‘Scoop’ puts sound judgment at risk

Paul Hoffman

The process of exacting accountability from those in positions of power can become complex when unattainable moral high ground is used as the yardstick.

The oft-mouthed warning against being “popier than the pope” is appropriate, certainly one that is applicable to picking over the carcasses left in the wake of the headlines chosen by Independent Newspapers in their coverage of the “imminent arrest” of the Public Protector Thuli Madonsela – no arrest warrant has ever been issued, followed by “Here’s the proof, Minister” when official denials of any investigation, let alone arrest, were swiftly issued in the wake of the decision to publish stories based on what purports to be an internal police “information note” portentously dated April Fools’ Day.

This note, among others, was apparently leaked to Jovial Rantao, a senior journalist and deputy editor of The Star, who appears to have made the call to publish, and has since stoutly defended the decision by pointing out that:

“1. The article was based on several documents and extensive interaction with high level sources over a period of time.

“2. We took a decision to remove all the names, a signature and contact numbers as a precaution to make sure our sources were not compromised.

“3. It it our duty to inform the public of the greater internal dynamics regarding a matter of public interest; and

“4. We corroborated all our information and gave the PP the right to reply. We did not in any of our reports treat her like a criminal suspect but a subject of a bigger plot.”

To the extent that knowledge is power and the press is a purveyor of information from which knowledge is derived, the press has great power.

In South Africa it also has guaranteed rights to access to information and to freedom of expression, making the work of newspapermen considerably less fraught than it was in the past, when severe restrictions on what could and could not be published existed.

The press is also under threat.

The 2007 Polokwane policy conference of the ANC adopted a resolution calling for the establishment of a “Media Appeals Tribunal” to deal, inter alia, with assaults on the privacy and dignity of miffed politicians whose wrongdoing is very properly aired in the press on a regular and ongoing basis.

This tribunal, if it ever sees the light of day, will, in effect, be a censorship board; the current right of the press to self-regulate will be diluted and the mere existence of the proposed tribunal will be a terrible and unnecessary dampener on the free flow of information to the public via the press, the lifeblood of any truly democratic order.

Under the tribunal the power of the press will be curtailed to the everlasting detriment of the interests of civil society, the future of the country and the free flow of the publishable information that is the source of much power.

In these circumstances, it is incumbent upon the press to exercise responsible judgment when deciding whether or not to publish on the basis of uncorroborated leaks of “confidential” notes that may well be mischievously concocted so as to use the press as the unwitting tool of those with nefarious agendas. The rights involved in freedom of expression and access to information are not unqualified, nor may they be exercised in a way that unwarrantedly infringes the rights of others.

A responsible decision has to be made when an anonymous, albeit corroborated, leak of a purported police note is made at a time when the target of the leak is in the process of pouncing upon the national Commissioner of Police, following findings of irregularities in the conclusion of leases for police headquarters in Pretoria and Durban.

A judgment call of this nature can be very difficult to make. Who wanted to believe that Hansie Cronje, the heroic national cricket captain, was a crook until he actually admitted it? Tony Grogan’s “Crack of Dawn” cartoon in the Cape Times has the commissioner telling a detective: “The Public Protector says there’s something fishy about the leases… I want you to investigate. Investigate what dirt you can dig up on her.” This is precisely the type of situation in which gullibility or the desire to scoop a big story is allowed to outweigh sound judgment.

Everyone in SA is entitled to equal protection of the law. The Public Protector is entitled to her dignity, her privacy and to a fair trial if she is ever arrested, just like everyone else. A fair trial is understood to include the application of a presumption of innocence until a finding of guilt is made.

Routinely, persons actually arrested are not identified in the press until they appear in court. This is a salutary practice, designed to protect the identity of those who may be incorrectly or improperly investigated and arrested, so that the obvious prejudice to their reputations is only allowed out of that “confidential” zone once they have appeared in open court.

The Public Protector is entitled to the same courtesy from Independent Newspapers. She was not afforded it even though she was allowed to comment on the leak.

The only apparent justification for this is the Information Note, somewhat belatedly published in a effort to rubbish ministerial utterances that there is no investigation and has been no wrongdoing on the part of the Public Protector, coming after her own serene rebuttal of the story at the National Press Club in the face of cameras, live broadcasts and a veritable pack of newshounds.

The question which arises is: does the note stand up to scrutiny as a credible basis for the screaming headline “Arrest Imminent”. There is nothing in the note to suggest any arrest, whether imminent or otherwise. Even the details in it are somewhat sketchy and certainly lacking in any substance as regards wrongdoing.

Both before and after she became a law reform commissioner, the Public Protector was perfectly entitled to do business with the Department of Justice.

This is because her right to trade is guaranteed in the Bill of Rights.

The commission is an independent body, not part of the department at all. Many commissioners are retired or sitting judges; no one has ever suggested that they are employees of the department. And even if this were not so, the limited amount of work done by the companies owned by the Public Protector after she joined the commission was “above board” with her interest in the companies fully disclosed as even the most cursory glance at the annual reports of the commission would have revealed to any alert investigator, whether in the police or in the press.

Accordingly, the punchline of the “information note” that its quarry “benefited from the abovementioned (R1.8 million over the period August 2004 to July 2009) payments while she was employed by the Department of Justice” is a misshit of note.

Firstly, the Public Protector was never so employed, and secondly, the relatively tiny amounts actually paid while she was a law reform commissioner were paid openly, transparently and accountably. Minister Radebe is quite right to insist that no laws or prescripts were broken. Minister Mtethwa is entitled to ask: Where is the warrant of arrest?

Employees of the department are constitutionally obliged to execute the lawful policies of the government of the day.

The law reform commissioners, as their title suggests, have a very different function which takes place outside of the constraints of the the department and plays a vital role in the development of our constitutional democracy. A couple of elementary inquiries could have established that the “information note”, if genuine, was written by an ignoramus.

Instead, Independent Newspapers burst into print precipitously and before any arrest or appearance in court took place. In so doing, the reputation of the leader of a specially created institution intended to support constitutional democracy has been unnecessarily sullied and the diversion intended by the perpetrators of the leak, whoever they may be, succeeded.

The “information note” is not “proof” of any “imminent arrest”. It is two pieces of paper, without publication of its signatory, heading, names (other than that of an unfortunate Deputy Chief State Law Adviser who has thus far kept her head down) and no official status of any description.

Its content is proof of the ineptitude of its author. It is not proof of any properly considered investigation and certainly not of any wrongdoing of any kind. Any responsible journalist could have established this within a few minutes and after very little legal advice. Why this was not done is shrouded in shameful newsroom mystery.

l Hoffman SC is a director of the Institute for Accountability in Southern Africa www.ifaisa.org