Adriano Mazzotti vs News24

Fri, Feb 16, 2024

Ruling by the Adjudication Panel

 

Date of article:                    30 and 31 July 2023

Headline of publication:   a. “Top cop attending EFF gala a ‘shameful, offensive’ slap in face of South Africans – Public Interest SA”

                                            b. “It’s easy to criticise Malema, but what about the thousands of EFF supporters?”

Author:                                  a. Cebelihle Mthethwa

                                   b. Adriaan Basson

Panel:                                 Herman Scholtz (Press Ombud) Joe Thloloe (Press

                                            Representative), Janet Smith (Public Representative)

1. Adriano Mazzotti (“Mazzotti”) is aggrieved by two pieces published by News24 – one being a news article and the other one being political analysis.

2. Nicki Galaktiou, an attorney, represented Mazzotti throughout the proceedings. Willem de Klerk Attorneys instructed Karabo van Heerden, counsel from the Johannesburg Bar, on behalf of News24.

3. The ruling is based on extensive written submissions, additional documents provided by both parties, and submissions made at a physical hearing convened by the above-mentioned panel of adjudicators. Mr Mazzotti appeared personally alongside his attorney and also addressed the panel.  

4. The first scheduled hearing was postponed at the eleventh hour due the late submission of additional documents by News24, which I have condoned in line with the Complaints Procedure. The panel also granted Mazzotti leave to submit further documents after the hearing.

5. Finally, there was an application for my recusal from the matter. This was dismissed on the date of the hearing for reasons set out below.

Background

6. News24 reported on a gala dinner hosted by the Economic Freedom Fighters (EFF) attended by various prominent figures and notably Major-General Feroz Khan, second-in-command of the police’s Crime Intelligence division.  What made the already newsworthy event more noteworthy, was that Khan reportedly shared a table with “self-confessed tobacco smuggler Adriano Mazzotti”. Khan reportedly said he attended the gala for “work” and News24 reported that Khan’s ticket was bought by one of Mazzotti’s business partners, Mohammadh Sayed.

7. There has been no challenge to the accuracy of the above-mentioned statements, including the branding of Mazzotti as a “self-confessed tobacco smuggler”. Posed with a question by the panel whether he accepts the factual accuracy of this statement, Mr Mazzotti said he cannot shy away from his past.

8. The EFF event and its attendees enjoyed considerable press coverage and criticism, including from Public Interest South Africa (PISA), which was the focus of the first article in question.

9. The subject of this complaint is two paragraphs in the news report.

10. Sentence 1: “Khan was seated with Mazzotti who has admitted to tax authorities that he and his company Carnilinx, which donates money to the EFF and some of its leaders, was involved in cigarette smuggling.”

11. Sentence 2 is a quote attributed to PISA chairperson Tebogo Khaas: “The willingness of certain political leaders to associate with and support individuals involved in unlawful extraction and smuggling of Sub-Sahara Africa’s precious minerals is a clear display of moral depravity.”

12. Shortly after the news report, News24 editor, Adriaan Basson, published a piece titled, “It’s easy to criticise Malema, but what about the thousands of EFF supporters?”

13. The controversial paragraph in this piece read: “Malema’s biggest known funder is a confessed cigarette smuggler, Adriano Mazzotti and Carnilinx, who was proudly acknowledged by Malema at the EFF’s fundraising dinner on Thursday, disturbingly attended by the number two at Crime Intelligence, Major-General Feroz Khan.”

The complaint

14. Mazzotti’s complaint is premised on clauses 1.1., 1.2., 1.7., and 1.8 of the Press Code. Those clauses deal with accuracy, balance, the verification of doubtful information, and pre-publication comment.

15. Galaktiou, acting on behalf of Mazzotti, says “it is public record that (Mazzotti), and not his company Carnilinx, as incorrectly and falsely stated, donated R200 000 to the EFF. The donation was to the EFF and not its leaders as incorrectly and falsely stated…”

16. The sentence is phrased in the present tense, while Galaktiou says her client has only ever donated to the EFF once in 2014.

