REPORT ON PRIMEDIA’S INQUIRY INTO THE ALLEGATIONS OF CENSORSHIP AND EDITORIAL INTERFERENCE BY MS KAREMA BROWN A RIGHT OF REPLY Prepared by Terry Motau SCAw NS 10. . OTHER RELEVANT ASPECTS ‘TABLE OF CONTENTS Page No. INTRODUCTION. 4 TERMS OF REFERENCE. er eT eacreTT . 5 THE ROLE OF THE MEDIA... .....0000s0s0 eee THE CONTEXTUAL SETTING. 8 The Gostner meeting... 16 SUMMARY OF THE EVIDENCE GIVEN AT THE H INQUIRY. a 22 Ms Brown. Mr Moagi Ms Mbete...... Justine Limpitlaw. Bongani Bingwa (“Mr Bingwa") . Bruce Whitfield. Ms Sehume 48 Ms Mahlase. dete i SO Mr Alastair Teeling-Smith ("Mr Teeling- Smith") 53 Mr Gostner. 57 Ms Singh : a eee 59 Geraint Crwys-Williams (“Mr Crwys-Williams") 0.0.00 : son 60 Eric D’Oliveira Mr McKaiser. MS BROWN’S FOLLOW UP INTERVIEW . MR MOAGIS FOLLOW UP INTERVIEW...... ANALYSIS AND DISCUSSION... THE MEANING OF THE STATEMENTS MADI INDIVIDUALS MENTIONED ON THE SHOW, ‘THE BCCSA CODE hilistate Clause 12 of the BCCSA Codes Clause 13 of the BCCSA Code, Clause 15 of the BCCSA Code.. ABOUT THE Is there a distinction between the rok does it matter on the facts of this Ingui f presenters and journalists and, if'so,Is there merit in the complaint lodged by Ms Brown? . Whether the decision not to renew Ms Brown's contract was in any way related 10 or influenced by the alleged incident set out in the complaint? 97 Recommendations regarding possible amendments and/or improvements to cee Ot Primedia’s editorial policies and procedures1 REPORT ON PRIMEDIA’S INQUIRY INTO THE ALLEGATIONS OF CENSORSHIP AND EDITORIAL INTERFERENCE BY MS KAREMA BROWN INTRODUCTION 12, 13, Ms Karema Brown (“Ms Brown”) was an independent contractor of Talk Radio 702 (“702”) and was formally employed as the host of The Karema Brown Show, produced by Mr Clive Moagi (“Mr Moagi”), Her contract lapsed on 30 June 2019. On 2 July 2019 Ms Brown lodged 2 complaint of editorial interference and censorship to Primedia against her former station manager at 702, Ms Thabisile Mbete (“Ms Mbete”) and is attached hereto marked “A”. ‘The genesis of the complaint is an episode of The Karema Brown Show which was broadcast on 12 November 2018 (“the show"). Following the broadcast of the show, and having received a number of complaints about the show, Ms Mbete called a meeting in which she gave Ms Brown and Mr Moagi feedback that, in her view, the allegations made by Ms Brown about certain persons during the show were unfair and that these people were not afforded an adequate right of reply. Ms Mbete issued an instruction that the affected persons be offered an opportunity to respond to the allegations in a subsequent broadeast.1.4. Ms Brown is of the view that in context, Ms Mbete's instructions are tantamount to editorial interference and censorship. ‘These allegations are the subject of the Inquiry. 1.5. Iwas appointed to chair the Inquiry. Professors Franz Kruger and Datio Milo were appointed to assist where required. 1 appreciate and am grateful for their invaluable assistance. ‘TERMS OF REFERENCE 2.1. The draft terms of reference were formulated by Primedia and sent to Ms Brown to comment thereon. They were finalised thereafter. They stipulate that the Inquiry shall investigate, make findings, report on and make recommendations concerning the following: 2.1.1. the complaint lodged by Ms Brown and allegations contained therein; 2.1.2. whether the decision not to renew Ms Brown’s contract was in any way related to or influenced by the alleged incident set out in the complaint; and 2.1.3. Primedia’s current editorial processes and procedures, and how these may be strengthened and improved.2.2. In respect of confidentiality: 2.2.1, 2.2.2. the proceedings of the Inquiry shall be confidential and all documents and other information relating to the Inquiry shall not be available to the public by any participants in the Inquiry; and Primedia undertakes to make the findings and recommendations, if any, available to the public at the conclusion of the Inquiry, ‘The inquiry shall include in its report: 2.3.1. 2.3.2, 233, factual findings regerding the complaint and allegations contained therein; recommendations regarding proposed remedial action, if any, that should be taken by Primedia; and recommendations regarding possible amendments and/or improvements to Primedia’s editorial policies and procedures, including considering the difference, if any, between the roles of presenters and journalists at Primedia and the application of policies in carrying out their respective duties.3 THE ROLE OF THE MEDIA. 31. Our courts have expressed views about the importance of the role played by the media, particularly having regard to our democracy and the need to balance various and often competing rights. In the context of the media and its role, the Constitutional Court had occasion to say the following: “(22] The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right 10 freedom of the press and the media and the right 10 receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression. [24] Ina democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable in the performance of their constitutional obligations, ‘hey will invigorate and strengthen our fledgling democracy. If they vacillate in_the performance of their duties, the constitutional goals will be imperiled. The Constitution thus asserts and protects the media in the performance of their obligations to the broader society, principally through the provisions of s 16." (emphasis added)3.4, That the media has an obligation to citizens to promote their constitutional right to receive information and ideas, is uncontroversial. It would follow from that that censorship and editorial interference are inimical to media freedom and are an affront to the foundational principle that media must be immune from interference in order to promote plural programming and a divergence of views. It is for this reason that 702, through its structure, must ensure that it will “act with vigour, courage, integrity and responsibility”. 4, THE CONTEXTUAL SETTING 4.1 42, 4.3, On 9 November 2018 the Competition Commission of South Africa (‘the Commission”) filed a report with the Competition Tribunal regarding a channel supply agreement entered into between MultiChoice Proprietary Limited (“MultiChoice”) and the South African Broadcasting Corporation SOC Ltd (“SABC”). The channel supply agreement was entered into on or about 3 July 2013 (“the 2013 agreement”), In respect of the encryption aspect of the case, it was concluded that the 2013 agreement resulted in a notifiable change of control as envisaged in 8 12(2)(g) of the Competition Act. ‘The above conclu jon was premised on the evidence that was provided to the Commission indicating that the policy of the SABC with regards to44, 45 46. STB Control changed materially as a result of the 2013 agreement, It was also found that being able to influence a policy on encryption materially impacted the structure of the market in that “it protected MultiChoice’s dominance in the PayTV market in that the STB Control would have enabled new DIT entrants into the market that would have significantly challenged the dominance of MultiChoice particularly at lower LSM segments of the market”. The show discussed the Commission’s report, Ms Brown introduced the show by stating that the “Competition Commission has found that an agreement between the SABC and MulfiChoice enabled MultiChoice to influence strategic direction of the public broadcaster”. She referred to how political parties, social organisations and civil society “... have criticised this deal and that have spoken of the relationship between the ‘hwo [parties] and the dominance of MultiChoice”. Ms Thani Smith (“Ms Smith”), the guest on the show, then discussed the Commission’s report with Ms Brown, Ms Smith stated, “we also hope that, you know, if there are further investigations ... that anything untoward or anything that may seem to be illegal or otherwise, you Imow, practice of bad governance, emerges, we know that that period was a really dark time for the public broadcaster”. Ms Brown responded to this comment by expressly mentioning the four following individuals: ~MsNeo © Momodu (“Ads Momodu’10 MrMathatha Tsedu (“Mr Tsedut"), Mr Joe Thioloe (“Mr Thloloe”); Mr Gwede Mantashe (“Mr Mantashe”) and Mr Calvo. Mawela (“Mr Mawela”) by implication, referring to him as Mr Mantashe's “son- in-law” in the following context: “Now a lot of organisations such as the South African Communist Party, COSATU, certainly the Right to Know Campaign have all spoken about the dominance of MultiChoice the monopoly that it has. What interests me as well Thandi, and I.am not sure if you are aware of this, but this statement that was issued today by the SABC is issued by Neo Momodu, she is the Corporate Affairs Marketing Spokesperson, Now she used to work for GCIS and then she left GCIS 10.0 work for, guess, News?4 which is of course part of MultiChoice and now of course she is the spokesperson of the SABC. And_for example, someone like Mathatha Tsedu who has a lot of credibility as a journalist and who has been tested, was also of course paid by Media24 because they of course paid the salary of the executive director of SANEF, a position that Mr Mathatha Tsedu occupied. Now what is also interesting is that Mr Joe Thloloe another stalwart of media is in fact the head of the Commission that is looking into whether there was political or editorial interference in the SABC, And we also know that Mr Thloloe has just been appointed the advisor of this new group of people made up of former SABC people who won the right to have a channel on MultiChoice's M-Net bouquet. So MultiChoice is in fact a player, a referee, an arbiter and people move between these organisations. Does it not_concern you that ‘MultiChoice essentially has all the pieces on the chessboard and can mate all the moves? ...” (emphasis added) Ms Brown continues a little later: “The other important fact of course also that adds to the complexity and layeredness of this, is that itis in fact MultiChoice that offered to digitise the African National Congress’ archives and that is quite a big favour that you're doing the governing party,48, 49. And then of course you have a situation where one of the chief directors_at MultiChoice is also the son-in-law of Mr_Gwede Mantashe the current Chairperson of the ANC and also the Minister of Minerals. Ofcourse you cannot blame people for who they marry and in which families they marry, but these links are insidious so they are not to be ignored, because we know how power works, it does _not_always manifest in formal minutes, in memos, in paper trails. It often gets discussed in the kinds of spaces where people have the freedom to exercise enormous amounts of influence and change the direction and we are talking here about the public broadcaster, an Institution that the majority of South Africans have as the only source of information, MultiChoice’s dominance in this space is concerning, its relationships, the overlaps, the blurring of lines does constitute a huge level of concern.” (emphasis added) Mr Mant ¢ attempted to get hold of Ms Brown by calling her on her cellphone. He could not get hold of her but spoke to her later after the show, and he complained that the show was unfair towards him and Mr Mawela by extension. Ms Brown did not take kindly to the accusations and informed Mr Mantashe to either complain to the Broadcasting Complaints Commission of South Africa (“the BCCSA”) or the station manager, if he had an issue. ‘Ms Mbete received a call from Ms Momodu of the SABC complaining that the show was unfair to her, MultiChoice, through Mr Benedict Maaga (“Mr Maaga”), the manager of corporation communications, complained that his boss, Mr Mawela, was unhappy that the show was unfair to him, Ms Mbete also received a call from Ms Mahlatse Mahlase (Ms Mahlase”), the editor-in-chief of Eyewitness News (“EWN”), who4.10. 4.12. 4.13 12 informed her that Mr Mantashe had called her to complain that the show was unfair to him, Upon receiving these complaints, Ms Mbete called a meeting between herself, MsBrown, MrMoagi and MsMoleboheng Schume (“Ms Sehume”), the former programme manager at Primedia, At the meeting Ms Mbete informed Ms Brown that there had been several complaints regarding the show. In particular, the complaints were based on the manner in which individuals were mentioned in the context of the relationship between the SABC and MultiChoice and that it was considered to be harmful to their reputations, moreso since they wore not offered a right of reply. Ms Brown enquired about the identity of the individuals who made these complaints, as well as whether the complaints were formal complaints. In addition, she asked for the name of the person who was called by Mr Mantashe, Ms Mbete declined to mention the name of this person. Ms Brown and Mr Moagi were of the view that Ms Mbete had not listened to the show. She indicated that she had listened to the show after receiving the complaints, but before attending the meeting with them. ‘They were also of the view that a right of reply had been offered but people refused to come on to the show. In addition, they indicated that theB individuals that were mentioned were free to call during the show and to correct any inaccuracies or untruth stated by Ms Brown. 