Janine Julies Nale vs City Press


Thu, Jun 11, 2020

 

Particulars

Complaint number: 7711

Complainant: Janine Julies Nale, Chief Director of Communications for the Department of Human Settlements, Water and Sanitation

Lodged by: Ms Avani Singh, from Power Singh Incorporated

Date of article: 23 December 2019

Headline: Lindiwe Sisulu’s battle for power

Online: Yes

Author of article: Setumo Stone

Respondent: Willem De Klerk Attorneys

  1. Complaint

1.1 Nale complains that the:

  • story was untruthful, inaccurate and unfair in several respects (details below);
  • journalist did not provide her with a meaningful right of reply;
  • article has tarnished her dignity and reputation; and
  • headline was misleading.

1.2 She asks for a reprimand, a retraction and an apology in both the print and online editions, as well as for the removal of the article on the internet.

1.3 The relevant sections of the Press Code are:

  • 1.1: “The media shall take care to report news truthfully, accurately and fairly”;
  • 1.2: “The media shall present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization”;
  • 1.3: “The media shall present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such;
  • 1.8: “The media shall seek, if practicable, the views of the subject of critical reportage in advance of publication…”;
  • 3.3: “The media shall exercise care and consideration in matters involving dignity and reputation…”; and
  • 10.1: “Headlines … shall not mislead the public…”
  1. The text

2.1 The article said senior managers in the Department of Human Settlement, Water and Sanitation had been vexed by Minister Lindiwe Sisulu’s instruction that the communications budget be centralised in her office. They reportedly were suspicious that Sisulu intended to use public money to fund her future political ambitions in the ANC.

2.2 Sisulu was said to have complained about the failures of the communications directorate, “particularly the ‘hostile and insubordinate’ conduct of the chief director in charge, Julies Nale”.

  1. The arguments

3.1 Untruthful, inaccurate, unfair statements

3.1.1 Budget to be centralised

The article stated Sisulu “wanted the communications budget to be centralised in her office” and that she had issued an instruction in this regard.

Nale says she has no knowledge of this, and has not been advised of any instructions to that effect. Instead, she “has continued working with the communications budget in the ordinary course, and there is no evidence of any such change”.

Singh adds this statement was also refuted by the Director-General of the Department.  

De Klerk’s office says the report fairly, truthfully and accurately recorded the letter that the Minister wrote to the DG, Mr Mbulelo Tshangana, on 14 November 2019. He adds that the information about the budget being centralised was also placed before Nale, albeit in a clarity seeking fashion, and she did not deny it at the time.

Analysis

I have asked, and received, a copy of Sisulu’s letter from City Press. The statement in dispute is undoubtedly correct – Sisulu wrote: “I also indicated that I required the communications budget to be centralised in the Ministry. This has not happened.”

3.1.2 ‘Vexed’, ‘disgruntled’

The story said that “senior managers” within the Department were “vexed” and “disgruntled” by Sisulu’s plan to centralise the communications budget.

Nale complains the article insinuated that she had been amongst those senior managers. How could she have been, she argues, as she was not aware of any such instruction from the Minister.

De Klerk’s office replies that the article was a fair, truthful and accurate record of the discussion between the publication and some of the disgruntled and vexed senior managers in the department who shared information with the newspaper.


Analysis

In the letter, mentioned above, Sisulu referred to a meeting on 18 September 2019 with the Communication Team in Cape Town (where she made the statement about centralising the budget).

It is difficult to believe that Nale, being at the time the Chief Director of Communications for the Department of Human Settlements, Water and Sanitation, did not know about this particular issue. The balance of probabilities, in this case, is not in her favour.

3.1.3 Hostile, insubordinate conduct

The story stated, “City Press learnt that Sisulu held a meeting with the communications team in Cape Town on September 18, when she complained about the failures of the communications directorate ‘over the past six months’, particularly the ‘hostile and insubordinate’ conduct of the chief director in charge, Julies Nale.”

Nale denies that this statement was ever levelled at her specifically. She says she is concerned that “this falsity prejudices her good name and reputation”. Singh argues there is no evidence to support this allegation.

De Klerk’s office replies that the statement in question was a fair, truthful and accurate record of Sisulu’s letter.


