Johannesburg, 9 September 2014
WHEN I GOT BACK FROM MY SWIM, Amina was on the phone from Joburg. She informed me that there were Sunday Times posters in the streets with the same message as the story: ‘Spy Tapes expose Kasrils’. When I told her I would be suing, she suggested we discuss possibilities when I came to Joburg, where I was due to arrive within a day. We shared a small apartment in Killarney.
We talked about a response. Amina had been a media worker for years and we agreed I would grant interviews to the press, radio and television, who were all clamouring to get my side of the Spy Tapes story. Our main discussion centred on filing a law suit. I had three successful lawsuits against the mainstream media under my belt1 and was gung-ho to teach a lesson to the Sunday Times and its sister daily, The Times, which carried a similar story on the Monday.2
Amina had, however, another suggestion, that I lodge a complaint with the Press Council’s ombudsman. She had participated in the council’s establishment, was a member in her capacity as a television and radio executive at the SABC, and explained that it was a watchdog over the print media, in the upholding of journalistic standards and in defence of the public interest. Notable judges assessed the ombudsman’s findings in the case of appeals, the recourse to justice was swift, and the objective was to obtain apologies from any newspaper found to have infringed the regulations. It was an institution established in our democratic era and its opinions carried significant weight. Amina’s explanation appealed to me, for what I most wanted was to get the Sunday Times and The Times to eat humble pie and apologise for what to me was a blatant untruth. Proceeding through the ordinary courts of the land was liable to be lengthy and costly. And I believed in striking while the iron was hot, while the issue was still fresh in the public mind.
Amina had a copy of the Press Council’s Code Procedures and Constitution. This was a slim, user-friendly pamphlet. I noted from the foreword that the Press Council and its various entities, such as the ombudsman, public advocate (to assist complainants), appeals judge and appeals panel, formed ‘an independent co-regulatory mechanism set up by the print media … to provide impartial, expeditious and cost-effective adjudication to settle disputes over the editorial content of publications’. The Press Code was also meant ‘to guide journalists in their daily practice of gathering and distributing news and opinion and to guide the Ombudsman and the Appeals Panel to reach decisions on complaints from the public’.
After a call to the public advocate, I received instruction as to how to go about filing my complaint on 9 September from the engaging Latiefa Mobara. I duly submitted my complaint to the ombudsman about ‘reports that I believe have breached the Press Code generally and in numerous and serious respects:
‘(a) by failing to obtain my views beforehand, and later only inadequately (2.5 of the Code);
‘(b) through inaccurate and unfair reporting (2.1 of the Code);
‘(c) by failing to clearly distinguish between fact and opinion (6.1 of the Code);
‘(d) through relying solely and in an unbalanced way on anonymous sources whose allegations have been passed on as fact (11.2 of the Code);
‘(e) by portraying me in a negative and unfair light to the detriment of my good name, dignity and reputation (4.7 of the Code). This relates in part to the content of the reports where I am referred to as the “mastermind” behind a political conspiracy to manipulate the National Prosecuting Authority (NPA); and
‘(f) to the use of factually false and sensational headlines “Spy Tapes ‘illegal’ and expose Kasrils” (Sunday Times, 7 September 2014) and “I discussed NPA investigations – Kasrils” (Times, 8 September 2014).’
My complaint continued: ‘To compound the unfair manner in which the Sunday Times conveyed its story, it used a profusion of posters in city streets proclaiming as fact: “Spy Tapes expose Kasrils” (a breach of items 10.1 and 10.2 of the Press Code relating to headlines and posters).’
I said I sought sanctions, ‘which need to include equally prominent retraction and apologies from both publications, and with regard to the Sunday Times the use of street posters to carry their apology’.3
On 19 September 2014 – just ten days after I had submitted my complaint – the ombudsman, Johan Retief, presented his findings.4
The gist of his ruling was: ‘The [Sunday Times] headlines are in breach of Sect. 10.1 of the Press Code that reads “Headlines … shall give a reasonable reflection of the contents of the report … in question.”
‘The omission of Kasrils’s comments in the first edition of the first story, and the fact that the article did not say that it was unable to include his views in time, were in breach of Section 2.5 of the Press Code’s requirement that (a) publication shall seek the views of the subject of critical reportage in advance of publication … If the publication is unable to obtain such comment (in time), this shall be stated in the report.’ A similar finding was recorded in respect of The Times.
Retief’s sanctions against both newspapers were identical. The essential aspects were that they were directed to:5
I was delighted and ready to accept the findings, although the ombudsman had not made reference to my request that the Sunday Times also declare its apology on its street posters. However, when the Sunday Times appealed against the findings, I decided to cross-appeal and request that my claim regarding the poster apology be upheld. The chairperson of the Press Adjudication Panel was Judge Bernard Ngoepe, a brisk and impressive jurist of many years standing.
The hearing was held in the conference room of the Press Council. The Sunday Times was represented by an eminent attorney, Ms Okyerebea Ampofo-Anti, a partner in the prestigious Webber Wentzel firm, and by its in-house attorney Susan Smuts. The public advocate, Latiefa Mobara, was at my side, but in terms of procedure it was up to me to argue my position for myself.
