The struggle for press self-regulation in contemporary South Africa: charting a course
between an industry charade and a government doormat.
By Guy Berger, August 2010.
(Revised version of Paper presented to conference “Communication and Media: Past, Present
and Future”, Southern African Communication Association. Sept 2009).
Abstract:
Self-regulation is widely seen as a way to balance media freedom with restraint. In South
African press history, this balance has been the subject of contestation under apartheid. While
the first 12 years after democracy were relatively uncontentious, concerns were raised in 2007
by proposals for statutory regulation proposals by the ruling party. The performance of the
Press Council was an important component in the subsequent power-play around these
proposals. This article assesses how independent performance of the system helped persuade
the rulers to temporarily suspend their proposals and utilise the existing channels. However,
the persistence of a narrow reactive practice of self-regulation provided space for the
resumption of contestation in July 2010.
1. Introduction
Press self-regulation has always been contested in South Africa, and controversy erupted again
when the ruling African National Congress party (ANC) in mid-2007 raised major problems with
the current system. Both the “Mbeki” and “Zuma” political camps in the ruling party had axes to
grind with the press, and each side regarded the then-recently established Press Ombudsman
and Press Council system as inadequate to address their interests. The ANC called for an
enquiry into setting up a statutory “Media Appeals Tribunal” (MAT) to which the self-regulatory
system would be subservient. To understand what was at stake for the future of press freedom
in South Africa, it is useful to begin with a review of the issues around self-regulation that are
salient to the South African experience. Thereafter, this article describes how the 2007-2009
contestation unfolded, and analyses how it developed up until July 2010 when the tribunal
proposal was revived within the ANC.
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2. Self-regulation
The terrain of self-regulation is generally seen to operate within broad legal parameters of a
media freedom dispensation within a democratic political order. It is a creature particular to
those systems characterised in normative theory as the social-responsibility model. It is
accordingly often argued that in democracies there has to be a clear distinction between issues
to be dealt with in legislation or case law, such as access to information or defamation, on the
one hand, and on the other hand, journalistic ethics, such as accuracy or fairness, which are not
legal matters to be regulated by statutory authority. Bertrand (2004, 2006) has identified at
least 80 of what he called “media accountability systems” dealing with ethical issues, extending
from self-critical evaluations to internal whistleblowers, etc. A number of newspapers in South
Africa have ombudsmen or “public editors” in operation (for example, Mail & Guardian; Sunday
Times; City Press; www.newsombudsmen.org). These are all self-regulatory ways in which
individual journalists do not operate as free-floating agents, but within a context requiring them
to justify their practices.
Self-regulation in this sense is portrayed as a system to ensure adherence to broadly guided
codes of principles for the conduct of journalism, developed by the media professionals
themselves, and in terms of which various mechanisms have evolved to secure implementation.
It is when such mechanisms become institutionalised across a great many media houses, that
self-regulatory systems become ways to ensure compliance with particular standards in
journalism more broadly.
Self-regulation in an institutional sense differs from government-regulation in that it is
voluntary system. At the same time, it involves media sectoral institutional authority that, by
agreement of voluntary subscribers, has the power to impose certain sanctions on members if
they violate an agreed code of conduct.
A major rationale for self-regulation is related to a principle which has been elaborated by
O’Neill (2004). She describes “freedom of expression” as a self-regarding right, and “freedom of
the press” as “other regarding”. In this view, free speech is not per se obliged to take account of
ethics, whereas journalistic speech lays claim to being guided by the ideals of truth-telling,
independence, public interest and consideration for the impact of a given communication.
Especially when journalism (as “other-regarding speech”) impacts on the rights of others, the
rationale for a self-regulatory dispensation becomes one where journalism is accountable for
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living up to its own standards (see White 2008). Democracy in this perspective requires the
balancing of rights and responsibilities. The argument is thus made that self-regulation is the
answer to the question: “if the media are the watchdogs of other centres of power in society,
who will take on the job of keeping an eye on them?” (Krüger 2009:10)
When “other-regarding” speech depends on a public resource like scarce frequency spectrum, it
has generally been the practice that a degree of statutory regulation of content is regarded as
compatible with democratic rights to media freedom. Even here, however, a situation may
prevail like in South Africa where the Independent Communications Authority of South Africa
has delegated a large degree of content-regulatory authority to an industry-body which is
recognised in statute, namely the Broadcasting Complaints Commission of South Africa (see
http://bccsanew.co.za/). For the Hans Bredow Institut/EMR (2006:35), this is a situation of “coregulation”, meaning that it combines “non-state regulation and state regulation in such a way
that a non-state regulatory system links up with state regulation”. However, the real debate over
self-regulation usually pertains to the press where the ‘scarcity’ rationale for government
regulation does not come into play (although cyberspace and the blogosphere have also come
under regulatory focus in recent years – See Berger 2007e).
Even in regard to the press, however, there are nuances around the meaning of “self”-regulation.
It is a tautology that self-regulation should mean that a body such as a press council needs to be
subject to exclusively or predominantly media people such as journalists, media owners and
publishers (although for editorial independence to be respected, owners and publishers should
not be the dominant parties). Accordingly, as Zlatev (2008) argues, if members of the public or
state are represented, their participation should be limited and defined in agreement with the
media stakeholders. The same author observes, however, that having representatives of the
public involved gives the body greater credibility, secures its transparency and accountability,
and serves as a voice of media consumers. In Puddephatt’s view (2008), self-regulation is most
successful where it properly engages the media industry – publishers and owners, editors and
journalists – and also involves the broader public. However, such arrangements can begin to
blur into press-stakeholder co-regulation. If press freedom and autonomy is essential to
democracy, then regulation by a majority of non-media stakeholders, even if non-governmental,
could compromise the character of self-regulation.