Analysis

Again, the sentence in dispute indeed correctly quoted from Sisulu’s letter, save for the use of the word “hostile”. However, given the gist of the letter, I do believe that that word was not misplaced.

3.1.4 Failing to prepare for media launch

The article said, “[Sisulu] requested an investigation into the communications directorate and that disciplinary steps be taken against Nale. She said Nale had failed to prepare for the initial media launch of the Water and Sanitation Master Plan on November 18.”

Nale denies any fault for the failed media launch, and rejects the insinuation of her being incompetent.

De Klerk’s office replies that the statement in question was a fair, truthful and accurate record of Sisulu’s letter.


Analysis

Again, Stone quoted correctly from the letter. Also, it is not for City Press, or for the office of the Press Ombud for that matter, to decide whose fault the failed media launch was.

3.1.5 Nale ‘suspended’

Tshanganga is quoted in the article as stating that Nale had been suspended for “serious charges in supply chain management and that an investigation was under way”.

Nale denies this allegation. Singh says that, although she has been placed on precautionary suspension, no official charges have been provided as yet. The reportage, she adds, created the false impression that Nale was guilty of misconduct.

De Klerk’s office replies that the statement in question fairly, truthfully and accurately recorded the comment from Tshangana, who was the accounting authority in the department. City Press has an audio recording of the interview, he adds.

He says the fact that the charges “have not been provided as yet” does not contradict Tshangana’s comments, or implies that the charges do not exist. “It is therefore not clear why Nale would want to be in possession of charges when the case is still under ‘investigation’. Ordinarily, charges follow investigation, not the other way around,” De Klerk’s office argues.

He concludes that City Press does not have any powers to determine the guilt or innocence of Nale, nor does it purport to make such findings in the article.


Analysis

I have listened to the audio recording and am satisfied that the reportage on this matter was accurate and fair. Even if no official charges have been provided to Nale yet, that would not render the reportage inaccurate and unfair. As it was clear that an investigation was underway, the newspaper cannot be accused of creating an impression that Nale was (already found to be) guilty of misconduct.

3.1.6 ‘Go to hell’

The story referred to “insiders” who reportedly said, “…at one meeting Nale told Mphumzi Mdekazi, chief director of stakeholder relations in Sisulu’s office, ‘that he can go to hell [because] she is not going to be part of a political campaign using state money’.”

The article goes on to state that “those sympathetic to her said her resistance to ‘transfer the funds to the ministry’ was because she did not want public funds to be used for Sisulu’s so-called LS2022 campaign for the ANC presidency.”

Nale denies having made such a statement, or being aware of Sisulu’s political ambitions. She reiterates that she is unaware of any such campaign, and submits that the reference to her “resistance” is a wrongful mischaracterisation of her conduct.  

De Klerk’s office replies that the story was a fair, truthful and accurate record of the information from sources shared with City Press. These views are further substantiated in two official records of the department: the letter of Sisulu to Tshangana (dated 14 November 2019), and the email of Mgitywa to Sisulu (dated 13 November 2019). The link between the letter and the email, a day apart, consolidates these pieces of information, he argues.


Analysis

The “go to hell” allegation is not contained in the emails which City Press provided me with. Clearly, this information was obtained from a source, or sources. This creates a “yes, you did” and “no, I did not” situation – one which I have no way of adjudicating. Even if I did talk to a source, or sources, the situation would remain the same.

In that case, I am not willing and able to find either for or against a party in this specific matter.

3.1.7 ‘Rabble-rousing’

Stone wrote, “In an email to Sisulu … ministerial spokesperson Makhosini Mgitywa said that Nale had ‘openly questioned the decision to use water extraction technology. This amounted to rabble-rousing which is not consistent with the strategic position she holds. ‘She was actively undermining executive decisions and instructions…’ ”

Nale denies being engaged in such conduct, and describes herself as a dutiful employee who respects the structure of the Department. These averments are deeply harmful to her good name and reputation, Singh adds.

De Klerk’s office says the information was a fair, truthful and accurate record of the email from Mgitywa to Sisulu.

Analysis

The sentences in dispute accurately quoted from Mghitywa’s letter to Sisulu. I can understand Nale’s concern that the statements are harmful to her name – but they were not made by City Press. The newspaper merely reported what Mgitywa said. Nale should take up the matter with him, and not with the messenger.