4.14. Ms Mbete undertook to listen to the podcast of the show again and to revert regarding her views. 4.15. On 16 November 2018 Ms Mbete addressed an email to Ms Brown and ‘Mr Moagi and said the following: “Hi Karima, Having listened to the show once again as I promised to at the end of our meeting yesterday, my view is that the references to individuals can best be described as ambiguous, The reference to Neo Momodu's employment history, Mathatha Tsedu’s Media24 sponsored salary, Joe Thloloe's involvement with Newzroom Afrika and the probe into editorial interference at the SABC, the fact of a familial link between Calvo Mawela and Gwede Mantashe; while this may be factual, the link to the dubious nature of the relationship between the public broadcaster and MultiChoice was not clearly articulated. For that reason, we need fo, as a matter of course offer these individuals right of reply. And then, as you rightly said yourself yesterday, let the listeners make up their minds, Itis important that we remain fair in cour assessment of what is clearly a complex political environment The way in which you drew the links creates a suggestion of some level of shady behaviour on their part. You created an opportunity for our listeners to ‘connect the dots’ in_such a way thal_maybe detrimental to some of those you referenced without giving them an opportunity to ait their side of the story, As I said to you in our ‘meeting, this is about making sure that we act in accordance with our own values of fairness and balance and making sure that_as_a slarform we adhere to these consistently,” (emphasis added)4 4.16. Upon receiving this email, Ms Brown implemented the instruction to offer a right of reply! by getting MrMoagi to send invitations to Ms Momodu of the SABC, Mr Joe Heshu (“Heshu”) of MultiChoice and Mr Mantashe, In the invitation that was sent to Ms Momodu, it was stipulated that: “we would also like to extend the same invitation to Mathata Tshedu's (sic) following comments she made about his Media24 sponsored Salary as well as to Joe Thloloe for comments she 4a : ‘made about his involvement in Newzroom Africa and the probe into editorial interference at the SABC, Could you kindly advise if you or Mathata or Joe would be available to come on to the show?” \dded) (emphasis ‘Ms Momodu, Mr Mantashe and Mr Heshu declined the invitation, 4.18, It is the above events, i.c. the meeting to discuss the show and the instruction to offer a right of reply to the individuals concemed, that ‘Ms Brown contends constitute censorship and editorial interference, 4.19. In preparation for the national elections, 702 held a workshop on 26 November 2018, At this workshop, and in full view of the attendees, Ms Brown confronted Ms Mbete and accused her of censorship and editorial interference. She likened Ms Mbete to Mr Snuki Zikalala (“Mr Zikalala”) and attributed her conduct to her political interest. There 1 Iivher complaint Ms Brown stipulates that she responded fo Ms Mbete's email, indicating that she disagreed with her conclusions and views "but will give all the affected parties an opportunity fo respond on air. Despite request, there ‘vas no such response provided by Ms Brovn to the enquiry4.20. 15 is a dispute about the tone that was used by Ms Brown during the incident and also on whether she wagged her finger at Ms Mbete. Following the incident at the workshop Ms Mbete, on 26 November 2018, laid a formal complaint against Ms Brown by addressing an email to Mr Karl Gostner (“Mr Gostner”), former chief operating officer at Primedia and Ms Devashnie Singh (“Ms Singh”), Primedia’s head of Human Capital. The email in part reads as follows: “Towards the end of the session however, Karima launched a vicious and personal attack on me in front of the entire team, She made some serious allegations which the business, in my view, needs to look into if Tam to carry on leading this team. While gesturing with her hands, wining a finger and screaming at me, she accused me of editorial interference which she attributed to what she refers to as my own personal political interests; she likened me to former SABC executive ‘Snuki Zikalala. She went on to say that I had no right to question her formal complaint against her, _In_addition, she alleged that I had interfered with her because of pressure from upstairs" Lwould like the business to look into this matter as_a matter of urgency. [have over the years always acted professionally and in the interests of the organization and any allegation which seeks to create any kind of impropriety on my part, should be looked into such that the important business of delivering to our audience and clients is not adversely affected. The other concern I have here is how the incident, because of its toxic nature, can and will possibly impact morale and trust in the management team as well as my authority. Karima’s attack could legitimize this behaviour by others, which is not constructive None of us can be bigger than the station and I have done and continue to do my utmost best to make sure of this. The type of behaviour displayed by Karima is clearly not in line with the values of the business. Her actions showed her complete16 disregard for me as her manager. She was disres threatened me as a person. ful and T would like this matter 10 be taken up formally through Human Capital and would like you Devashnie to advise on the appropriate disciplinary action that should be followed.” (emphasis added) 4.21, Following the complaint, a meeting was convened by Mr Gostner to address the issues. The Gosiner meeting Ms Brown, The purpose of the meeting was to try and find an amicable solution to the issue, Ms Brown requested that the meeting be recorded. 4.23. Ms Mbete articulated her complaint whereafter Ms Brown denied that she was rude and disrespectful in her conduct. She also denied that she shouted at Ms Mbete. 4.24. Ms Brown indicated that she does not object to Ms Mbete giving her 4.22, Present at the meeting was Mr Gostner, Ms Singh, Ms Mbete and : feedback about the show but that what transpired here was not feedback on the show. She stated the following: “MS BROWN: The objection wasn't feedback on the show. The objection was that there were complaints, but we didn’t know who the complainants were of the show. Maybe Thabisile can explain to you why she called Clive and 1 in to discuss the interview because she didn't listen to the show live, She listened to the show recording when ‘she was called to raise the matter with me,” (emphasis added)4.25. 4.26. 7 Mr Gostner indicated that the fact that Ms Mbete did not listen to the show live, does not release her from her responsibility as a station manager, to which Ms Brown coneurred. She however, provided the following qualification: “MS BROWN: ... But we don’t understand what the investment was in that particular interview. We've done more robust interviews than that. And Thabisile wanted an account from us about whether we had given people a fair chance to be on the show, So we were asked to explain_ourselves and our conduct in relation to our journalistic responsibilities. So our ethics were being questioned because the ‘people who complained felt that we weren't ethical. So it wasn't a igeneral feedback on a meeting, It was related to a specific call that was mate. In fact, if T recall Thabisile's words correctly, she said three different people complained. When I asked formally if there's a formal complaint on the table, I was told no there isn't. ... 1 said did Gwede call you, because he call ... called to complain? She said, no, Gwede dida't call her, but the spokesperson from the SABC called hier, and that is why she is raising the matter with us, So it wasn’t a procedural feedback session the way we would have generally. It was off the back of the people who were affected by the interview calling her to make an intervention. And that is why I saw it as unuswal.”* (emphasis added) Ms Mbete indicated that having received the complaints, she listened to the show and exercised her own independent mind in arriving that the mentioned individuals ought to be given a right of reply. She put the matter as follows: “MS_MBETE: Absolutely, So for me, I mean, the simple reason behind calling you — and when I asked for a meeting, I asked for a meeting with you; I didn’t ask for a meeting with Clive, I asked for a meeting with you. And basically where I was coming from was a simply a ~ Thad received three different complaints from different ‘people, none of them - not all of them directed to me. But what that ‘raised was is there something I need o pay attention to? J went and I {ofthe meeting, p4, L1T-p 5, LS; a copy of the transcript ofthe meeting is attached marked “B4.27 4.28. listened to the clip. On the basis of what_my view was_and_my iudgement was on how that specific segment of the show dealt with at ‘Teast five or six different individuals, I felt it was unfair. Because, if you remeniber in our meeting, I said fo you the fact that it is a fact ‘that so-and-so is related to so-and-so, that on its own would count as that's a fact. What I'm trying to understand, and what I'm trying to understand was how does the fact of a CEO of Multichoice being the =a son-in-law of the ANC Chairperson, how does that tie into the actual story that we're discussing? And I felt that link was missing. ‘And that's why got involved. And that’s why is said having listened to the clip, I still thing (sic) — having listened to the clip a second time around after our meeting I still felt you were unfair on at least those five or seven people, And I said it would be good for you guys to go ‘back and call those people and give them right of reply. Now whether or not they take up that offer is actually neither here nor there. If you remember part of my conversation towards the end, it was actually we need to start getting back to some of the basic stuff that I think as a station we've kind of moved away from. And that is where I was coming from.”* (emphasis added) Ms Brown indicated that she does not feel that they violated any ethical rules or any ethical issues of journalism. She stated that: “MS BROWN; ... We gave all the people an opportunity to respond. They refused to come onto the show. explained to Thabisile what the complexities are of the relationship between Multichoice and the SABC, and that it was important to point that out. Ldidn’t pronounce on.anything; gave the context, which is what the show is about. It’s specialist context show: it’s a specialist political show. ...*” She proceeded to state that she was defending her integrity and her ethical process, She indicated that at the SABC she was called by Mr Zikalala to explain why she interviewed people and why she interviewed them in a particular way. She felt that Ms Mbete should ‘Transetip ofthe meeting, p 5, L2I-p 6, L21 “Transetipt ofthe meeting, p 6, L25-p 7, LA,19 have had her back instead of telling her that what she did was wrong because there was no evidence that they had done anything wrong, Insofar as likening Ms Mbete to Mr Zikalala is concerned, she said the following: “MS. BROWN: ... And if Thabisile is taking offence at me saying she behaved like Snuki, what Iwas demonstrating was that I had to, in the same way that she was calling me in, and not telling me who actually complained, having to go through the ... the whole thing, that I was subjected to at the SABC as well. And that’s not an instance - that is a ‘fact that happened to me” Her contention was that what transpired bad the hallmarks of the treatment at the SABC in that a politician (Mr Mantashe) could call someone in the building and instruct them “to call me to order when I didn’t in fact, do anything wrong”. She stated that this has a chilling effect. Ms Mbete indicated that the issues that she was raising were not about Ms Brown’s integrity, but concerns premised on joumalistic principles that were not observed and were of concem to her, “as a responsible brand custodian’ who listened to the audio and gave her feedback. She put this point as follows: “MS MBETE: And I gave that view—1 gave that view as a Station Manager, and someone who understands programming, and I said to “Transcript ofthe meeting, p 11, LLA-10,20 you I felt that you had been unfair on those individuals in the context of how you had connected certain facts. That I made clear in that ‘meeting and I stand by that. Here’s what for me is important. There are three complaints ~ one directly fom Neo, and the other two other which don’t come to you directly (sic). On the basis of that, as a responsible brand custodian, I went back and I listened. And what 1 found was what I thought actually here there were some gaps here. ‘And that’s why F came to you based on what 1 had listened, not because someone had called. ... (emphasis added) 4.32. Ms Brown disputed the fuet that she did not offer the persons concerned a tight of reply. In substantiation of her contention, she stated the following: “MS BROWN: No, Thabisile, you called them on the basis of your decision that the tribunal made that the merger ~ the..the...the deal between the SABC and Multichoice was a merger. She speaks for the board and she speaks for the executives. And we asked if members of the board are available and if members of executive is available. She said we are not speaking as an institution, please refer to our ‘statement, So your allegation that I didn't give Mathatha a chance, that I didn't give Joe a chance is factually incorrect. It was we behalf of them. So [ don't understand where vou get the conclusion that I didn't give them sufficient right to reply when we actually called them before we started this story to come onto the show. We wanted as_many people from the SABC to come onto the programme, We wanted _as_many people from Multichoice to come onto the programme, None of them wanted to come onto the programme, And ‘vou simply don’t believe us when we say that. And I don't understand what the basis of that is.’” 4.33. Mr Gostner stated that from reading Ms Mbete’s email, nowhere is the issue of Ms Brown’s ethies and integrity raised. The issue rather is about a right of reply in the context in which the names of the various individuals are raised, ofthe meeting, p 14, L1Gp 15, L2. ofthe meeting, p 15, L16-p 16, LB434. 