Another argument in favour of self-regulation systems is based upon the public’s right to
information. As Matsuura (2005:8) argues, freedom of the press is strongly correlated with the
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public’s right of access to knowledge and information. In this light, there are societal claims on
media to deliver professional and ethical reporting. Again, self-regulation is seen as an
institutional mechanism to help meet this functional need, because it avoids opening the door to
control by extra-media forces who might well bring their own interests to bear in terms of
undermining the public right to know.
What all this means is that systems of self-regulation cannot prevail unless there is media
freedom, as correctly noted by the International Federation of Journalism (IFJ 1999; See also
Dennis et al 1989). In this perspective, self-regulation avoids the dangers of political control,
leaving media ethics largely to media professionals both as individuals and as a community.
Significantly, for the South African debate, the IFJ position is that not only governments, but also
parliaments, should refrain from regulating media content. The argument is therefore made that
as a fundamental condition for self-regulation to work, and not to turn into political control of
media content or self-censorship, press freedom (from both state and government) has to be
respected. It is against this backdrop that Zlatev’s primer on self-regulation includes amongst
the main duties of a press council being to defend press freedom (2008:46). On the other hand,
if political authorities resent even ethically-compliant journalism and if they decide pursue
limits on press freedom regardless, this removes the autonomy that is essential to selfregulation. It is the extent to which the broader public cherishes press freedom, and selfregulation as integral to this, that provides the ultimate guarantee against political control. In
turn, and as elaborated further below, a system of self-regulation needs broad public awareness
and support as a condition of its success.
The assumption therefore is that self-regulation is a recognition of the relative independence of
journalists and the media. This is expressed by the African Union’s Commission on Human and
People’s Rights, in its 2002 Declaration on Principles of Freedom of Expression in Africa. The
Declaration reads: “Any regulatory body established to hear complaints about media content,
including media councils, shall be protected against political, economic or any other undue
interference.”
It is this paradigm that seeks to find a “sweet spot” of self-regulation between the extremes of
governmental regulation via the state (which also carries dangers of pre-publication
censorship) and an unregulated free-for-all. However, self-regulation is not primarily a way to
“keep the government off the media’s back”, to utilise a colloquial expression. This is a
significant point, given the observation by Bussiek (2008:1) that in Southern Africa, “self4
regulatory systems were put in place only after governments threatened to introduce statutory
regulation”. As this author has written (Berger 2009b): “If it functions effectively, a press
council can keep government control out of media. But that is, ultimately, a valuable by-product
of doing the right thing in terms of upholding quality standards and requiring editors to publish
apologies and corrections when found wrong. Acting as a sop to a predatory government should
never constitute the motive force or raison d’etre of self-regulation.” Self-regulation for
primarily political reasons risks becoming a synonym for self-censorship.
What is also important to record is that self-regulation is also not a system in the interests of the
media as such. This is because, as Nelson Mandela (1996:8) has articulated, “Freedom of
expression is not a monopoly of the press; it is a right of us all”. The point of self-regulation
therefore is to promote journalistic standards in the interests of “all”. In turn, that means that a
system which is independent of not only government, but also the media itself. A press council
has to be above the “us” and “them” when it comes to complaints by a given party against a
given medium. Accordingly, a press council should not be a token or charade that beneath the
rhetoric actually serves to defend ethical violations. “Its credibility rests wholly in its being an
authentic independent process of redress to citizens when, as too easily happens, media ethics
go awry and people’s rights are infringed” (Berger 2009b).
If self-regulation is seen as a sincere, rather than expedient practice, it follows – as argued by
the International Federation of Journalists (IFJ 1999) – that journalists and their organisations
should promote public confidence in the media by establishing systems of self-regulation. Breit
(2005) takes this issue further by criticising how journalistic self-regulation in Australia has
tended to treat the public as passive recipients of information, rather than as integral parties to
the process. She observes that this situation relies heavily on complaint-driven processes,
rather than engaging with media literacy issues and with recognising that audiences’
consumption of news is not a passive activity. This observation thus implies not just an
autonomous role for a press council, but a highly pro-active one. One debate here has been the
issue of whether a council should behave like a “media observatory” which combines research,
advocacy and pro-activity roles along with the conventional and narrower role of receiving and
adjudicating complaints. There has been some debate in South Africa around this, as will be
discussed below.
To operate as per paradigm and promote high standards, a press council has to be effective.
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To this end, as Zlatev (2008) notes, a press council needs to oversee (and amend if necessary) a
code of conduct in such a way as to realise standards in an independent way and through actual
practice of enforcement. However, one of the biggest debates around self-regulation is the
extent to which mechanisms such as councils should have statutory recognition, and further on
this, whether there should be powers that are backed by the force of the state to ensure actual
compliance.
In many countries outside of Africa, press councils are generally non-statutory (Denmark being
an exception, OSCE 2008, see also www.media-accountability.org; www.wanewscouncil.org).
