Ruling by the Press Ombud
6 May 2017
This ruling is based on the written submissions of Mr Andile Khoza of Strauss Daly Attorneys, on behalf of Dr Nkosazana Dlamini-Zuma, and those of Susan Smuts, legal editor of the Sunday Times newspaper.
Dlamini-Zuma is complaining about a story in Sunday Times of 29 January 2017, headlined The Nkandla home where Nkosazana has spent a lot of time these past two years.
Complaint
Dlamini-Zuma complains that the story:
· was untruthful, inaccurate and unfair;
· was not presented in context and in a balanced manner, and constituted an intentional or negligent departure from the facts;
· was unverified; and
· presented unverified information as fact.
She adds that the newspaper did not afford her a right of reply, and complains that the story has tarnished her reputation and invaded her privacy.
She also complains that the newspaper refused to publish her reply, which she provided to the journalist after the story in dispute was published.
(Details of these complaints below.)
In later correspondence, Khoza also mentions the headline – to which Smuts responds. This obliges me to entertain the headline as part of the complaint.
The text
The article, written by Nathi Olifant, quoted sources to the effect that Dlamini-Zuma had spent a lot of time at Pres Jacob Zuma’s compound (Nkandla), that she and the President had reconciled (after their divorce a few years ago), and that they were “so close” that she had a house allocated to her at Nkandla.
The complaint in more detail
Not truthful, accurate, fair
The “untruthful, inaccurate and unfair” statements in the story are:
· “But the woman touted by many as the country’s future No 1 also spends a lot of time at the compound (Nkandla)”;
· “President Jacob Zuma and his ex-wife, Nkosazana Dlamini-Zuma, may be divorced, but the two are so close that she has a house allocated to her at the Nkandla homestead”;
· “Dlamini-Zuma’s house in the complex is adjacent to that of Nonkululeko Mhlongo, a Pietermaritzburg businesswoman and mother of two of Zuma’s children”; and
· “[Dlamini-Zuma’s allocated house] is also close to that of Zuma’s youngest wife, Bongi Ngema.”
Dlamini-Zuma denies all of the above.
She says the journalist neglected to contact her directly about those matters for verification “as a matter dealing with her private and personal affairs” – an issue to which I shall return shortly.
Out of context, unbalanced
Dlamini-Zuma complains that the following statements were out of context and unbalanced:
· “But the woman touted by many as the country’s future No 1 also spends a lot of time at the compound (Nkandla)”;
· “Zuma is believed to prefer his former wife to succeed him over (Deputy Pres Cyril) Ramaphosa. He gave credence to this view by saying, in SABC interviews recently, that it was not automatic ANC policy for a deputy to become president. He also praised Dlamini-Zuma for being a leader ‘before she became a Zuma’”;
· “Zuma’s recent praise of Dlamini-Zuma contradicts his view of his former spouse in 2007 – when Zuma’s group blocked her from being elected deputy president. The Zuma group chose Kgalema Motlanthe over her. In the lead-up to the Mangaung conference in 2012, at which Zuma was seeking re-election, Dlamini-Zuma’s name was raised by some branches as his possible successor. But Zuma recommended that she be deployed to the AU in Addis Ababa”; and
· “Now it seems that the two have reconciled. Speculation is rife that the former foreign affairs minister could make a comeback to Zuma’s cabinet, which she left in 2012 after her election to head the AU Commission.”
Khoza argues that the “falsehoods” as listed in the previous sub-section were used to underpin speculation and opinions in a manner intended to create or having the effect of creating a perception that reconciliation between the two was in the context of the President touting her for his successor. “A mischievous view is being propagated that [Dlamini-Zuma] and her ex-husband have re-aligned their personal interests to design and advance a political agenda.”
This, he maintains, portrayed the wrong context and was unbalanced (unfair).
No verification
Khoza says proper verification would have revealed that Dlamini-Zuma did not have a house in the Nkandla complex, or that she frequently visited that homestead – he says she visited Nkandla only twice in 2016 and to date in 2017, fulfilling her parental responsibilities by attending functions relevant to their children. Moreover, she did not stay over. In fact, he adds, she has never stayed at Nkandla (which was built after her divorce).
The attorney also submits that, had the journalist verified his information, he would have discovered that the Zumas were married in accordance with civil, and not customary, law. The statements referring to divorce in the Zulu culture were therefore irresponsible, with the intention of portraying Dlamini-Zuma “as a person of weak moral fibre”. He argues, “What is published is a bizarre story that an African woman, despite divorcing her husband to whom she had been married in terms of the Civil Law, remains in the claws of the ex-husband in the name of polygamy. Worst of all, an innuendo of adultery is suggested because not even a customary union is touted or established by the faceless interviewees.”