435. 4.36. 437. an Ms Brown responded by stating that she laid out the context of “how ‘power is exercised at the SABC and what the relationship is", She approached the story ethically and professionally~the same way she would approach any other story. She said “I proceeded factually to do the story the way I would do every other story which is 10 give everybody an opportunity to speak, So I’m not prepared to speak about this process any more because as far, as I’m concerned, I followed that process, If I didn’t then there must be a process, That way, I’m held accountable for that. Thabisile’s recommendation was to call the individuals and to have them on again. And they refused again”.* (emphasis added) Ms Brown reiterated her stance that she followed “journalistic principles and rules” and that she did not transgress any of them, She stated that there was a leaning on individuals to lean on her. Due to the fact that no progress could be made, the conveners of the meeting decided to postpone the meeting, think about the issues further and would get back to the parties on the way forward. The issue was not dealt with any further. 702 did not renew Ms Brown’s contract and she was advised of the decision and the reasons therefor approximately two weeks before the actual date of expiry. She accepted the decision and requested that she should no longer be scheduled as it made sense since she had been on leave at the time. “Transcript ofthe meeting, p 17, LLAS-212 4.38. She was paid for the entire period of her contract, despite not being scheduled. 439. On 2 July 2019, as already indicated herein earlier, she laid a complaint. SUMMARY OF THE EVIDENCE GIVEN AT THE INQUIRY 5.1, Approximately sixteen (16) individuals were interviewed. In certain instances individuals were recalled to cither clarify or complete their evidence. Ms Brown 5.2. She stated that her written complaint stands as her evidence but was prepared to answer any questions or provide clarification where sought. 5.3. She enquired if we were given a copy of the transcript of the Gostner meeting because she had requested that it be recorded. It was indicated that we did not have a copy thereof and T indicated to her that as a result her interview would have to be conducted in two parts. The second part would be convened after we had received and perused the transcript of the Gostner meeting.54. 56. 55. 5.7. 23 Much of her evidence accorded with what she stated in the Gostner meeting as already set out herein earlier, save for aspects that are dealt with below. It is critical, in her view, that complaints be formalised because the absence of formality brings about the idea of pressure that is not transparent and regulated and opens the door for censorship. She had no objection to Ms Mbete giving her feedback but, in this instance, it was not due diligence that was being conducted in the normal course of work, but a response based on someone who had called 702 to complain, A manager does not have a right to tell her how to do her work, especially where no 702 code of values has been violated. ‘When Ms Mbete called her to a meeting, she decided to invite Mr Moagi because he is the person who was critical in setting up the interviews. She put it as follows: “MS BROWN: ... I just took him with because I felt that I can’t speak for him, because he did the phoning and he has the chain of evidence that we called people, For example, he spoke to the SABC spokesperson at the time and she refused us access to the board members and members of the executive and referred us to the SABC statement that was released on that day. ...” (emphasis added)5.8. 59. 5.10. 5.1 24 In dealing with the discussions at the meeting called by Ms Mbete, and on whether a right to reply had been offered to the individuals that were mentioned, she also said the following MS BROWN: ... So she then confirms in this meeting, that ‘Mr Mantashe called but she doesn’t say who [she} called. She also said someone from MultiChoice called, but she also didn't say who. T think the only person she actually spoke with, was the SABC ‘person because that person was a former 702 employee and I think [slhe is an acquaintance or friend of Ms Mbete, who we then, my producer and I when I say we, referred her to the SABC’s response ‘and the fact that we had ... to the request that we referred to the statement rather than get an interview on record with either a member of the executive, or board, to explain and to answer questions regarding the findings of the competitions authority, ...” (emphasis added) In respect of MultiChoice, she stated that MultiChoice wanted an off the record discussion, which they declined. In respect of Mr Mantashe, she was not certain if he had been contacted prior to the show and indicated that we should ask Mr Moagi if he had contacted Mr Mantashe. In dealing with the planning aspects of the show, she indicated that she foresaw that al! of those names of the persons that she mentioned, were going to be mentioned.5.12, 5.15. 25 In respect of MultiChoice, she was not interested in getting Mr Mawela on the show but was interested in obtaining MultiChoice’s formal response to the Commission’s report. ‘The same goes for the SABC. ‘When asked if she understood Ms Mbete’s email that she sent subsequent to this meeting to be a suggestion or an instruction, she indicated that she understood it to be a suggestion, She stated that Ms Mbete is “not allowed to instruct me, because she doesn’t control editorial content, 1 do and the producer, but she is held accountable for content on 702 ...”. She was at liberty not to implement it but decided to implement it to prove that none of the parties would agree to come on the show because they did not want to be questioned. She also wanted to prove to her that she was wrong in concluding that the story was not balanced and fair. She dealt with the workshop that 702 had arranged in preparation for the national elections and in particular how it came about that she raised this issue. She indicated that editorial interference was on the agenda and she deemed it appropriate to deal with the matter. She felt that the chilling effect that Ms Mbete’s conduct had caused was quite heavy and that she needed to deal with het on a public platform. She wanted to illustrate that “they are living through censorship and that the effect of that was chilling, that people that are younger, people that aren‘t as experienced, would refrain from interviewing or requesting interviews from other individuals, ...”.5.16. 5.7. 5.18, 5.19, 5.20. 26 She referred to the Gostner meeting and pretty much reiterated what was discussed therein. She knew after the workshop that her contract would not be renewed, especially after Ms Mbete said she wanted action taken against her. Regatding the time lapse between the incident and lodgement of the complaint, she stated that she did raise the issue during the workshop and that she decided to escalate it, since she now appreciates the gravity of what has happened to her. She felt that because Ms Mbete did not get her way in having the station take action against her, she decided to che exercise her prerogative not to renew her contract and, in doing so, acted “in @ manner that was irrational ... considering the current ‘programme that is running now”. ‘The essence of her point is that the ‘current programme is very similar to her show. She dealt with the circumstances of how she was employed and in particular how her show got to be changed from a Sunday evening show toa four days a week show. She stated that it was a decision that was taken by Ms Mbete's bosses during the time when she was on maternity leave. She stated that Ms Mbete decided not to renew her contract because she, in essence, was punishing her.5.21, 5.22, 5.23, 27 When she was informed of the decision that 702 had taken regarding her contract, she accepted the decision and did not raise any issue. As already indicated, she only thought about her situation later and decided to lodge a complaint, She is questioning 702’s rationale to the extent that she was informed that the decision was taken because 702 has decided to change its focus to daytime and to direct its resources in that direction. As part of her motivation and when asked who takes a decision whether to renew or not to renew contracts at 702, she said the following: “MS BROWN: In this instance, it would be the station manager, 0 let me give you an example. Xolani Gwala, as you know, suffers ‘from stage 4 cancer, he’s employed by the station even though he ‘has not worked at the station because he's ill, The mid-day show still runs with his name, They leverage his name. He did a show recently I think live from another part of the world or something and he's officially an employee of the place and his contract is extended again and again and again and he's physically not able to be there and no other presenter has been given that kind of treatment, I don’t know if it’s because he is sick, but I’m sure he’s not the only sick person in the employ of 702, or somebody who has a chronic disease, or terminal disease.” She continued as follows: “US_BROWN: ... It’s, one thing to end someone's contract because you don’t want them or you don’t want to work with then, ut you have to give them reasons and if you give them a reason that is inconsistent with practice, then you have to ask questions. So for example, if you're putting all your resources into daytime, how are you employing Xolani Gwala when he’s never at work? But you're putting all your resources into daytime,” (emphasis added)5.24, 5.26. 5.27. 28 When asked whether the change in focus from night to daytime would be Ms Mbete’s own decision or a strategic decision by the company, she stated that it would be a strategic decision by the company. She still questioned the rationality with reference to Mr Xolani Gwala’s (“Mr Gwala”) situation, i.e. “In fact, like I said, in Mr Gwala's case, the contrary is true, a person is hired on top of him being on the payroll of being part of the daytime live, to do his show". In dealing with the reasons for lodging the complaint, she stated the following: “MS BROWN: ... I’m not interested so much in the fact that 702, is not renewing may contract. I’m interested and concerned at the management of 702’s handling of a complaint by a powerful individual and I raised that consistently, Iraised it with my station manager, and I raised it with my colleagues, I raised it in a formal workshop and as I raised it, I just got into more trouble, And if anything illustrates the chilling effect of phone_calis from an unknown individual, or from known individuals who are unknown individuals in the company, what happened to me, is an example of that.” (emphasis added) She raised a concern about 702 employees’ unwillingness to participate at the Inquiry for fear of retribution. She requested that the terms of reference be amended to specifically indicate that no one will be victimised or punished for participating or giving evidence at the Inquiry. Despite Primedia’s view that this was unnecessary because not only is it tis covered by its policies, but Iso the law of the land, I advised that the5.28, 5.29, : 5.30. 531 29 additional step be taken and Primedia obliged. The terms of reference were amended to accommodate Ms Brown’s request. With regards to the improvement of processes and procedures within Primedia, apart from complaints being formalised, she stated that consideration should be given to the employment of an ombudsman who would be the person responsible for receiving and adjudicating complaints. ‘When asked whether, apart from the whistle-blower protection that she suggested, is there anything else from the terms of reference that she believes is too narrow or has not permitted her to fully ventilate her side of what happened, she seid that she thinks that “702 is the judge and the jury ... They are the client, they pay”. She was given an example of the judges and the fact that although their salaries are paid by the Department of Justice, they still remain impartial. She stated that the government is a public institution and 702 is a private institution and therefore the comparison is not apt. T indicated to her that although I am chairing the Inquiry, 1 have previously acted against Primedia and will probably do so in the future should I be briefed against it. I asked her whether the Inquiry enjoys her confidence since her response could have possible implications on its30 fate. In addition to stating that she does not question my cthies, she indicated that the Inquiry does enjoy her confidence. 