Appeal Hearing Decision: Paramount Group & Ivor Ichikowitz vs Vrye Weekblad

Wed, Feb 21, 2024

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between

PARAMOUNT GROUP LTD FIRST APPLICANT

IVOR ICHIKOWITZ SECOND APPLICANT

and

VRYE WEEKBLAD RESPONDENT

DECISION

This is an appeal by Paramount Group Ltd, first appellant, and Mr Ivor Ichikowitz, second appellant (the appellants) against a Ruling by the Deputy Press Ombud, dated 20 September 2023. The Ruling was on complaints lodged by the applicants against two articles published by Vrye Weekblad (respondent). The first article was published on 19 June 2023 entitled “Ukraine: This was never an African initiative”. The second article was published on 23 June 2023 titled “Slow down, tovarish: Russia, the peace initiative and the arms dealer.”
In their complaint, the appellants said that there were certain themes which were portrayed in the two articles, namely:

2.1 The accusation, which they say was false, that the appellants (first appellant) specialized in the imports and export of weapons into and out of Russia; given the international sanctions against Russia, this allegation was seen as harmful to first appellant.

2.2 The allegation in the first article that weaponry from first appellant was loaded onto the Lady R, a Russian cargo ship, in Simonstown.

2.3 The articles “stitched together a narrative that the African Peace Initiative (described as catastrophic) to the Ukraine and Russia, was never an African initiative and that it was orchestrated by ‘confidants’ of Vladimir Putin … of which (second applicant) is allegedly one. This narrative is false”.

As it can be seen from the nature of the complaints, they were directed against the two articles, the headline and contents of which – in the appellants’ view –cast them as being supportive of Russia in its war with the Ukraine. This is why in their response to the articles, the appellants went to great lengths to refute this, by mentioning instances some of which showed that on the contrary, second appellant supported the Ukraine.
The gist of the respondent’s defence was that the articles were an opinion piece. When the respondent refused to yield to the appellant’s demand to correct or retract the stories, the matter was taken to the Ombud. One of the complaints was that the appellants were not given the opportunity to respond before publication, although the appellants’ response was subsequently published.
In his Ruling, the Deputy Press Ombud dismissed some of the complaints while upholding others in respect of which he imposed a sanction.
The appellants were granted leave to appeal in respect of certain complaints dismissed by the Deputy Press Ombud. We deal in our Decision only with those complaints; we will do so in the order in which they were presented by the appellants.
For a start, we do not agree with the respondent’s argument that we should, when considering the complaints, bear in mind that Vrye Weekblad is a publication known for carrying opinion pieces. That argument would lead, as the appellants correctly pointed out, to treating the publication differently. We must look at what is actually published to determine whether that amounts to opinion or comment; this should be done without any prejudiced attitude against or in favour of any publication; be it Vrye Weekblad or any other. The Code applies equally to all publications.

Complaint 1: Regarding arms allegedly loaded onto Lady R.

The appellants say the complaint is based on the following statement in the first article:

“Yesterday, speculation was that it might have been weaponry from the Paramount Groups that was loaded onto the Russian cargo ship Lady R in December at Simon’s Town Naval Base”.

Firstly, this statement could be in breach of articles 1.1 and 1.2 of the Code which required that news be presented accurately and in a balanced manner, or in breach of article 1.7, which requires verification of the accuracy of doubtful information. We don’t think one should be found guilty of both articles 1.1 and 1.2, as well as of 1.7. In terms of article 1.3, for a statement to pass as an opinion piece, it “shall be clearly be presented as such.” We do not think that the statement was clearly presented as an opinion piece as contended for by the respondent. At best for the respondent, the article is more analytic than comment. In any case, the manner in which the statement reads required verification, in terms of article 1.7, of the speculation. It was not mentioned that attempts to verify were made or that they were unsuccessful. It is noteworthy that although he said the statement was an opinion, the Deputy Ombud said that the appellants should have been given the right to respond, but dismissed the complaint on the ground that their reply was subsequently published – something which, with respect, did not retrospectively wipe out the wrong committed! The use of the word “speculation” does not simply allow the publication of untruths. Speculation should be verified in some way, or at the very least attributed to actual sources; a wrong impression should not be given that one is constructing a certain narrative without any actual proof. As with anonymous sources, speculation should be handled with special care, particularly given the circumstances that prevailed, with possible serious implications. Our finding is therefore that article 1.7 was breached.