Within Africa, however, Kenya and Botswana have recently introduced statutory systems. The
argument for non-statutory regulation is on the grounds that introducing the compulsive power
of the state to back up self-regulation compromises the very character of self-regulation, and
also that it opens the door to government intrusion. A similar argument extends to press
councils avoiding adopting to powers for which they have little real enforcement authority. In
this vein, Zlatev (2008) notes that “a self-regulatory body would have grave difficulty
introducing fines or compensation unless it had a statutory basis – and that, of course, would
conflict with the notion of the system being self-regulatory”. The same applies to why a selfregulatory body should not have the power to award monetary compensation to successful
complainants. Even more so is any notion that self-regulatory bodies should have the power to
prevent journalists or newspapers from operating – which kind of licensing would only be
possible with statutory sanctions. A further argument against statutory powers is inscribed in
the provision of the African Union’s Declaration of Principles that self-regulatory powers “shall
be administrative in nature” and that a council “shall not seek to usurp the role of the courts”.
This particular point has been a source of some tension in the South African situation,
concerning a “waiver” clause, as discussed below.
A non-statutory regime, which by definition entails voluntary subscription and compliance,
contrasts with state-sanctioned bodies which may be able to conscript membership and which
can thus discipline journalists, even if the majority of their membership consists of non-state
actors (as in Kenya). In contrast, the non-statutory system means that “the independent media
accept their share of responsibility for the quality of public discourse in the nation, while fully
preserving their editorial autonomy in shaping it” (Haraszti 2008). However, one of the most
common causes of failure of non-statutory self-regulation is disregard by editors of the system.
Referring to the British Press Complaints Commission in regard to that body’s shortcomings,
Robertson (2002) has written: “It has designed an ethical code which it declines to monitor, and
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its decisions are accorded a degree of cynicism, bordering on contempt, by editors." (See also
Gore 2008). The failure of members to take responsibility and to abide by the system
strengthens those who wish to see a self-regulatory body provided with statutory “teeth”. In this
way, a weakness in non-statutory self-regulation can pave the way for statutory self-regulation,
which in turn creates the further potential for governmental regulation via the exercise of state
power.
Following on this theme, it has been usefully suggested by Hadland (2007) that what makes a
non-statutory self-regulatory system credible and sustainable are three factors:
- the independence of the council from particular vested interests that could colour its
judgements;
- the respect that member newspapers of that council give to the judgements (a point also
stressed by Ronning, 2002);
- public awareness of the system and how to use it (which is closely linked to how much the
member media implement rulings and publicise them).
The logic behind identifying these three factors should be self-evident after what has been
written above, and will not be elaborated here. Instead, emphasis will be put on assessing the
South Africa press system in relation to this schema.
3. Self-regulation in South Africa
Tettey (2006) notes that the concept of media accountability in Africa is contested, which is
evident in much of the continent having a chequered record in this regard. This was apparent in
a debate around a proposal (http://media-dev.org) in 2008 to introduce a pan-African “media
observatory” in which a government-dominated structure would mediate complaints against
media across the entire continent. For its part, South African press history has also been one in
which there has been much contestation around self-regulation. The apartheid government in
1950 appointed the first of several commissions of inquiry into the press, with the prospect
emerging of statutory regulation (over-and-above hugely constraining legislation). In response,
Argus Group chairman, DH Ollemans, proposed a voluntary press council – the first move
towards self-regulation of the press. Accordingly, mainstream South African newspapers prior
to democracy subscribed to a non-statutory body called the Media Council (in 2002 called the
Press Council), set up and funded by the Newspaper Press Union (NPU). But much criticism has
argued that the body (and its progenitor) ended up complicit in one way or another with much
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of governmental abuse of media freedom under apartheid. The Council can be assessed as
having come close to being a tool of self-censorship. For example, it was part of a wider package
in which the NPU in 1969 developed a “Defence Agreement” with the South African military,
later complimented by similar arrangements with the police. Addison (nd, cited by Braude,
1999:38), described this as resulting in “a bargained half-truth which editors accepted as news
although they and their correspondents were privately told many more facts in special briefings
in Pretoria.”
Certainly, the South African system had been set up response to government threats for the
newspapers to get their own ‘house in order’, or face increased statutory restrictions. As Patten
has written: “Faced with this constant rumble of intimidation against the industry as a whole,
newspaper proprietors decided to take defensive action against state intervention - voluntary
steps some would have called it, but steps actually taken under government duress in an
attempt to diminish the likelihood of further restrictive press legislation.” (2007:25). The
system exempted the NPU members from the provisions of the Publications Control Act.
According to Patten, the council actually received few serious complaints over the years, and in
fact it only occasionally reprimanded newspapers for breaches of ethics. While editors
published the council's findings, they also often saw fit to write editorial comments attacking
the same ruling. Accordingly, “(t)his led to pressure from the government to ensure it [the
Council – author’s insertion] had more teeth, because the government remained dissatisfied
with the tone of the press in relation to its policies.” (2007:25)
Patten also notes that “(t)he council itself had all the failings of the old South Africa, being in no
way representative of the whole population or even of the newspaper reading public among its
public representatives and being represented only by whites among its press representatives.”
(2007:26). Indeed, the racial character of the press and its role under apartheid was the subject
of the Truth and Reconciliation Commission (1997), and the legacy was scrutinized by the
Human Rights Commission investigation into racism in the media (1999-2000). This whole
history also informed the scepticism with which the ANC, even after 13 years of democracy,
viewed the press in general and self-regulation in particular.