5.32. _ Regarding suggested improvements at Primedia, she indicated that one of the weaknesses is that although there are policies in place, there is no induction and as such, “employees” have no knowledge of processes, procedures and their entitlements. 5.33, The interview was adjourned, Mr Moagi 5.34, He was the producer for The Karema Brown Show since 2017. He is the producer of her show on eNCA, The Fix. He is also her manager. 5.35. _ In dealing with how they prepare their 702 shows, he stated that in the mornings he and Ms Brown would brainstorm around the story and think of how they can chase it, They would also observe how other shows that come before theits tackled the story in order to avoid repetition and fill in the gaps that were not covered. 5.36. _ In relation to determining persons to be contacted for a right of reply, that would normally be decided after identifying the story. He would be the ‘one who would reach out to persons who were offered a right of reply. | | | |5.37, 5.38 5.39. 3 Prior to the show of the 12 November 2018, they considered the relevant parties to the story to be MultiChoice, Media Monitoring Africa, the SABC and SOS, and invited the SABC through Ms Momodu, He stated that they have a good relationship with Ms Momodu so he gave her a call on that day and said the following: “MR MOAGI: ... Neo, merger, oh my gosh, guys, can we have a chat, Karima would like to speak to you to get a reaction from the SABC and she said to me that no, they're not speaking on the ‘matter. We can, then she directed me to the statements. She said, Clive, we've issued a statement in this regard. If Karima wants to speak about this story, she can refer to the media statement ...” He submitted a copy of a WhatsApp that he sent her on that day, and it reads as follows: “Hi Neo, I trust you well. is Clive again from 702. Karima was wondering if it would be possible to speak to the SABC tonight following the competition Commission's request for the SABC and Multi choice to register the transaction as a merger, following the ruling that the distribution agreement signed in 2013 constitutes a notifiable merger. This would be roughly 15 min or so at 21405. Would this be at all possible? Reds, Clive Moagi” He stated that they tried to reach out to MultiChoice, without success.5.40. 5.41, 5.42, 5.43. 32 ‘They were successful in their endeavour to get Ms ‘Thandi Smith (“Ms Smith”), representing Media Monitoring Africa, to come to the show. Media Monitoring Afiica, the SABC and MultiChoice are the only three organisations that were contacted. He did not know prior to the show that Ms Brown would make mention of the names of people in the conversation, but he understands why she mentioned them. For him personally, from an editorial point of view, the conversation did not warrant a right of reply. As part of his justification, he gave the following example: “MR_MOAGI: Gwede Mantashe, yes. I'll make an example of Gwede Mantashe. So she made, so she was then saying that Calvo is Gwede Mantashe's son-in-law, which is information that is known. Its not_a secret, Right? And Calvo is affiliated or works for ‘Multichoice or has an_ affiliation with Multichoice. That_is_also something that ig_out there in_the public, right and then the conversation was centred around the seeming relationship between the SABC and Multichoice, right. They were talking about the fact that Multichoice is a monopoly and it seems like (here are certain that are happening behind the scenes that one, that could possible (sic) explain what hold Multichoice has on the SABC. Because that was, that_was what the conversation was even you know, people were trying to make sense of that, of why is it that the Multichoice seems to have such a hold on the SABC in this particular thing. And then again ‘one of [intervenes]. (emphasis added)5.44. 5.45. 5.47. 5.48. 33 He stated that someone like Mr Mantashe could have called the show and challenged Ms Brown, However, he does not believe that as a producer he ought to have contacted the people that were mentioned on the show to offer them a right of reply, He specifically stated that he does not believe that Mr Mawela should have been contacted and offered a right of reply. He attended the meeting that was called by MsMbete. Ms Brown wanted to understand if there had been a formal complaint that had been lodged by any person to warrant the convening of the meeting. He narrated what transpired at the meeting, He said that Ms Mbete was very conversational, and the tone was cordial. She advised them of the complaints she had received and wanted to hear their side of the story. ‘The meeting concluded on the basis that Ms Mbete would listen to the show again and give them feedback, which she did by way of an email, Regarding their reaction to the email, he said the following: “MR MOAGI: The, I think, I’m trying to understand, just remember, because I've got her email here from whether, so the, yes I think it was in this email subsequent to our meeting, right. So this is her feedback email where she says she’s listened and this is what she thinks, and this is what she thinks we should do.5.50. 5.51. 5.52. 5.53. 5.49. . : And then when she said that, she then made, said that she feels from editorial perspective that we should reach out to those affected parties. Right? And then Karima was like okay, cool, and J was like okay, cool, I will do that, So then I reached out [to) the people that were mentioned. So for instance I've got the [intervenes]” (emphasis added) He mentioned that in affording the relevant persons a right of reply, be sent them WhatsApps and indicated those who responded and those who did not. ‘The WhatsApps were sent to Ms Momodu, Mr Heshu and Mr Mantashe. When asked what does he make of the fact that Ms Mbete’s “recommendations” were implemented without protest in relation to the complaint of editorial interference, he stated that he is not sure because he cannot answer for Ms Brown. He stated that after receiving Ms Mbete’s email and offering the right of reply, he thought that was the end of the matter. It resurfaced at the national elections workshop when Ms Brown raised it, He narrated how the incident occurred, disputing that Ms Brown was disrespectfil, rude or raised her voice, He stated that he had never read the editorial policy, but just knows it in general terms, He was never inducted on it,35 Ms Mbete 5.54. 5.56. 5.55 | : 5.57. She is the station manager at 702 and has held that position for approximately three years. She is taken aback by the fact that although she was the initial complainant and 702 did not finalise her complaint, she now has to attend the Inquiry to answer to Ms Brown’s allegations — both being based on the same set of facts, Part of her job is overall editorial custodian of the brand and if the station ‘was to be reported to the BCCSA, for instance, she would be the one who would be held accountable. She received a call on 13 November 2018 from Ms Momodu, who was very unhappy about the broadcast of the show. She felt personally attacked and that the show was unfair in that her employment history was Drought into the conversation and it was linked to the bigger story of the collusion between the SABC and MultiChoice. Subsequent to that, she received another telephone call from Mr Mage, the communications manager at MultiChoice, who sought to register a complaint about the same broadcast. He was calling on behalf of Mr Mawela, indicating the unfair link between him and Mr Mantashe inthe context of the collusion, without providing any evidence of wrongdoing, had registered a complaint of a similar nature regarding the show. 5.59. She was later called by Ms Mahlase who informed her that Mr Mantashe | 5.60. She then took it upon herself to schedule a meeting between herself, | Ms Sehume and Ms Brown. Ms Brown responded by saying that she | : ‘would bring her producer, Mr Moagi, to the meeting. 5.61. She advised everyone at the meeting that she was trying to understand the issues so that a decision could be made in terms of how to move forward. 5.62. Ms Brown wanted to know who had complained. She was advised that the complaints were received from Ms Momodu, Mr Mawela? and ‘Mr Mantashe, who did not speak to her directly. 5,63. In indicating what she found problematic about the show, she said that she had advised them as follows: “MS MBETE: ... And she immediately took up issue with the fact that I was acting on information that didn’t come to me directly and she said she would have preferred it if the complaints were formal. And I said to her, look, Karima, I have listened to the recording and we are here to have a conversation. I, on the basis of what you are > She had previously said that she was called by Mr Msags5.64, 5.65, 5.66. telling me and what you as the show had tried to do before the show, I'm generally comfortable with that, but I think where things went wrong was in the broadcast itself, So remember that Neo was asked to come and talk about this SABC statement, but in the broadcast, the specific thing that she takes issue with is the fact that her personal history gets mentioned as if she had a role to play in the community (sic) [collusion] between Multichoice and SABC. It’s a similar thing with Mr Mawela, that his thing is if you are going to mention the fact of who I'm related to, what does that have to do with the story of collusion between the SABC and Multichoice, and I'm saying 10 Ms Brown I'm trying to understand why you're mentioning these facts added to the story itself? How did that serve the autience? Especially because there’s no evidence of any wrongdoing on their part. The conversation got heated but nothing out of the ordinary in the way that we deal with presenters and big personalities.” She informed them that having heard their side of their story she would listen to the podcast again and revert. On 16November 2018, she addressed an email to Mr Moagi and Ms Brown, advising them that she is of the view that there was insufficient evidence in the broadcast to indicate how these individuals link up to the story. She said she did not inform Ms Brown that the person who was contacted by Mr Mantashe was Ms Mablase, because Ms Brown and Ms Mahlase had both previously worked at the SABC and are known to have an unpleasant history between them, Asa result, she wanted the principle of the matter to be addressed and did not want the conversation to be tainted by their history. She stated that the issue is whether there is merit to the complaint or not, rather than its point of entry.5.67. 38 She indicated that while Ms Brown might be entitled to her opinion to characterise certain relationships as “insidious”, and that there are conversations that happen at family lunches, the difficulty arises in circumstances where there is no evidence to prove or show that the persons link up to the specific story, i.e. the collusive relationship between MultiChoice and the SABC, She also indicated that she subsequently did research and what she established is that even the timelines of the individuals that were mentioned and the positions that they occupy, do not connect with the date of the 2013 agreement. In this regard she stated the following: “MS MBETE; _... So for instance Neo was at the SABC March 2018 until — sort of 2018 until 2019. Before then she was at Media24, 2014, I think, until — I might have the date wrong but I think the broader point is the dates don't correlate. So Neo was at GCIS hefore the collusion happened between Multichoice and SABC and whatever level she was operating at, I have not seen evidence to say she was operating at the level where she would have been privy to these conversations about collusion between the SABC and Multichoice, It is the same thing with Mathatha Tsedu. At the time I think he was at the ~ he only became a board member of the SABC which is what Karima was inferring in the broadcast, He became a board member of the SABC, I think in 2017, At the time that these conversations around collusion were happening Mathatha had nothing to do with the SABC. She mentions the fact that his salary was being paid for by Media24 when he was executive director of SANEF.”"° "© T yequested thet she submit a document seting out the timeline in substantiation of her point. 