Complainant: Gengezi Mgidlana, Secretary to Parliament
Lodged by: Luzuko Jacobs
Article: Parliament in fear as spooks move in
Author of article: Babalo Ndenze and Jan-Jan Joubert
Date: 10 December 2015
Respondent: Susan Smuts, legal editor of the Sunday Times
Parliament is complaining about a front-page lead in the Sunday Times of 18 October 2015, headlined Parliament in fear as spooks move in.
It complains that the:
· article falsely stated that both Parliament and Mgidlana had launched an “aggressive onslaught” against its own staff to “root out spies and whistle-blowers” and that an accusation that the latter had initiated an “outrageous campaign in a string of attempts to clamp down on staff” was published as fact;
· newspaper failed to exercise due care in ensuring that the re-vetting of Parliamentary officials was reported truthfully, accurately, fairly and in context;
· story unfairly impugned Mgidlana, gratuitously maligned his character and undermined Parliament’s public standing;
· journalists did not give him or Parliament an opportunity to respond to serious allegations by anonymous sources (no proper verification). Phrases such as “an aggressive onslaught”, an “outrageous campaign” and a “clamp down on staff and whistle blowers” necessitated such verification.
Jacobs says, “The effect of this omission is exacerbated by the author’s complete failure to have regard to information at his disposal – the newspaper had access to various statements in which the legal and policy context of the re-vetting exercise is explained.”
He adds that the headline exaggerated the issue “to create sensationalism”.
The first few sentences of the article, written by Babalo Ndenze and Jan-Jan Joubert, say it all: “Parliament has launched an aggressive onslaught against its own staff in an attempt to root out spies and whistle-blowers. The outrageous campaign – involving the State Security Agency (SSA) and initiated by…Mgidlana – is the latest in a string of attempts to clamp down on officials. In a series of meetings held this week, intelligence officers told parliamentary staff that certain NGOs, specifically Right2Know, were known to be agents working for foreign governments. Nervous staff…said they had even been told to remove the batteries from their cellphones when meetings started.”
SSA officials reportedly said they would not hesitate to screen communications such as WhatsApp, SMS and email messages.
The story also reported that the parliamentary staff was told that whistle-blowing “would undermine the institution”. This move was reportedly the latest in a series of events involving the tightening of security measures since EFF MPs prevented Pres Jacob Zuma from addressing the house.
Arguments for and against
I have followed the text below, provided to me by Mgidlana (and have merely shortened it) as it is quite useful:
|Reference||Response by Sunday Times||Counter-response by Parliament|
|* The story backed up the description of the actions taken by Parliament as an “aggressive onslaught”. The actions were intrusive – screening communications such as WhatsApp, SMS and email messages was invasive.
*Staff members had already been vetted and were being re-vetted on the basis that it was necessary to clamp down on whistle-blowing. The object of vetting should be to root out spies, as they act against the interests of the country – whistle-blowers usually act in the public interest and their value to society was reflected in the fact that legislation exists to protect them. The actions by Parliament, as described in the story, had the effect of choking information about the institution, to which South Africans should have access.
*The premise that NGOs operating in the public interest were agents for foreign governments was as flimsy as it was paranoid. It is misguided to treat staff and citizens as the enemy. The use of the word “outrageous” was justified because the story set out reasons for this description, and because the word itself could not be construed as anything other than an opinion. It therefore could not have misled readers into believing the word was used to portray a fact.
*Nowhere in the article were Mgidlana or Parliament accused of “grossly unethical conduct”. A proper reading of the story would indicate that the implied criticism was about the aggressive, heavy-handed and paranoid approach to the vetting, rather than about questioning their ethics.
|*The opening sentences to the article were damaging to the reputation of Parliament and to Mgidlana, and they were unsubstantiated, untrue, and based solely on supposition – yet they are stated as fact with no attribution to any source, as required by the Press Code, neither was fact made clearly distinguishable from opinion, the story was not reported truthfully, accurately and fairly, and views of the subjects of critical reportage was not sought.
