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John Steenhuisen & Others vs Mail & Guardian


Mon, Feb 13, 2023

Ruling by the Adjudication Panel

Date of articles:                  26 August 2022

Headline of publication:   “Beware the predator politicians” (print) “Is Godongwana the latest of South Africa’s predator politicians?”  (online)

Authors:                               Lizeka Tandwa and Paddy Harper

Adjudication panel:           Helene Viljoen (Press Representative), Ben Winks (Public Representative), Herman Scholtz (Press Ombud)

Press Ombud (Panellists Viljoen concurring, Winks partially dissenting)       

Particulars

  1. The complainants are John Steenhuisen, Terry Steenhuisen, and the Democratic Alliance (“DA”).
  1. A hearing was held by virtual means on 30 November 2022. Mr Eshed Cohen from the Cape Town Bar appeared on behalf of the complainants and Mr Michael Power from Power Singh Inc. on behalf of Mail & Guardian.
  1. Apart from oral argument and engagement with the adjudication panel, both legal representatives filed lucid written submissions.

Background

  1. Accusations of sexual assault against Finance Minister Enoch Godongwana prompted Mail & Guardian to remind its readers of some politicians’ recent and not so recent sexual activities.
  1. This was done in a full-page article in the print edition under the headline, “Beware the predator politicians”. A sub-headline read: “The finance minister is not the first SA politician to get into hot water over claims of sexual misconduct.” The online edition contained a slightly different headline, but also referred to ‘predator politicians’.
  1. Three pictures accompanied the article with the following caption: “Touch and go: Enoch Godongwana, Albert Fritz and Patrick Sindane have been accused of sexual harassment.”
  1. Twelve politicians – apart from Godongwana – are discussed in the article, each under a somewhat prominent sub-headline in red font depicting their names.
  1. Under the sub-headline “John Steenhuisen”, the following is stated:

“In 2010, Steenhuisen resigned as DA KwaZulu-Natal leader over an affair with the party’s provincial spokesperson Terry Kass-Beaumont, who he later married, after divorcing his wife of 10 years.

“Steenhuisen retained his position as DA MPL and caucus leader until he moved to the National Assembly in 2011.”

  1. It is of relevance that the thirteen politicians have made headlines for vastly different allegations: from sensational proclivities for pet names to allegations of sexual harassment, assault, and rape.

The complaint

  1. The complainants advanced three broad complaints:

10.1 Firstly, that the article and headline contained material that is untrue, inaccurate, unfair, and/or misleading (Clause 1.1., 1.2. and Clause 10)

10.2 Secondly, that the Mail & Guardian did not approach any of the complainants for comment (Clause 1.8)

10.3 Lastly, there is a complaint about the infringement of the dignity and reputation of the complainants (Clause 3)

“Unfair, inaccurate and misleading”

  1. Clauses 1.1. and 1.2. of the Press Code states that the media shall:

“take care to report news truthfully, accurately and fairly; (and)

“present news in context and in a balanced manner, without any intentional

or negligent departure from the facts whether by distortion, exaggeration or

misrepresentation, material omissions, or summarization.”

  1. When pertinently asked whether the Steenhuisens dispute the accuracy of the paragraph quoted in paragraph 8 above when read in isolation, counsel for the complainants confirmed that the two sentences in isolation are not inaccurate.
  1. That, however, is not the end of the enquiry into the fairness of the paragraph within the wider context of the article. A statement may well be fully accurate but unfair if it is, for example, taken out of context or presented in such a way that it constitutes either a misrepresentation to readers or a material distortion of facts.
  1. The complainants see the context of the article as follows:

14.1 There is a headline warning the public at large about sexual “predators”, which – to the reasonable reader of the article – includes Mr Steenhuisen.

14.2 The print edition’s sub-headline reads: “The finance minister is not the first SA politician to get into hot water over claims of sexual misconduct.”

