whistle-blower – she merely quoted her to that effect. She adds that this comment was carried by other media like EWN and News24 on 12 October 2017.

Issues for analysis

The statement that Holtzman was a whistle-blower was not stated as fact – it was presented as her opinion. The issue, therefore, is not whether it is true that she was a whistle-blower – that is not for this office to decide. The question can also not be whether Merten was justified to report Holtzman’s statement in this regard – of course she was. The issue is whether the reporting of this view was done in such a way that the opinion could have been taken as fact.

‘No consequences’; process to get rid of Holtzman

The story said, “…Holtzman pointed out that aside from steps taken against her, there have been no consequences. ‘The only thing he (Mgidlana) has done is to ensure he’s set in motion a process to get rid of me’.”

Mgidlana denies that these statements are true.

He says precisely because of the allegations by Holtzman and Merten’s reportage, the Public Protector was probing charges levelled against him, including the issue of the use of blue lights. In addition to that, the Audit Committee of Parliament was also conducting its own probe into a number of allegations of maladministration against him, arising from these allegations.

He says he has had to request special leave because of such investigations which, in itself is a consequence of such investigations – not to speak of the harm caused to his integrity, character and dignity.  

Mgidlana adds that Merten should have been alert to the fact that Holtzman was bitter and was lashing out at him, as she blames him for all her problems. He says Merten was so engrossed in her bias that she was clearly oblivious to the damage done to his character, professional integrity, dignity and the dignity of his family.

Citing an observation by Madima in his report, he says Holtzman was the one who actually set in motion a process for her dismissal – and not any process set in motion by him.

He concludes that the reportage has “obliterated” his professional integrity by suggesting that he had targeted someone, seeking to save a situation by “getting rid” of her through contrived means.

Merten says she quoted Holtzman stating her beliefs, and not those of the reporter. She adds that a reasonable reader would understand Holtzman’s clearly attributed statements in the context of the article of 12 October – that of an interview with her, as stated right at the beginning. She says that both articles clearly stated the “consequence” that Mgidlana was on special leave at his request pending Parliament’s audit committee probe. “This is precisely done to give context and balance, effectively to juxtapose Ms Holtzman’s quoted views of ‘no consequences’ in the interest of providing context and for accurate, truthful and balanced reporting…”, she argues. The journalist denies that the Public Protector was investigating claims against Mgidlana because of her reportage – she says Nehawu has laid a complaint against him in mid-2016 and a former colleague of Holtzman also lodged a complaint. She also denies that she is one of Mgidlana’s “fiercest critiques” [sic] − she says her reportage is in the public interest. She argues, “Reporting in the public interest … as both articles … have done, cannot amount to accusations, malign intent or such.”

Mgidlana disagrees; he says readers would not see any difference between her reportage and the views of the person interviewed.  He reiterates that the reportage painted him as underhanded. He says Merten cannot claim to be reporting in the public interest when her reporting was in favour of certain parties, and against him. “The public and I derserves far better than what Ms. Merten and Daily Maverick has presented,” he says.

Issues for analysis

The issue is not how true or false the statement is – fact is that Merten merely quoted Holtzman in this regard. The question, again, is how justified such reporting was, and whether there was a reasonable possibility that readers would have thought that the allegations in the statement were factual.

Securitization of Parliament, democracy

The story said that Holtzman had raised concerns over the “securitization of Parliament and democracy”.

Mgidlana complains that the reportage has falsely blamed him for the securitization of Parliament. He reiterates that the decision to strengthen the PPS was a political one, taken by Members of Parliament, and not by Parliament’s administration.

Yet, he says, Merten decided to ascribe policy-directing responsibility to him as the Accounting Officer, and readers were made to believe that he had sought to subvert the parliamentary processes, the Constitution and democracy.

Merten says she merely quoted Holtzman in this regard. She adds that she does not know how this statement could have harmed Mgidlana’s professional integrity, as claimed by him – the statement in dispute did not even mention his name in this regard. She remarks that, as Mgidlana takes issue with Holtzman’s expression of her views, perhaps he should take this matter up with her in another forum, outside of the Press Council.