Judge Ngoepe provided his findings on 15 December 2014, in which he dismissed the application of the Sunday Times and The Times, and granted my application that the publication of the apology and retraction be on the street posters as well as on the front page of the Sunday Times. The judge noted that the ombudsman had declined to make a directive concerning the issue of the posters and questioned: ‘Shouldn’t the apology likewise be carried on posters?’ He found that I had ‘a reasonable chance of success and that the [Appeals] panel may adopt the view that each case should depend on its own facts and circumstances’.
I felt greatly boosted by this development and looked forward to the hearing concerning the poster issue. This was something the Sunday Times had fought strenuously against. It was unprecedented in South Africa for a newspaper to publish an apology on street posters, and it rankled with them.
As I prepared for the Appeals Panel hearing on the matter, Latiefa Mobara, with her ever-present air of good cheer, provided me with a most useful weapon. This consisted of a judgment in a Supreme Court of Swaziland defamation case, where Judge Phillip Levinsohn (the South African Press Council chair, no less) had pronounced on the power of newspaper street posters. While the judgment in Swaziland did not apply to South Africa, and that case did not feature an apology of the kind I was seeking, Levinsohn’s opinion would certainly carry weight. I carefully studied the sixty-four-page judgment and felt well prepared to face the redoubtable Ampofo-Anti in the second round.6
On 13 March we duly assembled before an impressive Press Council Appeals Panel chaired by Judge Ngoepe.7 Once the hearing was under way, my opponent weighed in by arguing lack of precedent in the issue, and saying that the Appeals Panel did not have the power to order the publication of a poster apology. In citing several cases where the ombudsman had not ruled that apology should include posters, she argued that it was clear ‘that sanction being requested by Kasrils is completely unheard of and contrary to common practice … we note we can find no example of such a sanction being ordered in any comparable jurisdiction’ and, if applied, would ‘establish what … will be a dangerous and chilling precedent’.
On the power of street posters, I quoted Judge Levinsohn’s opinion in the Swaziland litigation: ‘It is common knowledge that blazing headlines are regularly reproduced upon sizable posters and billboards which are prominently displayed at strategic locations … The hoardings also help to propagate stories of doubtful accuracy.’8
I enlarged on this and stated: ‘Countless people see street posters … A person sees a poster … and a message sinks in whether they purchase the newspaper or not. In such a case the message on the poster equates with the headline to a story … I do believe that it is reasonable and correct that the poster should highlight the Sunday Times apology.’
I turned to the question of precedent: ‘Why shirk from creating precedent? Does precedence not enrich the law … there is always a first time in any legal procedure … in evolving legal principles and procedures. Precedent makes law. It always has. It is an essential part of law.’
I turned to analyse the offensive poster ‘Spy Tapes expose Kasrils’, as my opponents had argued that it was noncommittal and on a par with the type of poster messages generally seen. Begging to differ, I argued that the message was a highly loaded phrase; and that, given the history of spying in our country, the reference to ‘spy’ had sinister connotations in the public mind. ‘The term “Spy Tapes”,’ I explained, ‘has been bandied around in a controversial manner for several years. It resonates with conjecture about spying, smear campaigns and disinformation from the apartheid era through to our democratic dispensation. In the media, political and public arena, government, parliament and the courts, the “Spy Tapes” saga since 2007 in particular has been clouded in fog, half-truth, distortion, character assassination, conspiracy theories and allegations often citing anonymous sources …
‘The word “expose” has a clear and strong meaning with reference to guilt and attempts at concealment of the truth by devious means. The Oxford Dictionary provides the following phrase to illustrate the meaning: “He has been exposed as a liar.” That is a common understanding of the term “exposed”, which is also defined as “uncover, unveil, unmask”.
‘Linking the three words in the poster “Spy Tapes expose” with “Kasrils” creates a deliberate, malicious and extremely disturbing connotation about my persona.
‘Making amends by way of a poster apology,’ I argued, ‘would serve to restore my dignity and reputation maligned by the Sunday Times.’
To the assertion that allowing the apology would be ‘dangerous and chilling’, I retorted: ‘How absurd that last remark … what I would say is “dangerous and chilling” is a newspaper presenting allegations whispered by anonymous, faceless sources as fact, blared out on city streets in blazing headlines.’
Turning to the remedy, I explained that I would be quite satisfied if the poster simply stated: ‘We apologise to Kasrils.’
Ending on a high note is important, and there is nothing like a good quote, so I stated: ‘Daggers in the tongue and the pen – and on a street poster – can be just as injurious as a dagger in the hand or as Shakespeare would put it: “He that filches from me my good name, robs me … makes me poor indeed.”’9
Within ten days of the hearing the verdict was out, as reported in The Star: ‘Kasrils wins Sunday Times spy tapes appeal’.10
The Appeals Panel stated in its ruling: ‘It is a well-known principle of the Press Ombudsman and the appeals mechanism, including the Press Appeals Panel, that an apology or correction should be made with equal prominence to where the offence was committed, and on posters prominently displayed in the city streets where the offensive posters had been originally displayed.’11