3.1.8 No support for minister

The article read, “Mgitywa said he was ‘reliably informed that [Nale] has … instructed her staff to support only the deputy minister and not the minister’.”

Nale denies this allegation, as well as the inference that she is not supportive in circumstances where she considers her relationship with the Minister to be of utmost importance to her.  Instead, Singh adds, the article portrayed her as “being incompetent and disloyal to her employers”. This is false and inappropriate, and in violation of the Press Code, he argues.

De Klerk’s office says the information was a fair, truthful and accurate record of the email from Mgitywa to Sisulu.

Analysis

De Klerk’s office is correct, once again. The story merely reflected what was said in the relevant email.

3.2 No meaningful right of reply

3.2.1 Singh says on or about 22 December 2019, Nale received two WhatsApp messages from Stone. The first message read as follows: “Good morning Janine. My name is Setumo Stone from City Press newspaper. We are writing a story on developments at the department of water and Sanitation, particularly around the Ministers instruction that the communications department be ‘centralized’ in her office. We need clarity on what ‘centralized’ means in the context. Does it mean money should be transferred to the Communication division in her office? If so, how does it work?”

3.2.2 The second message from Stone read as follows: “Pls note that this is an off record discussion purely for the basis of clarity. You will not be quoted.

3.2.3 Nale responded: “Good morning, pl contact Sputnik Ratau, the Spokesperson on all media matters. Regards, JANINE”.

3.2.4 Nale further provided Stone with Sputnik Ratau’s contact details, in line with the protocols and procedures of the Department, Singh says.

3.2.5 She notes that City Press only engaged Nale in respect of one narrow issue, namely the centralisation of the communications budget – and not for her response to the array of other negative and defamatory allegations about her that were ultimately contained in the article.

3.2.6 “The City Press should, properly, have provided Nale with information regarding all the allegations pertaining to her that were included in the article, and afforded her a reasonable opportunity to respond thereto. The narrow basis on which the City Press sought a right of reply does not comply with the standard that has been set by the Press Ombud, and is therefore in violation of section 1.8 of the Press Code,” he argues.

3.2.7 De Klerk’s office denies that Nale was the subject of critical reportage. He says that the article was not about Nale’s disciplinary hearing, but rather about Sisulu’s efforts to assert her authority, and what the latter saw as her obstacles. “If the story was about the complainant’s disciplinary issues, then the headline and sub-headings would have reflected the same. Therefore, it is incorrect to claim that the story amounted to critical reportage of the complainant,” he argues.

3.2.8 Furthermore, the ombudsman found in the case of Gengezi Mgidlana v Notes from the House and Daily Maverick, that a subject need not be asked for their side of the matter where the allegations against them are reported as allegation, but rather when a report goes as far as to pronounce guilt on a subject and thus make them the subject of critical reportage. This is not the case in this matter.

3.2.9 The newspaper says Nale preferred that all its media queries be referred to the department. “As [she] was the subject of a disciplinary process, it was not unreasonable for her to prefer not to comment on matters that were sub judice and to request that all media queries relating to the complainant and her employment should henceforth be referred to the employer,” De Klerk’s office argues.

3.2.10 He points out that, in the ombudsman’s ruling in the matter of PB Soobrayan v The New Age, the newspaper’s argument that it was standard practice to seek comment from the department’s spokesperson was found to be sound. “We submit that City Press accordingly followed accepted standard practice in line with the Press Code,” the argument goes.

3.2.11 He argues that Nale’s response that “all” media queries be referred to the department, City Press understood this to mean that the instruction from Nale was that the particular query and any other queries the newspaper might have relating to her employment with the department should be sent to the department. The queries were accordingly sent to the department and the responses are recorded in the story. “Had Ms Nale said that the ‘specific’ query be referred to the department, then the necessary qualification would have possibly been achieved, and a reasonable person would have understood that to mean that she was not totally opposed to answering other media questions around the subject matter,” he adds.

3.2.12 If it is found that Nale is correct in that she should have been afforded an opportunity for further comment, the conclusion that City Press acted out of malice and in bad faith is not borne out by the facts. The newspaper is willing to give Ms Nale a right of reply in this case, De Klerk’s office concludes.

3.2.13 Singh replies that Section 1.8 of the Press Code cannot reasonably be interpreted to imply that an article can only have one subject of critical reportage; simply because the article was critical of more than one person, it does not make it any less critical of Nale.