1 is attached heroto marked SC,39 5.69, | interpose to set out the timeline of the material events s appears from Ms Mbete’s email: .. The five year agreement between the SABC and Multichoice was signed in 2013 according to the Competition. Ms Neo Momodu was at CGIS between 2010~ 2014. She joined Media24 in 2014 and left in 2017. In 2018 she joined the SABC and left in 2019. Without any evidence linking Ms Momodu to the collusion, bringing her employment history into the discussion was reckless and irresponsible, In addition, Ms Momodu would have had to have been part highly sensitive commercial discussions at all these organisations around the time that the collusion took place, Mr Mathata Tsedu's tenure as executive director of SANEP was from 2014 to 2016, Media24 seconded him to the organization and ‘as part of the secondment deal, the company continued to pay his salary. It should be noted that an organization such as SANEF has relied on financial support from media organizations throughout its existence. Mr Tsedu only became a member of the SABC board in 2017. Again, in the absence of any evidence linking him to the collusion, any attempt to draw links between Mr Tsedu's role at SANEF and the SABC is a tenuous stretch, if not malicious. Mr Joe Thloloe was with the Press Council as its chairperson during the period in question. He wax commissioned to conduct the SABC inguiry into political interference as an independent expert in 2018, Newzroom Afrika was announced as the new channel in 2018. He is part of the channel's editorial advisory board. His roles at both institutions do not suggest that he would have been part of the commercially sensitive discussions, If Mr Thloloe’s name was brought in to demonstrate that Multichoice has influence over editorial decisions at Newzroom Afrika, then the same logic should be extended to eNCA who are also on Multichoice’s bouquet. The suggestion that his association with both organisations had anything to do with collusion between the SABC and Multichoice was not substantiated during the broadcast. 5.10. In respect of Media24 paying Mr Tsedu's salary when he was executive director at the South African National Editors Forum (“SANEF”), she indicated that there is nothing untoward about that because SANEF relied371 5.72. 5.73. 5.74, 40 on its members or affiliates, Media24 being one, for sponsorships to meet its obligations, She indicated that there was no evidence how this information links up with the collusion between MultiChoice and the SABC, when Mr Tsedu only became a board member of the SABC in or about 2017. She stated that the relevant individuals were mentioned and there was an inference of some level of impropriety that the listeners were invited to connect by way of dots, when there was no evidence to this effect. She said she does not believe that all complaints need to be formal. She indicated that part of what the BCCSA implores them to do is to self-correet before a matter reaches the BCCSA. ‘The email to Ms Brown and Mr Moagi was an instruction and not a recommendation. In commenting on Ms Brown’s complaint that her conduct amounts to interference or censorship, she disagreed with Ms Brown’s characterisation, She mentioned that there were incidents in the past where she had raised views that were incongruent with those of Ms Brown regarding either how she had conducted a particular interview or how she had intended to approach an interview. By way of an example, she referred to an interview that Ms Brown had conducted with Mr Pallo Jordan (“Mr Jordan”), and her omission in not asking him a4 question around what happened with his qualifications, i.c, his claim that he had a PhD, because she believed that it was important for the 702 listeners. ‘This was after the interview had been concluded. 5.75, She mentioned another incident where Ms Brown was going to interview Mr Cyril Ramaphosa (‘Mr Ramaphosa”). She objected to an agreement that had apparently been reached with Mr Ramaphosa that he would not take live calls during the interview. In addition, Mr Ramaphosa wanted to be sent questions ahead of the interview.'' Changes were made pursuant to her intervention. : 5.16. None of these incidents were ever referred to by Ms Brown as constituting editorial interference or censorship. She indicated that she does not understand why the incident in hand is treated differently by Ms Brown. 5.77. In response to the question whether she ever received any communication from Ms Brown that she disagreed with her instruction that she sent by email, she stated that she received no such email. 5.78, She was asked about the incident that occurred at the workshop. She indicated that someone from a group that Ms Brown was a part of, was reporting on theit group’s discussion, Ms Brown stood up and accused "1 Copies of the emails exchanged between Ms Brown, Ms Mbete and Mr Teeling-Smith ate attached marked “D1" to oe5.79. 5.80. 5.81 5.82. 5.84, 42 the person of misrepresenting what they had discussed in their group and she spoke about the incident that she regards as censorship and editorial interference. Ms Brown stated that she felt like she was being bullied by her and contended that any and all complaints must be formalised. She felt uncomfortable due to the fact that Ms Brown was raising jon with the entire team. Mr Eusebius McKaiser private conve! (Mr McKaiser") jumped to Ms Brown’s defence. ‘Ms Brown likened her to Mr Zikalala. By the time Ms Brown left the workshop she felt disempowered in front of her team, she felt like this entire incident was designed to humiliate her and show the team that she could be put down, She then addressed an email to Human Capital and to Mr Gostner as she took these allegations seriously and wanted them to be investigated. She felt affronted as this was an attack on her personal reputation, She felt that being accused of editorial interference is like an accountant being accused of fraud. She therefore needed some kind of action to be taken as no one is bigger than the 702 brand. She felt that if she was found guilty of having acted improperly, she too should be censured.5.85. 5.86. 5.87, 5.88, a3 She stated that she was mostly offended because the accusations that Ms Brown was levelling against her, were the same circumstances that she experienced at the SABC and they made her leave their employ. Subsequent to the workshop, and the e-mail sent to Mr Gostner, a meeting was convened by MrGostner and in attendance was: Ms Brown; Mr Gostner; Ms Singh and herself, ‘The meeting was held in an attempt to effectively try and get an amicable resolution after the incident at the workshop. With regard to how complaints are received at 702, she stated that complaints are received either in writing or through telephone calls, the principle being one may act on it if there is merit to a complaint. Further, they work in a very fast paced environment. It is preferable that a complaint be in writing; however, one cannot be precluded from dealing with a complaint because it is not in writing. Regarding proposed improvements, she agreed that it may be helpful to require that the 702 officials themselves reduce complaints to writing where no written complaint was filed. She stated that she had no objection to the suggestion of having an ad hoe ombudsman who would adjudicate on such matters.44 Justine Limpitlaw 5.90. She was a practising attorney and is now a legal consultant to Primedia, 5.91. Apart from reading the press reports, she has not listened to the show and does not have personal knowledge of the matter 5.92, As aresult of the above facts, her evidence was not taken into account. Bongani Bingwa (“Mr Bingwa”’) 5,93. He is the anchor of The 702 Breakfast Show. 5.94, Tt was at the workshop where he first had knowledge of the allegations. He was in Ms Brown’s group at the workshop. He does not remember Ms Brown raising the issue of editorial interference. It was a complete surprise to him when she raised the issue at the workshop, He was also surprised by the tone in which it was raised. 5.95. There were strong allegations made through a comparison of the old SABC newsroom and 702, i.e. comparing Ms Mbete with Mr Zikalala. 5.96. What he could capture from the “confrontation” wes that the central issue was that a powerful person phoned in because he was offended by5.97. 5.98. 5.99. 45 something that had been said during the show and Ms Brown was, as a consequence, called to account for what had happened, It his experience, there is no consultation with the editorial team around who he is going to interview and what angle he might pursue. However, thete is a responsibility on his part to explain his choices when asked He has had an instance where, after the show, he was advised that he had asked the guest good questions, however, he did not have regard to the fact that the said individual was new to the position and that was unfair on the guest. Although such feedback is unpleasant, such is the nature of the beast. He indicated that he had read the transcript of the show and that, based on his experience of many years as a journalist, be found that there are gaps in the story. He put the matter as follows: “VR_BINGWA: .. But journalism, you can't do this, You can’t make links about people, because whatever right of reply the SABC was offered it was not about the employment history of its spokesperson who issued the statement. The SABC was offered a right of reply about the commission’s finding over something that happened before this individual was even at the SABC. She was still at GCIS ‘from Ms Brown’s own telling of it, right? I mean, if you investigate ‘you will find the timelines match in that sense. Now it is mentioned in the context that the person who issued the statement worked at GCIS, worked at News24 which is paid by Multichoice, Hah, Right? There's no way if the SABC said read our statement, what is now being asserted, has anything to do with that statement. We then come46 into Mathatha Tsedu's position at SANEF which was something that ‘News24 would have sponsored regardless of who the occupant of that position is. Joe Thloloe, all of this, and I'm sorry to bring you in, Dario, but when I was at Carte Blanche Dario would never have allowed something like this to go on air. He would never have allowed something like this to go on air because exactly as I would presume Mantasha felt affronted, or course he felt affromted. As a listener there is no way, because she uses the word insidious, powerful, not in memos, cannot be ignored, simply because of people's employinent histories, I mean, presumably you could argue that by that standard maybe I'm here also at the behest of Multichoice hecause I once worked for Carte Blanche. It's crazy to then say she can't be asked to explain her line of reasoning without a formal process on inquiry being instituted. It's ridiculous, And also, this issue that people can phone in, no, people have a right to refuse to be interviewed. As a journalist I can rely on someone having to come to clarify what facts or innuendos might be wrong, They're not obliged 10 come on. I must do my job as a journalist and be clear about what T'm putting out there. The fact that I've offered you a right of reply doesn't mean I can say whatever I like about you, because you have the opportunity or right to dispute it. You don't have to.” 5.100, He indicated that the nature of the environment requires fluidity as opposed to strict formalism - each person should know what is expected of them and that accountability does not impute impropriety on anyone’s part, Bruce Whitfield 5.101. He isa presenter at 702. 5.102. According to him, the role of a station manager is to ensure balance among the stakeholders.5.103, 5.105. 5.106. 5.104. | . 5.107. 5.108. 47 He was at the national elections workshop. The confrontation between Ms Mbete and Ms Brown could be described as an extraordinary outburst, Ms Brown had a full go at Ms Mbete and accused her of multiple crimes against media freedon It was embarrassing to witness the outburst. ‘Ms Mbete remained calm, composed and patient. Mr MeKaiser stepped in to defend Ms Brown. He found the approach inappropriate in that, in his opinion, choosing to raise that matter in that forum as opposed to in private, smacked of an agenda, It made him question the motive. He said that there was a reference to Mr Zikelala and the fact that there ‘was a chilling effect in the newsroom. He does not think that comparing Primedia to the SABC is appropriate, realistic or even fair. In ‘ew, it would be a sad day to turn the highly effective informality of the radio environment into a rigid corporate identity with a tedious bureaucracy to deal with “day fo day friction”. ‘There is never a fear to confront any sort of sensitive issue or misdemeanour within the business of Primedia,5.109. 5.110. SLL, 48 A station manager would be negligent in their duties if they received a complaint and did not investigate that complaint. Ideally, you should have a right to know where and/or from whom the complaint emanates. In relation to Mr Mantashe having called and the identity of the person that he called not being disclosed, he stated that he would be interested in ‘who his accuser is rather than the point of entry of the complaint. In dealing with the right of reply, he said the following: “MR WHITFIELD: _... If you've got a problem with giving somebody a right of reply against something you said, well then you shouldn't have said it. And if you're wrong in saying it, then be big enough to say you were wrong, and do it, So yes, the short answer is if we know that we're going to stoke a fire, I would absolutely give them the heads up that we are going fo be doing things. We are going to be talking about this issue, and we've got a person coming on, or this person is coming on to make an allegation so you've got right of reply. .. Ms Sehume 5.112, The programme manager’s duty is to manage talent and that entails providing feedback before and/or after the show. Programme managers work closely with producers, Content input is not fixed. It is done on an as and when basis.5.113, 5.14. 