14.3 A very large portion of the article deals with criminal allegations raised against Godongwana before the article states: “The minister joins a long list of South African politicians who have been accused of gender-based violence. These include:…”

14.4 Some, if not most, of the other politicians mentioned in the article are or were indeed accused of predatory behaviour. One politician was sacked for sexual harassment and another was accused of a gang rape.

  1. This, the Steenhuisens and DA contend, would lead the ordinary reader to believe that Mr Steenhuisen is accused of being a sexual predator while this is not the case.
  1. Mail & Guardian denies unfairness or inaccuracy. It says the two sentences in question prove an “undisputed historical recordal” and does not in any way accuse Mr Steenhuisen, Mrs Steenhuisen, or the DA of sexual abuse, harassment, gender-based violence, or sexual assault. The argument goes that the article went no further than to “state the sexual misconduct and sexual escapades, in the form of an affair” between Mr Steenhuisen and Mrs Steenhuisen while the latter “was a subordinate to (Mr Steenhuisen) at the time”.
  1. In support of this argument, Mr Power argued that the article is divided into three categories: The first being reportage about the allegations against the finance minister, the second section is about those politicians who have indeed been accused of gender-based violence, and the third section deals with politicians such as Mr Steenhuisen who were merely in the spotlight due to controversies.
  1. Mail & Guardian contended that the “break” between the first section and the second is the sentence, ““The finance minister is not the first SA politician to get into hot water over claims of sexual misconduct”.
  1. The “break” between the second section and the third section is said to be a sentence that reads, “The sexual escapades of a fair number of South Africa’s higher-level leaders have also landed them in the spotlight.”
  1. The latter sentence was in bold font in the print edition, but not in the online edition. During argument, Mail & Guardian tendered to immediately make the font of that sentence bold as well, arguing that this is a sufficient distinction to differentiate the final section from the other two sections in the article.
  1. Mail & Guardian referred to a ruling by this office, Hasina Kathrada vs Times Live (Complaint 9293), upheld on appeal, where the “reasonable reader” construct was applied. It was emphasised that “the reasonable reader would read the article in context, including the headline and the images, rather than seizing on specific aspects”. It was further emphasised that the reasonable reader is not morbidly suspicious and will not jump to conclusions.
  1. The argument of Mail & Guardian stands to be rejected for the following reasons:

22.1 The artificial distinction into three categories is not tenable. A reasonable reader does not engage in an analysis of an article.

22.2 The distinction is, in any event, not tenable on the facts. The so-called third category of politicians did not “only” detail allegations of sexual misconduct and sexual escapades. It includes an elaborate recount of one politician who allegedly forced his lover to have an abortion and was accused of exploiting public resources to settle a personal score. The scandal went as far as allegations that the politician abused and manipulated the criminal justice system against the said lover. Another politician in this “section” contended for by the Mail & Guardian was accused of offering a bribe to journalists to supress a story about his alleged sexual indiscretions. These allegations go much further than a group of people being in the spotlight for sexual escapades or even sexual misconduct. Even on the version of the Mail & Guardian, Mr Steenhuisen was grouped together with those politicians and allegations detailed above.

22.3 The most poignant reason to reject the argument, is that there was no separation into three sections. It is simply not enough to have a sentence in bold font (in the print article). This aspect requires elaboration, which will follow below.

  1. The principles set out in Kathrada, where the factual matrix differed vastly from this case, does not support the publication’s arguments on the overall fairness of the article. Kathrada emphasised that all elements on a page contribute to the understanding of a reasonable reader. It was emphasised that a reader not only reads the body of an article, but also looks at the pictures, reads the captions, and the headlines. In that case, the picture, caption, and body of article did not offend the principles of the Press Code – even in isolation. The rejected argument was that a reader would have read something negative into an otherwise innocuous picture.
  1. The problem in this article is the positive misleading of readers through the headline and sub-headlines as well as the packaging of the article.
  1. Layout is one of the most powerful tools in journalism. It is accepted journalistic practice to employ layout elements and techniques to draw a reader into a particular article. Headlines are designed to grab the attention of a reader. Pictures aim, amongst other functions, to make an article more accessible for a reader. Pull-out quotes and sub-headlines are used to accentuate certain elements of the article. Every journalist knows that even techniques that are less obvious to an untrained eye such as the effective utilisation of white space, coloured screens, hyperlinks, font sizes, sidebars, bullet points, etc. are carefully chosen. The packaging of the article matters immensely in journalism.
  1. The packaging of the Mail & Guardian article missed the mark:

26.1 All the politicians have their names highlighted in the same font, font size, and colour. There is no distinction between the sub-heading “John Steenhuisen” and any of the other politicians.

