THE year is still young, but even the most avid reader of South African news might be wilting. Racism; corruption; crime; crises in service delivery and sports administration; and mayhem on our roads hit the headlines with the regularity of a revolving door.
Some stories appear inexplicable, their supposed causes hard to credit. Periodic upheavals in the organisation of cricket, football and rugby are put down to lack of transformation. Similar accusations are used to explain why some black professionals still need to organise in racially-exclusive bodies. Universities are increasingly governed in authoritarian ways totally at odds with academic freedom. And in the trade union movement, another sector where democracy blossomed in the past, purges are underway.
These apparently unconnected happenings have a common denominator: power, the gateway to influence and wealth. It was Martin Welz, editor of Noseweek, who cannily predicted that an ANC government, far from putting the needs of the dispossessed at the very top of its agenda, would quickly engage with the corporate world in a relationship of crony capitalism. Civil society took far too long to grasp the implications of this: the gravy train tag was applied just to the small-time crooks. Welz argues that divisions within the party are to a degree about competing business interests. A basic ANC tactic – deployment – is ultimately to do with the spoils and rewards of power. The public interest comes a distant last.
The recent history of the ANC Youth League and its cosy relationship with the crooked business empire of Brett Kebble provides a good example. According to the National Prosecuting Authority, Schabir Shaik allegedly made 676 payments worth R3 million to Jacob Zuma over six years. And German investigations suggest that even larger sums of so-called commission connected to the arms deal may have found their way into the pockets of the highest politicians in the land.
Principled individuals within the ANC are worried. Trevor Manuel, a veteran of the heroic years of committed leaders in the 1980s, fears that self-serving politicians have hijacked the party. This would explain his other warning – that parliamentarians are failing to hold the executive to account. If suggestions that every major decision in which government is involved factors in personal or party rake offs are true, the country is corrupt from top to bottom.
Certainly the ANC has very quickly become very rich. Its investment arm, Chancellor House, has assets worth hundreds of millions: companies in which it has a stake have a significant slice of the contracts awarded to build South Africa’s new power stations. The debate about whether the ANC has managed to transform itself from liberation movement to political party is actually redundant. As Patricia de Lille points out, it is now a business corporation.
The dangers of this to democracy and the constitutional state are self-evident. The ability of the judiciary and the media to curb the powerful new elite explains why they are under fire and subject to those manipulative words, racism and transformation. The ANC has no clue what to do about the really pressing crises in education and health that can potentially derail the nation’s future. But it pours energy into destroying its supposed enemies. The Scorpions are the most obvious.
This also explains the proposed statutory media appeals tribunal. When different factions of a corrupt and less than competent elite are fighting to hang on to or acquire power, the last thing they want is a free press. There is no evidence whatsoever that the public in general is dissatisfied with the media – except with his master’s voice, SATV. And laws are in place to protect the rights of all citizens. Those best placed to use them are, ironically, amongst the newly rich elite.
But the ANC is determined to make the media answerable to parliament, which effectively means Luthuli House. Raymond Louw of the South African National Editors’ Forum believes this is a move towards thought control. In broad terms he is correct, but there is a narrower agenda. In its stumbling efforts to justify a tribunal, the ANC routinely mentions the case of Minister of Health, Manto Tshabalala-Msimang. Yet the issues raised by the press about her past and present had a direct bearing on her suitability for office that many believe to be zero. Neither she nor her party can claim privacy in a matter of clear public interest. Her continued appointment to a key ministry is a matter for intense scrutiny, not an issue of political patronage.
A tribunal is at odds with the right to freedom of expression and, if pursued, will surely fall foul of the constitution. In the meantime, it provides yet another example of the ANC’s inability, or unwillingness, to distinguish between the clearly delineated roles of state, party and individual essential to democracy.
This article was first published in The Witness on 8 April 2008 and entitled ‘The spoils of power’.
1979: MINISTER OF THE Interior Alwyn Schlebusch calls for a statutory press council with the power to fine and ban journalists. This would have subjected them to state sanction over and above the requirements of the law. The subsequent Steyn Commission II demanded that the press should collectively present to the world ‘a true and authoritative story’ about South Africa. This followed persistent reports about apartheid human rights violations.
2010: ANC and South African Communist Party politicians threaten to impose a statutory press council with the power to fine and jail journalists. Julius Malema claims that the press regards itself as untouchable and says it has too much freedom. Jackson Mthembu, presidential spokesperson, criticises journalists ‘who do not contribute to the South Africa we want’. This follows endless revelations in the press about fraud and corruption at every level of government.