Allegations stated as fact
Dlamini-Zuma complains that, while the story presented allegations expressed as speculation, rumour and suppositions, they were also published as fact “engendering a belief in the reader that the allegations are fact”.
In this regard Khoza notes the following excerpts from the story: “But the two are so close… Dlamini-Zuma’s house in the complex… It is also close to that of Zuma’s youngest wife … but the woman touted by many as the country’s future No 1 also spends a lot of time at the compound (Nkandla)”.
Reputation, privacy
Dlamini-Zuma complains that the story has tarnished her reputation and invaded her privacy.
Refusing to publish right of reply after publication
On February 17, two to three weeks after the publication of the story in dispute, Dlamini-Zuma sent comment to Sunday Times, which the newspaper refused to publish.
Sunday Times responds
In general, the Sunday Times submits that the story was fair, justified and in compliance with the provisions of the SA Code of Ethics and Conduct.
The sources
Smuts says the story was prompted by the political desk in Johannesburg with reports that Dlamini-Zuma and her ex-husband had become close and that she had become a regular visitor at Nkandla.
Regarding the newspaper’s sources, Smuts says:
· On Wednesday, January 25 (the day the journalist was assigned the story) the reporter interviewed the first source, a senior family member at the homestead. This source, who asked not to be identified, is quoted in the story as saying “‘Yes she has a house that she uses in the complex and it’s used by her and her children whenever they are around,’ said a close Zuma relative.” This source told the reporter that Dlamini-Zuma often came to Nkandla and sometimes slept over;
· On the same day a second family member, in a separate location, told the journalist that Dlamini-Zuma often went to Nkandla and that “there was no divorce in their culture” and that “nothing happens here without her knowledge”. The journalist quoted this source as saying, “She visits. In Zulu culture there’s no divorce. Nothing happens here without her knowing. Even when we have functions she comes and she has a house. Here we still live by traditions. We still practice polygamy”;
· The reporter then interviewed a third family member, separately from the second source, who confirmed the information – saying that everyone was excited about Dlamini-Zuma visiting the homestead often and that the latter was part of the family. The story said, “Another relative said Dlamini-Zuma has hardly missed an event in Nkandla. ‘Sometimes she arrives when the children are there, but last year she came several times and slept over a couple of times. She’s often at home with everyone here,’ she said.” This source identified the house used by Dlamini-Zuma on an aerial photograph of the homestead;
· The following day (Thursday, 26 January) the reporter returned to Nkandla, but could not locate the fourth source, another family member. The journalist proceeded to call him. When this source heard the reporter’s enquiry he became agitated, saying: “So what if she comes? Are you writing a story? You journalists are bad,” and then ended the call. This quote was not used in the story; and
· The reporter then visited another family member, a relative of one of the President’s wives, who had lived at the Nkandla homestead for years and had been familiar with everything and everyone in the household. This source confirmed the information and added that Dlamini-Zuma used the President’s late wife Kate Mantsho’s house. The reporter quoted this source as follows in the story: “Another family member said Dlamini-Zuma comes to all family functions and gathering. These include funerals, weddings, coming of age and family celebrations. ‘The only event she did not attend was on the weekend of the 14th when Khulubuse [Zuma’s nephew] was burying his fiancé in KwaMaphumulo, but the Big Four [MaKhumalo, MaNtuli, Tobeka Madiba and Ngema] was there,’ he said.” Smuts says the reporter showed an aerial photograph of the homestead to this source, who pointed out who lived where – information which the journalist wrote down on the photograph.
In addition, the reporter also sought comment from the Presidency and from Dlamini-Zuma through her aide, Febe Potgieter. Smuts says, “The reporter tried repeatedly to make contact with the aide by calling and sending sms messages to this number, to no avail. Meanwhile, Zuma’s spokesman Dr Bongani Ngqulunga was not available telephonically and the reporter sent him questions on the Thursday… He never responded.”
The following day (Friday), Smuts continues, the reporter got hold of another number for Potgieter and sent another SMS. Eventually a Mr Vukani Mthintso responded. The story stated, “Dlamini-Zuma’s spokesman Vukani Lumumba Mthintso denied that she has a house in Nkandla. ‘But the chairperson lives in Addis Ababa, not in Nkandla,’ charged Mthintso. ‘You understand that she is divorced from the president, right? How can she also live in his Nkandla home? Even the other wives will never allow that,’ he said. ‘You should be writing about the legacy she is leaving for Africa. Before her there was no vision for Africa but today there is 50 percent women representation at the AU. Let’s write about what Africa has achieved. This is not going to help us. Think of it; Nkandla and Africa,’ said Mthintso.”