26.2 No colour screen or side bar is utilised to make the distinction into categories as is now contended for.

26.3 The layout of the body text itself creates the impression that the article is one of a whole. If the Mail & Guardian’s argument is to be accepted of three compartments in the article, it would be strange in the extreme that the first category ends mid-way in the first leg of the article and the so-called dividing sentence, “The minister joins a list…” is not even in bold. The “divide” between the second category and third category is mid-way into the fourth column of the article. The holistic layout of the article was aimed at integrating all the elements on the page into a whole, carefully combined through modular layout and headlines and pictures that span over multiple columns.

  1. I am satisfied that a reasonable reader who read the headline, sub-headline, picture captions, headings containing all of the politicians’ names would at first glance form the incorrect impression that John Steenhuisen is or was accused of predatory behaviour just like all the other politicians in the article who had their names highlighted in red.
  1. It is true that Mail & Guardian did not, in fact, accuse Mr Steenhuisen of being a sexual predator in the article itself and that a reader who reads the lengthy article right up to the last column would realise this. That is, however, not the test for fairness of an article. It is no defence to the unfairness of the article to say (in my words), “A reader would soon have gathered that we misled them”.
  1. The article was, in my view, clearly unfair towards the Steenhuisens. Whether this falls under a transgression in terms of Clause 1.1. or Clause 1.2. is less clear. This office has previously expressed the view that there is potentially considerable overlap between the different clauses of the Code and the same action or offending deed dealt with by more than one clause ought to be confined to the most appropriate – often most serious – transgression. (Pastor Alph Lukau & Others vs City Press, complaint 10564)
  1. In my view, the most appropriate clause is Clause 1.2. which demands the presentation of news within the proper context. The two sentences in questions were accurate and not, in itself, unfair. It is the presentation of the article as a whole, the lumping together of Mr Steenhuisen with other politicians accused of sex crimes and other crimes, as well as the headline and sub-headline that made the article unfair.
  1. Headlines have consistently been dealt with as a separate consideration in complaints adjudicated by the Ombud. (See, for example, Luther Lebelo vs City Press, complaint 9486.)
  1. Clause 10.1 of the Code reads:

“Headlines, captions to pictures and posters shall not mislead the public and shall give a reasonable reflection of the contents of the report or picture in question.”

  1. In this case, the headline cautioned the public to “beware (of) the predator politicians” and that the article deals with politicians who have been in hot water “over claims of sexual misconduct”.
  1. On the Mail & Guardian’s own version, the headline must be found to be misleading about the contents of the article. This is because the article did not only deal with alleged sexual predators and those accused of sexual misconduct. As already set out, some of the politicians were merely in the news for alleged sexual indiscretions, leaked pictures of a politician’s genitalia, etc.
  1. Counsel for the Steenhuisens objected to any insinuation that the relationship between Mr Steenhuisen and Mrs Steenhuisen could in any way be seen to be misconduct. He referred us to the Constitutional Court decision in DE v RH 2015 (5) SA 83 (CC) in which the highest court found the common law delictual claim for adultery to be unconstitutional based on the moral convictions of society. An affair, he argued, is not viewed by society as sexual misconduct.
  1. Mr Power, on behalf of the Mail & Guardian, emphasised the supposed inappropriateness of a relationship that developed between Mr Steenhuisen and someone who was a subordinate within the party at the time.
  1. I find it unnecessary to decide any of the arguments for the simple reason that the article never raised the two issues argued by the parties. There is no express allegation of misconduct and no overt moral opprobrium in the article.
  1. This is exactly the problem with the headline and the sub-headline: It foreshadowed an exposé of sorts about sexual predation and/or sexual misconduct concerning the politicians highlighted in sub-headings while delivering – in certain instances such as the “scandal” of the Steenhuisens – little less than uncontroversial historical recounts.
  1. The headlines in both editions and sub-headline in the print edition were therefore misleading readers and in breach of Clause 10.1.