17. Another complaint was that a picture of Mazzotti and Malema at the gala dinner was published above the challenged quote of Khaas. Says Galaktiou: “Mr Khaas’ statement refers to precious minerals which reference has no correlation whatsoever to (Mazzotti), however (Mazzotti’s) photo is placed directly above this statement implying that such individuals who support unlawful extraction and smuggling of Sub-Sahara Africas precious minerals…”

18. Mazzotti was not approached for comment on the “unlawful extraction of minerals” statement of Khaas, which is said to be a contravention of clause 1.8.

19. The complaint about the Basson piece is phrased as follows:

“It is unclear on what basis (News24) stated as fact that (Mazzotti) is the ‘biggest known funder’ of Mr Malema, another false statement stated as fact... Had (News24) carried out its obligation to verify information before publication, it would have easily ascertained that (Mazzoti) simply donated towards costs to register the EFF and not to Mr Malema in his personal capacity as incorrectly and falsely stated. Has (News24) ascertained the other funders of the EFF, and the amounts donated by such funders, to make the bold statement of fact that (Mazzotti) is the ‘biggest known funder’?”

20. The complaint is also that it is incorrect that Carnilinx made donations to the EFF or Malema and this could have been verified “through a simple Google search”.

21. Mazzotti seeks a correction of the “factually incorrect statements” in both pieces and an unreserved apology.

Analysis

First complaint: “Mazzotti and Carnilinx, which donates money to the EFF and some of its leaders”

22. News24 initially conceded that this statement is “problematic”. “We have no evidence to support the statement that Carnilinx – as a company and juristic entity – donates money to the EFF leadership or the party. News24 offered to amend the statement.

23. A faire volte-face occurred on the eve of the hearing.

24.  News24 submitted a partial affidavit deposed to by Mazzotti on 6 May 2014. It contained the first page identifying the deponent, and the last page depicting the certification by the commissioner of oath together with these sentences:

“Carnilinx has made a donation in an amount of R200 000.00 towards a political party, registered to contest the forthcoming National Election.

“Donation tax in respect of the amount aforementioned has been brought to account, as appears more fully from annex ‘O’”

25. Van Heerden submitted on behalf of News24 that Mazzotti sought to mislead the Press Council. “Under the circumstances News24 retracts its concession made in response to the complaint that it has ‘no evidence’ that Carnilinx donated money to the EFF.”

26. The invidious position of the panel is that it was not presented with the full affidavit or the elusive annexure “O” referenced.

27. This was somewhat ameliorated by the confirmation from Mazzotti that it is indeed an affidavit he deposed to and that this affidavit was presented to the SA Revenue Service where, he suggests, someone “leaked” the document.

28. But this also opened the door to more confusion rather than clarity.

29. Galaktiou, and Mazzotti at the hearing, indicated that the affidavit contained an “error”. It was attributed to “an oversight by him and his legal representatives at the time”, adding that Mazzotti has “corrected this in the media over and over again”.

30. Van Heerden, correctly in my view, submitted that an affidavit cannot be “corrected” by saying after the fact that there was an error. There has been no further affidavit under oath to explain this “error” and Mazzotti’s address to the Press Council was not under oath.

31. I am also in agreement with Van Heerden that confusion on this aspect is Mazzotti’s own doing.

32. Several further arguments on this issue have been advanced and considered. However, it serves little purpose to analyse all those arguments as the Press Council is not a court of law. This matter reiterates what was stated in Nage vs Sunday Times (29 January 2023), that the mechanism provided by the Press Council to adjudicate complaints has constraints to resolve disputes of fact. But at the same time, journalists are also constrained by the Press Code in preferring certain versions over another. This is the reason why the Press Code requires journalists to state conflicting versions and to clearly distinguish between allegations and facts that are either objectively true and uncontroversial or found to be facts by a competent law.

33. After the hearing of the matter, Galaktiou provided the panel with an affidavit by one Khadija Ashraf, an employee of Mani Financial Services. Ashraf stated in that affidavit that a donation declaration form was prepared on behalf of Mazzotti for a R200 000 donation to the EFF and submitted to SARS. She also attached a copy of the donation declaration form, dated 22 April 2014, which was for a cash deposit of R200 000, as well as a receipt from SARS issued to Mazzotti in his personal capacity for payment of donations tax of R20 000. It bears a stamp from SARS with the date 23 April 2014.

