SABC interdict against M&G Online dismissed

Just after midnight, in the early hours of Sunday morning, Johannesburg High Court Judge Zukiswa Tshiqi dismissed with costs the SABC’s application to have the Mail & Guardian Online remove a report on the blacklisting of certain analysts and commentators by the broadcaster.

(Read original SABC report - PDF, 200k)

“I don’t believe that it is okay to suppress information or to hide information written in the report,” she told the court.

Tshiqi said the content of the report was of extreme importance to the public as the SABC was a public broadcaster.

She said she was not handing down judgement but merely expressing her thoughts on the case. Arguments by the SABC’s lawyers that the report could cause harm to employees were not persuasive, she added.

They had argued that if the report was not removed from the M&G Online, the broadcaster would suffer irrevocable harm as employees would resign, and they would lose good talent.

SABC chief legal officer Sihlali Mafika was made aware of the M&G Online‘s publication of the report early on Saturday. The website was served with a summons at 2pm.
The case was dismissed around 1am on Sunday.

It is probably the first time that an interdict has been brought against a major online news site in South Africa.

M&G newspaper editor Ferial Haffajee, who wrote the story about the report “Inside the SABC blacklist report” that was published in both the newspaper and on this website, said she was pleased with the ruling.

“We are all elated that you have a judge and two commissioners who say the report is of fundamental public interest and that it should be released,” she said.

She said the M&G had been correct to show the full 78-page SABC report and would keep it on this website.

M&G Online acting editor Matthew Burbidge echoed Haffajee’s comments, saying that publishing the report had been in the public interest, especially since the broadcaster was a public broadcaster, partly funded through taxpayers’ money.

‘Unacceptable journalistic practice’

On Sunday evening the South African National Editors’ Forum (Sanef) welcomed the dismissal of the application and said it was “astounded” at the broadcaster’s refusal to publish the full report especailly “in the light of the recommendation by the commissioners”.

Sanef deputy chairperson Thabo Leshilo also called for the SABC to release the report.

“The commissioners recommended that the report was manifestly in the public interest and should be made available to the entire public while the judge said it ‘was crucial that the commissioners had made that recommendation’,” said Leshilo.

Sanef said the major finding of the commission reflected “unacceptable journalistic practice, all the more objectionable because their exclusion was by the public broadcaster which has a duty to encourage the widest range of comment on

current affairs”.

Tshiqi said in her view the names of SABC employees who elected to remain anonymous had not been mentioned in the report. She said the fact that the commissioners had recommended that the report be released could not be underemphasised.

Tshiqi said that in her final analysis the findings of the commission were based on undisputed evidence. The SABC maintains that the evidence given to the commission was not under oath.

Speaking to the Mail & Guardian Online on Sunday morning, Haffajee said: “On balance, the judge weighed up the SABC’s right to privacy against the implications of denying us the right to publish and the public’s right to know, and it didn’t stand up.”

The M&G earlier claimed the SABC had “violated” the recommendations of a commission into the blacklisting charges by releasing only a “sanitised summary” of its findings in a seven-page statement on Thursday.

The commission—chaired by former SABC head Zwelakhe Sisulu and advocate Gilbert Marcus, who assisted him—was set up to probe complaints about a ruling, allegedly by the head of news, Snuki Zikalala, that certain commentators and analysts not be used because they were critical of President Thabo Mbeki.

They apparently included independent political analyst Aubrey Matshiqi; the author of a book on Mbeki, William Gumede; and Business Day staff members Vukani Mde and Karima Brown.

The move, in June, came shortly after the SABC “canned” an independently-made documentary about Mbeki, and was criticised for this by the Congress of South African Trade Unions, the Democratic Alliance and other opposition parties.

Interviewed on the SABC on Sunday morning, SABC chief executive Dali Mpofu said the SABC had decided not to publish the report because the evidence given to the commission was not under oath.

“The quality of the evidence that was contained therein was not of such a nature that we can publish the allegations made not under oath, not under cross-examination, by anonymous sources and so on against individuals.”

Mpofu said he had no excluded the possibility of disciplinary action against some of the people mentioned in the report, but publication had jeopardised the report.

“I’m going to have to consider whether it’s even worth taking those disciplinary actions.”

Haffajee said both the judge and the two commissioners had said the report was “manifestly in the public interest and should be made available to the entire public”.

None of the commission’s findings were based on disputed evidence. she said.