“Absence of comment”

  1. It is common cause between the parties that the Mail & Guardian did not approach the Steenhuisens or the DA for comment prior to publication.
  1. Clause 1.8 of the Press Code reads:

“(The media shall) seek, if practicable, the views of the subject of critical reportage in advance of publication except when they might be prevented from reporting, or evidence destroyed, or sources intimidated…”

  1. The complainants rightly pointed out that the reportage was critical in nature, making the Steenhuisens the subject of critical reportage.
  1. It was also not contended that comment could not be sought out of fear of being prevented to report on the matter or that evidence could be destroyed.
  1. The real question is whether it is practicable – and therefore necessary –to seek pre-publication comment when historical facts are recounted.
  1. Mail & Guardian argues that it only recounted historical facts which were already in the public domain. Under these circumstances, the publication argues, it cannot be a blanket requirement to seek pre-publication comment.
  1. There is merit in the argument. It cannot be practicable to have a blanket requirement to seek pre-publication comment from a subject of historical critical reportage when reportage in the public domain is repeated. If this were so, some of the more controversial figures in society would have to field journalists’ calls on a constant basis to merely repeat their version of events.
  1. However, there are important qualifications to what is stated above:

47.1 Reportage should still be fair and balanced. If the subject of critical reportage had a widely known response to the allegation, this ought to be repeated as well.

47.2 If anything is added to the repetition of the historical facts, it naturally does not amount to a mere repetition of information in the public domain and there would be an obligation on journalists to seek pre-publication comment.

  1. The question is therefore whether, as the Mail & Guardian states, the reportage about the Steenhuisens amounted to a mere repetition of historical facts in the public domain or not.
  1. Counsel for the complainants argued that the existence of the relationship between the Steenhuisens and Mr Steenhuisen’s political career progression might be uncontroversial and common cause, but any allegation of sexual abuse is certainly not common cause.
  1. I have already found above that the sentences in question did not include an allegation of sexual abuse, sexual misconduct, or predatory behaviour against Mr Steenhuisen.
  1. It was therefore not necessary to seek the Steenhuisens’ comment prior to publication.

Privacy and dignity

  1. The final category of complaints relates to Clause 3 of the Press Code requiring special consideration of the privacy of natural persons and the reputation of natural persons and juristic entities such as the DA alike.
  1. There is no merit in the complaint that the article infringed on the privacy of the Steenhuisens. Nothing that was stated was not already in the public domain. There could not be a reasonable expectation of privacy pertaining to the facts in question which, in any event, cannot be classified as particularly intimate or private.
  1. Moreover, Mr Steenhuisen is a very public figure as leader of the official opposition. This office has consistently applied the common law principles that those who are close to the limelight are expected to endure more than those who do not lead public lives. (See, for example, Martin Wingate-Pearse vs Daily Maverick, complaint 4509).
  1. An argument was raised that Mrs Steenhuisen is not a public figure. Whilst she is naturally not as much in the limelight as her husband, Mrs Steenhuisen was a media spokesperson for the DA around the time she became involved with Mr Steenhuisen. She was at all times involved in politics in her own right. She cannot be classified as an ordinary citizen who did not court a public life. It is also, unfortunately, impossible to divorce the personality of Mrs Steenhuisen from her role as wife of the leader of the DA within the context of the sentences in this article.
  1. This brings me to the issues of dignity and reputation. Clause 3.3. requires the media to exercise care and consideration in matters involving dignity and reputation. The test is how a reasonable reader would interpret the offending passage(s). I have already found above that the reader could, at first glance, form the incorrect impression that John Steenhuisen is or was accused of predatory behaviour and that the article as packaged was unfair. I also found that any reader who actually read the two sentences about the Steenhuisens would not have that impression. The fact that a reasonable reader would immediately realise they were misled by the publication is no defence to a complaint of unfairness.
  1. But the test differs in deciding whether dignity or reputation was infringed. The test is whether a reasonable reader would think less of the Steenhuisens (reputation) or whether the complainant’s dignity was impaired in an unjustified way.
     