34. I have no reason to disbelieve the affidavit and documents provided by Mazzotti. It must be accepted as an uncontroversial fact that Mazzotti, in his personal capacity, donated R200 000 in cash to the EFF in 2014.

35. To their credit, News24 indicated at the hearing that they are only interested in publishing the truth. There can be no objection to stating this relevant fact for its readers.

36. At the same time, it is also a relevant fact that Mazzotti deposed to an affidavit stating that Carnilinx donated money to the EFF. Nothing prohibits News24 from reporting this, together with the relevant explanation by Mazzotti that the affidavit was an error.

37. Showing that Mazzotti, in his personal capacity, made a donation to the EFF does not prove that Carnilinx did not. Based on Mazzotti’s own affidavit, I cannot find that it is untrue that Carnilinx (also) donated money to the EFF and therefore breached clause 1.1. of the Press Code.

38. But the bottom line is that statement in question is indeed “problematic”, as News24 initially conceded. In my view, the real issue with the statement is that it stated an allegation – that Carnilinx donated money to the EFF – as a fact.

39. Clause 1.3. of the Press Code states:

“The media shall present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such.”

40. It may be argued that a journalist is entitled to accept Mazzotti’s word in an affidavit that Carnilinx donated money to the EFF to be reasonably true, which would entitle them to state it as fact. However, the challenge for News24 in the current scenario is their concession that they did not have the affidavit at the time of writing the article. The statement was not based on the affidavit. The report also did not reference the affidavit. The affidavit was obtained after the fact to justify the statement of fact.

41. News24 breached clause 1.3. of the Press Code by stating an allegation that Carnilinx donated money to the EFF and its leaders as fact.

42. The statement was also problematic in other respects.

43. I am in agreement with Galaktiou that the sentence is phrased in the present tense and that a reasonable reader would understand from the statement that Mazzotti/Carnilix is a current donor of the EFF.

44. In his address to the panel, Mazzotti was emphatic that he is not a current donor. He stated that he has a personal relationship with Malema, but does not align with all his political views and is not a supporter of the EFF, but rather the ANC.

45. News24 did not substantiate any other donations allegedly made by Mazzotti or Carnilinx to the EFF after 2014.

46. This renders the sentence inaccurate and unfair and constitutes a breach of clause 1.1. of the Press Code.

47. The final aspect to be considered in this part of the complaint is the fusion between corporate entities, political parties, and individuals.

48. In respect of the reference to the EFF and its leaders, News24 referred to allegations in the public domain that one of Carnilinx’s directors, Kyle Phillips, lent R1-million to Malema to pay tax debt and Malema’s use of a property linked to Mazzotti (which Mazzotti emphasises is an at-arms-length rental arrangement).

49. The gist of Mazzotti’s complaint is that News24 is not distinguishing between juristic entities and individuals and that this “makes a mockery of company laws”.

50. Galaktiou placed reliance on a previous ruling by an adjudication panel in Robert Gumede vs Mail & Guardian (29 February 2012), which was upheld by the Appeals Panel. The facts of that matter were that Robert Gumede donated R10-million to the ANC. An aspect of the complaint was the poster for the article, which read, “Key Zuma funder in graft probe”. The publication argued that former President Jacob Zuma and the ANC were interchangeable, but the adjudication panel rejected this argument.

51. However, it was rejected on the strength of Gumede’s pre-publication response to the publication that he has donated to the ANC under different leaderships since the ANC’s unbanning. The adjudication panel said: “(The argument of interchangeableness) could have passed if Gumede had not been more specific in his responses (to the publication).”

52. It is patently not unfair to draw readers’ attention to interconnectedness between individuals and juristic entities. Even though Carnilinx is a separate juristic entity, Mazzotti’s shareholding in and involvement with Carnilinx cannot be artificially separated from his personal capacity just like Malema’s role as leader from the EFF cannot always be divorced from his “personal” conduct.

53. But this does not detract from the duty of journalists to report accurately. Facts matter. It is entirely possible to report in a factually correct way and still connect dots for readers.  

