Appeal: Daily Maverick/Levy vs Gengezi Mgidlana

Decision: Application for leave to appeal

Applicant: Daily Maverick

Respondent: Gengezi Mgidlana

Matter No: 4187/01/2019

  1. The complaint by Mr Gengezi Mgidlana (“respondent”) was against an article published in Notes from the House by Mrs Moira Levy, which was also published in Daily Maverick on 12 December 2018. He deals with Mrs Levy and Maverick (“the applicants”) together. Daily Maverick did not in the publication of the article disclose that Mrs Levy was no longer their employee, but was the editor of an independent publication, namely, Notes from the House. The explanation given is that this was due “to a slip in our editorial processes.”  This, I am afraid, was too late in the day; a particuar impression had already been given to the reader.  Mrs Levy will therefore, for the purpose of this matter, be treated as having written in her capacity as a journalist for Daily Maverick; alternatively that she made common cause with Daily Maverick. This is how the reader saw things at the time of the reading of the article(s).
  2. The complaint by Mr Mgidlana (and this is taken as relating to both articles as they were the same) is stated by the Ombud as follows in his Ruling: “Regarding the article, he complains it falsely stated the allegations as fact that:

. his travelling with his spouse had been irregular….(etc)

. he had paid himself a bonus and had guaranteed himself a bursary and

. he had been disgraced and corrupt…” Mr Mgidlana also complained that material information had been left out, that there had been no verification, and that his dignity was violated. The Ombud sets out his reasons from, eg, paginated page 57 of his Ruling; under “analysis”. The basis for his findings may be found from paginated pages 56 et seq, under the headingTravelling with spouse …”, and the “analysis” thereafter.  Again, further on under “Bonus; bursary” and then the “analysis” thereof.  Also under “Disgraced; corrupt; dodgy” and the “analysis” that follows thereafter. After indicating that Mrs Levy did not report allegations against Mr Mgidlana as mere allegations, he makes the following damning but justified finding: “…. She pronounced him guilty. Having done so, her reporting boiled down to presenting (new) news, which means Mgidlana became the subject of critical reportage and therefore she should have asked Mgidlana for comment.”  Speaking for myself, I am of the view that the reportage falls far too short of meeting basic requisites for fair publication.

  1. Not surprisingly, the Ombud found that the applicants breached:
  2. Article 1.1 in three respects: firstly, regarding statements of the respondent traveling with his wife etc; also articles 1.2 and 1.3; secondly regarding him giving himself bonus and bursary, presented as facts instead of allegations; thirdly, statements to the effect that he was disgraced, corrupt, dodgy; also at the same time breaching articles 1.2 and 1.3.
  3. Article 1.8.
  4. Article 3.3 (… dignity).
  5. The application(s) by Daily Maverick, or Ms Heard or Ms Levy is/are therefore without merit.

So-called application for leave to appeal by Ms Marianne Merten

  1. Ms Merten says she seeks leave to appeal the Ruling because she is wrongly cited by the Ombud in his Ruling as a “respondent”. This is a frivolous argument not warranting the granting of an appeal. I am not keen to engage in that kind of hair-splitting exercise.  If she is not implicated at all in the article, any reasonably informed reader would see that reference to her by the Ombud was an error. She is a journalist for Daily Maverick, she wrote the articles about Mr Mgidlana for the publication. Anybody would understand that the reference or blame does not attach to “Merten” in her individual capacity, but rather to Daily Maverick.  Within the context of journalism Ms Merten has no separate standing from Daily Maverick. There is nothing of substance which the prosecution of her own appeal would vindicate her as an individual outside her relationship with the Daily Maverick. People do not blame the journalist for an article, but the newspaper.  She was part of the Maverick team.  Maverick relied on submissions from not only Ms Merten, but also from Ms Levy and Ms Heard.
  2. Also attached and submitted to me are Mrs Merten’s submissions regarding complaint by Mr Moloto Mothapo, Spokesperson to Parliament, dated 23 December 2018 … to her article of 2 October 2018 “Nice work Mr Mgidlana ….” She limits herself to dealing with Mr Mothapo’s complaint relating to that article. That article, as it will appear when I deal with it under matter 4248/02/2019, was lodged out time, and I need not therefore say anything about Mrs Mertens response thereto. But the point I make is that Ms Merten is part and parcel of Daily Maverick.

Revised Ruling of 29 March 2019

  1. The record of this Ruling I have appears only on hand paginated page 143, and appears to be only a page 18 of the Ruling. That is all I have and I don’t see in which way it revises the Ruling of 27 March 2018.  Whatever application is made in that regard, is not presented to me in a comprehensible manner and I cannot uphold it.  I am unable to see the basis on which the Panel of Appeals can interfere.
  2. I find no fault with the manner in which the Ombud, who invested a lot of energy in the matter, dealt with it. I therefore see no reasonable success before the Appeals panel, and the following Order is therefore made:
  • The applications by Daily Maverick, Ms Moira Levy and Ms Merten, are dismissed.

Dated this 20th day of June 2019

Judge B M Ngoepe, Chair, Appeals Panel

APOLOGY: https://www.dailymaverick.co.za/article/2019-06-28-apology-to-secretary-of-parliament-gengezi-mgidlana-and-to-parliament/