5.115. 49 It is in the interest of the station to avoid going to the BCCSA constantly because when they renew licences they look at how many complaints have been made against you and that counts against you as a station. Personally, she thinks that it would be preferable to insist on a complaint being written and formalised. Verbal complaints are a bit dangerous as it becomes a “she says, he says” situation. She was at the meeting on 13November 2018 with Ms Mbete, Mr Moagi, Ms Brown and herself and the following transpired: 5.15.1. Ms Mbete wanted to ascertain as to what transpired during the show; 5,115.2. Ms Brown wanted to know if there was a formal complaint, to which Ms Mbete responded by saying that the session was not a formal complaint, merely a chat; 5,115.3. Ms Brown defended herself and felt that this is editorial interference in that Ms Mbete scheduled the meeting without having listened to the show live; and 5,115.4, Ms Mbete indicated that she had listened to the show before the meeting.5.116. 5.117. 5.118. 50 She agrees with MsMbete that had Ms Mbete disclosed that Mr Mantashe called Ms Mablase, the incident would have been bigger than it really is, Ms Mahlase and Ms Brown have never liked each other. What made matters worse, in her view, is the fact that Ms Brown was employed while Ms Mbete was on maternity leave, so she is not the one who employed her. She said that at the workshop, Ms Brown confronted Ms Mbete and it was n ugly scene, Ms Mbete maintained her calm and kept quiet. She felt that Ms Brown had acted in an unprofessional manner. She said that she thought the matier “had been squiashed”. After Mr Moagi had offered the individuals a right of reply, he did not report back to her or Ms Mbete, She was shocked by this eruption at the workshop. Ms Mahlase 5.119, 5.120. In addition to her position at EWN, she is also the chairperson of SANEF. She is a former deputy political editor of the SABC and political editor of ‘News24. She has been a journalist for twenty (20) years. There is no internal editorial policy at EWN, Primedia and 702. They rely on the BCCSA Code, She also said that although it is not compulsory to do so, Primedia also subscribes to the Press Council.5.121 5.122. 5.123. 5.124, 5.125. 5.126. 51 She believes that such incidents do not warrant the establishment of an inquiry, They may be resolved through appointing an internal legal person to look into the complaint and assess whether there have been any infringements of the applicable instruments. At Primedia complaints may be registered by call, email or WhatsApp Messenger On 13 November 2019, she received a call from Mr Mantashe who was affronted, screaming and shouting. Mr Mantashe called to complain about the show and the links made between him and his son-in-law, Mr Mawela. She received a second call fom Ms Momodu who was very angry and threatened to sue 702, Ms Momodu had difficulty in understanding how her previous employment linked with the findings of the Commission. Ms Momodu had called on the previous occasion complaining about a broadcast that she contended was unfair against the SABC. Ms Mahlase listened to the broadcast and reverted to Ms Momodu and advised her that, in her view, the broadcast was fair and balanced. Ms Momodu did not take the matter any further. She said if commentary is unfair, media houses have a responsibility to act and the BCCSA and the Press Council encourages them to act on |5.127 5.128. 5.129. 52 complaints before complaints -are escalated to them. She gave Ms Momodu the assurance that they would investigate internally. She listened to the show and based on her journalistic experience, she came to the conclusion that the broadcast was unfair, not only to Ms Momodu, but to the other individuals that were mentioned as well. Her reasons are similar to those of Ms Mbete so I shall not repeat them herein, save to mention that aspects such as the timeline not matching and the absence of a link between the positions occupied by such individuals and the collusion between MultiChoice and the SABC, are central, Ms Momodu was offered a right of reply subsequent to Ms Mbete’s intervention. She, however, dectined the offer as she had lost trust in Ms Brown and was not willing to go on her platform. SANEF relies on its membors or affiliates for funding, Media24 and Tiso Blackstar are its biggest funders. This does not, in any way, compromise SANEF?s ability to take its members to task where circumstances dictate. By way of example, she referred to SANEF’s disagreement with DSty over the pulling of the ANN7 channel from DStv's bouquet, even though DSty is among SANEF's biggest contributors.5.130. S.A31 53 By virtue of her position, she receives a number of calls from different political organisations who complain about Primedia allegedly treating some or other politician differently from others. In that and other different contexts, she has had a few run-ins with Mr Mantashe, some of which are a matter of public record, Her views about the show were not based on acceding to any kind of pressure from Mr Mantashe, She listened to the show and made her own call but the decision rested with Ms Mbete. In her view, having an ombudsman as a proposal to improve the system would be time consuming if it is the first port of call, as the complaints would have to be in writing, An ombudsman must come in as a final arbiter. Mr Alastair Teeling-Smith (“Mr Teeling-Smith”’} 5.132 5.133. He is a programme manager at 702. He is, amongst other things, responsible for the sound of the station with his key performance area being the growth of the audience. He has knowledge of being a producer and the setting up of a show. Essentially, there is a conversation between the producer and the presenter, The producer would then locate the relevant people and conduct research. Cerlain presenters prefer to conduct their own research,5.134, 5.135. 5.136, 5.137. 5.138. 5.139, 5.140. 54 There are certain grey areas, however, if allegations are to be made, one should offer a right of reply. Bither before the show, during the show or alternatively after the show. He usually receives complaints through telephone calls and emails. [At the workshop, Ms Brown alleged editorial interference by the station manager, Ms Mbete. She said that the editorial interference had a chilling effect that she previously experienced at the SABC and she likened Ms Mbete to Mr Zikalala. He was facilitating the workshop and was startled by how Ms Brown chose to raise the issue, Colleagues who were present also noted the fact that she had been shouting. As part of management he elected not to chastise her as she felt passionate about this issue. Ms Mbete remained calm and he felt uncomfortable as he had not protected Ms Mbete on the day. Ms Mbete felt undermined, disrespected, insulted and deeply distressed and later lodged a complaint, He tasked Mr Gostner with handling the complaint laid by Ms Mbete. ‘Subsequent to this incident, he became the individual that liaised with Ms Brown as Ms Mbete and Ms Brown’s relationship was strained.5.141, 5.142. 5.143. 5.144, 55 Primedia provided Ms Brown with support during the incident with the Economic Freedom Fighters (“EFF”) even though the matter arose from Ms Brown's employment with eNCA and not Primedia, They provided her with security, allowed her to take time off work due to the pressure she was going through at the time and issued a statement on 7 March 2019, They also reported the incident to Twitter authorities on behalf of Ms Brown, Initially, he was against the appointment of Ms Brown. However, the former chief executive officer, Roger Jardine (“Mr Jardine”) insisted. His resistance was premised on the fact that Ms Brown would not assist in growing the audience. In addition, she was quite expensive and her show would be resource heavy. Primedia had a strategy review towards the end of 2018 in terms of which they looked at audience trends, It was established that The Karema Brown Show had lost listeners and her audience was down by 14%, As part of the implementation of its strategy review, Primedia employs the services of an Australian-based radio consultant, and also does a market study. As a programmer, he felt that they could do better in terms of growing the audience by doing a classic evening talk show, i.e. a broad inclusive show as opposed to a niche and specialised show. ‘The new show was not going to be as expensive as The Karema Brown Show.5.145. 5.146. 5.147. 5.148, 5.149. 5.150, 5.151. 56 ‘The station decided to focus its resources on daytime shows, ‘A business decision was taken in early 2019 not to renew Ms Brown’s contract. This decision was based on an objective analysis. It is a decision that would have made on any show that projected the same listener trends. Ms Mbete’s is not solely responsible for the decision to renew or nor to renew contracts, He said that, in any event, in respect of the decision not to renew Ms Brown's contract, “four current CEO, or Omar Bssack, the holding company’s CEO, had felt really, really strong, they could've overruled our decision”. When advised that her contract would not be renewed, she responded by saying that she understands that is the nature of the business. She farther requested that she not return to work to complete her contract. In the event that a station manager receives complaints, it is her duty to follow up on the complaints and doing so is not interference, He does not object to the idea of having an induction and training staff on 702 policies5.152. s7 He thinks that the idea of having an independent ombudsman can be looked into, What would be important, in his view, are the terms of reference that would be set out for such a person in terms of role and responsibility, Mr Gostner 5.153. 5.154. 5.155. 5.156. 5.157. He became aware of the show when Ms Mbete brought it to his attention. Having considered the matter, he found that there was nothing out of the ordinary in what Ms Mbete had done, ie. instructing Ms Brown and ‘Mr Moagi to offer the implicated individuals a right of reply. He said Ms Mbete raised concerns about Ms Brown’s conduct at the national elections workshop, She was not disturbed by the fact that she was challenged. She, however, felt that it was an aggressive attack that was conducted publicly and was disrespectful to her. She was affronted by the nature of the allegations of editorial interference and how that would have a negative impact on how she is viewed broadly by her colleagues and subordinates. Ms Mbete laid a complaint by sending an email to him and Ms Singh, Ms Brown never laid any complaint or grievance based on Ms Mbete’s conduct,5.158. 5.159, 5.160. 5.161 5.162. 5.163. 58 He was approached by certain presenters stating that they found Ms Brown’s conduet at the workshop unacceptable, He said the first part of the conversation at the Gosiner meeting was to explore the issue of editorial interference that had been raised. ‘The manner in which a concem is raised is important, Ms Brown insisted that she was not aggressive or adversarial, whereas Ms Mbete stated the contrary. ‘There was no willingness on Ms Brown’s part to concede to any wrongdoing and she stated that she would not apologise ‘The purpose of the process was restorative and not punitive. It was aimed at repairing the relationship between Ms Mbete and Ms Brown. No conclusion was reached at the meeting and it was postponed to allow them to reflect on what had transpired and they would revert to the parties. He feels that he let Ms Mbete down, as a person that had lodged a formal complaint, by not finalising it, His reasons were that Primedia had experienced a mass exodus of staff and he was occupied with other ‘matters and attempting fo stabilise the organisation,59 5.164, The Inquiry is both a vindication and an indictment of his decision taken at the Gostner meeting, to postpone the issue and end up not finalising it. Ms Singh 5.165, She stated that until November 2018, there was @ classroom induction progtamme where people would be introduced to Primedia’s policies. 5.166. She received a complaint from Ms Mbete on 26 November 2019. 5.167. From her perusal of the policies and procedures manual, it would have been difficult to charge a person without having detailed information. She then convinced Mr Gostner that a meeting ought to be convened with Ms Brown and MsMbete present, in an attempt to mend their relationship. She was an observer at the meeting. 5.168. There was no progress made at the meeting as both parties kept going around in circles and eventually, after an hour, she stopped the meeting. 