* Parliament was a custodian of the constitution and a symbol of democracy. It passed all legislation, including legislation to protect whistle-blowers. It therefore followed that any allegation by Parliament seeking to clamp down on whistle-blowing as described in the article should naturally give rise to doubt and thus a need to verify the accuracy of any supposition in this regard, as required by the Press Code. The Sunday Times failed on this account. The nature of the allegations, which stood contrary to the role and obligations of Parliament, should automatically have given rise to doubt. The reporter was based within the Parliamentary precinct and had unfettered access to its spokesman – yet, he chose not to exercise any of the options as stipulated in the Press Code.
*Neither the SSA nor Parliament was contacted and/or quoted (as required by the Press Code) to comment on the serious allegations made. The statement that “it is misguided to treat staff and citizens as the enemy” was without basis and untrue. The term “outrageous” was deliberately inflammatory and was derived from one-sided, inaccurate and deliberately unverified information and was, as a result, similarly flawed and misleading.
*The article alleged that Mgidlana had “initiated an outrageous campaign to root out whistle-blowers”. Such conduct went against the grain of all legal and professional ethics applicable to his role. It was also unclear on what basis it was asserted that the vetting process had been conducted in an aggressive, heavy-handed and paranoid manner. Vetting was a standard government practice. The process was driven by the SSA, who was responsible for communicating the process to employees and arranging for the collection of the necessary documents and interviews. There was no interference by Parliament or Mgidlana in this process, as the allegation would suggest.
|The complaint did not set out how the headline was alleged to be deficient. In any event, it accurately reflected the content of the story – which was properly sourced. The sources described a situation of fear and suspicion.||The issue of the headline was not included in the original complaint because it reflected the content of the story (Section 10.1 of the Press Code). The case hinged on faulting the process and contents of the report itself, which should have rendered the headline automatically inaccurate.
|2.2||The story did not impugn the person of Mgidlana, nor did it malign his character or undermine the standing of Parliament in the eyes of the public – the story was merely critical of the measures he deemed necessary to take, and made no comment on his character at all. Also, the fact that the story reported critically on what was taking place in Parliament did not translate into an undermining of the standing of the institution.
|The article was not simply critical of the institution, but instead painted a picture of an institution which did not uphold the very democratic values of which it was the custodian. This undermined both Parliament and Mgidlana in his capacity as the head of the Parliamentary Service.|
|2.3||The reporter did seek comment from Jacobs, Parliament’s designated spokesman for Parliament and for Mgidlana. Although Jacobs was not given much time to respond, the reporter apologised for the lateness of the questions and explained the reason for it. Both reporters also called Jacobs on his cell phone. At least one of them left a voice message for him. Jacobs did not return the call prior to publication (or afterwards, for that matter). The newspaper also contacted the spokesperson for the National Assembly, Mandlakazi Sigcawu, who peferred not to comment.||Joubert sent questions to Jacobs’s email at 12:48 on October 17 – a Saturday, which was not a working day for Parliament. This was known to the journalist who works and was based at Parliament – yet he gave Jacobs only two hours to respond.
The reporter apologised at the bottom of his e-mail for giving Jacobs less time than usual, motivating it by saying it was a breaking story.
The questions were not seen ahead of the report’s publication. A single missed call and a message requesting “to call back urgently” from the Sunday Times journalists were also seen only after the deadline. Attempts by Jacobs to respond to the calls were unsuccessful.
The subject of critical reportage was therefore not afforded a “reasonable time” to respond, as required by the Press Code.
The article completely failed on this account, and also failed to state that the Sunday Times was unable to obtain comment due to its failure to provide Parliament with a reasonable opportunity to make submissions.
The article was not a breaking news story. The detail in the story itself refuted this claim. The newspaper was always aware of re-vetting of Parliamentary officials, was in contact with Parliament in this regard more than a week before the story was published and had even published an article on the subject a week before the October 18 report. In the period prior to the publication of the article, Parliament issued to all media on its database, including Sunday Times, various statements stating its position about re-vetting, its purpose and context. The information was also placed on the website, to which Sunday Times has access.