Secondly, article 1.8 of the Code, which prescribes that the subject of critical reportage be given the opportunity to respond before publication, was also breached. There was an obligation to give the appellants the opportunity to respond before publication. Failure to do so required an explanation; there was none. We deal in greater detail below with the breach of article 1.8 and respondent’s explanation, which we reject, as to why the appellants were not approached for comment prior to publication.

Complaint 3: Alleged selling of arms to Saudi Arabia.

The complaint was based on the following statement in the first article:

“The company sells weapons to Saudi Arabia and various African States. Paramount manufactures armed drones amongst other things.”

The statement was based on the fact that there was a Memorandum of Understanding (MOU) between first appellant and the Saudi government to manufacture arms (for sale to the latter). There was no evidence that indeed pursuant to the MOU, the arms were manufactured and sold to Saudi Arabia. A statement to that effect was too huge a jump from the mere existence of the MOU. There is a big difference between planning to produce arms in the future, and actually selling them (in Saudi Arabia) as alleged. It is therefore our finding that articles 1.1 and 1.2 were breached.

Complaint 5: Links to the Kremlin

The complaint is based on the following statement in the first article:

“….the entire visit to Ukraine and Russia was orchestrated by Vladimir Putin’s confidants.”

In dismissing this complaint, the Deputy Ombud points out that the first article manages to show “indirect” links to Putin, although the article does not conclusively say that the second appellant is a Putin ally. However, the article mentions that he is “in Vladimir Putin’s orbit” and in the blurb states that he is a Putin confidant. The distinction between “confidant” and being in Putin’s orbit is a very small one. We do not find sufficient grounds to overrule the Deputy Ombud’s finding; we therefore dismiss the appeal regarding this complaint.

Complaint 12: Funding the war in Russia.

The complaint was based on the following statement in the first article:

“But that’s not where Ichikowitz’s ties with Russia end. Through his company Trans Africa Capital, he is also a co-owner of a large gold mine in Siberia which according to critics of Putin, helps fund the Russian war in Ukraine: Bricks Investors Tie up for Siberian Gold Mine Project (engineeringnews.co.za).”

The Deputy Ombud ruled that the argument that the mine funds the war was overstated, but dismissed the complaint because the statement was attributed to unnamed critics of Putin. These allegations are, however, significant and new. Once he found that the argument was overstated, the Deputy Ombud should have held that articles 1.1 and 1.2 were breached, as we hereby do. Here too article 1.8 should have been observed.

Complaint 13: That Zuma recommended involvement.

The complaint was based on the following statement from the first article:

““According to my information, Ichikowitz was recommended as a shareholder by Zuma, who appears in photos taken at the signing of the agreement”.

Context is very important. As Mr du Preez himself says, the selling of weapons is a shadowy business. Given the context, it would be absurd and far-fetched to suggest, as the respondent does, that the average reader would understand the article as conveying that the second appellant was recommended by Zuma in his capacity as the President and therefore representing the government. The respondent’s argument that Zuma and the government are one thing is seriously flawed. It is based on the wrong assumption that Zuma the President could never act in his personal capacity as an individual. This reasoning would automatically implicate the government in, for example, actions committed by Zuma the individual; for example, where he acts corruptly as an individual (and we are not saying he did so; it is just an example to illustrate the point). There was a clear difference between former President Jacob Zuma the individual, and his government. It would be extraordinary for a government to recommend an individual in such a private deal. The implication contended for by the respondent that Zuma was representing the government does not therefore readily commend itself; it is not the one the reader would get. The respondent has breached articles 1.1 and 1.2 of the Code in the manner already explained; furthermore, here too the appellants should have been given the opportunity to respond as it is clear from their subsequent response; article 1.8 was therefore also breached.