Mpofu said: “There’s an issue of illegally obtained evidence. I don’t know how the Mail & Guardian got hold of this. I’m the custodian of the report. So in whatever manner they [the M&G) got hold of the report it was illegal and unlawful.”

Asked if the M&G got the report illegally, Haffajee said: “Absolutely not. I’m not going to tell you for very obvious reasons where I got the report, but what I can say is that I did not steal it, as the SABC’s lawyers said in court last night, and it was not given to me by somebody who stole it.

“A lot of journalism is unauthorised. If journalism is only what is gleaned from authorised sources of information, I’m afraid we wouldn’t be doing our jobs.”

What the report says

While the SABC on Thursday reported that the commission had found no evidence of a blacklist of certain commentators, the commission found that:

  • Zikalala banned Business Day political editor Karima Brown from the airwaves, ostensibly because he said her credibility had been dented by a report in her newspaper that required an apology. His reason was “unsustainable and inconsistently applied”. He later said she could be interviewed about articles she had written.

  • The treatment of analyst Aubrey Matshiqi was “simply not objectively defensible”. Matshiqi alleges he was taken off air on Zikalala’s instructions. Zikalala denies this. Zikalala objected to Matshiqi on two counts: that an article he wrote in the Sowetan was an incitement to violence (which the commissioners dispute), and because an analysis of Matshiqi’s had linked the outcome of the Schabir Shaik trial to Jacob Zuma. The commission found this to be “a direct interference with the expression, not simply of a point of view, but one which has dominated political discourse in our country”.

  • While there was no evidence of an outright ban on journalist William Gumede, the report found that “the judgement passed on Mr Gumede by Dr Zikalala was unfair. While on the evidence it may be true that no instruction was given not to use Mr Gumede, it is inevitable that when views of this sort are expressed by a man in Dr Zikalala’s position, they would be understood and interpreted as amounting to an instruction. This pattern appears to have developed in other instances.”

  • A direct instruction was given not to use Paula Slier [a freelancer in the Middle East] for improper reasons and in direct conflict with the SABC’s policies and codes.

  • While there was no evidence of an outright ban on political analyst Sipho Seepe, Zikalala told his editors that Seepe was “very controversial” and that Business Day and the Star “will never use Sipho Seepe”. He considered that Seepe’s articles were “not articles that were building this nation but articles that were undermining the president”. The report says: “We are also profoundly concerned that this attitude to Mr Seepe should be conveyed because of his apparent disrespect for the government and the president in particular. It is not the role of the SABC to represent the government or to shield government from criticism.”

  • The commission found direct evidence that Zikalala gave instructions that businessman Moeletsi Mbeki, activist Elinor Sisulu and M&G Media CE Trevor Ncube should not be used as commentators about Zimbabwe. Both Mbeki and Sisulu appeared before the commission. “Contrary to Dr Zikalala’s impression that they were out of touch, both struck us as having deep roots and connections within Zimbabwe,” the report says. “This is especially true of Ms Sisulu.” It adds: “We find that there was an instruction given not to use Mr Mbeki and Ms Sisulu for reasons which are not objectively defensible. We also find that Mr Ncube was directly informed by Dr Zikalala that he could not be used for reasons which are not justifiable.”

  • On AM-Live presenter John Perlman’s explosive on-air interview with SABC spokesperson Kaizer Kganyago, in which Perlman said he had had experience of bans, the commission found that Perlman’s position “was in conformity with the factual situation”.

The commission found “a number of instances in which instructions were given either not to use a particular analyst or commentator at all, or to use a particular analyst for limited purpose only”, contradicting the broadcaster’s view that there was no evidence of a blacklist.

Of equal concern to the commission was the “phenomenon of self-censorship”. It said: “The view was expressed that the prevailing climate resulted in decisions being taken to avoid the censure, real or perceived, of Dr Zikalala. We do not find these views exaggerated or implausible.”

In its statement, the SABC trumpeted the commission’s view that it could find little evidence that the commentators were excluded because they were anti-government.

But that is cold comfort. Instead, the commission said decisions “defied classification into a coherent political trend”, indicating that they were taken arbitrarily.

It also noted that “what does emerge is undoubtedly a worryingly narrow view of the range of permissible perspectives and qualities of what defines an individual as being approachable for comment and analysis. In turn, this situation restricts the range of views available to South Africans who depend on the SABC to provide them with the information upon which they make their democratic choices.”

While the report says the SABC is within its rights to have a policy on the use of commentators and analysts, it finds that “the blacklisting actions have undoubtedly resulted in a form of exclusion that is not sustainable”.