The manner in which the story was constructed and reported was deliberate and contrived to inflict maximum detrimental reputational impact on Parliament. It was thus extremely disingenuous for Sunday Times to claim absolution from its duty to grant an opportunity to respond as justifiable due to this being a breaking news story.
|What information were the reporters to have had at their disposal and which they allegedly omitted to include?||See the sub-section above.|
|2.4||The newspaper could not have been expected to respond to the unsubstantiated and gratuitous statement that the article was littered with untruthful, inaccurate and unfair accusations against Parliament and the Secretary in flagrant disregard of the Press Code. The complainant should set out a proper case to answer or desist from such statements.||The article, when read in its entirety, did not present a truthful and accurate reflection of the vetting process – it deliberately and incorrectly portrayed the process as one that was heavy-handed, unreasonable, aggressive and paranoid.|
|2.5||The newspaper could not have been expected to answer a complaint that the context was missing when the complainant had not set out what the allegedly missing context was. Parliament was given an opportunity to comment, and the reporters did verify the allegations that were published. If there are any unverified allegations, Mgidlana should identify them and make out a case to answer to.
|The article failed to mention the content of any of the numerous other sources of documentary information that provided the context of the vetting process. These additional documents were deliberately ignored and excluded.|
|2.8||The story should have stated that the reporters were unable to obtain comment from Parliament.||The concession and deliberate failure by the Sunday Times to state, as required by the Press Code, that “we were unable to obtain comment” was not accidental – it was part of a contrived and deliberate plan to reflect Parliament and Mgidlana in a negative light and cause undue sensation.
Mgidlana concludes that the article:
· was damaging to the reputation and image of Parliament and of him;
· created mistrust amongst the public in the abilities of the institution to deliver on its democratic obligations – which has the damaging effect of skewing public opinion on the integrity of the very institution which is responsible to guard democracy and deliver on constitutional promises.
“As an institution we have always tried to maintain amicable relations with the press and encourage access to information and free speech. Over a period of years we have implemented various processes…to encourage the free flow of information. It is thus disheartening that the Sunday Times, in the sole interest of sensationalism, has failed to use the very processes available to them to publish an article that is so inaccurate,” he concludes.
Further correspondence – Jacobs
I asked Jacobs for clarification regarding the following issues:
|My first request: “The complainant says the opening sentences to the article are untrue, unsubstantiated and based solely on supposition. These sentences used phrases such as “aggressive onslaught against its own staff in an attempt to root out spies and whistle-blowers”, an attempt to “clamp down on officials”, and members of staff said they have been “told to remove the batteries from their cellphones” at meetings. Later on in the story the reporters stated that SSA officials said they would not hesitate to screen communications such as WhatsApp, SMSes and e-mail messages. However, the complainant does not say exactly WHY these statements are not true. I need more than a mere blanket denial.”
|My second request: “I note that the complainant admits that vetting (or re-vetting) is taking place. Maybe it would help if you can explain to me exactly what this re-vetting entails.”
Further correspondence – Smuts
In response to the above, Smuts says drawing on the part of the Constitution which defines the elected part of Parliament is disingenuous. “It is absolutely clear that we are referring to Parliament as an institution, and to the actions of its officials, not its presiding officers or elected members, many of whom are absolutely and resolutely opposed to the process described in the initial report, as stated in public by especially the DA and the EFF.”
The legal editor says Parliament itself draws this distinction. She attaches a response by Parliament to a City Press story on the same matter, “which is clearly in the name of Parliament as an institution”.
She adds that the elected MPs have nothing to do with the process, and they are not subjected to it. “The point raised by Mr Jacobs can only be designed to confuse the matter.”
Secondly, she argues that while re-vetting is routine, it is the nature, extent and intrusiveness of the re-vetting which is unprecedented. “I refer you to the City Press report, mentioned above, to show the extent of this intrusive, aggressive process as it unfolds. It is also certainly not routine for staff to be herded into confidential briefings where they are told to switch off their phones (this is not denied by Mr Jacobs) only to be told that the media and elements of civil society, under the umbrella body Right2Know, are security threats”.