Complaint 14: That the appellants were not given the right to respond before publication in terms of article 1.8 of the Code

We have already mentioned that the appellants should have been given the right to respond before publication. This was formulated as complaint 14; we will therefore refer to it as such. In his Ruling, the Deputy Ombud refers to it as such, and states the following: “On every point, the complainants say that the article breached clause1.8 of the Press Code in that they were not asked for comment. The point is also raised prominently at the start and at the end of letter of complaint.” The complaint was persisted with before us. Article 1.8 of the Code is very clear. There was severe reputational harm. The articles published by the respondent paint a very different picture of the first appellant, and also of the second appellant than what appears to be the latter’s public persona. For example, the articles’ general claims that Mr Ichikowitz supports Russia, the Kremlin, President Putin and the Russian war effort are contrary to his own public pronouncements. There are various examples of his public pronouncements against the war and in support of Ukraine, and peace. We believe that had the appellants been given the right to reply, the original article could have been quite different; in any case, the reader would at least have had both versions and decided for themselves. It is not sufficient that the reply was published four days later. It is also important to note that the appellants were never asked for a reply, they replied out of their own accord after publication of the first article. We find no reasonable basis for Mr du Preez’s fear for not approaching the appellants for comment. Regarding the fear of a court restraint, resorting to court is a fundamental right enshrined in the Constitution and may not be subverted by a journalist’s stratagem which moreover manifests itself in the violation of an article of the Code. A later comment from the appellants does not justify not seeking comment in the first place. The Code is very clear about the right to reply, particularly where there is potentially controversial information. We also believe that a lot could have been cleared up by a discussion between Mr du Preez and the second appellant, such as whether the MOU with Saudi Arabia had kicked in and whether arms were indeed being sold to Saudi Arabia.
In the circumstances, we reach the following conclusion:

14.1 The appeal in respect of complaint 5 is dismissed; and the Ruling by the Deputy Ombud dismissing it is hereby confirmed.

14.2 The appeal succeeds: to the extent that the Deputy Ombud’s Ruling dismissed complaints 1, 3, 12, 13 and 14, the Ruling is hereby set aside to that extent, and replaced by paragraph 14.3 below.

14.3 Vrye Weekblad contravened article 1.7 (complaint 1), articles 1.1 and 1.2 (complaints 3, 12 and 13) and article 1.8 (complaints 1,12,13 and 14) of the Code.

The following Order is therefore made: Vrye Weekblad must

15.1 apologize for, and retract, the statements made in respect of Complaints 1,3, 12 and 13;

15.2 apologize to the appellants for failing to give them the opportunity to respond to the above statements complained about prior to their publication;

15.3 the apologies and retraction must be submitted to the Executive Director of the Press Council within 7 working days of receipt of this Decision;

15.4 the apology and the retraction must be approved by the Executive Director of the Press Council after receiving and considering the appellants’ comments thereon, if any, which shall be submitted within the time stipulated by the Executive Director;

15.5 the publication of the apologies and retraction must be done in substantially the same manner as directed in paragraph 152 of the Deputy Ombud’s Ruling, mutatis mutandis;

15.6 the publication of the apologies and retraction must be published in the edition to be determined by the Executive Director;

15. 7 for clarity: all the sanctions imposed by the Deputy Ombud in respect of the complaints upheld by him, remain to be enforced.

Dated this ^21st day of February 2024.

Judge B M Ngoepe, (Retired Judge President): Chair

Mr A Gouws, Member: Media Representative

Mr R Rumney, Member: Public Representative

For the Appellants For the Respondent

Adv Andre Bezuidenhout Adv Ingrid Cloete

Instructed by: NICQUI GALAKTIOU INC,JHB.

Link to the apology

Corrections, retractions and apology to Ivor Ichikowitz and Paramount Group (vryeweekblad.com)