“The precise terminology should not cloud the issue. The underlying problem is the exclusion of particular individuals … for reasons which are not objectively defensible. Whether one uses the label ‘blacklisting’ or ‘banning’ is beside the point.”

How Mbeki, Sisulu and Ncube were barred

This is an edited version of a letter sent by Pippa Green, then head of news, to Snuki Zikalala on April 6 last year:

Dear Snuki

I was extremely perturbed by events on yesterday’s Radio News line talk.

[You] threatened to take action against myself and the national bulletin editor, Vusi Sithole, for any “opinion” that is reported on Zimbabwe.

Perhaps your intention was to intimidate the staff into confusion about what they are and are not allowed to report on Zimbabwe.

You expressly forbade the views of members of civil society on the situation in Zimbabwe, naming two specific individuals: Elinor Sisulu and Moeletsi Mbeki. Sisulu is an active member of civil society both here and in Zimbabwe.

As for Mr Mbeki, he is a former journalist and now businessman who also happens to be head of the South African Institute of International Affairs.

You also informed our line talk that you had excised the voices of Zimbabwean Archbishop Pius Ncube and publisher Trevor Ncube from a TV report on Zimbabwe, and said that you held the same views about their voices on radio.

Archbishop Ncube, whatever we may think of his view, is the head of the Catholic Church in Zimbabwe.

Barring his views on the situation in his own country would be equivalent to barring the views of Archbishop Desmond Tutu on social and political matters here.

Our own editorial code and the goals that we in the news division set ourselves was to promote the voices of civil society in our news and current affairs programmes.

In conclusion if your instruction was not to use Moeletsi Mbeki, Archbishop Pius Ncube, Trevor Ncube or Elinor Sisulu, all legitimate public figures, then I submit that it is so unreasonable to be unimplementable. It would be morally wrong, professionally wrong, and ethically wrong, and violate not only our editorial code but the spirit of our Constitution.

I would be grateful if you could clarify this.

Thank you for your attention.

Sincerely, Pippa Green, Head Radio News

This letter elicited a one-sentence reply from Zikalala the same day:

I don’t think that I will have the time and energy to be involved in such arguments.

The commission reported: “The issues raised in Ms Green’s letter were of fundamental import. They recorded an instruction not to use particular commentators for reasons which were described as professionally and ethically wrong. Dr Zikalala did not attempt to contest the underlying facts in Ms Green’s letter.”

From the desk of Zikalala

These are verbatim quotes from evidence given to the commission by the SABC news chief Snuki Zikalala

On Aubrey Matshiqi: “...the day when judgement was passed on Schabir Shaik, Aubrey Matshiqi said on air, now it’s time for Zuma to be prosecuted on this issue. I sent a note. I said the Schabir Shaik thing is not about Zuma. Aubrey Matshiqi must not bring the Zuma name in here because it’s the prosecutors who will decide whether they prosecutive Zuma or not. Concentrate on the issue of Schabir Shaik, don’t tell the public now that’s over with Schabir Shaik, now we will see what happens to Zuma. Now you’re already building an opinion to ordinary people.”

On William Gumede: “I never said don’t use William Gumede. I said to, I think to one editor…I have a problem with William Gumede. I have not read his book because his book is based on sources. And for [your] information, I was about to employ William Gumede as one of my column editors. But immediately when he wrote [Thabo Mbeki and the soul of the ANC]...I said this man is not reliable because he does not mention (his) sources.”

On Paula Slier: “From the movement where I come from we support PLO. But she supported what’s happening in Israel. And then I said to them Paula Slier we cannot use her on the Middle East issue because we know where she stands. We need somebody who’s impartial.”

Earlier, Zikalala sent out the following directive:

URGENT NOTE: ALL DESKS

The MD of news, Dr Snuki Zikalala has directed that NO MATERIAL OR STORY SUPPLIED BY JOURNALIST PAULA SLIER should be used by SABC news desks until further notice. Dr Zikalala says this instruction applies to all units of SABC news.

On Trevor Ncube (M&G CEO): “I had lunch with him, I said Trevor Ncube, every Friday in his newspaper he smashes Zimbabwe, every Friday. So why should I give him a platform on my broadcaster? Because he’s got an opportunity in his newspaper. Let’s get another voice inside Zimbabwe. I said let’s get a different voice, not a Mail & Guardian voice ... I said Trevor ... you should not be used ... because you take information and give it to our people and your information is biased, it’s biased and not balanced.”

- Sapa, Staff reporter

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