54. News24 conceded the distinction between a juristic entity and individual in their initial response to the complaint.

55. For these reasons, the sentence falls foul of the Press Code.

Second sentence: The Khaas comment

56. Mazzotti did not proceed with the complaint about the placing of the picture and this aspect needs not be dealt with.

57. Khaas is, of course, fully entitled to express his opinion that what transpired at the EFF gala is a “clear display of moral depravity”. Any reasonable reader will understand that it is Khaas’ opinion.

58. The crux of this part of the complaint is the reference to “unlawful extraction and smuggling of Sub-Sahara Africa’s precious minerals”.

59. News24 said in its initial response: “The smuggling of cigarettes and tobacco products is a form of unlawful extraction, and the complainant has in the past admitted to this conduct. This makes Mr Khaas’ statement factually correct. It is clear that minerals in this sense refers interchangeably with the meaning of the word ‘resources’.”

60. News24, in my view correctly so, did not pursue this argument with any conviction at the hearing. There is a clear difference between tobacco smuggling and unlawful extraction of precious minerals.

61. News24 also suggested that Khaas was referring to a “general malaise, not only (Mazzotti’s) relationship with Malema”.

62. The problem with this statement is the “not only” part. A reasonable reader would indeed link this opinion of Khaas to Mazzotti. The only businessmen mentioned by name in the entire article are Mazzotti and “Mazzotti’s business partner and Khan’s close friend, Mohammadh Sayed.”

63. The quote immediately begs the question what Khaas was referring to. To my mind, it would be the first follow-up question to be asked by the journalist to Khaas.

64. It is crucial for the media to allow a diversity of voices to be heard. Comments such as PISA’s views on the EFF gala are important ingredients of journalism in the public interest.

65. But journalists are no parrots and the duty of the media extends far beyond merely copying what someone else has said. (See: National Lotteries Commission vs Groundup, 9 April 2021).

66. Clause 1.7 imposes a duty on the media to verify the accuracy of doubtful information, if practicable.

67. It was practicable to ask Khaas what (and who) he was referring to and to either phrase the quotation in a responsible and justifiable way or to leave out the comment.

68. The repetition of the quotation without verifying the accuracy of the claim was in breach of clause 1.7 of the Press Code.

Third complaint: Largest known funder

69. The third complaint refers to the political analysis piece, and in particular the sentence that reads:

“Melama’s biggest known funder is a confessed cigarette smuggler, Adriano Mazzotti and Carnilinx, who was proudly acknowledged by Malema at the EFF’s fundraising dinner on Thursday…”

70. The only disputed issue is whether Mazzotti and Carnilinx is “Malema’s biggest known funder”.

71. It is not necessary to revisit all the disputes about the conflation of entities.

72. A considerable amount of time was spent on arguments about whether the piece constitutes an opinion piece or not.

73. The panel found merit in Mazzotti’s submission that the reasonable reader could be confused about the status of the piece. The piece could arguably be much better identified as commentary than what it was. There is no explicit label of “analysis” or “comment” on the page and the parties – at the hearing – even had debates on whether the piece appeared under the comment or news section of the website.

74. It is not necessary to decide that issue in light of the Appeals Panel decision in Patriotic Alliance vs News24 (5 June 2023), that commentary may also contain factual statements that ought to be adjudged as that.

75. The sentence in the editorial piece that forms the subject of the complaint was a statement of fact.

76. It was prefaced by the following sentence:

“It will remain a secret who funds the EFF (disturbing rumours abound) until the IEC can enforce its political party funding legislation properly, which the EFF has largely ignored since implementation two years ago.”

77. News24 argues that it is factually correct that Malema’s biggest known funder is Mazzotti/Carnilinx in light of the fact that the EFF has apparently not made proper disclosures of donations.

78. There are two problems with this argument:

78.1 The issue of conflation of individuals and entities remain. It is not Malema who makes declarations to the IEC, but the EFF.

78.2 The problem of whether the information is still current. The R200 000 donation dissected in this complaint dates from 2014 and is a single donation.

79. Furthermore, it goes too far to label the R200 000 donor (whether it is Mazzotti or Carnilinx) the “biggest known funder”. The mere fact that no other donor is known to News24, “disturbing rumours abound”, cannot be justification for what that sentence implies to an ordinary reader. To the ordinary reader, the “biggest known funder” of a political party would at least mean a major funder – not a once-off donation of R200 000 in 2014.

