Zizi Kodwa vs News24

Finding: Complaint 4273

Zizi Kodwa vs News24

Date of article: 10 February, 2019

Headline: REVEALED: Zizi Kodwa and his Bosasa BFF

Online: Yes

Author: Kyle Cowan

Particulars

This ruling is based on a written complaint by Mr Zizi Kodwa about an article published on News24’s online platform, a written response from News24’s Editor-in-Chief, Mr Adriaan Basson, further engagements with them, as well as research into international and South African case law on the subject of privacy , public figures, and public interest.

Complaint

Mr Zizi Kodwa, who is head of President Cyril Ramaphosa’s office at Luthuli House, the ANC headquarters in Johannesburg, complains that an article on News24’s online platform, makes insinuations and inferences about him based on a longstanding friendship he has with Mr Papa Leshabane, an executive director of Bosasa, whose name has come up in testimony to the Zondo Commission into State Capture.

Mr Kodwa complains that the article, which is based on photographs from the Facebook account of Mr Leshabane in which he features, “uses my name and the office I hold in the governing party, the ANC, to draw parallels, make insinuations and infer guilt by association by exploiting my alleged friendship with Mr Leshabane, which friendship I do no dispute.”

He complains the article leads the reader “to a conclusion that suggests a corrupt relationship between myself and Mr Leshabane.”

He charges the article transgresses Clauses 1.1., 1.2. and 1.3 of the Press Code being:

  • The media shall take care to report news truthfully, accurately and fairly.
  • News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts, whether by distortion, exaggeration or misrepresentation, material omission, or summarisation.
  • Only what may be reasonably true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with reasonable regard to context and importance. Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such a manner as to indicate this clearly.

1.  The text

1.1 The online publication, News24, published an article on 10/2/2019 under the headline: “REVEALED: Zizi Kodwa and his Bosasa BFF.”

1.2 The story’s introduction read as follows: “Zizi Kodwa, head of President Cyril Ramaphosa’s office at Luthuli House, is a close friend and associate of Bosasa’s flashy spin doctor and director, Papa Leshabane.”

1.3 It goes on to explain that a “series of photographs” from Leshabane’s Facebook account “reveal the proximity between him and one of Ramaphosa’s closest advisors” and it reports that both men confirm they have been friends for “more than a decade.”

1.4 It then gives some background on evidence presented before the Commission of Inquiry into State Capture (the Zondo Commission) and how Leshabane and Bosasa CEO, Gavin Watson, have been “directly implicated.” It also recounts the secret video, screened at the commission, in which Leshabane is seen in a cash vault holding a bag of cash which, “according to Agrizzi was used to bribe correctional services officials and journalists.”

1.5 It describes Watson as the “kingpin in the Bosasa empire of bribes”, and adds that while he preferred to “live in the shadows, Leshabane has a vast network of friends and contacts which include politicians, journalists and business people – Bosasa’s ‘public face’.”

1.6 Of Kodwa, the article says he “deflected” questions about his friendship with Leshabane, but reminds readers that he had previously commented how Bosasa “ran the country like an underworld, like a mafia”.

1.7 It uses the Facebook posting to report that both Kodwa and Leshabane were in Russia for the World Cup final in July, 2018. Leshabane had posted a picture of Kodwa (draped in what appears to be a Basotho blanket), tagging a Moscow hotel with the hashtags #bestdressedmaninMoscow and #erengkobomongwaneng”. The article gives a “loose” translation of this phrase as “how about that blanket?”

Kodwa is asked about who funded his trip to Russia and replies “it had nothing to do with him [Leshabane].”

1.8 Kodwa is quoted as saying he has known Leshabane for more than a decade. “He is my friend and our friends and friendships has nothing [to do]with our   positions.” Leshabane also comments: “I also want to assure you that I don’t pay any of my friends to be friends.”

 1.9 The article references another picture that Leshabane has posted on March 3, 2018, which includes himself, Kodwa and former journalist and National Lotteries marketing and communications manager, Ndivhoho Mafela, “seemingly outside the Michelangelo hotel” The post is hashtagged “#respect” and “#funeralthangs” and was apparently posted shortly after Kaizer Chiefs had lost to Pirates, which Kodwa had “vented over on Twitter” that same afternoon.”