The apartheid government did not take the statutory route. Instead, it achieved through a barrage of legislation and a State of Emergency its preferred option: a corrosive level of self-censorship. Today, in a constitutional democracy, the wheel has possibly turned full circle. The reasons for this are at one level difficult to understand since aggrieved members of the public have a number of options for redress. The most obvious is to engage with the newspaper, write a letter to the editor or request the right of reply. If the complainant does not receive satisfaction, an appeal to the Press Ombudsman is the next step.
Over the past three years the ombudsman has reported on more than 50 cases. There is plentiful evidence that the system works in the interests of justice and that the press is by no means untouchable. Take, for example, the recent complaint by KwaZulu-Natal Premier Zweli Mkhize about the Sunday Tribune. In February, the newspaper carried a report accusing Mkhize of nepotism, alleging preferential tendering that favoured his wife and daughter. Mkhize felt this was lacking in truth and therefore defamatory. The ombudsman agreed, finding that the Tribune had failed to investigate fully, check for accuracy and place its report in context. The paper offered space for a rebuttal and was obliged to publish a summary of the ruling and apologise, with wording and placement to the satisfaction of the ombudsman.
This was by no means exceptional and other complaints have had very similar outcomes. In December 2007, Business Day reported that Frank Chikane, then in the Office of the President, had been gagged by the ANC for his comments on tensions within the party. He denied that this was the case. The paper’s defence was that the article in question was a matter of interpretation and not directly about Chikane, but the ombudsman disagreed. He ruled the report unfair comment and unsupported by fact; and that Chikane had not been given an opportunity to correct the paper’s misinterpretation. For untrue and distorted reporting the paper was required to apologise.
Most cases before the ombudsman result in criticism of the professionalism of the press over what are generally minor lapses. The Mail & Guardian was reprimanded for failing to seek comment from the ANC Youth League over a true story about the targeting of Gwede Mantashe. The Sunday Times was cautioned and required to apologise about coverage of Leonard Chuene’s inappropriate behaviour. According to the ombudsman, there was insufficient context and a lack of balance caused by omissions. And the Eastern Province Herald was sanctioned for a report claiming that Mkhuseli Jack was involved in building shoddy houses. This turned out to be untrue. Where newspapers are found to err it is generally over a lack of balance, failure to investigate fully and crucial omissions.
Finally, there is recourse to the courts and defamation law. Though such cases can be expensive and sometimes personally damaging, South African courts tend to have a conservative approach to libel that favours the plaintiff. Mkhize provides another salutary case. He took City Press to court for a March 2007 report claiming that during the murder trial that arose from the January 1999 assassination of Sifiso Nkabinde at Richmond, a witness linked Mkhize to the killing. But this evidence was discounted as hearsay. The Witness, having drawn on this story, immediately apologised and nothing further was heard. But City Press persisted in arguing that what it had published was fair comment and in the public interest. By the time it had changed its mind, offering an out-of-court settlement, it was too late. The judge found that while Mkhize’s reputation had indeed been unjustly impaired, this had not involved malice. He was awarded relatively high damages of R150 000 plus costs, and a prominently displayed apology.
A far more controversial case is currently en route to the Constitutional Court. Robert McBride was also awarded R150 000 damages plus costs in a case he brought against The Citizen for describing him as a murderer and criminal unfit for public office. McBride claimed that his Truth and Reconciliation Commission amnesty for the Magoo’s Bar bombing that killed three people meant there was no murder. The paper argued, reasonably enough, that its report reflected historical fact. The Appeal Court made the contorted finding in favour of McBride that an undeniable historical event can be rendered untrue by an amnesty committee. This is highly ironic as the TRC was set up to establish truth, but in this case there is no doubt that the interests of an aggrieved individual were considered paramount.
An alert and strict ombudsman and unimaginative interpretations of defamation law keep the press on its toes. As was the case during the apartheid era, pressure to rein in the press has no popular basis. Almost all the current enthusiasm for a media tribunal comes not from the general public, but the politically powerful or connected. They are best placed and well able to use all the methods outlined above to best advantage. These various mechanisms are designed to maintain fairness and limit damage in the pursuit of truth. What the supporters of the proposed tribunal are seeking is punishment in the interests of elite power.
- *The self-regulating Press Council’s code is firmly rooted in the Constitution and the rights and obligations of citizens in a democratic society. It places on the media the responsibility to report with truth, accuracy, fairness and balance; and in context. Fact must be distinguished from opinion; rumour and unverified reports clearly indicated; and distortion and misrepresentation avoided. Sources should be legitimate. The code emphasises the avoidance of harm and respect for privacy, except where there is demonstrable public interest. The ombudsman works under the aegis of the Press Council and accepts complaints about media coverage. It arbitrates between the two parties and bases its findings on the simple question: did the press get the story right in terms of the requirements of the code? It has the power to demand written apologies. There is also an appeal mechanism. The Press Council consists of six media and six public representatives.
This article was first published in The Witness on 12 August 2010 and entitled ‘Leave the press alone’.