answered
It is insufficient merely to make allegations in order for these to constitute prima facie findings or prima facie violations. Before a person can fairly and reasonably be said to be implicated in anything there must at least be some evidence which has formed the subject matter of an investigation leading to the making of findings, whether prima facie or otherwise.
Consequently, the manner in which the Commission has dealt with our request to provide clarity concerning the extent to which, if at all, the Mail & Guardian has been “implicated” in anything is a matter of grave concern.
In response to our enquiry, the Commission states that “the report alludes to prima facie violations”. Your letter of 25 January 2000 goes on to state that “furthermore the allegations stem not only from the report but also from the submissions received”, and in your letter of 26 January 2000 you refer to submissions received from the Association of Black Accountants of South Africa (Abasa), the Black Lawyers’ Association (BLA) and Media Review Network and state that “as those submissions implicate your client, responses thereto are also required”.
In requiring a response to all these allegations the Commission has not identified which of these allegations “implicate” the Mail & Guardian, nor has the Commission identified the nature and extent of any such “implication”.
Far from investigating whether the allegations contained in the submissions received have any substance, or engaging in an exercise to sift the wheat from the chaff, the Commission has “treated all submissions as equally important”.
In its interim report summarising the submissions received from the BLA and Abasa, the Commission describes those submissions as making several “broad assertions”.
In light of the above, and in light of the fact that it would be unfair and unreasonable to require the Mail & Guardian to respond to unparticularised allegations by third parties which have not been investigated nor analysed by the Commission, we would be grateful if the Commission would furnish us with the following information:
l Precisely which allegations does the Commission believe require a response?
l Which, if any, of the allegations so identified have been investigated by the Commission?
l Has the Commission made any finding as to the substance of those allegations, and if so:
What finding or findings have been made?
When were such findings made?
Where are such findings recorded?
On what facts and circumstances are such findings based?
What evidence was considered by the Commission?
In paragraph 1 of your letter of 25 January 2000 reference is made to pages 25 to 27 of the Media Monitoring Project (MMP) report and you state:
“In an article on the 13th August 1999, the story was titled “African war virus spreads to Caprivi” and pictures of unidentified bodies were used. It is alleged that this contributed to the de- personalisation of Black deaths and represented them as just another statistic. The allegations need to be read with the comments on pages 26 and 27 of that report; and, on page 31 of that report.”
With respect to the above we would be grateful if the Commission would furnish us with the following:
l Is it alleged that the headline constitutes racism or a violation or prima facie violation of fundamental human rights?
l If so, which human rights are violated by the headline?
l Upon what facts and circumstances is reliance placed for the allegation that the headline constitutes racism or a violation or prima facie violation of human rights?
l Is it alleged that the publication of photographs of bodies which are not identified constitutes racism or a violation or prima facie violation of fundamental rights?
l If so, which fundamental human rights are violated by the publication of such a photograph?
l Upon what facts and circumstances is reliance placed for the allegation that the publication of a photograph of bodies which are not identified constitutes racism or a violation or prima facie violation of human rights?
l In precisely what manner is it alleged that the use of a photograph of bodies which are not identified contributes to the de- personalisation of Black deaths and represents them as just another statistic?
The Mail & Guardian is concerned that in requiring it to respond to this allegation the Commission implies that photographs of bodies may not be published, without violating fundamental rights, unless the publication concerned can and does identify those bodies.
If the Commission is in possession of criteria that would enable it and the Mail & Guardian to determine the circumstances under which the publication of such a photograph would not constitute racism or a violation of fundamental human rights, we would be grateful if the Mail & Guardian was furnished with such criteria.