Smuts says some of the interviews were recorded, and the reporter also took notes during some interviews. She says Sunday Times is prepared to disclose these notes and recordings to me in confidence and on condition that it shall not be made available to any other party.
Allegations, not assertions of fact
Citing several examples, Smuts argues that the story consistently presented the information about which Dlamini-Zuma is complaining as allegations and not as assertions of fact. She argues that, when read as a whole, it is clear that the entire story was presented as an allegation.
Corroborated; seeking comment from Dlamini-Zuma
Smuts submits that the newspaper did corroborate the allegations and also did seek Dlamini-Zuma’s comment. She adds that a denial by a party against whom allegations are made, does not mean the allegations are unverified. “Verification in this matter took place in the process described above,” she states.
In this regard, the legal editor quotes a decision by the Press Appeals Panel in the matter between City Press and the ANC, where the panel states that a newspaper is not obliged to “prove the truth of its corroborated confidential information” – a statement which, she argues, is applicable to this complaint.
Divorce
Regarding the statement that there is no divorce in Zulu culture, Smuts argues, “These statements were all direct quotes and presented as such. They do not, as contended for by the complainant, bear the meaning that she is ‘a person of weak moral fibre’; that she ‘remains in the claws of her ex-husband in the name of polygamy’ and that it constitute an ‘innuendo of adultery’. Nothing in the story suggests any of these meanings. If anything, these quotes went no further than to suggest that the complainant continues to be accepted as an important part of the family.”
Smuts concludes that the:
· story was of public interest (given that Dlamini-Zuma was mentioned as a possible successor to Pres Zuma, and the perception that the latter favoured the former in this regard). She says, “The Sunday Times’ information that the complainant had been spending a lot of time at the President’s Nkandla homestead was therefore directly relevant to the ongoing political debate around a possible successor to the president. It was new information that supported public speculation that the President favours Dr Dlamini-Zuma as his successor. [Some parts] of the story placed the new information squarely in the context of this political debate”; and
· newspaper followed accepted journalistic practices to source and verify the allegations as far as reasonably possible, and it is reasonably believed that the information is true.
Dlamini-Zuma replies
With regards to Smuts’s response about the newspaper’s sources, Khoza replies that the article did not reflect this “background” – which means that “such background should not factor into in the formulation of any opinion by the reasonable reader and, as such, does not provide the context that the [newspaper now seeks] to rely on”.
He adds that the story was hastily done – the editor instructed the reporter on Wednesday, January 25, and the story was published on January 29. He argues, “In a matter where, given the nature and circumstances of the subject material of the article, the press should exercise care and consideration in matters involving reputation, this hastily made reporting has resulted in an article that is unfair and unjustified.”
Khoza requests that I should independently verify the sources’ links to Dlamini-Zuma, should Sunday Times disclose their identities to me.
In addition to his argument that the story, while presenting the allegations as such nevertheless also portrayed them as fact, he says that the headline presented the idea that, what was to follow, would be fact (as the heading was presented as fact). He argues, “The [newspaper’s] assertion that the three introductory statements are qualified as being based on sources, do not flow as a matter of logic and does not persuade the reasonable reader that the three preceding paragraphs should be so qualified.”
The attorney concludes, “The story was written in such a way that readers were influenced to infer that the information was fact, and not supposition.”
Khoza rejects the newspaper’s argument that the story was in the public interest because it referred to the Presidential race – instead, he argues, the story’s purpose was to present Dlamini-Zuma and her former husband in a personalized context.
He also says that:
· Mthintso was not Dlamini-Zuma’s spokesman; he is an employee of the AU. “This essentially is tantamount to [Dlamini-Zuma] not even being afforded a fair right of reply,” he argues; and
· The ruling of the Press Appeals Panel to which Smuts refers, is for various reasons not analog to the complaint at hand.