With the advent of democracy in 1994, the council system was dropped by the newspaper
industry and replaced by a much scaled-down version. Thus in 1996 the expanded industryowners’ body Print Media South Africa (PMSA), the South African National Editors’ Forum
(SANEF), the Media Workers’ Association of South Africa, and the South African Union of
Journalists set up the office of the Press Ombudsman and an Appeals Panel. These were
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presented as providing an accessible, cheap, impartial and independent complaints mechanism,
and as offering solutions through settlement or adjudication of complaints in accordance with a
Code of Conduct.
Fourie and Wigston (2005) record that the system’s powers were limited to enforcing the
publication of reprimands and corrections. This limitation would not perhaps have mattered
much if there had been respect for the system from the editors, but there was poor compliance
with Ombudsman rulings by newspapers like City Press, and even crass undermining of these by
publishing rebuttals (as in the case of complainant Xolela Mangcu) in the Sunday Times. The
ineffectiveness of the system was such that a low point was reached in post-apartheid
journalism where, for instance, the City Press editor Vusi Mona could forego ethics entirely to
publish an unverified article claiming that the public prosecutor behind a corruption probe into
(the then ANC deputy president) Jacob Zuma was acting out of malice arising from him having
been an alleged apartheid spy prior to democracy (Berger 2007b). In general, there were
concerns within the media about the prevalence of poor ethics, often raised publicly as well as
within SANEF (See Barratt 2007). Criticism of the ineffectiveness of the system to correct the
problems also pointed to the poor visibility of the office and the incumbent Ombudsman.
These sentiments led to a system restructuring after a number of years. Thus in 2007, the
Ombudsman’s position was relocated within a re-invented Press Council and Appeals Board.
The system reintroduced the practice of including members of the public as well as the press,
and its basis continued to be the Code of Conduct (although slightly updated from that used by
its predecessor). However, the previous Ombudsman retired and was replaced by veteran
journalist Joe Thloloe, a public figure widely recognised for his stature and integrity.
Significantly, the constitution of the new Press Council of South Africa (PCSA) prioritised, as its
first aim and objective, the promotion and preservation of constitutional freedom of expression
and of the press. Only second came the promotion of ethical journalism. However, the fifth
objective included the promotion of public awareness and understanding of the self-regulatory
system, signalling attention (on paper at least) to playing a more visible role.
The role of the PCSA as structured in 2009 was akin to a “legislature” in the sense that it had the
power to adopt (and amend) the Code of Conduct, and it had the oversight role of the
governance of the whole system. The Council was also mandated to promote self-regulation to
the public and government, as part of its defence of press freedom. The Ombudsman in this
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framework works as a “judge” – although only after he has exhausted his efforts to mediate a
settlement without disputes having to come to adjudication. In his rulings, he is usually assisted
by two members of what is somewhat confusingly called Appeals Panel. A different set of
individuals from the Panel may also be called in to hear actual appeals against the Ombudman’s
rulings when these are considered by the Chair of the Appeals Panel who is a retired judge, and
who has final say.
The PCSA is made up of six representatives nominated by press organisations, and six public
representatives. The Appeals Panel itself includes a different set of six members of the press and
six members of the public. No press representative employed by a given publication under
contention may be involved in adjudication of cases. For a flavour of the work of the PCSA, one
can cite chairperson Raymond Louw who in 2008 said: “In the 12 months, we have had more
than 121 complaints and the complainants ranged from ordinary readers of publications to
Cabinet Ministers and political parties. We are satisfied that the system is working well.” (Press
Council statement, August 15, 2008).
However, in contested South African political conditions, what is also highly relevant is extent to
which the system was accepted by the ruling party (see Berger 2007c).
4. The ANC critique
The years 2007 and 2008 saw a leadership contest being fought out in the ruling ANC, with the
press co-opted (wittingly in some cases) into a weapon for disseminating information designed
to discredit a particular side (see Berger 2008b). Two stories in particular played within this
political space. The most significant was an exposé of the Minister of Health in the cabinet of
Thabo Mbeki and which was based partly on information gleaned from her private medical
records. The other story was about the then-imminent rape charges facing the dismissed deputy
president Jacob Zuma even before he appeared in court. Both raised questions of rights to
individual dignity and privacy, as against press claims of superior public interest. This was not
an academic debate. Supercharged with political rationales, neither the Mbeki nor the Zuma
camps were happy about what was appearing in the press, and voices from each side
complained that the press was elevating freedom of the press at the expense of the rights of
individuals.
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At the same time, between 2007 and 2008, the government sought to reform the Film and
Publications Act to combat what it saw as child pornography in circulation including in the
press. This move threatened to introduce pre-publication licensing for PMSA members, which
elicited strong condemnation and fears about government’s political interests. The status quo of
press freedom and self-regulation in the post-apartheid dispensation which had not been in
contention prior to 2007, was now evidently in flux.
In this context, the ANC National Policy Conference in June 2007 considered a document titled
“Communications and the battle of ideas” (ANC 2007a). One of its points was that the rights to
freedom of expression and freedom of the media “need to be weighed against other
constitutional rights, such as the right to human dignity and privacy”. (This was also the theme
of an SABC conference in October 2007, See Berger 2007d). The ANC document continued:
“In this regard, an investigation should be conducted into:
the adequacy or otherwise of the prevailing self regulatory dispensation within the media;
whatever remedial measures may be required to safeguard and promote the rights of all
South Africans;
the need or otherwise for a media tribunal to address these matters.”