80. It might appear like semantics, but the Press Code sets a high standard for journalists to pay attention to detail. The correct statement would have been, “One of the EFF’s known past funders is Adriano Mazzotti…”

81. The sentence as it stands is a breach of clause 1.1. of the Press Code as it is an inaccurate factual statement.

Recusal application

82. The complainant applied for my recusal from the matter, which request was declined on the day of the hearing after deliberation by the panel. The reasons for the refusal follow.

83. The change of the Press Ombudsman’s structure in 2021 from a full-time Ombud to an Ombuds Panel brought about a dramatic change in the operations of the Press Council. Where the Press Council had a full-time, salaried Press Ombud in the past, it now has a panel of three part-time Ombuds.

84. The criteria for appointments have, however, not changed. The constitution of the Press Council prescribes the process to appoint the Ombuds, which process is overseen by an appointments panel headed by a retired Judge. The process has several safeguards for the integrity of the Press Council: it ensures that the media does not get to appoint Ombuds that might be pliable to their interests and that candidates have the necessary skills, experience, and character to perform their duties.

85. The requirements for appointment as an Ombud are set out in clause 7.5. of the constitution of the Press Council:

“The Press Ombud, Deputy Press Ombuds and the Public Advocate must have extensive press experience, a fair understanding of the workings of the South African legal system and a finely tuned sense of public service and commitment.”

86. All three current Ombuds have full-time jobs and/or careers. In my case, I am a practicing advocate. Advocates (without trust accounts) do not accept briefs from members of the public but are engaged by attorneys. Advocates subscribe to a strict code of conduct for that profession, which includes measures to protect counsel’s independence at all times. An advocate is no lackey for any attorney or lay client but has a duty to the administration of justice and their profession to act in accordance with the profession’s code of ethics.

87. The above-mentioned background was necessary to explain the events that led to the recusal application in the current matter.

88. After receiving this complaint for adjudication, I received an instruction from an attorney to oppose an urgent application relating to an insolvency matter. My instructing attorney and parties involved in that matter are completely unrelated to this complaint.

89. I did, however, note that the applicant’s attorneys in the urgent application are Nicki Galaktiou Inc. The content of the urgent application was also of a somewhat acrimonious nature, as litigation tend to be.

90.  In the interest of complete transparency and realising the utmost importance of the integrity of the office of the Press Ombud, I contacted all the parties to disclose the development. I disclosed that I would be acting as counsel for one of the respondents in the application brought by a client of Nicki Galaktiou Inc. I further disclosed that I have been briefed as counsel by Willem de Klerk Attorneys in two cases (dealing with identical subject matter) in 2021 – which cases are still ongoing. Similarly, the pending briefs have no bearing on any of the parties in this complaint.

91. The parties were invited to express their views on the matter. News24 expressed no views, while Galaktiou indicated that her client feels uncomfortable with me presiding over this complaint. The recusal application followed.

92. Galaktiou advanced the following grounds for the recusal application:

92.1 The fact that I have received paid briefs by Willem de Klerk Attorneys

(which bills ultimately get paid by the attorney’s client).

92.2 The fact that “we are opponents” in the urgent application.

92.3 She submitted that there is a reasonable perception that I would not be

unbiased against her client, Mazzotti, in adjudicating this complaint.

93. News24 made no submissions at the hearing and indicated that it would abide by the decision.

94. Without insinuating that the role of the Press Ombud is comparable to that of a Judge or that the Press Council is akin to a court of law, it is helpful to seek guidance from the legal test for recusal of a presiding officer. The Constitutional Court formulated the test as follows in President of the Republic of South Africa & Others v South African Rugby Football Union & others 1999 (4) SA 147 (CC):

“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.”

95. As is the case with Judges, there must be a presumption that the Ombuds act with the necessary integrity in executing their duties. There must also be a presumption that the Ombuds have the necessary skills, expertise, and professionalism to act in an unbiased manner despite whatever personal views they may have. It is, after all, the entire aim of the appointments process to uphold high standards of integrity.