5.169, She did not ask Ms Mbete for her reasons for not disclosing the identity of the person Mr Mantashe contacted to complain. 5.170. The decision not to institute a disciplinary hearing against Ms Brown was taken by her and Mr Gostner.— SAL. 5.172. 5.173. 5.174. 5.175. 5.176. 5.177. 60 ‘The meeting was adjoumed in order to allow parties to rethink the situation and reconvene later. She conceded that the allegations that were raised were of a serious nature and they ought to haye been dealt with. He is the chief business officer of Primedia. The group chief executive officer informed him that Ms Brown had lodged a verbal complaint with him about editorial interference. He arranged a meeting with Ms Brown wherein she gave a detailed account of events, He said that Ms Brown informed him that Ms Mbete was confrontational fat the meeting that she called her in after the show. She felt that Ms Mbete’s conduct of wanting her to explain how she did the show was editorial interference and censorship which had a chilling effect on her. With regards to the workshop, Ms Brown explained to him that she took the opportunity to confront the issue, and confront Ms Mbete in a much more public forum. Mr McKaiser made comments at the workshop that supported Ms Brown5.178. 5.179. 5.180, 5.181, 61 The complaint by Ms Brown and his meeting with her occurred post her departure from 702, He was not involved in a strategic decision regarding the non-renewal of Ms Brown’s contract. He is not aware of the complaint that was laid by Ms Mbete. He stated that it would be inconceivable to have on-air presenters and talk show hosts who cannot be managed and who cannot be given constructive performance related feedback — and for management to have no control over the efficacy and output of those shows. Eric D Oliveira 5.182. 5.183. 5.184, He is the chief executive officer of Primedia Broadcasting and commenced employment in 2018. On 6 June 2019, he met with Mr Teeling-Smith and a few days later, he had to meet with Ms Brown to hand her a letter of termination of service. Tt was his first engagement with Ms Brown, The reasons provided for her termination were that the station wanted to focus on daytime and also that the station was departing from specialised subject matters towards62 general subject matters, which was in support of the strategy going forward. 5.185, ‘There were no ill- feelings between the parties. Ms Brown stated that she had no issue with what was communicated to her because she understood that is how business works. 5.186, He met with her a few days later to hand her the letter, | | 5.187. He had not heard of any editorial interference complaints prior to 2 July 2019. | 5.188. ‘The decision not to renew Ms Brown’s contract was purely a business decision. It was unrelated to the issues that arose between Ms Brown and Ms Mbete, Mr McKaiser 5.189, He is the presenter of The Eusebius McKaiser Show. 5.190. He does not believe that Ms Brown is correct in thinking that the issue relating to censorship is the reason why her show was discontinued. He thinks that Primedia realised the complication that resulted from how Ms Brown’s show was changed from a Sunday night show to a four day5.191. 5.192. 5.193, 5.194, 5.195. 63 ‘a week show, which was primarily not Ms Mbete’s decision. They wanted (o correct that by letting Ms Mbete decide Ms Brown’s fate. He also does not believe the reasons proffered by Primedia for discontinuing Ms Brown's show because, in his view, her show was liked and it is the third most downloaded show on 702. He thinks that the terms of reference of the Inquiry are too narrow and they do not enable the investigation to look into the real issues. He believes that Ms Brown “crossed all her t’s and dotted her i's” journalist. He indicated that he discussed the show with Ms Brown and he is aware -d the individuals that were mentioned that “she pre-emptively contac with a view that they should come onto the show and they declined to come on”. In his view, whether Ms Brown and Mr Moagi were off in terms of the timeline in relation to the incidents mentioned on the show or not, was not the issue, ‘The elephant in the room, according to him, has the genesis of how The Karema Brown Show was conceived and that Ms Brown is paying the price for that.64 5.196, By this he meant the fact that Ms Mbete had no say on how the show was conceived and employing Ms Brown for purposes of The Karema Brown ‘Show was not her decision, but that of senior management. 5.197. He felt that Ms Mbete’s actions of intervening in the matter and instructing that corrective action be taken, is unusual, in that she did not normally take this kind of interest in on-air broadcasts. 5,198. He does not know the reasons why Ms Mbete is of the view that Ms Brown ought to have given the implicated individuals a right of reply,!? 6. MS BROWN’S FOLLOW UP INTERVIEW 6.1. Inher complaint, Ms Brown attached Ms Mbete’s email of 26 November 2018 to which she says she replied. She was asked for a copy of her reply before and during the second interview. She stated that she did not have it because she had deleted her emails. She indicated that Mr Moagi might have it and that she will check with him. 6.2, ed of its relevance and was requested to look for it and make it available as Ms Mbete stated that she is unaware of such an email or of Ms Brown having indicated any disagreement with 2 jt beeame apparent during the interview thet, not only did Mr MoKiser Jack personal knowledge of the underlying facts, but that most of his views constitute opinion that could not be appli tothe facts since an inguiry soch as the ‘one in hand isa fact finding mission, the determination of which will rest on factual evidence,63. 64. 65 implementing the instruction to grant the implicated persons a right of reply. She stated that the reasons for comparing Ms Mbete with Mr Zikalala were the following: 6.3.1, like with Mr Zikalala, Ms Mbete called her to her office because a politici wn had complained; 6.3.2. there was no formal complaint and the BCCSA process was not followed; 6.3.3. the identities of the persons who called were not disclosed; and 6.3.4. when issues of editorial interference were discussed and she challenged her superiors, she would be punished. She stated that MrZikalala would insist that they interview certain people and not others. She likens this to Ms Mbete’s instruction to give implicated persons a right of reply. When asked why she considered Ms Mbete’s intervention to have been on account of political pressure in circumstances where she had made it plain during the meeting that, although she did not listen to the show live, she listened to it prior to the meeting and again prior to issuing the email,61 6.8. 69. 6.6. 66 she said it was due to Ms Mbete’s refusal to disclose the identity of the person at Primedia that was called. She also said that what compounds the issue for her is that Ms Mbete did not listen to the show, of her own accord, but she did so only after she been called. She added that she does not believe that Ms Mbete made an independent call because firstly, Ms Momodu is Ms Mbetc’s friend and she seems invested in that relationship and secondly, Primedia was bidding for a news channel at MultiChoice and these factors influenced Ms Mbete’s decision, She said that Primedia had a commercial interest in keeping MultiChoice happy. She further stated that Mr Mantashe does not want to disclose the identity of the person that he called at Primedia because he does not want it known who he can influence at a commercial enterprise to act in a particular way. She said Ms Mbete would not disclose the identity of this person because she, as station manager, is desperate for government advertising. ‘As a consequence, so her contention goes, Ms Mbete’s decision was influenced by both commercial and political pressure. Her analysis is that Mr Mantashe leaned on an official at Primedia, who Jeaned on Ms Mbete and who, in turn, leaned on her6.10. 6.11. 6.12. 6.13. 6.14, 67 When Mr Gostner’s version or reasons for not acting on Ms Mbete’s complaint were put to her, she said the following: “MS BROWN: What they're instead doing is_convening_ this, which is now telling me to a farse (sie). So that they can point out that they went through the process. But we're not going through the process. We are essentially involved in an elaborate cover-up for 702, That is why people are not coming forward. That is why people who are actually leaned on, people who actually experience what I'm experiencing , is not coming forward, because they know exactly what happens at 702. And I want that recorded for the record.” (emphasis added) When asked whether the remedial action by Ms Mbete was accompanied by any resitictions or directions, she said Ms Mbete informed her that they needed to have more meetings “on these hygienic issues. So, there was already an implicit message that, you're going to be called in again” She could not explain why she did not lodge a grievance if she was unhappy with Ms Mbete’s instruction. She conceded that there is nothing in the Primedia policies that prescribe that complaints could not be dealt with if they were not reduced to writing. She was informed that Ms Mahlase was the person who was called by Mr Mantashe and of Ms Mbete’s reasons for not disclosing her identity,6.15. 6.16. 6.17. 6.18. 6.19. 68 Apart from her reaction to this information, which cannot be properly captured in words, she disputed Ms Mbete’s characterisation of her relationship with Ms Mahlase. She was not aware that Ms Mbete had laid a formal complaint against her. In relation to her allegation that Ms Mbete did not support her, she did not know if Ms Mbete was involved in Primedia’s efforts to support her during the EFF incident. She also did not know if Ms Mbete played a role in having flowers delivered to her after the passing of her father She feels that 702’s failure to properly investigate the issue constitutes a 05s injustice to herself and Ms Mbete and should be censured, She also feels that her show was a success by all accounts but management did not have the appetite to investigate the matter and thus took the easy way out by not retaining her She stated that she does not agree with Ms Mbete’s version regarding the interview of Mr Ramaphosa. She said the following in this regard: “MS BROWN: What I'm trying to say Mr Motau is that the interview that I eventually got with Mr Ramaphosa isn't as a result of ‘Ms Mbete’s intervention, Ms Mbete didn't want the interview with Mr Ramaphosa. [went back and convinced Mr Ramaphosa that it is in his interest to be interviewed in the same format as all other candidates and they eventually accepted it6.20. 6.21. 6.22. 69 ADV MOTAU; Did she say that she does not want Mr Ramaphosa at the station, that’s the question? MSBROWN: Yes she did. ADV.MOTAU; What did she say? MS BROWN: She said if he doesn't want to take callers, we don't want him. Ms Brown had initially agreed with Mr Ramaphosa that no calls would be taken during the interview with him. Ms Mbete objected and the format of the show was changed to allow listeners to call in during his interview, with the live audience being given first preference. When asked about the fact that the invitation to MultiChoice was not sufficient for purposes of giving MrMawela a right of reply, her response was “J wasn't interested in Calvo, I was interested in Multichoice”. When asked about further aspects of how she implemented the instruction and whether her invitation was extended to other persons, her response was that it was her decision on whom to get. She put the matter as follows: “MS BROWN: Yes, because it was ow" decision, it was my decision on who to get. So on the issue of the people who had a round door policy between the SABC and Multichoice, I thought it would be informative to be more specific to this [over talking] yes, because remember we initially said we wanted the Board or the executive or her right, and [ have raised those links so I felt olay now let me give6.23. 6.24. 6.25. 70 the SABC as the public broadcaster the specifics in this instance. So, that is my editorial call on the matter. With Multichoice it was the company they could decide whoever they want, 1 wasn't going to ask Calvo anyway, I didn't think that Calvo as an individual needed to respond to anything that I said about it, because I didn't rely on him in any way. [said he is Mr Mantashe’s son-in-law. If Mr Mantashe complained, of if Mr Mantashe inferred from that I had deduced certain things I gave Mr Mantashe the opportunity, so Lstill exercised my editorial discretion on how I can prevent (sic) Thabisile by getting ‘Mantashe.” (emphasis added) She also stated that she did not implement Ms Mbete’s remedial action as was suggested to her, but she exercised her editorial discretion on how she was going to implement it. She persisted with that response when asked whether she did not have to give Mr Mawela a right of reply in light of the fact that not only did she mention him as MrMantashe’s son-in-law, but in the context of MultiChoice’s free digitisation of the ANC archives, in a conversation about the collusive relationship between MultiChoice and the SABC. She was then asked about the planning process of the show. She indicated that in respect of the SABC, her instruction to Mr Moagi: “... was to get members of the board, members of the executive or the spokesperson. The spokesperson was a last option because spokespersons generally give you a statement of the organisation. We wanted to speak to the actual people involved”. (emphasis added)6.26. 