Mgidlana quotes the second article as follows: “ ‘Controls are used through administrative instructions to deflect from the real issues, from the transformation that should happen, from the delivery of services,’ said Holtzman, also raising concerns over the securitisation of Parliament and democracy. ‘The way they utilize the white shirts and deployed serving officers is actually problematic’.” (His emphasis.)

He says this reference reflected Merten’s own understanding. The sections before and after the emphasised part were quoting Holtzman verbatim – but the section in between was the journalist’s own words. He says the reporter should have balanced Holtzman’s views by referring to views provided by Parliament on the deployment of additional security – without which he was presented in a bad light. He says Merten was obliged to solicit the views of those subjected to critical reporting because that is a grave charge and accusation especially from a reputable journalist and publication.

He adds that this office is indeed an appropriate platform where Merten should respond to and address the complaint; he also says that her response sounds like a veiled threat levelled against him as a form of retaliation for exercising his rights in terms of the Press Code.

Issues for analysis

The issue is whether the reportage has falsely blamed him for the securitization of Parliament.

Both articles

Presenting allegations to seem like facts

Earlier in this adjudication, this issue has cropped up consistently. It may be helpful to group all these instances together.

They concern Holtzman’s statements that:

·         Mgidlana’s persistent use of blue lights (for himself and relatives) and the recruitment of SAPS members into the PPS were central to her dismissal;

·         the disciplinary process was used to avoid the fundamental issue of blue lights, as stated in her report;

·         nothing was done after her whistle-blowing;

·         there have been no consequences aside from steps taken against her, and that the only thing Mgidlana did was to set in motion a process to get rid of her; and that

·         she raised concerns over the securitization of Parliament and democracy.

Mgidlana refers to Merten’s statement that it is generally accepted journalistic practice to reflect interviewed person’s view(s) by way of quoting them and / or accurately summarising their views without quotation marks.

However, he says there are subtle and sustentative differences in the two approaches. He argues, “When a journalist quotes a source directly and puts quotation marks it should be exactly the words of the interviewed person. When a person summarizes the information provided and puts it in their own understanding, that can be influenced by cognitive bias and therefore, is subjective, and present it as the views of the interviewed person.”

He says such a process of summation and articulation of matters in a manner that the journalist sees, understands or receives, is by its very nature subjective – it is informed by the reporter’s own background, perspective, views and feelings that, if unchecked, can produce biased, one-sided views that lack a sense of objectivity – and he claims this is what Merten has done.

He says that, in paraphrasing the views of an interviewee, there is a possibility that journalists might “parachute” and / or insert their perspectives/opinions in such views. The practice of paraphrasing and / or quoting subjects is therefore not a purely innocent journalistic practice or exercise “and as such, Merten cannot appeal to its implied innocence”.

He emphasises that the issue is whether the reader could clearly distinguish Merten’s view, as opposed to those of the interviewee, when she used quotes interchangeably with summaries.

He presents the following extract from the article: “[On Thursday Holtzman pointed out that aside from steps taken against her, there have been no consequences. The only thing he (Mgidlana) has done is to ensure he’s set in motion a process to get rid of me.” (His emphasis.)

He says the underlined statement is “completely wrong”.

At the very least, he says, Merten should have corroborated this statement, which she deliberately did not do with only one aim in mind – to tarnish his name, professional integrity and dignity.

He accuses the journalist of being anti-Mgidlana in her previous writings. “So, the claims that Ms. Merten in the two articles seem to have taken a stance that endorses or support Ms. Holtzman is not a far-fetched and/or a wild claim, but it is one that is based on a thorough assessment of her previous writings on similar issues,” he says.

To assist his complaint that Merten is biased, he refers to Merten’s claim that the reference to the “parliamentary grapevine” was based on dozens of interactions with staff at Parliament – asking why her parliamentary interaction has been limited to staff only, and not also extended to senior parliamentary officials and himself.