1.10 I will not go into detail about Mafela here as he has not laid a complaint, but Leshabane is quoted as saying: “I want to assure you that I do not pay any of my friends to be friends with me and I have never paid either one [Kodwa or Mafela] for being my friend or for any information.

1.11 The article also records that Kodwa “did not answer questions” about whether he had asked Leshabane about allegations of the Bosasa corruption and also “deflected questions” over his friendship being “potentially problematic” given his position in the ANC.

1.12 When it was pointed out to him, according to the article, that allegations of Bosasa corruption had been in the public domain since 2009, he is quoted as saying: “The ANC supports the work of the various commissions. Individuals must be held accountable.”

2. The arguments

Zizi Kodwa

2.1 Mr Kodwa argues that the article uses his name and office in the ANC “to make insinuations and infer guilt by association” by exploiting his friendship with Mr Leshabane, a friendship he does not dispute.

2.2 These inferences, although not grounded on fact or allegation of wrongdoing, lead the reader “to a conclusion that suggests a corrupt relationship between myself and Mr Leshabane.” He cites  the phrase that he “deflected” questions over the friendship being potentially problematic. He says it is “patently unfair to expect anyone, irrespective of the office they hold, to premise personal relations on the nature of a job one holds, particularly so if such a person is not a convicted criminal..”

2.3 He argues the “suggestion: that citizens (as opposed to institutions) be “expected to conduct background checks on potential friends and even family…flies in the face of the individual rights enshrined in our country’s Constitution.” “Guilt by association: belongs to “medieval times” and has no place in a modern society governed by the rule of law.  An “inference’ of guilt…must be supported by at least prima facie evidence. “Anything else constitutes defamation”.

2.4. “Our jurisprudence takes a dim view of such conduct as it would invariably lead to the proliferation of a culture of vigilantism,” argues Mr Kodwa

2.5 The article was in bad taste as it infers a corrupt relationship between himself and Mr Leshabane and can thus “be equated to lynching in the court of public opinion.” The reporting on his friendship with Mr Leshabane is unfair `as these inferences are not backed by fact or allegations of wrongdoing.

2.6 The author goes out of his way to “assert his personal views”, which are projected as “facts and not clearly presented as opinions.”

News24

2.7 Adriaan Basson, editor of News24 online argues, on the other hand, that “at the heart” of the complaint by Mr Kodwa’ is the belief that his friendship with Mr Leshabane, a director of African Global Operations (previously known as Bosasa) is a “private matter not deserving of public scrutiny”. However, Mr Kodwa occupies “ a senior position in the governing party and works in close proximity with President Ramaphosa”.  He is thus not a private citizen and cannot expect the media to treat him as one. “His friends and associates are relevant because of the position he occupies.”

2.8 The reporter, Mr Cowan gave him “plenty of opportunity” to explain his friendship with Mr Leshabane “and why he did not believe it was problematic for him to be close friends” with him, given the nature of the allegations against Bosasa.

2.9 The article does not suggest he has a “corrupt relationship with Mr Leshabane,  nor is there any suggestion that he (Mr Kodwa) has benefited from Bosasa’s alleged corruption and state capture.

2.10 The article was one in a series about Bosasa’s “networks  and influences in all spheres of society.” “The significance of their spokesman being a very close friend of the head of the office of the presidency in the ANC – the same man who referred to Bosasa as the ‘mafia’ – is significant in our ongoing attempt to connect the dots of state capture.”

2.11 The article emanated from a tip-off from a source about several pictures of Mr Kodwa and Mr Leshabane  together, which were posted on Mr Leshabane’s Facebook page.  Before this point, the relationship between the two men had not been publicly known.

2.12 Mr Basson argues that at least since 2006, Mr Leshabane had been the “face” of Bosasa in the media, defending the company “through the years against allegations of criminality”. Mr Leshabane was often the company’s representative in court.