  2. In my view, it is neither. Although I accept that a reasonable reader does not necessarily read every single word of an article, I cannot accept that a reasonable reader would read absolutely nothing but the headlines and sub-headings. It would be a sad day if the Press Ombud is to accept that a reasonable reader does not care to “read” anything but visual elements. Here, the sub-headings in the article containing the names of the politicians does, in my view, assist the publication. Any reasonable reader – and dare I say even the less reasonable reader – who wants to know why John Steenhuisen is part of the list, is immediately guided to the two sentences.
  1. The threat to the dignity and reputation of the Steenhuisens only arises once it is accepted that a reader read the sub-heading “John Steenhuisen” and made the connection with the “predator” reference in the headline. The connection between Mrs Steenhuisen and the headline does not exist at all if the reader did not read the two sentences. Once the sub-heading, “John Steenhuisen” is noticed, the reasonable reader would read the single paragraph of two sentences below that.
  1. A reasonable reader who read the two sentences would not think less of the Steenhuisens and nothing in these two sentences objectively impaired the dignity of the Steenhuisens. 
  1. If I am wrong, the slight to the Steenhuisens’ dignity and reputation is not, in my view, of such a nature that it falls foul of the Press Code. Dignity and reputation may be overridden if the facts reported are true or substantially true and it is in the public interest. There is nothing particularly scandalous about the Steenhuisens contained in the article. Nor is there an inaccuracy. The statements are also not void of public interest. If there was no public interest in the matter, Mr Steenhuisen would not have found it necessary to respond publicly to the events at the time and would not have stepped back from his then political position.
  1. The DA is also a complainant in the matter. In a nutshell, the DA’s argument is that readers would have gathered from the article that it somehow did not handle the situation appropriately at the time.
  1. To reach this conclusion, the DA argued that the reasonable reader would have made a connection between the article and a comment apparently made by Mr Bheki Cele, Minister of Police, during a press conference on 19 August 2022. Cele was reportedly asked about the DA’s billboard campaign against him in which they criticised Cele’s alleged utterances about a gang rape. Mr Cele is said to have responded during the press conference that the DA “should have dealt with their leader because he abused a woman who worked in his office”, i.e. that the DA does not have moral authority to criticise him on the handling of gender-based matters.
  1. Mail & Guardian urged us to disregard this argument in its entirety as the supposed link between Cele’s press conference and the article in question is speculative. Moreover, the journalists of Mail & Guardian cannot be held accountable for alleged utterances which have nothing to do with the media outlet.
  1. During argument, counsel for the complainants did not belabour this line of argument and rightly so. The link between Cele’s press conference and the Mail & Guardian article, if any, is tenuous and far too remote to make a finding that a reasonable reader would have linked these two events. It might have been a different scenario if the Mail & Guardian also reported on Cele’s criticism of the DA in the same article, on the same page, or even in the same edition of the newspaper or if Cele’s criticism – rather than the allegations against Minister Godongwana – was the rationale for the article. Nothing before us points to this.
  1. I therefore find that the reasonable reader would not have ascribed the meaning to the words contended for by the DA. Consequently, there is no consideration of the reputation of the political party.

Conclusion

  1. The Mail & Guardian breached clause 1.2. of the Press Code by presenting facts out of context and clause 10.1. of the Code by using a misleading headline and sub-headline.
  1. The remainder of the complaints are dismissed.
  1. The Mail & Guardian is directed to:

69.1 Apologise to the Steenhuisens for presenting facts surrounding their relationship and marriage out of context.

69.2 Apologise to its readers for the misleading headline.

69.3 The apology in the print edition should be either on the page it originally appeared or on page 2.

69.4 The apology in the online edition should be at the top of the article. It should also include a note that the article has been amended after original publication.