He argues, “It is not surprising that since her interactions were primarily with staff, the views expressed in her articles would not necessarily be balanced, they would be slightly skewed in favour of … the union…”

In conclusion, Mgidlana says, “The issue at stake here that is being contested is the way the information is put together, where there are glaring omissions and misrepresentations, and the reportage of a one-sided story that provides the reader with a single tunnel view presented by Daily Maverick and Ms Merten. In this regard, the description given to those actions of the journalist where she specifically gives preference to certain views over others, ignores statements made, omits views and statements clearly articulated in responses.”

He claims that Merten consorted with her sources “because she ensures that she gives their views preference over others”.

Issues for analysis

The issue is whether Merten gave preference to certain views and, in doing so, had taken sides and subtly influenced readers to do so as well.

No right of reply

Mgidlana says the subjects in the reportage were Holtzman, Parliament, and himself. The journalist rightfully contacted two of the subjects, but neglected to give him a right of reply.

He adds that in the second article Merten merely reported his denial – but she did not offer his views on the matter (as she did with Holtzman).

He argues that the reportage has unnecessarily tarnished his character, professional integrity and dignity – which is why his views should have been solicited. He says he also wants to know why he was not approached for comment.

Firstly, Merten says the article of October 10 did not put Holtzman’s comments “center stage”, as alleged by Mgidlana; instead, it extensively quoted from the independent disciplinary hearing findings / sanction recommendation report on the reasons the guilty verdicts had been upheld and why the sanction of dismissal had been recommended. She also denies that Mgidlana was the subject of critical reporting – she says that both articles dealt with Holtzman’s dismissal by Parliament following an independent disciplinary hearing and, as such, comment from both the employer and employee was sought, obtained and included in both articles. She says Mgidlana was not party to the independent disciplinary hearing process as emerged from the report on findings / recommended sanctions by its chairperson. Where he appeared in either of the articles, it was in relation to contextualising the circumstances of Holtzman’s suspension and of events that unfolded subsequently, like the probes by Parliament’s audit committee and the Public Protector.

Mgidlana says the opening statement in the second article (Holtzman being quoted as saying that the disciplinary process had been used to avoid the “fundamental issue” – her report on the blue lights) made it clear that he was the subject of critical reportage. However, Merten did not even try to obtain his views.

He says, “The reader … is deliberately led to believe that [Mgidlana] may be overwhelmed by what is written and, therefore, has no views on the matter or his views do not matter and that they are not worth soliciting.”

He adds that, where the article attempted to quote him, the reportage was vague and grossly summarized, in other instances his views were not provided at all.

He adds, for the record, that in all the more than 14 articles that Merten has written about the same subject, she has never interviewed him. “On the contrary, I have responded to her writings by demanding the right of reply with the newspaper trying to show her that I am available to be engaged on the matter to inform whatever perspectives she may have or want to canvas,” he says.

He says it is wrong for Merten to provide space for Holtzman to attack him, while not giving him an opportunity to refute those statements and accusations of critical reportage.

He says that, if the journalist’s intention was to report about Holtzman’s dismissal, she veered off to make him a subject of critical reportage. He argues, “Anyone reading the article would be clear from Ms. Merten and Daily Maverick’s articulation of their version of events that the problem of Ms. Holtzman commenced, through grapevine, disputes with [him] on blue lights, punishing whistle blowers, the administrative decision to securitize Parliament and democracy, association with stolen documents that have financial misconduct of the Secretary to Parliament. If this is not critical reportage I do not know what is or Ms. Merten and Daily are just making blatant denials.”

He says this means it would not have been necessary to contact him for comment if the articles limited themselves to Holtzman and the processes of the employer – but that was not to be, as  considerable space and time was spent on what he did, or ought to have done, and what he improperly benefitted from through abusing his position of authority.

He denies that, where he appeared in either of the articles, it was “in relation to contextualising the circumstances” of Holtzman’s suspension. He says his name was quite often mentioned not to provide context, but to strengthen Holtzman’s case while damaging his professional integrity and dignity.

He says that, where the stories did “accommodate” him, it was clothed in vague and biased summaries without giving detail, citing old responses.