Furthermore, Smuts says the prominence of the re-vetting procedure as a grievance in the current labour dispute between Nehawu and Parliament (as an institution) adds substance to the newspaper’s argument. It gives the lie to Jacobs’s claim that the concept of an onslaught is a supposition by journalists. Opposition parties and Nehawu are not journalists.
Thirdly, the dictionary definition cited by Jacobs supports the Sunday Times case that Parliament is behaving in a very determined and forceful way in order to succeed; the choice of the word “onslaught” as a strong attack is therefore warranted.
Regarding the rooting out of whistle-blowers, Smuts refers me to the disciplinary action taken against parliamentary employee Moira Levy (not a source to Sunday Times) after she blew the whistle on the process in the Mail & Guardian. She states that it was part of a growing trend of securitisation in Parliament, especially this year.
The legal editor points out that Mgidlana initiated the re-vetting process. It follows that what happened in the process (which neither Jacobs nor the SSA has disputed, having been given the opportunity to do so), happened at his instigation, she argues.
Also, Jacobs was given as much time to respond as was possible, given that it was a breaking news story, as was explained to him both over the phone and in writing.
Regarding the use of the word “outrageous”, the very dictionary Jacobs quotes earlier in his submission defines the word as “very shocking and unacceptable” or “very unusual and quite shocking”. “Given the nature and extent of the re-vetting process, as well as the reaction to it detailed by Nehawu and by the report this weekend in our competitor City Press, we believe the use of the word to be fully justified,” Smuts concludes.
Further correspondence – Jacobs again
Jacobs largely reiterates what he has already argued.
In addition, he denies that:
· any disciplinary action has been taken against Levy. The statement about this being part of a “growing trend” is therefore another baseless, yet damaging claim by the publication;
· there was any telephone conversation between the Sunday Times and himself about the article ahead of publication.
Inaccurate, misleading statements
I am firstly concentrating on my requests to Jacobs for some clarification, and the correspondence following these requests.
Regarding my first request, requesting reasons for the claims that some statements were untrue as I was not satisfied with a mere blanket denial:
· “Parliament has launched an…onslaught…”
Jacobs’s argument about Parliament consisting of the NA and the NCOP is not helpful. I agree with Smuts that the story made it clear that the matter was about Parliament as an institution, and about the actions of its officials, not its presiding officers or elected members.
· “(Parliament has launched) an aggressive onslaught against its own staff in an attempt to root out spies and whistle-blowers…”
It may be that some dictionaries describe the word “aggressive” as angry, behaving in a threatening way, ready to attack, behaving in a very determined and forceful way in order to succeed (as Jacobs argues) – but in normal parlance it can also mean something much “softer”, such as assertive, insistent and determined. Therefore, Parliament’s assertion that the story created the incorrect impression that it had been behaving angrily, threateningly, ready to attack, determined or being forceful (in an attempt to root out whistle-blowers) is not the only possible interpretation of the word or of the intention of the sentence.
I take Jacobs’s argument into account that the re-vetting process was properly carried out and that the Protected Disclosures Act, Act 26 of 2000 made provision for employees to report unlawful or irregular conduct by employers or fellow employees, while providing for the protection of whistle-blowers.
However, yet again there is another side to this coin. I also need to take the following statement by Smuts seriously: “[W]hile re-vetting is routine, it is the nature, extent and intrusiveness of the re-vetting which is unprecedented… It is also certainly not routine for staff to be herded into confidential briefings where they are told to switch off their phones (this is not denied by Mr Jacobs) only to be told that the media and elements of civil society, under the umbrella body Right2Know, are security threats”.
Her position that the newspaper’s argument gains substance from the prominence of the re-vetting procedure as a grievance in the current labour dispute between Nehawu and Parliament, is also useful to note.
Secondly, Jacobs’s definition of the word “onslaught” as being a strong or violent attack is correct, but again the word could also be interpreted in a much milder sense – it is not necessarily violent in nature (such as an onslaught, for example, in a chess match between two champions).