In paragraph 2 of your letter of 25 January 2000 reference is made to page 42 of the MMP report and your letter then states:
“In your issue of the 23rd July 1999 you put forward the perception/idea that Black persons criticising or acting against white persons is racism.”
l Is it alleged that to “put forward the perception/idea that Black persons criticising or acting against white persons is racism” constitutes a violation of fundamental rights?
l If so, in precisely what respect and to what extent are fundamental human rights violated thereby?
l Is it alleged that to “put forward the perception/idea that Black persons criticising or acting against white persons is racism” is itself racist?
l If so, on what facts and circumstances is reliance placed for such an allegation?
l Under what circumstances, if at all, is it permissible to “put forward the perception/ idea that Black persons criticising or acting against white persons is racism”?
l What criteria are to be applied in determining when it will be racist or a violation of fundamental rights to “put forward the perception/idea that Black persons criti- cising or acting against white persons is racism”?
The allegation contained in paragraph 3 (a) of your letter of 25 January 2000 concerns ownership and control of the media in general. No specific allegation is made concerning the ownership and control of the Mail & Guardian. The allegation, as it appears on page 49 of [the report compiled by researcher Claudia Braude], seeks to summarise a statement contained in a letter written to the Mail & Guardian by 10 prominent Black professionals. Braude summarises the letter as having said that:
“The media had always been owned and controlled by White business who for the most part supported the apartheid state.”
The focus of criticism in this statement is the media’s past support of the apartheid state – something which no fair- minded person could ever accuse the Mail & Guardian of having been party to.
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And the reference to support for the apartheid state has not been included in paragraph (a) of your letter. In consequence, and on the assumption that the Mail & Guardian is not being accused of having supported the apartheid state, we would be grateful if the Commission would furnish us with precisely what prima facie violation implicating the Mail & Guardian is suggested.
Paragraph (c) [“After the new political dispensation there was a marked change in the editorial slant and content of the newspapers”] is in direct contradiction with paragraph (b) [“And despite recent change of ownership levels, the political agenda of the media has not changed’] of your letter of 25 January 2000. Nevertheless, the Mail & Guardian is purportedly implicated in both.
In paragraph (b) the Mail & Guardian is purportedly implicated in violations because the political agenda of the media has remained unchanged. In paragraph (c) the Mail & Guardian is purportedly implicated in violations because of a “marked change in the editorial slant and content” of the Mail & Guardian. In the face of this contradiction we would appreciate the following particularity:
l What was the content and editorial slant of the Mail & Guardian before the “marked change”?
l In what manner, to what extent and in what respects has there been “a marked change in the editorial slant and content” of the Mail & Guardian?
l What criteria have been adopted by the Commission in measuring and assessing this “marked change”?
l What facts and circumstances are relied on for the allegation that there has been a “marked change”?
l In what, precisely, is the Mail & Guardian implicated by virtue of this “marked change”?
l Precisely what prima facie violation implicating the Mail & Guardian is suggested in paragraph (c) [“a marked change in … editorial slant and content”]?
l We wish to place on record that the Mail & Guardian respects the right of any person to hold an opinion of the Mail & Guardian, whether favourable or unfavourable to it. But where, as here, that opinion has been elevated to a statement of fact amounting, as suggested by your letter, to a prima facie violation to which the Mail & Guardian is “required to respond”, the particularity which we have sought is both reasonable and necessary.
Paragraph (d) of your letter records an allegation that our client over-represents corruption among Black people but under- represents corruption among White people. The apparent factual basis for this allegation as it is set out in the Braude report (which summarises the complaint of the BLA and Abasa) is that “the paper contained 14 articles on alleged corruption by Black people compared to only four on whites” from January 1996.
In this regard we request the following particularity:
l Is it the Commission’s view that this numerical exercise is sufficient to constitute a prima facie case of racism and the violation of fundamental rights?
l If so, in precisely what respects and to what extent does it constitute such implication and violation?
l Is it alleged that the Mail & Guardian has been implicated in intentional racism?
l If so, upon what facts and circumstances is reliance placed for such an allegation?
l If not, is it alleged that the Mail & Guardian is implicated in unconscious or subliminal racism?
l If so, upon what facts and circumstances is reliance placed for such an allegation?
l What are the criteria against which the allegation will be measured by the Commission in order to determine its truth or falsity?