In conclusion, he says, “Ms. Merten deliberately fails to understand that through her unethical conduct of presenting this report to the readers that is one sided, based on rumour mill and grapevine, denial of the subject of critical reportage the right to present my side of the story … she actually consorts, connives, creates insuations and averments.”

Issues for analysis

The issue is whether Merten should have contacted Mgidlana for comment prior to the publication of both articles. Central to this matter is the question of whether he was a subject of critical reportage, and also whether his dismissal of claims of wrongdoing (as recorded in the second article) was sufficient.

In conclusion: One-sided, biased, malicious

Mgidlana submits that the failure to critically scrutinize Holtzman’s claims and those of other news houses (City Press) quoted in the articles were not innocent omissions.

He asks why did Merten not offer balanced reporting by also citing proper responses that have been given by Parliament before and by interviewing other people, especially him, who was the subject of her criticism?

He says the articles were malicious, based on gossip and the parliamentary rumour-mill, and offered a sympathetic account of Holtzman’s side of the story against findings made by an independent tribunal and previous media statements on the matter – Merten’s uncritical reporting reveals a desire to condemn his character, professional integrity and dignity.

Mgidlana says Merten has selectively and deliberately quoted Holtzman in order to drum up support and shape public opinion on the matter.

He says through her reportage, any reasonable reader would be tempted to sympathize with Holtzman and view him in a bad light.

Mgidlana says his character, professional integrity and dignity has not only been damaged, but it is destroyed by these baseless and unfounded allegations – “with the specific intention to cause harm to me”.

He asks for the harshest possible sanction, including an apology to him, a retraction of the offensive articles, and a prominently placed reply by him to the allegations and opinions “paraded as facts” by the newspaper.

In general, Merten inter alia denies that the articles: ·         were inaccurate, biased and unfair, as they were written according to accepted principles of journalistic conduct in the public interest in line with the Press Code; ·         maligned Mgidlana’s reputation; ·         took Holtzman’s part, as they merely reflected her opinions; ·         ignored the independent disciplinary proceedings, findings and sanctions recommendations, and that they undermined the outcomes of that process (instead, they put it in proper context); ·         drummed up support for Holtzman’s claims that the process was not just and fair and that the charges against her were trumped up; ·         presented allegations as fact; and ·         did not admit that some allegations were based on gossip. She also emphatically rejects allegations of ulterior motives, malign intent to somehow undermine Mgidlana’s good character and future employment prospects, bias, violations of journalistic ethics, or the suggestion of being in consort or besotted with Holtzman, or others, as alleged in the complaint.

Mgidlana replies that, merely stating that “both articles were written according to accepted principles of journalistic conduct” without providing clear evidence may amount to zero because Merten points to no relevant and acceptable practice and principles of journalistic conduct with which she has complied. He says this argument has no basis and the reasons advanced for such a rejection are founded on unconvincing and very shaky grounds. 

He argues, “I would like to submit that merely stating that allegations are rejected, without advancing a compelling evidence to the contrary, is not enough.  Ms. Merten should provide facts or evidence to convince the Press Ombudsman why she thinks the articles were written according to accepted principles of journalistic conduct in the public interest and in line with the Press Code.”

Issues for analysis

The issue is whether Merten did prepare and present her reportage in accordance with acceptable journalistic practices.

A n a l y s I s

The issues which are now to be analysed, as identified during the course of this document, are the allegations that:

·         Holtzman’s suspension was linked to disputes between her and Mgidlana;

·         Mgidlana’s persistent use of blue lights (for himself and relatives) and the recruitment of SAPS members into the PPS were central to Holtzman’s dismissal;

·         Holtzman’s disciplinary process was used to avoid the fundamental issue of blue lights, as stated in her report;

·         nothing was done after her whistle-blowing;

·         there have been no consequences aside from steps taken against her and that the only thing Mgidlana did, was to set in motion a process to get rid of her; and

·         Holtzman has raised concerns over the securitization of Parliament and democracy.