2.13 Mr Leshabane was also a “central figure” in the testimony of Mr Angelo Agrizzi, Bosasa’s former COO, before the Zondo Commission. He allegedly “handed over bags of cash” as bribes to officials in the transport and correctional services departments; was filmed in what appeared to be a “cash vault” in the Bosasa offices in Krugersdorp, where bagloads of cash were being packed; gave “secret” presentations to correctional services officials on tenders as Bosasa was contesting them; and asked Bosasa to install security equipment at the private house of current cabinet minister and former secretary-general of the ANC, Mr Gwede Mantashe.

2.14 “There is no doubt,” Mr Basson writes, “that Mr Leshabane is a central character at the heart of Bosasa’s alleged capture of the state. His friends, connections and associates are newsworthy and in the public interest, even more so if they head up one of the most powerful political offices in the land.”

2.15 On the right of reply: Mr Basson said the reporter, Mr Cowan, sent Mr Kodwa a WhatsApp message asking for his email address. When there was no response he copied and pasted the email questions into a WhatsApp message. After 24 hours, Mr Kodwa replied: “I have known Papa more than a decade ago, he is my friend and friendships has nothing (to do) with positions.

2.16 Mr Basson denies Mr Kodwa’s assertion that the article uses his position in the NC to “make insinuations and infer guilt by association”. He says there is no inference of guilt: it simply reveals the friendship between the two men.

2.17 Mr Basson also disagrees with Mr Kodwa’s assertion that this “inference” was heightened by the sentence that he had “deflected” questions about his friendship with Mr Leshabane, leading the reader to conclude that it was corrupt. Mr Basson says the article did not portray any “criminality” on the part of Mr Kodwa but only highlighted his “long-standing” friendship with Mr Leshabane who has been implicated in corruption and bribery. The friendship itself, he argues, is “questionable and newsworthy” even if there is no evidence of wrongdoing. “The position Mr Kodwa holds in the duly elected governing party…makes his friendship with a person implicated in corruption a matter of public interest.”

2.18 He adds that the allegations put before the Zondo Commission “tells of a company that enjoyed a position of privilege in South Africa due to the relationships the company and its directors, including Mr Leshabane, courted over decades with senior members of the party..”

2.19 Mr Basson also counters Mr Kodwa’s contention that citizens should be “expected to run background checks” on friends. He says as a keen follower of news, Mr Kodwa would have been aware of the corruption claims against Bosasa. In fact he had commented that the company ran the country “like a Mafia”

He also contends that  the article did not argue “guilt by association”, as Mr Kodwa contends. Rather the friendship was  a matter of public interest, particularly as he had already commented (negatively) on the allegations against Bosasa, comments that were in the public domain.

2.20 The article did not infer a “corrupt relationship” but highlighted a potential conflict between Mr Kodwa’s anti-corruption stance and his friendship with Mr Leshabane.

2.21 Mr Basson  also says that Mr Kodwa was given a fair opportunity to respond to the allegations. The article was based on fact, and not on the personal views of the reporter.

3. Further arguments

3.1 Mr Kodwa responded to Mr Basson’s arguments saying that at the heart of his complaint is the “misinformed belief” that his personal life and whom he associates with “is a matter of public interest”.

3.2 He cites the right to privacy in the Constitution, a right that may be overridden when there is “reasonable suspicion that the…individuals may be party to a criminal act.”

3.3 His position in the ANC in and of itself is not sufficient grounds for over-riding his right to privacy. In fact, he argues, when he became friends with Mr Leshabane, he was not head of the ANC Presidency.

3.4 Moreover, the “packaging” of the article, “which punctuates every other paragraph with the Zondo Commission is clearly calculated” to lead the reader to believe there is a parallel between such evidence and his friendship. It is this juxtaposition that Mr Kodwa believes is unfair.

3.5 Even though News24 had put questions to Mr Kodwa, these questions were “intrusive” and do not pass the “public interest” test.  The notion that there is a problem with the friendship while he holds a senior position in the ANC was not only evidenced in the questions put to him, but portray a “personal opinion of the journalist and is not borne by any evidence of impropriety…it presupposes that we are not capable of separating our personal and professional lives.”

3.6 In a WhatsApp message to the Ombudsman, Mr Kodwa elaborated: “My friendship with Papa isn’t in dispute but however, an inference is made in the News24 story of an unsavoury friendship which suggests I may, by virtue of the friendship also (be) involved in alleged corruption.