Regarding the statement that Parliament was taking action “to root out whistle-blowers”, Smuts refers me to disciplinary action taken against parliamentary employee Moira Levy (not a source to Sunday Times) after she blew the whistle on the process in the Mail & Guardian. “It is part of a growing trend of securitisation in Parliament, especially this year.”
The story also referred to intelligence agents who had discouraged members of the Parliamentary staff from whistle-blowing “as this, they were told, would undermine the institution”. I have no reason to disbelieve such a statement.
It is probably true that the original “purpose” of re-vetting was not to root out whistle-blowers, as Jacobs argues. However, based on the above-mentioned arguments I submit that it was reasonable to believe that it became part of the process (even though the initial intention might have been different).
· “The outrageous campaign – involving the [SSA] and initiated by…Mgidlana – is the latest in a string of attempts to clamp down on officials. In a series of meetings held this week, intelligence officers told parliamentary staff that certain NGOs, specifically Right2Know, were known to be agents working for foreign governments…”
The complaint is that this statement cannot be attributed to either Parliament or Mgidlana. However, the story did not do that.
It also remains true that Mgidlana initiated the re-vetting process; Smuts’s argument that it happened at his instigation must therefore also be taken seriously.
The use of the words “outrageous campaign” inferred that it was the journalists who were outraged, as Jacobs correctly argues.
It is worthwhile to repeat Smuts’s conclusion in this regard: “[T]he very dictionary Jacobs quotes earlier in his submission defines the word as ‘very shocking and unacceptable’ or ‘very unusual and quite shocking’. Given the nature and extent of the re-vetting process, as well as the reaction to it detailed by Nehawu and by the report this weekend in our competitor City Press, we believe the use of the word to be fully justified.”
All the rather unusual activities (cellphone batteries, discouragement from whistle-blowing, the SSA not hesitating to screen communication such as WhatsApp, SMS and email messages) lead me to believe that it was reasonable for the journalists to use the word “outrageous”.
Unfairly impugning Mgidlana; undermining Parliament’s public standing
The complaint has it that the article unfairly impugned Mgidlana’s person, gratuitously maligned his character and undermined Parliament’s public standing.
As noted above, the article was in the first place about Parliament as an institution, and much less so about its officials. This is substantiated by the fact that the story, which consisted of 1 121 words, only twice referred to Mgidlana. Also, Smuts is correct in stating that the story did not even touch on Mgidlana’s character.
No reasonable time to respond
I agree with Jacobs that the newspaper should have given Parliament a reasonable opportunity to comment, given the serious allegations leveled in the article. The newspaper’s defence that the reporter did seek comment from Jacobs, and apologized for the lateness of his request, is not good enough.
Moreover, the story should have stated that the newspaper had been unable to obtain comment, as required by the Press Code.
Failing to use available information
This part of the complaint (“The effect of this omission is exacerbated by the author’s complete failure to have regard to information at his disposal – the newspaper had access to various statements in which the legal and policy context of the re-vetting exercise is explained”) also does not hold water. As Smuts has adequately explained, “[W]hile re-vetting is routine, it is the nature, extent and intrusiveness of the re-vetting which is unprecedented…”
The headline read, Parliament in fear as spooks move in.
Although the word “fear” was not used in the article, the severity of the accusations, including the one about spies, might have been interpreted in such a way.
Parliament was not given reasonable time to respond, and neither did the story state that the newspaper was unable to obtain comment prior to publication. This is in breach of Section 2.5 of the Press Code that states, “A publication shall seek the views of the subject of critical reportage in advance of publication… Reasonable time should be afforded the subject for a response. If the publication is unable to obtain such comment, this shall be stated in the report.”
The rest 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 breach of the Press Code as indicated above is a Tier 2 offence.
Sunday Times is reprimanded for not affording Parliament reasonable time to respond, and for not stating that it was unable to get comment prior to publication, and is directed to publish a summary of this finding prominently on page 2.
The newspaper is also required to as Mgidlana for comment, if indeed he wishes to do so.
The text, which should be approved by me, 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.
If the story appeared on the newspaper’s website, the text should be published there as well.
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.