Sunday Times again
In reply to the above response, Smuts has the following to say:
· The story was not “hastily made” – the issue was a narrow one, namely whether there is merit to the tip-off the newspaper received about Dlamini-Zuma frequenting the Nkandla homestead. She explains, “Our reporter and photographer travelled to Nkandla and over the course of two days personally interviewed several sources, who have personal and direct knowledge of the happenings at the Nkandla homestead. We properly sought comment from affected parties and fairly reflected the responses. We placed the importance of the information in the context of the presidential succession race”;
· It is widely accepted that the reasonable reader reads the entire story, including headlines and captions to photographs. In context, the reasonable reader would have understood that:
o several family members corroborated information that Dlamini-Zuma frequented the Nkandla homestead;
o the information is important, having regard to the presidential succession race; and
o Dlamini-Zuma denied these claims;
· Publication of information that Dlamini-Zuma, a possible successor to the President, was spending a lot of time at Nkandla cannot justifiably be considered an intrusion into her “personal and private space” – the public interest in the corroborated information clearly appears in the first part of the story. “The story was definitely not just about the President and the complainant’s ‘personal affairs’…” she argues;
· Dlamini-Zuma did not initially complain that Mthintso was not her “spokesperson”. She continues, “In any event, when Mr Mthintso made contact with the Sunday Times’ reporter, he told her that he is aware that we have been trying to get hold of Febe, that she is busy with the business of the AU summit and that he worked with Febe in Dr Dlamini-Zuma’s communication unit. He never once indicated that he was not authorised to comment on behalf of the complainant. The newspaper reasonably relied on his ostensible authority”; and
· The ruling in the matter of the ANC vs City Press is directly relevant and instructive in this matter. The Appeals Panel found that the Code allowed the presentation of information as fact, provided that the information may reasonably be true – it said that newspapers do not have to prove the truth of their corroborated information, but only have to show that their information may reasonably be true. The Panel also found that the headline in the City Press story, even though stated as a fact, was perfectly acceptable with regard to the factual basis set out in the story itself. She concludes, “The Sunday Times submits that the independent corroboration of the information by a number of knowledgeable sources means that it may reasonably be true and to the extent that the information was presented as fact, it was justified… For the same reason, the headline is justified on the basis of the facts set out in the story.”
Analysis
The sources
Smuts has identified the identity and positions of the sources to me, and I am satisfied that they are senior and independent enough of each other for the newspaper to have believed that the information garnered from them was reasonably true.
Because of that, the sources had a right to say what they did and Sunday Times had the right to publish the sources’ allegations as allegations.
Allegations, assertions of fact, story and headline
The question is whether the story presented the information from the sources as allegations (as Sunday Times argues) or as fact (a la Dlamini-Zuma).
Firstly then, did the finding of the Press Appeals Panel in the matter ANC vs. City Press set a precedent for this particular complaint?
While I fully respect this finding, and accept that it is binding on this office, I also need to point out that I have never stated that a newspaper should prove the truth of its corroborated confidential information (if I was understood as having said or implied that, the fault is probably mine) – of course it is true that a publication is not obliged to prove the truth of an allegation.
In a practical sense, this would imply that Sunday Times should post a reporter at or near Nkandla to monitor if and when Dlamini-Zuma enters the premises, and where and how long she stays. That, of course, is preposterous.
The point I believe I was making, and indeed repeat here, is that no publication should present an allegation – even if it is reasonably true – as fact. If an allegation has not been proven to be true (not necessarily by the newspaper!) it remains an allegation, and should be reported as such.
I do not believe that the Appeals Panel would have disagreed with this argument, neither do I think that it intended to do that.
As far as the article in dispute goes, I accept that the Appeals Panel’s decision that a newspaper is not duty-bound to prove the truth of the allegations. In that sense, that decision does set a precedent (to which I happily abide).
As far as headlines are concerned: If a story is based on an allegation, it should be presented as such (even if the information it conveys is reasonably true). It is misleading to present an allegation in a story as fact in a headline, because that would not reasonably reflect the content of the story.
I do not believe that the Appeal Panel’s decision about the headline can be interpreted that an allegation in a story may be presented as fact in the headline (even if an allegation may reasonably be true) – and therefore I do not believe that its ruling is applicable to this complaint.
Turning to the story, I note that the second and third sentences read, “But the woman touted by many as the country's future No1 also spends a lot of time at the compound. President Jacob Zuma and his ex-wife, Nkosazana Dlamini-Zuma, may be divorced, but the two are so close that she has a house allocated to her at the Nkandla homestead.”
When read in isolation, the allegations were indeed stated as fact. However, I do not believe that the reasonable reader would have read only those two sentences of the story.
The fourth sentence continued, “At least five family members, who spoke to the Sunday Times on condition of anonymity, confirmed that Dlamini-Zuma and her children have a house inside Zuma's Nkandla compound. The home is a thatched dwelling at the southernmost part of the complex.”