The headline of the article “REVEALED…” compounds this inference “as though I was hiding it (the friendship)…There isn’t an iota of evidence that I gave received or benefitted from Papa because of friendship and have facilitated a ‘deal or tender’ on behalf of Bosasa in return (for) any favour.”

4. Analysis

4.1 At the heart of this dispute are two questions: what constitutes a public figure and whether their right to privacy is on a par with that of other citizens.

4.2 Our Constitution guarantees a right to privacy which includes the right not to have

  1. their home searched
  2. Their property searched
  3. Their possessions seized; or
  4. The privacy of their communications infringed.[1]

4.3 However, the Constitution also guarantees a right to freedom of expression, which includes:

  1. Freedom of the press and other media;
  2. Freedom to receive or impart information or ideas.[2]

4.4. Neither of these rights are absolute. In the case of freedom of expression, there are specific exclusions of hate speech, propaganda for war, and incitement. In the case of the right to privacy, it frequently has to be balanced with the “freedom to receive or impart information or ideas.”

4.5 So a key question in deciding which right should prevail when the two rights clash, is what constitutes a public figure and  public interest.

International jurisdiction

4.6 In many jurisdictions, this is neither  straightforward nor simple.

In the United States, where freedom of the media is enshrined in the Constitution in the First Amendment, there has been contestation over this since the amendment was ratified in 1791. The First Amendment states simply: “Congress shall make no law…abridging the freedom of speech or the press.”

4.7 The right to freedom of expression was severely tempered by, among other things, the Sedition Act, passed at the end of that century, which punished “any false, scandalous and malicious writings ..against the government”, as well as state libel laws.

It was only in 1964 that libel laws were put to the Constitutional test in New York Times vs Sullivan. Briefly, the case, arose out of an advertisement entitled “Heed their rising voices”, and placed in the New York Times by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South in 1960.

4.8 This was the height of the struggle for desegregation and equal rights in the segregated and violent southern States.[3] “The ad did not criticize anyone by name. It spoke rather of ‘Southern violators of the Constitution.”[4]

4.9 A city commissioner of Montgomery, Alabama, L B Sullivan, who was in charge of the police, wrote in a letter to the Times that the ad accused him of “grave misconduct”, and filed a libel suit against the newspaper (as well as four of the clergy who’d signed the appeal) for $500 000 – a huge amount of money then.

4.10 A jury (of 12 white men) in the Alabama state court decided in favour of Sullivan and awarded him the full amount he had asked for.[5]  The verdict was upheld by the Alabama Supreme Court, which rejected any First Amendment argument.

4.11 The Supreme Court of the United States overturned the ruling in 1964 in a landmark judgement written by Justice William Brennan, known as NY Times vs Sullivan. For our purposes, what is relevant is that the court found that even though there had been minor inaccuracies in the advert (for instance the protestors had not been singing “My Country Tis of Thee” when they were arrested but the national anthem), public figures could not sue for libel on the basis of errors unless they could prove actual malice or reckless disregard.

To allow them to do so would have a severe chilling effect on public discourse and freedom of the press. The libel law, as it stood, gave rise to a “pall of fear and timidity imposed upon those who would give voice to public criticism”, wrote the Judge. In such an atmosphere “First Amendment freedoms cannot survive.”[6]

4.12 The definition of public figure and public interest has been much debated since, but the key point is this: without this ruling many of the subsequent exposes in the American press, “hidden by government secrecy”, such as the Vietnam war or Watergate, would not have been possible .

4.13 This broad principle has been adopted in several other democracies. In Europe, for instance, public figures are possibly more protected from invasions of their privacy than in the United States. Yet, as the Council of Europe notes in its “Guidelines on safeguarding privacy in the media”, those public figures with the “lowest expectation of privacy are politicians.”[7]

4.14 The Council cites a case of a book by a journalist and former physician which described the state of health of former French president Francois Mitterrand. The president’s heirs successfully sued, but the European Court of Human Rights overturned the finding on the grounds that it was “in the public interest to discuss the history of the president who had served two terms in office.”[8]

4.15 Mr Kodwa cites a work by UK QC, Iain Goldrein, which says the right to privacy includes the right to establish and develop relations with other human beings.[9] But this does not contradict the arguments made about public figures.