96. This presumption can only be dislodged through facts that rebut this presumption. None are present in the current matter.

97. Had the recusal application been based on allegations that I acted in a certain way, said something, or did something outside of my part-time office as Press Ombud that could reasonably lead to an apprehension of bias, there would have been more to consider. But there is none, apart from the facts disclosed by myself to all the parties: That I am acquainted with legal representatives of the parties through my non-Press Ombud professional activities.

98. Lawyers are all too familiar with similar scenarios. Advocates are acutely aware that they are not the litigants in the matters they act in. They do not become personally as opposed to professionally associated with their clients. The closest of friends at the Bar act as opponents. Not infrequently, they find themselves on the opposing side of an attorney they have worked with in the past.  As Acting Judges and Judges often get appointed from their ranks, advocates routinely appear before Judges they know on a professional and even personal level without expecting any favours or relying on a favourable bias. 

99. The recusal application raised, in my view, another issue that deserves comment: Most, if not all, of the members of the adjudication panel and Ombuds panel, have extensive professional and personal bonds with working journalists. It is inevitable. It is a prerequisite for appointment to the Ombuds panel to have “extensive press experience”. Press representatives on the adjudication panel must be “former or current senior journalists” while many public representatives have established ties with the media role-players. They are all bound to have worked for or with one or more media publisher in the past and having made friends during their careers.

100. This in itself can never disqualify a member of the adjudication panel or Ombuds Panel to adjudicate a complaint. The question can never be whether one is acquainted with any of the parties (or their legal representatives) or have known them historically in a different capacity. Naturally, no Ombud or adjudication panel member will preside over a matter where they have strong personal bonds with any of the parties. This is because a friendship or personal relationship could potentially lead to a reasonable perception of bias. Every matter is fact-dependent and those adjudicating on complaints will be led by their moral and ethical compasses, guided by the conflict-of-interest policies of the Press Council. Even the remotest possibility of a perceived conflict is declared.  

101. A subjective perception or suspicion that a presiding officer will not be impartial is not sufficient. Facts are needed. Neither is a prior history (or even skirmish) with a party sufficient. If that were so, any publication who have had adverse findings against them by a particular Ombud in the past could feel entitled to a recusal and prefer to have the matter heard by someone else. Ombuds and members of the adjudication panel make unpopular findings on a regular basis.

102. An Ombud also has a duty not to recuse him- or herself from a matter where there is no basis to do so.

103. For the reasons set out above, the recusal application was refused.

Conclusion

104. The first article is in breach of clauses 1.1., 1.3. and 1.7. of the Press Code for:

104.1 Stating as fact that Carnilinx donates money to the EFF and its leaders.

104.2 Implying that Mazzotti still funds the EFF while the only reference is to a 2014 donation.

104.3 Not verifying a claim made by Khaas about the unlawful extraction of minerals.

105. The breaches are Tier 2 breaches.

106. News24 is directed to correct these aspects in-text, and to publish a correction at the top of the article explaining the changes, together with an apology to Mazzotti for sub-paragraphs 2 and 3 above. In light of Mazzotti’s affidavit, News24 is not directed to apologise to Mazzotti for sub-paragraph 1 but may merely state that Mazzotti has since provided supporting documents.   

107. The second article is in breach of clause 1.1. of the Press Code for:
     1. Stating as fact that Malema is funded by Mazzotti and Carnilinx.
     2. Implying that Mazzotti/Carnilinx is a current and major funder.

108. The breaches are Tier 2 breaches.

109. News24 is directed to correct these aspects in-text, and to publish a correction and apology at the top of the article.

110.  It must be made clear that the apologies and corrections are in line with a ruling by a Press Council Adjudication Panel, chaired by Press Ombud Herman Scholtz, assisted by Joe Thloloe, Press Representative and Janet Smith, Public Representative, with a reference to the full text of this ruling on the Press Council’s website at www.presscouncil.org.za. It should be published with the Press Council’s logo.

111. The wording of the corrections and apologies shall be approved by the Press Ombud before publication.

Appeal

The Complaints Procedure lays 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.

Herman Scholtz – Press Ombud

Joe Thloloe – Press Representative

Janet Smith – Public Representative

16 February 2024