Ruling by the Press Ombudsman
12 February 2016
This ruling is based on the written submissions of Mr Luzuko Jacobs, on behalf of the Parliament of South Africa, and those of Zenzile Khoisan, for the Weekend Argus newspaper.
Complaint
Parliament is complaining about an article in the Weekend Argus of 7 November 2015, headlined Labour Court puts parliamentary chief’s suspension on hold.
It complains that the following statements were incorrect and unfair, namely that:
· A disclosure by parliamentary security chief Zelda Holtzman to Parliament’s secretary, Mr Gengezi Mgidlana, was “protected”;
· Judge Hilary Rabkin-Naicker has “instructed” Parliament to “hold fire” and not to proceed with any disciplinary proceedings against Holtzman until she (the judge) had been furnished with a CCMA ruling; and
· Holtzman’s suspension came as a result of an alleged burglary at the EFF offices.
The headline which the newspaper has “corrected” is also in question.
Jacobs concludes that the “very foundation” of the article was factually incorrect, deliberately misleading and unfair, and complains that it impacted negatively on Parliament’s image and the integrity of its leadership.
The text
The story, written by Zenzile Khoisan, said that the Cape Town Labour Court had instructed Parliament to “hold fire” and not to proceed with disciplinary proceedings against suspended security chief Zelda Holtzman – it stated that Parliament should wait for a CCMA ruling on whether it had the jurisdiction to hear her unfair labour dispute.
Khoisan wrote that Holtzman reportedly faced five charges, two of them relating to communication with the media.
She allegedly blew the whistle on alleged abuse of power by Mgidlana, “informing him shortly before her suspension, in a protected disclosure, about illegal and irregular activities of which she had been apprised by parliamentary staff members”.
Holtzman reportedly brought an urgent application to court to be reinstated and for Parliament to be interdicted to refrain from proceeding with a disciplinary hearing against her.
The arguments
Before going into the arguments, I record Khoisan’s remarks about the background to the story, as he sees it:
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The reporter says that members of the protection services complained to Holtzman in June 2015 that Mgidlana misused the services by instructing them to transport him and his family in official vehicles and to activate blue lights, sirens, run red lights, and to drive at excessive speeds. Holtzman then made a protected disclosure to Mgidlana, which became known as the “blue lights” issue. The next month Holtzman wrote a memorandum that contained both her complaint and the allegation that she and her staff were accused of leaking information to the media. She referred the matter to the State Security Agency. Khoisan says that, also in July, Holtzman and Mgidlana had a confrontation when the latter appointed the former’s junior to preside over the “contentious” appointment of SAPS officers to conduct protection services at Parliament. On July 30 Holtzman was suspended, pending disciplinary hearings. She challenged the suspension on the basis that a protected disclosure was in part used for her suspension. Pending CCMA proceedings, it became apparent that Parliament had decided to proceed with internal disciplinary action. Holtzman’s lawyers then threatened Parliament with an urgent interdict to stop the disciplinary proceedings, pending the CCMA process. Khoisan says when the lawyers did not obtain the requested undertakings from Parliament, Holtzman proceeded to apply for an urgent interdict in the Labour Court. The matter was argued in this court the day prior to the publication of the article. He concludes, “I was present in court for the argument and the article, [and] insofar as they relate to the proceedings, are based on my notes and observations.” |
‘Protected’ disclosure
The sentence in dispute said that Holtzman “blew the whistle on alleged abuse of power by Parliament’s secretary Gengezi Mgidlana, informing him shortly before her suspension, in a protected disclosure, about illegal and irregular activities of which she had been apprised by parliamentary staff members”.
Parliament complains this statement of fact is incorrect as, to date, no court, tribunal or any other forum has pronounced that Holtzman’s disclosure (if it amounted to one) was “protected”.
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Khoisan says in terms of Section 6 of the Protected Disclosures Act, 2000, any disclosure made in good faith and substantially in accordance with any procedure prescribed, or to an employer where there is no procedure prescribed is a protected disclosure. He says that during the court proceedings, which he attended, both counsel for the applicant and senior counsel for Parliament repeatedly, no less than twenty times, referred to this matter as a protected disclosure (he gives some examples to this effect). “I accordingly submit that, based on what was said in court as well as the law, I was completely justified in stating that Holtzman had made a protected disclosure.” |
Jacobs replies “what was said in court” was merely claims by Holtzman, based on her personal interpretation of court proceedings. “Parliament has challenged this interpretation.” He says the submission was made in the normal course of business and it could therefore not qualify as “disclosure”, as Mgidlana already knew about the matter.
He notes that Holtzman:
· made the claim of a protected disclosure only after she had been suspended;
· also complained in her initial submission about the appointment of a project manager – which “is further evidence that the submission was never intended to be a protected disclosure”; and
· did not title her submission as a protected disclosure – it rather took the form of a complaint.
Jacobs concludes that:
· only a court of law can decide whether the content of the memorandum constituted a protected disclosure; and
· the newspaper should have noted it was Holtzman’s contention that her report constituted a protected disclosure – rather than stating this as fact.
My considerations
The issue is whether Khoisan was justified in calling Holtzman’s communication to Mgidlana a “protected disclosure”.
Jacobs’s arguments in this regard may or may not be correct, but note that it is beyond my mandate to decide “yes” or “no” in this regard – this office is not a court of law or a disciplinary institution. My only question is whether, with the information at the journalist’s disposal, he was justified in using the term.
This is the deciding factor: Khoisan says he based the use of the phrase in question on his personal observations of the court proceedings, on his notes and on court papers. I have no reason to disbelieve this and therefore believe that he was justified in his reportage on this issue.