That, I submit, brought context to the second and third sentences.
But the fourth sentence, when also read in isolation, would probably not have been enough to bring enough balance to the story – the rest of the article needed to follow suit. And it did just that – the reporter consistently made it clear that his information was based on sources, and that the data were their views.
The headline, however, is problematic in that it presented the allegations in the story as fact. That is misleading.
I note in this regard that Smuts is at pains to point out that paragraphs two and three of the story (which, when read in isolation, may be interpreted as portraying facts) should be interpreted as allegations. In that case, the headline should follow suit and refrain from stating the allegations as fact.
I point to a ruling by Judge Phillip Levinsohn in 2013, who stated in a Supreme Court case in Swaziland: “Many readers of newspapers simply glance at the bold headings only and then move on. The impression implanted in the mind of the reader by such blaring headlines is likely to be both deep and lasting. Most readers do not read the whole story…”
From this, it is fair to say that headlines should stand on their own and be interpreted as such. (I have asked him personally if this interpretation is correct, to which he replied in the affirmative.)
I have applied this principle several times since Levinsohn’s verdict, and it has gone unchallenged to this date; I do so again.
Corroborated; seeking comment from Dlamini-Zuma
The newspaper did ask several sources, who all confirmed the information at the newspaper’s disposal. That is called “corroboration”.
I also note that the newspaper did seek Dlamini-Zuma’s (and the Presidency’s) comment on this issue, and accept the newspaper’s argument about Mthintso.
I do not believe that the story was “hastily” done (leading to improper reporting).
Divorce, adultery
The statement about divorce in Zulu culture may not have been relevant to Dlamini-Zuma – but it came from a source (who was entitled to his or her opinion, even if that was wrong).
The complaint about adultery is reading too much into the text. The fact it was alleged that Dlamini-Zuma and her former husband was so close that he allocated a house to her at his compound does not suggest that – in fact, it may also point to the opposite (why “allocate” an own house to her if she can stay with her former husband in his house?)
I therefore do not believe that the story portrayed Dlamini-Zuma as a person of low moral fibre.
Public interest, privacy
Dlamini-Zuma should accept that her private life, insofar as it may impact on public life, is open to scrutiny. In this case, her relationship with Pres Zuma is of public interest – even if it is a private relationship, it may have political consequences. I am not in a position to categorically state that it does have such an implication, but the possibility of such is enough to have justified the reportage.
Refusing to publish right of reply after publication
I note that Smuts does not respond to this part of the complaint.
In her letter to Sunday Times, written by Khoza, Dlamini-Zuma asked for a retraction and an apology – which, in light of this adjudication, was not appropriate.
However, I do believe that she should get the opportunity to voice her opinion more extensively. I shall return to this matter under “Sanction”, even though this will not amount to a sanction proper.
Finding
The headline stated an allegation in the story as fact, which rendered it misleading and not reasonably reflecting the content of the article. This was in breach of Section 10.1 of the SA Code of Ethics and Conduct which says, “Headlines … shall give a reasonable reflection of the contents of the report … in question.”
The complaints about the story (that it was untruthful, inaccurate and unfair; that it was not presented in context and in a balanced manner, and constituted an intentional or negligent departure from the facts; that the information was unverified; and that these data were presented as fact) as well as that the newspaper did not afford Dlamini-Zuma a right of reply and that the story has unnecessarily tarnished her reputation and invaded her privacy are all dismissed.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breach of the Code of Ethics and Conduct as indicated above is a Tier 2 offence.
Sanction
Sunday Times is directed to apologise to Dlamini-Zuma for stating as fact in its headline the allegation that she has recently spent a lot of time at Nkandla.
The text should:
· be published:
o on the front page;
o online as well, if the offending article was carried on its website;
The headlines should contain the words “apology” or “apologises”, and “Dlamini-Zuma”.
Sunday Times is free to report on the rest of the finding as it sees fit.
I do not have a mandate to dictate to publications what they should report and what not – but given the fact that Sunday Times now knows that Mthintso is in fact not Dlamini-Zuma’s spokesman, I do submit that the newspaper should seriously consider to at least publish her denial that she:
· and her former husband are “so close” that she has a house allocated to her at Nkandla;
· frequently visited the compound over the last two years (in particular, include her statement that she only visited the compound twice over the past two years, that this concerned family business, and that she did not stay over); and
· and her former husband might have practiced polygamy.
This may be in the form of an article, or as a letter to the editor.
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