3.2.14 She also points out the newspaper does not deny that it only put one query to Nale, which pertained specifically to the Department.

3.2.15 She says the salient facts in this regard are as follows:

  • The City Press only sought comment from Nale in respect of the centralisation of the budget in the Department;
  • The message to Nale indicated that this was intended to be an “off record discussion” that would not be quoted;
  • Nale referred the query to the spokesperson, in accordance with internal protocols and procedures;
  • Nale could not reasonably have anticipated from the one question she received relating to the Department that the article would go on to make false and defamatory allegations about her personally, impugn her reputation or infringe her dignity; and
  • Indeed, had Nale known that she would personally be the subject of portions of the article, she would have addressed those allegations herself, as those allegations could not have been responded to by the spokesperson. She was not, however, provided with this information prior to the publication of the article.

Analysis

3.2.16 There is no doubt in my mind that Nale was a subject of critical reportage. The story contained many allegations made against her that was potentially harmful to her name – which is exactly what the term “critical reportage” entails.

3.2.17 Singh is also correct in saying there can be more than one subject of critical reportage in an article – hence “a” subject, and not “the” subject.

3.2.18 De Klerk’s office’s statement about the ombud’s finding regarding the media not required to ask for comment to allegations, is rather unfortunate and out of context. In this specific ruling, which I have made, I said that that particular allegation had been reported for such a long time, and has been denied over and over again – and that the media are not obliged to ask the relevant person for her or his comment every time the allegation is repeated. By that time, it was common knowledge that the person denied the allegations.

3.2.19 Of course the media are obliged to ask a subject of critical reportage for comment – also regarding allegations. That was, is and always will remain a principle.

3.2.20 De Klerk’s office is correct to argue that questions to an official in a government department or ministry should be referred to an official spokesperson. However, the allegations published against Nale was of such a nature that City Press should have asked her comment on them. It was then up to her either to respond, or to refer the questions to a spokesperson.

3.3 Dignity, reputation

3.3.1 Nale complains that City Press failed to exercise care and consideration regarding her dignity and reputation.

3.3.2 De Klerk’s office denies this, but says the newspaper is willing to give her a right of reply – which she rejects.

Analysis

3.3.3 The article did contain many negative allegations made against Nale (whether right or wrong). It follows that I need to find for her in this regard. This is so self-evident that I do not believe I need to argue this point any further.

3.4 Headline

3.4.1 Nale denies that she was involved in a power struggle with Sisulu, and complains that the headline of the article was misleading in this regard.

3.4.2 De Klerk’s office denies this.

Analysis

3.4.3 Having decided that the reportage was fair and accurate, it follows that the same goes for the headline.

  1. Finding

4.1 Untruthful, inaccurate, unfair statements

The sub-sections are all dismissed, except for the “go to hell” statement, on which there is no finding.

4.2 No meaningful right of reply

Nale was indeed the subject of critical reportage, which rendered the newspaper in breach of Sect. 1.8 of the Press Code that says, “The media shall seek, if practicable, the views of the subject of critical reportage in advance of publication…”

4.3 Dignity, reputation

The fact that City Press did not give Nale a right of reply to all the negative allegations levelled against her, I find that the newspaper was in breach of Sect. 3.3 of the Press Code that says, “The media shall exercise care and consideration in matters involving dignity and reputation…”

4.4 Headline

This part of the complaint is dismissed.

  1. Seriousness of breaches                                              

5.1 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).                                        

5.2 The breaches of the Press Code as indicated above are both Tier 2 offences.

  1. Sanction

6.1 Because the reportage itself was flawless, no retraction of any statement and no removal of any part of the story, or the whole article, will be ordered. Because Nale does not believe that a right of reply will correct what she views as wrong and unfair, I shall not order the newspaper to give her a right of reply either.

6.2 City Press is directed to apologise to Nale for not:

  • affording her a right of reply to allegations that were levelled against her; and
  • exercising care and consideration regarding her dignity and reputation.

6.3 The newspaper is directed to publish this sanction on all its platforms where the story appeared.

6.4 The text should:

  • be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
  • refer to the complaint that was lodged with this office;
  • end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
  • be published with the logo of the Press Council (attached); and
  • be prepared by the publication and 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

Acting Assistant Press Ombud