BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between
NEWS24 APPLICANT
and
ADRIANO MAZZOTTI RESPONDENT
DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
The complaints
“Khan was seated with Mazzotti who has admitted to tax authorities that he and his company Carnilinx, which donates money to the EFF and some of its leaders was involved in cigarette smuggling.” The respondent’s complaint was that the statement was false and incorrect in certain respects: firstly, that it was the respondent who donated money, and not his company Carnilinx; secondly, the donation (R200,000.00) was to the EFF and not to its leaders, which money was for the party to register for the general elections; thirdly, it was incorrect to state that the respondent (or the company for that matter) “donates”, when the donation was only once; fourthly, respondent argued that he was not given the right to respond prior to publication. In the circumstances, the respondent contended that the applicant acted in breach of clauses 1.1, 1.2, 1.7 and 1.8 of the Press Code.
“The willingness of certain political parties to associate with and support individuals involved in unlawful extraction and smuggling of Sub-Sahara Africa’s precious minerals is a clear display of moral depravity, Khaas said.” This statement was placed immediately below a photograph depicting the respondent, his wife, Mr Malema and his wife, captured standing together in an apparent conversation; there is a note at the bottom of the photo indicating it had been taken by the applicant; the note reads: “Adriano Mazzotti seen with Julius Malema at the EFF’s gala dinner event.”
They are, in the photo, standing in an apparently luxurious reception area with a seemingly expensive carpet. Briefly, the complaint was that whereas Mr Khaas had made certain statements regarding the respondent, the applicant failed to verify the information given to it by Mr Khaas. It was argued, amongst others, that the photo conveyed that the respondent was one of the people extracting and smuggling minerals, whereas he had nothing to do with that. Here too it was complained that the respondent was not given the right to reply. It was therefore alleged that the applicant breached clauses 1.1, 1.7 and 1.8.
“Malema’s biggest known funder is a confessed cigarette smuggler, Adriano Mazzotti and Carnilinx, who was proudly acknowledged by Malema at the EFF’s fundraising dinner on Thursday …”. The complaint here is that, as in the case of the complaint in paragraph 3 above, the statement was incorrect in the following respects: it was the respondent who donated money, and not Carnilinx; the money was R200,000.00 to the EFF as a political party to register for the elections and not to Malema personally; the applicant was also challenged to show that the respondent was the “biggest known funder”. It was therefore argued that the applicant breached clauses 1.1, 1.2 and 1.7.
Applicant’s response
The Ruling
10.1 Firstly, sub-paragraph 107.1 says the applicant did so by stating “as a fact that Malema is funded by Mazzotti and Carnilinx”. In other words, the issue is whether the statement is put as a fact or an opinion. In its application for leave to appeal, the applicant in effect says that the Ruling left open the question whether or not the statement is an opinion or a fact, and that “the matter cannot be left undecided; it is a necessary building block for a considered finding on the statement complained of”. There is nothing left open or undecided, nor is there a need for the clarification of anything by the Appeals Panel. As the Appeal Panel has repeatedly stated, for a statement to be an opinion, it must, as the Code demands, be clearly so presented. In truth the finding of the Ruling is that this was not done. Irrespective of where the “opinion” is located (and nobody is burdening a publication with a duty to place it in a particular section) it must be clearly presented as an opinion. The finding is that this was not done.
10.2 Sub-paragraph 107.2 of the Ruling says clause 1.1 was breached by implying “that Mazzotti/Carnilinx is a current and major funder”. Of course Carnilinx did not make a donation, let alone being a current or major funder.
11. I should have indicated earlier that whereas the applicant specifically restricted itself to paragraphs 104.1, 107.1 and 107.2 of the Ruling in this application, its submissions are not presented in a manner that is clinically alignment to these paragraphs. I therefore deal with some of the sub-headings created by the applicant in its application, under which some submissions were made:
11.1 “Malema’s biggest known funder”: To the extent that the applicant seeks to argue that the statement is an opinion piece, there is no merit. The applicant says the author “expressed the opinion that based on what is known (applicant’s own underlining), he believes Mazzotti to be the biggest funder.” As the respondent indicates, in an attempt to bolster its argument that what is said is an opinion piece, the applicant now seeks to say the author “believes” Mazzotti to be the biggest funder. This qualification was not used in the article.
11.2 “Conflation of individuals and entities”: To bolster its application for leave to appeal, the applicant says that it “seeks the opportunity to clarify the matter of conflation before the Press Appeals Panel”. This argument is based on the startling proposition that we should not distinguish between an individual who has shares or interest in a company on the one hand, and the company itself on the other hand; or between the leader of a political party on the one hand and the political party itself on the other hand. The argument, from a legal point of view, is unsound. Whether there have previously been conflations which people did not complain about, is irrelevant and does not change the law.
Dated this 26th day of March 2024.
Judge B M Ngoepe, (Retired Judge President): Chair, Appeals Panel