South African case law

4.16 In South Africa, the courts have held a nuanced view on the right to privacy.[10] Often the nuance has depended on whether the subjects of scrutiny  – or invasion of privacy – are public figures. So, for instance, the Constitutional Court upheld a damages claim against Charlene Smith  and Patricia de Lille,  for naming three HIV-positive women without their consent in a biography written by Smith about the politician.[11]

4.17 However, in two other cases where either public interest or public figures were concerned, the court ruled otherwise. One case was an interdict brought by the MEC for Health in Mpumalanga against Carte Blanche, a weekly news television programme. Carte Blanche had obtained footage (unlawfully) in a public hospital for a story on alleged malpractices “in the treatment of women undergoing voluntary abortions.”

“The Court found that notwithstanding Carte Blanche’s assumed conduct in obtaining the footage, the right of the public to know and to be informed of the untoward goings-on in public hospitals and the media’s obligation to inform the public… outweighed the privacy interests of the hospital..”[12]

4.18 Likewise, the late health minister Manto Tshabalala-Msimang, sought an interdict against the Sunday Times, which had obtained hospital records showing the Minster had “abused alcohol” during her hospital stay. “The newspaper also suggested that the Minister, who had often spoken publicly against alcohol abuse, was an alcoholic”.[13]

The Court agreed with the newspaper that in this case, private information “was…germane to her fitness for office as a member of cabinet.” It held that the public had a right to be informed of current news and events “concerning the lives of public persons such as politicians and public officials.”[14]

4.19 In the South African courts, particularly since the 1996 Constitution,, the right to privacy has usually been balanced with the right to freedom of expression. The Supreme Court of Appeal in 2005 substantially reduced a damages award against the editor, publisher and distributor of the Sowetan Sunday World. The case arose out of damages awarded to a Pretoria advocate, Ephraim Seima, who sued the newspaper for reporting that he had given his girlfriend, a television presenter,  a “hot klap” at a petrol station in Giyani because she had “taken notice of other men” at a wedding reception.

In the judgment, Judge Harms reduced the award partly by arguing the definition of a public figure. “Not unlike politicians, persons who move in or close to the limelight, have to expect that their lives will be to some extent in the public domain and they must be prepared to endure somewhat more than an ordinary citizen has to endure.”[15]

5. The News24 story

5.1 The question in this case is whether the right to privacy overrides public interest. It is also whether the two men in question, Mr Kodwa and Mr Leshabane, are public figures.

5.2 It is important to note that the pictures of Mr Kodwa and Mr Leshabane, as well as those with former journalist Ndivhoho Mafela, were posted on Facebook. Although Facebook has some privacy settings, it is largely a publicly accessible network.

Journalists use Facebook to track down sources and contacts for a range of reasons, including in such cases where stories pertain to an accident or a disaster that may have struck a family member who is out of the country. In other words, it is a common way today for journalists to access information.

In this case, a ‘source” tipped off News24 about the pictures of the men posted on Mr Leshabane’s Facebook page. The photograph of Mr Kodwa both on his own in Moscow and with Mr Leshabane was thus in a semi-public domain, as was the other of the three men.

5.3 Is the friendship between Mr Kodwa and Mr Leshabane a matter of public interest?

5.4 Without doubt, both are public figures. Mr Kodwa is a paid official in the Office of the Presidency of the ANC, the governing party. Mr Leshabane is a public figure perhaps more by “notoriety”, or at least as Judge Harms put it in Mogale vs Seima, as one “who has moved in or close to the limelight.”

5.5 The new ANC leader and president of the country, Cyril Ramaphosa, has embarked on a concerted campaign, largely through using judicial commissions, to clean up corruption, which has tainted the country for more than a decade.

5.6 One of these commissions is the Commission of Inquiry into State Capture chaired by Deputy Chief Justice Raymond Zondo.

5.7 When the commission resumed its work in January this year, much of the nation was transfixed by the evidence of Angelo Agrizzi, formerly the COO of Bosasa (it later changed its name to African Global Operations).

Agrizzi testified about how Bosasa had spent millions of rands on bribes to state officials to secure tenders for the company.