‘Instructed’ to ‘hold fire’
The article stated that Rabkin-Naicker “instructed” Parliament to “hold fire” and not to proceed with any disciplinary proceedings against Holtzman until she had been furnished with the CCMA’s ruling.
Parliament denies that the judge has issued any order (or interdict), or made any ruling on the issue – this was reserved, with the court noting it would instead only consider the matter pending the outcome of a CCMA process.
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Khoisan says he heard the judge making the statement during court proceedings, adding that the judge had not yet ruled on the interdict. “The article did not say that she made a ruling, but [merely] repeated what the judge said. The article is accordingly accurate.” |
Jacobs replies the statement in question sought to create the wrong impression that the court stopped Parliament from proceeding with its disciplinary process against Holtzman – while no order had been given (to any effect).
He explains that, after the matter was argued in court, the judge merely wanted to know whether the agreement between Parliament and Holtzman’s attorneys (not to proceed until the CCMA case was finalised) would remain in place until she made her ruling. “It is unconceivable that a Court could give a ruling verbally. [This] claim by the Argus simply does not make sense …”
Jacobs also questions Khoisan’s statement that he did not say or imply that the judge had granted an interdict against Parliament – as both the headline and the introductory sentence did say exactly that.
My considerations
I have written the following message to the Public Advocate, who forwarded my request to the relevant person: “The story said that the judge has “instructed” Parliament not to proceed with disciplinary steps against Holtzman. The journalist needs to convince me that the use of the word “instructed” was correct – Parliament’s spokesman says the judge merely asked about this matter, and denies that the court has issued any “instruction”. Please ask Khoisan for a proper response on this issue.”
I have not received any explanation, let alone a reasonable one, which leaves me with only one option, which is to accept Jacobs’s version and to conclude that the journalist was not justified in using the word “instructed”.
EFF burglary
The story said, “Holtzman … [was] placed on cautionary suspension on July 30 following an alleged burglary at the EFF’s parliamentary offices…”
Parliament complains that this incorrectly suggested that Holtzman’s suspension was as a result of an alleged burglary at the EFF offices; Jacobs denies that the alleged break-in had any bearing on her suspension.
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Khoisan says the EFF burglary was reported a day before Holtzman’s suspension. “The media initially incorrectly linked the suspension to the … burglary. My article does not state that Holtzman was suspended arising from the burglary, but that her suspension followed after the burglary. I concede that the wording I chose is capable of being interpreted that it had a contrary meaning to what I intended. However, I do not think this justifies a correction, in the context of the entire article.” |
Jacobs replies there is only one way to understand the statement in dispute, namely that there was a link between Holtzman’s suspension and the burglary – while, in fact, none of the charges against her related to the alleged incident.
My considerations
Khoisan concedes that his choice of words may have been interpreted (he says, “capable of being interpreted…) in a way that he did not intend them to be.
Khoisan’s structuring of the sentence in dispute indeed left no reasonable doubt that Holtzman was suspended as a result of the alleged EFF burglary.
This phrasing was misleading.
‘Corrected’ headline
The original headline said, Labour Court puts parliamentary chief’s suspension on hold.
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Khoisan points out that the headline was corrected the day after publication. The newspaper stated that the headline should have read, Labour court ruling puts parliamentary chief’s disciplinary hearing on hold. |
Jacobs replies that this “correction” was still incorrect, as the Labour Court has not made any ruling, and did not give Parliament any instruction in this regard.
My considerations
Given the lack of any kind of reasonable explanation as to the use of the word “instructed”, I need to conclude that both the original headline and the “corrected” one were inaccurate and misleading as well.
Parliament’s image, leadership
Jacobs concludes that the “very foundation” of the article was factually incorrect, deliberately misleading and unfair, and complains that it impacted negatively on Parliament’s image and the integrity of its leadership as it implied that Parliament had been acting unlawfully and in bad faith, undermining the very laws it passed to protect and encourage whistleblowing.
This, he says, impugns Parliament’s reputation and image as the custodian of all legislation and as a symbol of democracy.
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Khoisan disputes this claim. |
My considerations
I am not convinced that the “very foundation” of the article was incorrect, misleading and unfair as the story was not wrong on all counts.
Finding
‘Protected’ disclosure
This part of the complaint is dismissed.
‘Instructed’ to ‘hold fire’
The relevant reportage was misleading and in breach of Section 2.1 of the Press Code that states, “The press shall take care to report news truthfully, accurately and fairly.”
EFF burglary
The relevant reportage was misleading and in breach of Section 2.1 of the Press Code.
‘Corrected’ headline
The fact that the reportage itself was not justified, means that both the original headline and the corrected one were inaccurate and misleading, and therefore in breach of Section 2.1 of the Press Code.
Parliament’s image, leadership
This part of the complaint is dismissed.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breaches of the Press Code as indicated above are Tier 2 offences.
Sanction
Weekend Argus is reprimanded for stating, without the necessary journalistic justification, that:
· judge Rabkin-Naicker has “instructed” Parliament not to proceed with disciplinary hearings against Holtzman pending a finding by the CCMA (both in the text and in the headlines, including the “corrected” one); and
· Holtzman was placed on cautionary suspension following an alleged burglary at the EFF’s parliamentary offices, creating the incorrect impression that her suspension came as a result of an alleged burglary at the EFF offices.
The text, which should be approved by me and has to be published above the fold on either page 2 or page 3, should end with the sentence, “Visit www.presscouncil.org.za for the full finding”.
The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.
The finding should also appear on the newspaper’s website.
Appeal
Our 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 Ombudsman