Gayton McKenzie ruling against News24 overturned - mostly

News24 has won an appeal against the ombud’s January ruling on their story about the sports minister’s trip to the Olympics. Graphic: Lisa Nelson.

Three months ago, this commentator expressed some reservations about a ruling of the deputy press ombud that, in significant part, had upheld a complaint lodged by the Minister of Sports, Arts and Culture, Gayton McKenzie. The ruling concerned an article titled “Send me! McKenzie’s gravy train to Paris Olympics cost taxpayers R800 000”, which had been published by News24 a few months after the 2024 Olympic Games in Paris. Of six separate parts to the complaint, four were upheld.

Noting that the ombud may have been technically correct, this commentator expressed concerns with the narrow approach adopted in the ruling “when the essence of the story remains true: a whole lot of money was spent to send eight government officials to Paris, in contrast to a relatively modest amount spent on our athletes”. “To this day”, the article noted, “we do not know why so much money was spent just to send the minister on a trip of little consequence.” We still do not know.

Last week, a three-person appeal panel upheld News24’s appeal in respect of three-and-a-half of the four parts of the complaint that had been successful before the deputy ombud. The half – the use of the phrase “Send me!” in the headline – was held to be in breach of the Press Code, because it would have been reasonably understood, by the reasonable person of ordinary intelligence, as “a paraphrase of a request by Minister McKenzie to be sent to the Olympics”. He did not ask to go; he was sent.

Central to the panel’s decision to uphold much of the rest of the appeal was its consideration of how the Minister had answered questions in Parliament about the cost of the trip. When asked about the number of departmental officials who had attended the games, for example, and at what cost, he gave this terse response:

“A total of eight officials including the Minister. No other officials from [the department] travelled to the Olympics. … A total estimated budget of R1,805, 335.74 was approved by the Minister for officials travelling to the Olympics.”

What was not mentioned in the response to this set of questions, but was later relied upon in support of the Minister’s complaint, was the fact that only one departmental official was there solely to provide support to him, with the rest having gone to set up and manage a hospitality centre that, according to the department’s website, was set up “to promote and showcase [South Africa’s] trade and investment capabilities through sports, arts and culture, products and services”.

The appeal panel found that News24 could not be faulted for relying on the answers to these and other questions. In its view, “[t]he inaccuracy in the reporting was due to the insufficiency of the information provided by the Minister”.

News24 explained: “One of the means that the National Assembly adopts to ensure accountability and oversight over the executive authority is through the questions posed to the members of cabinet. The answers given in response to the questions posed are expected to be comprehensive, accurate and containing all material facts …. Members of the National Assembly are entitled to rely on the accuracy and comprehensiveness of these answers as are members of the media and the public. … It is reasonable to expect that the members of the Executive branch exercise due care and take all reasonable steps to ensure that the answers provided are considered, accurate and comprehensive.”

Key parts of the complaint that had been upheld by the ombud had criticised the News24 article for failing to provide a particular level of detail. But the same level of detail was missing from the Minister’s response to the various questions on the topic put to him in Parliament. For example, when asked about the total number of South African athletes who attended the games, and at what cost, the response noted that while it was not possible at that time “to quantify the cost per athlete”, “the budget for the support, preparation and delivery of Team SA to the Olympics was R27,892,000 and covers costs related to athletes and technical support only.”

Again, detail that was not mentioned in the response was later relied upon in support of the complaint: the article’s failure to mention that the athletes were accommodated at no cost in the Olympic Village. While the ombud had relied on this failure to uphold part of the complaint, the appeal panel found it was neither relevant nor material. In its view, the article was focused on comparing the overall amount budgeted for and spent on athletes in comparison to what was budgeted for and spent on the Minister and his officials; the technical details did not change the big picture.

Two other aspects of the appeal ruling are particularly interesting.

The first concerns the basis upon which the panel upheld the appeal in respect of the second part of the headline: “McKenzie’s gravy train to Paris Olympics cost taxpayers R800 000”. This phrase, the panel held, is protected comment as contemplated by clause 7(2) of the Press Code. It explained:

“Both textually and contextually, this is a comment and is quintessential political speech. It is clearly a comment on a politician spending, what was generally accepted, an excessive amount on an overseas trip despite an earlier promise to trim expenditure and spend money where it mattered … These are issues of pressing public interest, especially in an environment of fiscal austerity that is directly impacting on the lives of people and on the ability of the state to deliver on its constitutional and legislative responsibilities. The comment takes fair account of the material facts stipulated in the article.”

The second concerns the panel’s sanction: to direct News24 to apologise for using the phrase “Send me” in the headline. In reporting on the ombud’s ruling, this commentator has previously expressed the view that “nothing more than a correction of the record was required”. That view has not changed. News24’s play on the President’s “Thuma mina” (“Send me”) speech of 2018 is not deserving of an apology that “state[s] there is no evidence that the [Minister] requested to be sent to the Paris Olympics.” The same information could equally be conveyed by way of a simple correction.

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