Mgidlana has said this several times, and I believe that everyone agrees with him: The issue is not the fact that Merten has reported Holtzman’s allegations – Holtzman had a right to say what she did, even if she was wrong (please note I am not saying that was the case); and Merten had a right to report it.

The question whether Holtzman was right or wrong is not for this office to say – that is a matter for Parliament or another forum. My focus is on Merten, not on Holtzman (or on Mgidlana, for that matter).

This means that all arguments relating to the merits of Holtzman’s allegations are irrelevant as far as this adjudication is concerned.

The ultimate question, then, boils down to this: Has Merten created a misleading picture by reporting in such a way that it prompted readers to believe that Holtzman was correct by:

·         (subtly) aligning herself with Holtzman’s points of view; 

·         omitting relevant material; and / or

·         omitting to give Mgidlana a right of reply?

If the answer to these questions is “yes”, the follow-up issue would be whether she has done this deliberately.

What was written

My first observation is that Merten consistently, without fail, attributed the allegations to Holtzman, indicating that those were her views. She never, not once, presented a statement garnered from Holtzman as fact.

This also goes for the headline of the first article, which placed the words “trumped up” (charges) in inverted commas – indicating that it was a quote, and not a statement of fact.

On the face of it, it certainly does not appear that the journalist has aligned herself with Holtzman and her views.

Having read both articles over and over again, I also do not believe that there was a subtle subtext, as suggested by Mgidlana. The reasonable reader would have needed an unreasonable imagination for such a scenario to realize.

My first conclusion, then, is that I have no reason to believe from what was written that Merten has tried to influence readers to take sides for Holtzman and against Mgidlana, or that she has openly or subtly presented any allegation as fact. Mgidlana’s arguments in this regard are not convincing.

What was omitted

The second issue is whether Merten ignored or underplayed the evidence which existed in the formal documentation regarding Holtzman’s disciplinary process (the charge sheet, the findings and decision, the recommendation on sanction, as well as the relevant media statements issued by Parliament), which did not implicate Mgidlana in that matter.

It is best to quote from the stories themselves.

The article of 10 October inter alia stated:

·         “Holtzman appeared before a disciplinary hearing, which in June 2016 found her guilty of four of the total of 12 charges. These include gross insubordination and insubordination for not answering five questions as twice requested by Tyawa, failure to resolve divisions between herself, her deputy and PPS staff, and failure to submit a business plan.”

·         “On 8 October in the written decision seen by Daily Maverick, Madima recommended dismissal for Holtzman’s failure to submit a business plan as part of the parliamentary planning and budgeting process, described as the ‘gravest’ of all guilty counts.”

·         “ ‘It boggles the mind that the head of PPS did not know what a business plan for the institution was. If indeed her assertions are correct, (Holtzman) should not have been appointed to the position of head of PPS in the first place. If however (Holtzman) was aware what a business plan was, but simply did not bother to prepare one for her unit, equally she should not be in that position,’ he found. ‘I find that a dismissal is appropriate for this charge’.”

·         “Dismissal was also recommended for gross insubordination and insubordination. Holtzman had not only not responded to Tyawa’s questions, but was also ‘rude’ and 'disrespectful’ in how she addressed the Deputy Secretary to Parliament by, for example, stating the questions appeared to be ‘a platform for trial by remote’.”

·         “ ‘This is most unfortunate. It is not clear why (Holtzman), even where she believed that she had addressed the questions, did not respond as required…’ according to the sanction recommendations.”

The story of 12 October inter alia reported:

·         “In mid-2016 it became public that she had been found guilty on four of the 12 charges – gross insubordination, insubordination, failing to resolve tensions in the PPS and failure to submit a business plan.”

·         “On 8 October 2017 the independent disciplinary inquiry recommended Holtzman’s dismissal on the insubordination counts and for failing to submit a business plan, while recommending a final written warning for not resolving PPS divisions. Parliament announced its decision to fire Holtzman on Wednesday.”

·         The independent disciplinary proceedings report found that Holtzman “… ‘if indeed she was no longer in charge of driving services – could simply have informed the DSTP in response to the request’, it said upholding the gross insubordination and insubordination guilty verdicts.”