There was no elaborated explanation as to why unhappiness with the media’s judgement calls
on balancing rights should require a fundamentally new system in the form of a tribunal to
override the existing operation. Further, the Minister of Health did not resort to the Press
Council about the intrusion into her medical records, and neither did she sue the newspapers
concerned. For his part, Jacob Zuma reportedly launched at least seven civil actions against the
media for alleged defamation and violation of person dignity, rather than giving the issue a try
at the Press Council. However, ANC officials rationalised their lack of usage of the existing
system as resulting from the requirement for complainants to waive their legal rights to go to
court or other regulatory bodies if they wished to use the Council system. This issue is further
discussed below. The ANC also accused the Council, although without evidence, of being slow
and unresponsive when it came to handling complaints. That the ANC at that point in time
deemed it necessary to consider setting up a superior structure to regulate the press, rather
than use the Press Council as it was, thus seemed more to be a function of political desire to
control rather than just a concern over the balancing of rights.
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Thus, according to Essop Pahad, minister in the presidency speaking during 2008, there were
“very, very, very strong views” in the ANC about the media’s coverage of the party (Berger
2007a, 2007b). He also criticised the existing self-regulation system, urging it to go further than
just receive and consider complaints; in other words, it should proactively and its own right,
identify and prosecute problematic journalism. The response from the then-retired
Ombudsman, Ed Linington, was that the office was neither a policing nor a prosecution service,
only a recipient of complaints and that it did not itself bring complaints to the table. Similarly,
on a later occasion, Council chairperson Raymond Louw argued that “for the Ombudsman to
become a policeman and prosecutor and a judge all in one … poses a great many problems.”
(frayintermedia 2008)
Another issue raised by Pahad was the waiver issue. Part of the media’s rationale for the Press
Council and Ombudsman was that the system should be cheap for complainants and defendants,
thereby saving all sides the costs of a complete civil law case. But this objective entailed the
protocol that complainants should forfeit their rights to take their grievance further such as by
launching a civil case against the relevant publication or approaching the Human Rights
Commission. From personal contacts with members of the Press Council founding parties, this
author notes that one argument advanced by them in favour of the waiver requirement is that it
prevents complainants from “forum shopping” and thus from wasting the time of the
Ombudsman in the event the complaint is not sustained. Another argument is that without the
waiver, complainants might abuse the Council’s process to fish for information about what
defences the publication would likely mount in defending any subsequent civil action where
monetary damages could be awarded.
The current system is also likened by its proponents to an agreed arbitration process between
different interests, where participants voluntarily agree to accept the results as binding.
However, strengthening the ANC case is that the difference here is that parties in other
arbitration instances often do have cheap alternatives – such as the Small Claims Court and the
Commission for Conciliation, Mediation and Arbitration. This is not entirely the case with the
Press Council, where the alternative of civil court proceedings can be prohibitively expensive.
At any rate, despite the arguments in favour of the waiver provision, the ANC through various
representatives continued to express unhappiness with it. The criticism was that complainants
were being compelled to forfeit subsequent rights if they accepted the jurisdiction of the
Ombudsman. The ANC's spokesperson Jesse Duarte stated: "The self-regulation of the media
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suppresses the rights of citizens from taking the media to court.”(De Waal, 2008). It appeared
that several ANC people incorrectly thought that the public were given no choice in the matter:
that they were bound to take complaints to the Press Council rather than the courts.
To further support their criticism, government people also pointed out that the Broadcast
Complaints Commission of South Africa does not inflexibly operate a waiver system. The BCCSA
constitution provides that:
“When at any stage of the proceedings, the Chairperson is of the opinion that it is in the
interest of fairness that a complainant must waive his or her rights to further legal
recourse, the Chairperson shall require the complainant to waive such rights. If a
complaint deals with a matter already before a South African Court the Commission will
not consider it.”
In various fora, the supporters of self-regulation counter-argued that broadcasting selfregulation operated on a different justification and rationale to print. However, this did not
convince the ruling party and government.
The wrangle over the tribunal took another turn six months after the policy conference, when
an ANC congress in Polokwane adopted a further resolution to investigate the “necessity or
otherwise” of what it now elaborated as the “Media Appeals Tribunal” (or MAT) (ANC 2007b).
The resolution dismissed the existing system of self-regulation as “not adequate to sufficiently
protect the rights of the individual citizens, communities and society as a whole”. Significantly, it
also stated that “freedom of expression shall not be elevated above other equally important
rights such as the right to privacy and more important rights and values such as human dignity
(author’s emphasis)” (ANC 2007). Duncan (2008) points out that this resolution strongly
implied that the ANC was no longer presenting itself as being concerned with balancing rights,
but had now elevated dignity above freedom of expression as a general principle. The
Polokwane document nevertheless also stated that “the creation of a MAT would strengthen,
complement and support the current self-regulatory institutions (Press Ombudsman/Press
Council) in the public interest.” It continued: “This discourse on the need for a MAT should be
located within a proper context. It has to be understood as an initiative to strengthen the human
rights culture embodied in the principles of our Constitution … and an effort to guarantee the
equal enjoyment of human rights by all citizens.”