  1. It would not be appropriate to direct Mail & Guardian to remove the references to the Steenhuisens, as requested. There is no dispute about the factual accuracy of the statements in isolation.
  1. Instead, if the Mail & Guardian in its discretion wants to keep the statements in its online article, the publication is directed to clearly separate and distinguish the paragraphs from any allegations of sexual abuse, misconduct, or sexually predatory behaviour.
  1. The publication is to provide a draft apology and proposed changes to the online article to the Press Ombud for approval prior to publication.

Appeal

The Complaints Procedure lays down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Herman Scholtz – Press Ombud

Helene Viljoen – Press representative

13 February 2023

Panellist Winks partially dissenting

  1. I concur with the ruling and thorough reasoning by the Press Ombud, save on one aspect.
  1. In my view, by including Mr Steenhuisen in a list of alleged sexual predators and abusers, the Mail & Guardian did indeed infringe Mr Steenhuisen’s dignity as well as his reputation.
  1. While the two sentences about his affair were, in isolation, accurate, the article as a whole (including the headline and sub-headlines) conveyed a clear message to the reader (whether viewed as a comment or a statement of fact, or something on the spectrum between the two) that the affair was tainted by predation or abuse on the part of Mr Steenhuisen.
  1. This is only confirmed by the Mail & Guardian’s own argument, which I found to be contradictory.  In one breath, the Mail & Guardian argued that it had not accused Mr Steenhuisen of predation.  But in the next, it argued that Mr Steenhuisen’s affair was indeed an example of predation.  One cannot advance mutually destructive versions, even in the alternative.
  1. A public accusation of sexual predation or abuse is extraordinarily damaging to any person’s self-esteem (dignity) as well as their public esteem (reputation).  I do not believe that Mr Steenhuisen is any exception.
  1. There were no reasons advanced for the (alternative) version that Mr Steenhuisen was indeed a sexual predator, except that he had been Ms Steenhuisen’s indirect superior at the time of the affair.  This is not enough to demonstrate the coercive circumstances that vitiate consent.  There was no evidence of any abuse of power.  There was therefore no justification to attach the label of sexual predator or abuser to Mr Steenhuisen.
  1. None of the justifications for overriding a person’s dignity or reputation, as set out in Clauses 3.3.1 to 3.3.5 of the Code, find application here.
  1. In my view, therefore, the Mail & Guardian breached Clause 3.3 of the Press Code by neglecting to exercise the required care and consideration for Mr Steenhuisen’s dignity and reputation.
  1. Ms Terry Steenhuisen too complains of injury to her dignity and reputation.  Adopting the reasoning of Justices Cameron and Froneman in Le Roux and Others v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC) (at paras 154 to 194), I am prepared to accept that Ms Steenhuisen was personally wounded by being described as a target of sexual predation or abuse, and thus suffered an injury to her dignity.  But I do not believe that she suffered an injury to her reputation.  There is nothing shameful about being a survivor of sexual abuse or harassment.  We cannot lend credence to the notion that the right-thinking public would think less of such a person.
  1. Consequently, in my view, the Mail & Guardian also breached Clause 3.3 of the Code in respect of Ms Steenhuisen’s dignity. 
  1. The remedy would remain the same as that crafted by the Press Ombud, except that the apology would also include a reference to Clause 3.3. 
  1. I would like to add, however, that the direction given to the Mail & Guardian, “to clearly separate and distinguish the paragraphs [about the Steenhuisens] from any allegations of sexual abuse, misconduct, or sexually predatory behaviour” – if it does not wish to remove those paragraphs entirely – will be difficult to implement as long as the headline and subheadings remain.  The import of both the Press Ombud’s ruling and this partial dissent is that Mr Steenhuisen’s name never belonged in an article about “predator politicians”.

Ben Winks – Public representative