From the above, I am satisfied that Merten in fact neither ignored nor underplayed official documentation dealing with the findings on Holtzman.

Right of reply

The question is not whether Mgidlana was a subject of reportage, but whether he was a subject of critical reportage. In other words: Was there a realistic possibility that he could have been harmed by the stories, whether such harm was deserved or not?

In the first article, Mgidlana was mentioned in connection with:

·         rumours that Holtzman’s suspension had been linked to disputes between them over his use of blue lights and the recruitment of police officials into the PPS;

·         a request to his deputy to investigate those issues;

·         his information proffered to the Joint Standing Committee on the Financial Management of Parliament that the Holtzman matter was still pending; and

·         his request for special leave.

Those matters were all old hat – they have been in the public domain for quite some time (all between 2015 and the middle of 2017). The information in question was therefore not new, and there was little chance for that data to cause Mgidlana (new) harm.

It would be unreasonable to expect from a publication to get comment every time it digs up history.

The second story, though, is a different kettle of fish – it was about a new development (Holtzman’s recent decision to contest her dismissal).

In her motivation for her decision, she alleged that charges against her were trumped up – and the issues she regarded as central to her removal were Mgidlana’s use of blue lights and the recruitment of SAPS members into the PPS. These matters were not old hat, as Holtzman, in fact, breathed new air into them.

It is in this context that Merten referred to allegations (“word emerged”) that Mgidlana was using blue lights.

But that is not all: Merten also quoted Holtzman making a potentially rather damaging claim when she accused Mgidlana of having done nothing after she had blown the whistle, except “to ensure he’s set in motion a process to get rid of me”. She reportedly called this “tyrannical”.

Adding to this, Holtzman said the way in which the PPS was handled was “actually problematic”.

If anything, this is critical reporting, as it has huge potential of causing Mgidlana harm – and these were entirely new allegations.

The only reference to a response from Mgidlana (stating that he “has dismissed claims of wrongdoing”) referred to allegations levelled against him in 2015. However, even if this one statement referred to Holtzman’s new allegations (which it did not), it still would not have satisfied the requirements of the Press Code.

Mgidlana was indeed a subject of critical reportage in this article, given the potentially harmful nature of the allegations made against him, and the fact that most of them were new – which is why Merten should have asked him for comment.

I do not know why Merten chose not to give Mgidlana a right of reply to the new allegations levelled at him. I do not blame him, though, for suggesting this was deliberate.

Conclusion

My ultimate conclusion is that Merten has prepared and presented her reportage in accordance with acceptable journalistic principles – except for not having asked Mgidlana for comment on the allegations levelled against him in the second article.

Finding

The complaint regarding the first article is dismissed in its entirety.

Regarding the second article:

·         Daily Maverick is in breach of Section 1.8 of the Press Code which states, “The media shall seek the views of the subject of critical reportage in advance of publication…”; and

·         The rest of the complaint is dismissed.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).                                            

The breach of the Press Code as indicated above is a Tier 2 offence.

Sanction

Daily Maverick is directed to:

·         apologise to Mgidlana for not affording him a right of reply in the second article; and

·         offer him such a right of reply (which, of course, he may refuse).

Please note that this right of reply should not be used as an attack on Holtzman, or as a platform to influence any parliamentary processes which are currently underway. This opportunity should be used to comment on the new allegations levelled against him by Holtzman, as outlined above under the heading Analysis – Right to reply (second article).

The apology, together with his right of reply, which should be no more than 500 words, should be published at the top of the page which carries the second story.

The headline should contain the words “Mgidlana” and “apology” or “apologises”.

The apology (and the right of reply, if it materialises) should:

·         be published at the earliest opportunity after the time for an application for leave to appeal has lapsed;

·     refer to the complaint that was lodged with this office; and

·     end with the sentence, “Visit www.presscouncil.org.za for the full finding.”

Both texts (the apology, which should be prepared by Daily Maverick, as well as the right of reply) should be approved by me.

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