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Most ominously, from a self-regulation standpoint, the Polokwane conference also added the
adjective “statutory” to the words “media tribunal” to which the Press Council would be subordinated in terms of appeals against its rulings. Although Polokwane still couched the
initiative as a possible outcome of an investigation, the tone of the resolution suggested that
such an inquiry might be a mere formality. The tribunal was also subsequently presented by
ANC officials as preferably being established by, and accountable to, parliament (rather than
government) – a proposal that nevertheless goes against the IFJ position noted above. With the
ANC as the pre-eminent party in the legislature, there was clearly a sub-text that state power
could be abused for partisan purposes to control what the press would be allowed to publish.
SANEF and others then escalated their criticisms of the ANC position, and engaged directly with
many of the party’s top leadership. At one exchange over a year later (see Berger 2008a), the
emphasis by ANC leader Kgalema Motlanthe was that the initiative aimed merely to “strengthen
self-regulation”, and that the operative words for the investigation were “feasibility” and
“desirability” of the Media Appeals Tribunal. The press reaction, he said, missed the point that
people needed recourse when newspapers trampled rights to dignity and privacy. Veteran ANC
leader Pallo Jordan argued that the ANC had always fought for freedom of expression, and that
there was no intention to force editors to favour the party (see Berger 2008a). Reminded by
Press Council chairperson Raymond Louw that the apartheid government had once proposed
statutory regulation of the press, Jordan responded: “The fact that you use the same words does
not mean you are up to the same tricks.”
With the ANC seemingly unshakeable, it seemed to be a strong likelihood that statutory
regulation would swiftly replace self-regulation as far as the ruling party was concerned.
5. The post-Polokwane performance of the Press Council: proof of the pudding
Although December 2007 saw a hardened resolution on the tribunal, the Polokwane event also
resolved the leadership dispute within the ANC – thereby reducing the stake that the different
camps had in pressurising the media. However, the Press Council’s AGM in August 2008 said it
remained “deeply concerned at the attacks on media freedom and the judiciary in South Africa”.
It noted “with alarm” several new laws which would “severely inhibit media freedom and
restrict the public’s right to know”.
14
Yet, at the same time as the new ANC leadership consolidated its position and began to prepare
for national elections in 2009 in which media support or at least neutrality would be important,
its position on the tribunal began to soften. The party met with Press Ombudsman Thloloe in
August 2008, and in March, 2009, the ANC’s spokesperson Jessie Duarte stated that the ANC had
shifted its thinking on the matter and decided that “now is not the time and place for Tribunals”.
She advised that the next policy conference would reconsider the Polokwane resolution, and
added that the ANC had reached agreement with the Ombudsman that his office would be
strengthened (Duncan, 2009). At the same time, in the background, draft legislation was being
finalised that would deal separately with issues of privacy of personal information (this was
finally tabled in August 2009 as the Protection of Personal Information Bill).
In the changing context of 2008, it was not entirely surprising then that the ANC decided to
approach the Ombudsman with a complaint over a City Press article headlined “Cracks in Zuma’s
NEC”. In a sense, it was a test case. On March 27, 2008, the Ombudsman ruled against the
newspaper, which the ANC complained had been a fabrication presented without any indication
that the sources were not necessarily truthful. According to Thloloe’s ruling, the ANC had
complained that the headline, the introduction and the next three paragraphs of the report
presented the issue as fact. “It was only in paragraph five of the report that the words ‘sources
say’ appeared; and the ANC’s denials of what was reported as fact in the article first appeared in
paragraph 11 … . The ANC held that many readers would probably have stopped reading before
they reached the ANC’s denials or comments.”
The Ombudsman’s ruling said that the three identified ANC sources in the story supported the
confidential sources in some instances. However, it took issue with the City Press defence that
the Press Code of Conduct entitled it to publish if it reasonably believed its version to be true.
The ruling instead took a different view of Article 1.3 of the Code of Conduct which reads: ““Only
what may reasonably be true, having regard to the sources of the news, may be presented as
fact, and such facts shall be published fairly with due regard to context and importance. Where a
report is not based on facts or is founded on opinions, allegation, rumour or supposition, it shall
be presented in such manner as to indicate this clearly”. In the Ombudsman’s interpretation of
this, it required more than “reasonable” belief that a story is true to elevate it to being true. The
ruling continued that there was “no evidence that one or the other of the conflicting versions of
the story was the correct one”. It concluded that: “It is precisely in circumstances like these that
all information should have been treated more cautiously and fairly than City Press did. The
panel unanimously decided that the newspaper breached the Code by going too far in reporting
15
disputed allegations as fact.” It added that the headline should have made clear that was being
reported were disputed allegations, and the paper was ordered to publish a summary of the
judgement.
Commenting soon after this decision, Duncan (in frayintermedia, 2008) stated: “… the most
compelling argument about the Press Council not being captive of the industry is the latest
judgment that’s come out involving the complaint laid by the very ANC who has raised this
question about the impartiality of the Press Council.” However, when the newspaper
subsequently took the Ombudsman’s decision on appeal, the ruling was overturned. In a
statement on May 26, 2008, the Appeals Panel said that the Ombudsman had been wrong in his
remark about City Press having to prove the truth of its “corroborated confidential information”.
He had erred in saying that Article 1.3 “requires much more than reasonable belief that a story
is true to elevate it to being true” – whereas a “proper construction” of the Article with its “clear
wording” contradicted his interpretation. It said the Code had not been breached by the
coverage, and that the ANC complaint was dismissed.
The ANC would not have been at all happy about the Appeals Panel decision. However, a
threshold had already been crossed in terms of its participation in the system, and moreover at
the time of the appeal decision, several other cases had not only already been entered into the
system but had also been decided in favour of complainants who were senior people in the
organisation.