The Mail & Guardian is concerned to ascertain whether the Commission believes that the numerical exercise embarked on by the BLA and Abasa is relevant and appropriate, or whether some other yardstick will be applied in evaluating the allegation.
If the Commission believes that the numerical exercise is relevant and appropriate, numerous difficulties are likely to be encountered. For example, should regard be had to the racial composition of the population as a whole, or to the racial composition of those occupying positions of power, in publishing articles on corruption?
Similarly, would the absence of racism be demonstrated and proved by an equal number of stories concerning corruption by Black people as by White people, or, given our apartheid past, would it be required that there should be more stories of corruption by White people than by Black people and, if so, what would be the appropriate ratio of such stories, and over what time frame would a publication be monitored so as to ensure that it complies with the appropriate ratio that will insulate it against an accusation of racism?
The Mail & Guardian cannot determine what, in the Commission’s view, would amount to a complete rebuttal of or adequate answer to an allegation of this kind. In our previous letter of 17 December 1999 we pointed out that despite appearing to operate on the basis of a testable hypothesis, the Braude report in fact assumes the existence of precisely that which it sets itself the task of demonstrating. This is, of course, an elementary logical fallacy which vitiates the report. Notwithstanding a deeply flawed methodology, the researcher nevertheless felt at liberty to smear the Mail & Guardian.
The Mail & Guardian is concerned to ensure that such a process should not be repeated. The requirements of a culture based on the rule of law require, at least, that the Mail & Guardian should be informed as to the criteria to be applied by the Commission and as to what would constitute a valid and complete response to the allegation.
Paragraph (e) of your letter of 25 January 2000 [“the Mail & Guardian violates the rights of Black people to be heard in that it refuses to publish responses to allegations published in the newspaper …”] repeats the summary contained in the Braude report of an allegation made by the BLA and Abasa.
In this regard we would appreciate the following particularity:
l What are the criteria to be applied by the Commission to test the truth or falsity of this allegation?
l What would, in the Commission’s view, be sufficient to constitute an adequate response to the allegation?
l What is the legal source of the right to be heard referred to in this paragraph?
l Is it alleged that the refusal to publish the letter at issue implicates the Mail & Guardian in racism or violations of fundamental rights?
l If so, what is the precise nature and extent of such racism or violation?
l What are the facts and circumstances upon which reliance is placed for the allegation?
Is the import of the allegation that every letter written to a newspaper should be published? If this is not the import, then the Mail & Guardian is concerned to establish whether it is the racial characteristics of the writer that should determine whether or not the letter is published, or whether it is the genuineness or depth of the feeling with which the letter is written that ought to be a decisive criterion.
If proof of the allegation contained in paragraph (e) of your letter would constitute a racist violation of human rights, then the Mail & Guardian is concerned to establish whether a newspaper which seeks to avoid being labelled as racist and a violator of human rights should submit all or some of its letters, particularly those which may raise matters of race, to an independent tribunal for a ruling as to whether or not it must publish such a letter.
The Mail & Guardian is also concerned as to how the principle and practice of editorial independence may be reconciled with the approach that apparently underlies the allegation. The rule of law requires that the Commission should indicate what facts and circumstances would be sufficient to constitute an adequate response to the allegation and the implicit attack on editorial independence contained therein.
In light of the above we must place on record that the Mail & Guardian has still not been placed by the Commission in a position to determine whether it wishes to respond and, if so, what time is required for it to do so.
Instead, and pursuant to a process that is not transparent either to [its lawyers] or the Mail & Guardian, un-investigated and unanalysed and inadequately particularised allegations and assertions have purportedly become prima facie violations which allegedly implicate the Mail & Guardian in some inadequately specified way.
We are constrained to record, at this stage, the Mail & Guardian’s objection to such a process, and to reserve the Mail & Guardian’s rights not to be compelled to participate in a flawed and unfair process so threatening to its fundamental rights.