5.8 He mentioned Mr Leshabane’s name on several occasions over the nine days he testified. The commission also saw a video which he said showed Bosasa officials in a cash vault counting out piles of notes that were put into bags (the money was allegedly for bribes). One of those in the vault was Papa Leshabane.

5.9 Mr Agrizzi testified that Mr Leshabane was responsible for the “handling” of a Correctional Services official, Zach Modise. “Papa Leshabane would have done the delivery for Mr Modise”.[16]

5.10 He also testified that Mr Leshabane was “paying journalists and people from Lindela [a holding facility for undocumented migrants].”

Mr Leshabane, as Judge Zondo described him in a question, was “not the  ultimate recipient [but]an intermediary because he takes the money from you and goes and pays.”[17]

5.11, Mr Agrizzi alleged that money was also being issued on a monthly basis to Mr Leshabane “for the payment of certain journalists.”[18]

5.12 It would be wise to be cautious about Mr Agrizzi’s evidence: the commission saw a video in which he made racist slurs against some of his African colleagues, including Mr Leshabane, and he indicated to the commission there was animosity between himself and Mr Leshabane.[19] Moreover,  the commission has not yet pronounced on Mr Agrizzi’s evidence.

5.13 Nonetheless, it firmly establishes Mr Leshabane in the public realm as a public figure.

5.14 Mr Kodwa, on the other hand, is a public figure because of the high office he holds in the governing party. As national spokesperson for the ANC, he is quoted as telling News24 that Bosasa “ran the country like an underworld, a mafia.” Mr Kodwa does not dispute this.

5.15 Nor does he dispute the friendship. His argument is that the article casts inferences on his integrity and that it is an invasion of his privacy.

5.16 It is true that the article contains contextual information (towards the end) about Bosasa’s alleged corruption of Correctional Services officials. It also contains a paragraph near the start indicating that Mr Leshabane has been “implicated in Bosasa’s reign of corruption” at the Zondo commission.

5.17 It is certainly not a kind article. But nowhere does it suggest any wrongdoing on the part of Kodwa. It is simply a story indicating they are friends.

It is not the Ombudsman’s place to reflect on its kindness, but on whether it transgresses the Press Code.

6. Finding

6.1 There is no dispute on the truth of the friendship. News24 has not transgressed clauses 1.1., 1.2 or 1.3 of the Code.

It is also clear the journalist approached Mr Kodwa for comment; his response was to comment on the important work of the commissions of inquiry, but he also queried whether his right to privacy had been infringed.

6.2 The Press Code (Clause 3.1) states that “the right to privacy may be overridden by the public interest”.  A friendship between one of the most senior officials in the governing party and a director of a company heavily implicated in corruption and state capture, which was the subject of almost ten days of hearings at the State Capture Commission, is in my view a matter of legitimate public interest.

6.3 It is unfortunate that Mr Kodwa, who is accused of no wrongdoing, believes he has been unjustly tainted by the article, but the fact that he is a public figure must require some robustness, even if the scrutiny is sometimes unpleasant.

The complaint is dismissed.

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.

Pippa Green

Press Ombudsman

July 9, 2019

 

 

[1] Bill or Rights, Clause 14, The Constitution of the Republic of South Africa, 1996.

[2] Ibid, Clause 16

[3] See Lewis, A: Make No Law; The Sullivan case and the first amendment” ( (Vintage Books, 1992) for an elegant history of this case.

[4] Ibid

[5] Ibid

[6] Quoted in Lewis, p146

[7] Council of Europe: Guidelines on Safeguarding Privacy in the Media.

[8] Ibid

[9] Goldrein, Iain QC: Privacy Injunctions and the Media, Hart Publishing, 2012; cited by Zizi Kodwa in papers before the Ombudsman

[10] See Milo, D and Stein, P: A practical guide to media law; LexisNexis, 2013

[11] Cited in Milo and Stein, op cit.

[12] Ibid

[13] Ibid

[14] Ibid

[15] SCA, Case no 575/04

[16] Commission of Inquiry into State Capture, evidence of Angelo Agrizzi, Day 40, 24 January 2019.

[17] Ibid

[18] Ibid, Day 41, 28 January 2019.

[19] Ibid, Day 42, 29 January 2019.