Thus, the Ombudsman ruled on 16 May in favour of then Western Cape Premier Ebrahim
Rasool, against the Daily Voice newspaper. In these findings, the Ombudsman reported that this
ANC politician had complained that a story had allegedly implied that he had recklessly given
one million rand of taxpayers’ money to a man facing drug-related charges. The verdict found
that the money had been given to an organisation, not to the individual concerned, and that the
Daily Voice had thus not been fair to the Premier. The sanction was for the paper to carry a front
page apology and an abridged version of the ruling on inside pages (content for both being
supplied by the Ombudsman).
Another case concerning matters relevant to the ANC during this period resulted from a
complaint by pro-ANC businessman Robert Gumede against the Mail & Guardian, which had
published an article that this substantial donor to the ANC was being investigated for bribery to
win a tender. Announcing its ruling on 23 July 2009, the Ombudsman’s panel said the case
16
“again brought the question of the use of anonymous sources in news reports into sharp focus”.
The judgement recommended that editors should “distribute the South African National Editors’
Forum’s Guidelines on confidential briefings and sources among all their journalists and run
workshops on it.” This was because the guidelines stated that: ‘Anonymous sources should
generally be used only as a last resort – i.e. when there is no other way to get and publish the
story.’” Instead, said the panel, in this case the journalist concerned had published and only
thereafter gone to sources he could have placed on record.
In its findings on this complaint, the Ombudsman’s panel rejected one of the newspaper’s
defences concerning the size of the tender, which had been that the R600-million figure had
been used in several news reports before and had not been questioned. “Again, a lame excuse.
There is no reason to use figures because everybody else is using them. It is the responsibility of
the journalists to get the facts and figures right.” Also criticised was the newspaper’s defence
that while it had given some space to Gumede’s responses, it had pointed readers to his full
response online. “The panel’s responsibility is to look at what was published in the story and not
to go beyond into another medium. Many readers would end up with only the print version.”
The panel agreed that the complainant had been wronged and deserved an apology. More
fundamentally, the panel found that the paper had erred by assuming on the basis of (belated)
information that a “nole prosequi” certificate had not been issued, that the police investigation
had therefore continued – whereas the Director of Public Prosecutions had decided not to
prosecute Gumede. Such ethically problematic journalistic practice was upbraided. The
newspaper was unhappy, but nevertheless still published the apology, along with a comment
that concluded: “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.”
(http://www.mg.co.za/article/2010-01-15-flawed-but-substantially-true)
In another two cases that occurred shortly after this, several complaints by ANC leader Frank
Chikane were upheld, with the offending newspapers accepting the ruling of the Ombudsman.
The first case was announced on 3 August, in which Business Day newspaper was found to have
breached four paragraphs of the press code, and was ordered to apologise to him. Rebutting a
defence by Business Day that other media had carried the man’s responses, the Ombudsman
made strong comments: “A newspaper cannot delegate the requirement to be accurate by
claiming someone else has done the job for it. It does seem to be petulant and unbecoming to be
pointing to Chikane’s statement to SAPA and to The Star.” He further chastised the paper for its
17
argument that the complaint had been delayed. He explained the various stages it had gone
through, adding with vehemence: “This system is not about bureaucracy – it is about ‘excellence
in journalistic practice and ethics’. It tries to answer the question Did we get the story right?”
His finding was that “it was not true that the ANC had chastised and gagged Chikane”, and the
paper was cautioned and instructed to carry an apology to be provided by his office.
The second decision concerning Chikane, but also of wider political relevance was announced
on August 6, and concerned a claim that this Mbeki aide had urged his principal to concede
defeat in the leadership contest with Zuma. In this, The Times newspaper lost the case, with the
ruling attacking the article concerned as having failed to cite additional direct eyewitnesses to
the alleged discussion by Chikane on the matter, or to corroborate the claims of the unnamed
source of the story. Going further, the Ombudsman declared: “This is another example of the
reckless use of anonymous sources.” He added:
“It is particularly when the environment is volatile and tempers are high that journalists
should take extra care in their writing. The newspaper should have anticipated that Mbeki
supporters would be angry with Chikane – as they were – after reading the story and
[should have – author’s insertion] checked it rigorously before putting it out to the
public.”
Thloloe thus found that The Times violated the Press Code twice. He dismissed as disingenuous
the paper’s argument that “Chikane has rejected the publication’s offer of space for a letter to
the editor putting his side of the story”. In the ruling’s words: “The code is clear: ‘A publication
should make amends for publishing information …that is found to be inaccurate by printing,
promptly and with appropriate prominence, a retraction, correction or explanation.’ The code
does not throw the ball back into the offended subject’s court.”
In another important case, on September 2, 2008, the Ombudsman found in favour of a former
government official, the former CEO of the Land Bank, and against the Sunday Times newspaper.
Here, the ruling criticised the paper for presenting as fact what was only a qualified report by a
prominent auditing firm. The publication then published a report of the findings compiled by
the Ombudsman.
18
These instances demonstrated not only independence of the Ombudsman from the industry.
They further revealed a strongly critical tone and references that went more broadly than the
particular newspapers under consideration.
