National

Flawed but substantially true

Nic Dawes

Journalists and newspapers get things wrong. They get big things wrong...

Journalists and newspapers get things wrong. They get big things wrong: evidence of the existence of weapons of mass destruction in Saddam Hussein’s Iraq, for example; and small ones: names, dates, statistics.

Usually mistakes are a consequence of the way we work—rapidly and under pressure—to reduce a complex news environment to fit the very narrow limits set by publication and distribution. More rarely, and more problematically, errors flow from ethical lapses, lack of diligence, or bias.

In South Africa we have a Constitution powerfully committed to both press freedom and human rights, and a common law that is increasingly effective at tracing what constitutes appropriate conduct by the press.

Self-regulation, however, remains critical. As a profession we must be capable of confronting our failures, and rectifying them. We must also ensure the survival of an independent channel for complaints about our conduct that does not require those who feel aggrieved to engage in costly and time-consuming litigation.

It is for those reasons that we are pleased to submit to the jurisdiction of the ombud and the appeals panel.

This week, however, we take the unusual step of publishing a comment of our own to accompany the text the panel has ordered us to reproduce.

We do not do so lightly and we are mindful of the risk that we may create the impression that we are defying or diluting the panel’s findings.

That is not our intention. As will become clear, we whole-heartedly abide by the findings that are at the core of the panel’s judgment. The form in which we have been asked to apologise, however, raises serious concerns for us, as do some of the procedural and factual aspects of the judgment. We believe it would be unfair both to readers and to the Mail & Guardian to remain silent on these issues.

Some brief background is necessary.

On October 17 2008 we published a story outlining a police investigation into a criminal complaint of fraud, theft and corruption laid against a prominent businessman and ANC donor, Robert Gumede. The complaint was laid by Gumede’s former business partner, John Sterenborg, following a falling out between the two men. A poster advertised the story as “Key Zuma funder in graft probe”.

Gumede complained to the Press Ombud that the story was untrue. The National Prosecuting Authority had declined to pursue the case, he said, so he was not under investigation. Furthermore, he had not donated money to Jacob Zuma as the poster suggested, but to the ANC.

The ombud agreed and circulated a scathing judgment which concluded that the Mail & Guardian in its haste to attack Gumede had relied too heavily on a single anonymous source and had failed adequately to confirm the information in its possession by phoning the South African Police Service for formal verification.

The ombud has quite correctly expressed concern on several occasions about over-reliance on anonymous sources, but we believed that in this case he was wrong to make an example of the newspaper. The reason was simple: our information was correct. The then-editor of the M&G made an assessment of the reliability of the source, an act of editorial judgment which has since been vindicated.

The record shows that prosecutors had dithered over Sterenborg’s complaint. Some three months after he first went to police in February 2007, prosecutor Paul Tickner in June declined to prosecute, and he was unpersuaded by Sterenborg’s efforts in August to convince him otherwise.

But crucially, in November of that year, following further representations from Sterenborg, the case was reopened. The M&G was tipped off about this ongoing investigation and published its October 2008 story. It was only a year later, in November 2009, well after Gumede’s complaint to the ombud, that the NPA informed Sterenborg that it had once again declined to prosecute because of insufficient evidence.

The short version of this account is that the story met the stiffest of legal tests, “substantial truth”, at the time it was published.

These facts are uncontested, which is why we appealed. Despite this, the appeals panel has ordered us to publish the sweeping apology to Gumede that you find reproduced on this page. We are disappointed that the panel has chosen to draft this apology for us, rather than asking us to print its ruling and write an apology ourselves. We feel it has exceeded its powers in doing so. We also feel that in concluding that Sterenborg’s complaint was “possibly vexatious” and that “no evidence” against Gumede exists, the panel has drawn conclusions far beyond what the facts before it justify.

That does not mean that we feel our conduct was unimpeachable. On the contrary. We believe three core findings survive the panel’s review of the original decision by the ombud:

  • The press code insists that posters not mislead the public. Our poster in this case suggested that we had a story dealing with a “key Zuma funder”. In fact the story mentioned only Gumede’s funding of Zuma’s party, the ANC. The poster was misleading, and we apologise to both Mr Gumede and to readers for it.
  • The story said that the criminal complaint came “against the backdrop” of the battles between Sterenborg and Gumede, which we proceeded to outline in an effort to provide context. This was inadequate. The story should have made it clear that it was Mr Sterenborg himself who laid the complaint. In failing to make that clear we deprived readers of an opportunity to form doubts about the veracity of the allegations. For that we apologise to them and to Mr Gumede.
  • We did not contact the police in an attempt to verify the information provided by our source. This may not have added much to the story—the information was correct—but we should always endeavour to gather as much corroboration as possible before going to press, and certainly to seek comment from all of the principal actors in a story. This was a lapse of professionalism which we regret.

None of the concerns outlined above should be seen as detracting from the sincerity of this apology, nor should the fact that the apology is sincere detract from the conclusion that the story was flawed, but substantially true.

Also read Apology to Robert Gumede


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