Summing up the year’s work in August 2009, Thloloe (2009) reported to the Council on the
extent of usage of the Press Council by the ruling party in amongst the 103 complaints he had
handled since January that year. He wrote that the ANC had been “quick to tell the world that it
had submitted complaints against City Press and the Sunday Times. Its treasurer, Dr Matthew
Phosa, has also filed a complaint against City Press.” He also advised that Judge John Hhlope, a
person seen as aligned to Jacob Zuma, had also submitted a complaint. Although not in his
report, earlier in the year an incident had occurred in which The Star newspaper reported
allegations about the then President Kgalema Motlanthe having an affair. Motlanthe’s response
at the time was that he would take the issue to the Press Council (Berger, 2009a). The
complaint was about reports in Independent Newspapers and Sunday World, and these cases
were then settled with apologies by the papers as a result of the Ombudsman’s mediation.
Added to this trend, even President Jacob Zuma submitted a complaint to the Ombudsman
during 2009. As it happened, he withdrew it soon after, with his office saying that there had
been good reporting of the President’s response to initial stories. Commented Thloloe (2009):
“What was interesting for me was that President Zuma, like President Motlanthe before him,
was giving self regulation his stamp pf (sic) approval”.
Thloloe’s 2009 report also affirmed that the waiver system would remain in place. However, in
effect announcing a response to ANC criticism, he said it would henceforth be accompanied by
an explanatory note as follows:
“This waiver is designed to avoid tribunal-hopping and to prevent a publication having to
answer twice on the same complaint – to us and then later to the courts or other tribunals.
We thus give you a choice of tribunal upfront. If your goal is to clear your name quickly
and cost-effectively, you would choose our system. If it is other relief you seek, you might
choose another route to suit your goal.”
In summary, the system did not address all the ANC’s criticisms around the balance of rights,
pro-activity (in initiating cases against the errant newspapers) or scrapping the waiver. But it
did demonstrate its clear independence from the press, its effective influence in compelling
redress, and its partial responsiveness on the waiver issue.
19
6. Conclusion
Duncan (2008) has argued that the South African Press Council does not exhaust “the whole
notion of media accountability, because it’s actually quite a passive mechanism”. At the same
time she has branded the Media Appeals Tribunal idea as “obviously unconstitutional”. Whether
this unconstitutionality is the case, and whether the proposers of the tribunal were aware of the
ultra vires potential at least, is not something that can be definitively established in this article.
What is clear, however, is that the threat alone seemed to galvanise the press into beefing up the
Press Council to the extent of making hard-hitting rulings that were respected by editors.
However, there is no evidence that either the Ombudsman or the Appeals Panel have sought to
placate the ANC since the tribunal proposal. There is also no evidence that editors have been
self-censoring for fear of inflaming ANC reaction. What would seem to be the case, however, is
that on the press side, the importance of self-regulation as an alternative to ruling party
regulation has been put into stark relief and is being respected. In terms of Hadland’s criteria
for the health of a self-regulatory system, it can be said that the South African model emerged
from 2009 as one with independence from vested interests (both press and government),
respect by member newspapers, and awareness and acceptance of the institution and its
processes – at least as far as the ruling party was concerned.
Thus a threat to press freedom, whether it would sustained constitutional court challenge or
not, had been averted for the period under review. A path between a free-for-all on the one
hand, and government control on the other, was chartered between 2007 and 2009. This author
concluded at the time (Berger, 2009b): “In sum, self-regulation looks like it’s here for the long
haul. That’s a fine thing for independent quality assurance of newspaper journalism … and for
press freedom as well.” On the other hand, the notion of a self-regulatory body playing a more
active role in developing media literacy was still relatively unrealised, notwithstanding the
proviso to this effect in the Press Council’s founding documents, and the broader critical
comments made by the Ombudsman. This is not to suggest that the system should evolve into
the Observatory policing model as suggested by Pahad. But in 2009 a lot more still remained to
be done as regards an educational role of promoting public literacy around press freedom and
self-regulation. That medium-term trajectory would depend in part on the resourcing that the
print media industry would be prepared to invest in this particular activity, with no signs
forthcoming during 2009.
20
In the absence of this public educational function flourishing, however, there was unlikely to be
an enduring climate of social respect for self-regulation as an integral part of the texture of
democratic life. After a number of exposés of senior ANC members driving luxury cars and
staying in luxury hotels at taxpayer expense, some elements within the ANC revived the idea of
statutory regulation via the tribunal in July 2010. One party official even threatened that this
new body would have the power to imprison who it deemed to be errant journalists. In 2008,
Bussiek had noted of Southern Africa: “Relations of most Media Councils with governments
remain precarious”. Indeed, the South African model had survived one test between 2007 and
2009, by establishing itself as a mechanism that could operate impartially and forcefully as
regards the interests of both the complainants and those of the accused newspaper. But that
alone was not enough to fully guarantee its longevity.
To succeed as a bulwark against partisan political control in 2010, the system needed to secure
the third element of Hadland’s trilogy: widespread public support for voluntary and sovereign
self-regulation. At the time of writing this article, SANEF had embarked upon precisely this kind
of awareness campaign (See www.sanef.org.za). Such proactive steps were the result of
renewed political pressures, yet they were far from evidence of self-regulation becoming a
means to producing a cowed and self-censoring press. Instead, the SANEF aim has been to
strengthen public support for self-regulation as one of the integral conditions of press freedom.
In the end, the ruling party may come to accept voluntary self-regulation not because it accepts
independent policing of journalistic ethics, but because the public comes to believe that the
system is legitimate and should not be overridden.
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