6.27. 6.28. 6.29, n When asked whether she instructed MrMoagi to invite a specific member of the board of the SABC, she said she did not. Any one member of the board would have sufficed. She confirmed that Mr Moagi was not aware that she was going to mention the names of the individuals that she mentioned on the show. “When asked how the spokesperson of the SABC could have known that the name of, for example, MrTsedu was going to be mentioned if Mr Moagi was not aware of this fact and could not have conveyed it to her, she responded as follows: “MS BROWN: Ja, I’m not saying the spokesperson could not have Inown. The spokesperson _must_prepare_that_anyone_can_be mentioned. That is just how it works.” (emphasis added) In explaining why it was relevant to mention the names of the individuals that she did on the show, she said the following: “ADV MOTAU: For the listeners fo connect the dots and understand why certain things may or may not be happening. MS BROWN: It was to render the story complex, to give the listeners different layers of the story because what was required was to explain the complexity of the relationship and the complexity of the way in which those relationships could impact on why a deal was done between the two organisations that was found and recommended to have been made.as a merger rather than as a sale and so for me it was a story of national importance, because the SABC is_a public Broadcaster, but it_was also the content of the public broadcaster vivatising essential public information. So every time you want an image of Nelson Mandela you would have had to pay Multichoice,6.30. 631 6.32. 2 etcetera, etcetera, So the relationships, all the relationships that anybody in a position of quthovity had at the SABC and the links to Multichoice for me was material to the story.” (emphasis added) She was asked if she was aware when Ms Momodu worked for the GCIS har 1g regard to the fact that the agreement forming the subject matter of the show was concluded in 2013. Her response was that she did not know precisely but she thought it was in 2010. In relation to Ms Momodu’s period of employment at Media24, she said she joined Media24 in 2014. She was told that Ms Momodu joined the SABC in 2018 Having regard to the above timeline, she was asked about the relevanee of connecting the dots using Ms Momodu’s employment history given that she was not employed by the SABC in 2013 when the 2013 agreement was concluded. Her response was that she was at Media24, It was indicated to her that that was in 2014, She responded as follows: “MS_ BROWN: So movements from (sic) individuals between government and media companies are watched very closely for those things and Ms Momodu’s appointment at the SABC raised my eyebrows simply because of the fact that she was at GCIS and she was at Media24 and then went to the SABC, ADV MOTAU: She goes in 2018, The transaction is concluded in 2013. I’m just trying to get you to assist me, MS BR WN: Ja, but I said to you that I'm giving the story context. We're not talking only about the transaction. We're talking about the lay of the political landscape, the lay of the individuals involved,6.33. 6.34. 635. B where they were, what connections they have with which companies ‘So_her employment history for me_is extremely relevant_because neople don’t _cut_connections when they don't work for places ‘anymore. ...” (emphasis added) ‘She was asked about the relevance of that information in the context of the 2013 agreement in this manner: “ADV MOTAU: To see that relevance in relation to the conelusion of the agreement, the decision — firstly the decision to label it a sale and not a notifiable merger. MS_BROWN: Mmm, That's precisely the issue. The deal _was irregular, and its irregularity required a whole lot of individuals, different individuals at different places with different connections and that is how a lot of business is conducted, particularly business of the State._It’s built _on sets of relationships that people have_.. (emphasis added) She later stated that her Ms Momodu’s employment history was relevant because “She worked for all three institutions that are affected by the merger”. When asked how that connects to the 2013 agreement she said the following: “MS BROWN: If’ she had come to the show that's precisely what I was going to ask her, Lwas going to ask her about her work at GCIS, how government advertising works, what exactly the relationship was with GCIS when she was qt Media24 and how she ended up at the ‘SABC when this deal was going down, That was precisely what I was going to ask her.” (emphasis added)6.36, 6.37. 6.38. 6.39. 4, In relation to Mr‘Tsedu, she was asked to explain the relevance of his employment history given the fact that he was an executive director of SANEF from 2014 to 2016 and he became a member of the SABC board in 2017, whereas the agreement was concluded in 2013, Her response was that he worked for organisations that were mentioned in the merger. She later said that she did not say that the individuals she mentioned on the show were corrupt or that they made inappropriate decisions. She laid out where they were and how they moved and wanted the listeners to do their own thinking, She proceeded and said the following: .So me saying this is Mathatha's employment history is another layer of the onion that I'm unpacking and that is my responsibility as a journalist. 1 didn’t say Mathatha Tsedu was involved in the deal. I didn’t say he was corrupt, and I didn’t say that he was implicated, This is how the revolving door works between Media24 and the SABC. Itis material if you look at the way in which State capture has worked at the SABC. It is material to anyone who wants to have a greater understanding of what exactly itis that makes people do illegal stuff without anything being written down on a piece ‘of paper. In fact, it ix the essence, actually, of how power is exercised and 10 get people to do wrong things.” (emphasis added) In relation to Mr Thloloe’s appointment at Newzroom Afrika, she was asked the following: “ADV _MOTAU: Does Mr Thloloe’s movement connect to the conclusion of the agreement in 2013? BROWN: Of course it does,6.40. 6.41 15 MS_BROWN: Because Multichoice is a monopoly. That's why it could exercise the kind of power it does over the SABC. ADV MOTAU: But what did he do? That's what I’m asking? How is his movement directly connected? How is he as a person ia (sic) his ‘movement connected to the conclusion of the agreement in 2013? MS BROWN: He is the head of the commission that has to find what happened that the SABC was captured by both Multichoice and by the book institutions, So he is material. He is investigating. He is .. [indistinci] his employer which is Multichoice, which is the channel that awarded ... intervenes] ADV MOTAU: But how does that connect to the agreement that was concluded in 2013? Iam asking a very narrow question. MS BROWN: Yes, and I’m giving you an answer that I'm saying that because of the power that these two institutions have and because of him being the arbiter on whether or not there was actually interference at the SABC, it becomes material that he is now being employed by the people that_he_is supposed tobe part_of investigating.” (emphasis added) She stated that she does not know whether Mr Mawela and Mr Mantashe were involved in the transaction relating to the digitisation of the ANC archives. Her view was that Mr Mantashe was not relevant to the story and thus it was not necessary that he be contacted before the show. When asked who was going to answer on his behalf, given the context in which his relationship with his son-in-law was mentioned, she replied as follows: “MS BROWN: Well, Mr Calvo Mawela would have had to explain his relationship with his father-in-law, ADV MOTAU: But the invitation does not go directly to him. It goes to anyone,16 MS_BROWN: Exactly. That's what Multichoice needs to realise.” (emphasis added) 6.42, In relation to the decision not to renew her contract, she accepted that Ms Mbete is not the person who is solely responsible for this decision. MR MOAGI’S FOLLOW UP INTERVIEW, 7.1, He indicated that he does not have the email referred to in Ms Brown's complaint, which was in reply to that of Ms Mbete. 72. He was given the timeline of the events mentioned on the show to indicate that those events are not connected to the 2013 agreement. 7.3, Of importance is the fact that he conceded that: 73.1. inlight of the fact that the agreement was concluded in 2013, the show did not comply with the requirement of balanced reporting and it was unfair as the listeners were made to connect dots on issues that were not fact (and on which there was no evidence); 7.3.2. the invitation that was extended to Ms Momoda was in relation to the SABC’s stance and reaction on the decision of the Commission and was not in relation to her own employment history;7133. 734. 136. 134. 738. 1 the invitation was not in relation to Mr Tsedu’s employment history; as a producer of a show he ought not to broadcast material which is not fact as the broadcast needs to be balanced and fair; the broadcast was negligent and reckless; had he known that Ms Momodu’s employment history would be mentioned, he would have extended a right of reply to her on that issue; in light of the facts that were put to him, management had a right to be concerned about how the interview was conducted on that day and he now understood where Ms Mbete was coming from; and an invitation to MsMomodu could not have extended to Mr Thloloe as he was not employed by the SABC but was merely a service provider chairing a commission of inquiry. 74, ‘The SABC’s invitation was directed to Ms Momodu in her capacity as its spokesperson and that was in accordance with protocol. ‘The invitation neither stated that they wanted either a board member, failing which a15 7B member of the executive, failing which Ms Momodu, nor did he convey the invitation to her, as such, Tt was only in the WhatsApp of 19 November 2018 sent to Ms Momodu in an attempt to give a right of reply, that mention was made of Mr Tsedu and Mr Thloloe. For an appreciation of the context in which they were mentioned, it is important that I quote the WhatsApp: “Good day Neo, Ttrust you had a great weekend. Karima would like to invite you this evening at 9pm for a right of reply following the discussion she had on the MultiChoice Story last week. This would be a right of reply t0 comments she made about yourself in relation to your work history... we would also like to extend the same invitation to Mathata Tshedu's (sic) following comments she made about his Media24 sponsored Salary as well as to Joe Thloloe for comments she made about his involvement in Newzroom Africa and the probe into editorial interferance (sic) at the SABC. Could you findly advise if you or Mathata or Joe would be available 10 come on jo the show?” (emphasis added) 8. ANALYSIS AND DISCUSSION BL In the preamble of the Press Code of Ethics and Conduct for South African Print and Online Media (“the Press Code”) it is inter alia stated that journalists commit themselves to the highest standards, o maintain credibility and keep the trust of the public. ‘This means always striving,8.2. 83 8.4, 8.5. 79 for the truth, avoiding unnecessary harm, reflecting a multiplicity of voices in their coverage of events. Clause 1.1 of the Press Cade provides that the media shall take care to report news truthfully, accurately and fairly, Clause 1.2 of the Press Code provides that the media shall 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 summarisation. Clause 2.1 of the Press Code provides that the media shall not allow commercial, political, personal or other non-professional considerations to influence reporting, and avoid conflicts of interest as well as practices that that could lead readers to doubt the media's independence and professionalism.” Clause 3.3.1 of the Press Code provides that the media shall exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if the facts reported are true or substantially true." "There is no reason why this should not apply equally 0 radio Although the Press Code states its effective date as | January 2019, do not think that it itroduces @ new standard that was not applicable prior thereto.86. 87 88. | 8.9. 8.10. 80 In an article written by Ellie Williams (“Williams”) titled Duties & Responsibilities of Journalists, it is inter alia stated that journalists educate the public about events and issues and how they affeet their lives. Williams also states that: “(Ajfler they've thoroughly researched the subject, they use what they uncovered to write an article or ereate a piece far radio, television or the internet”. (emphasis added) The starting point, in my view, is to consider the fact that Ms Brown described the links that she referred to on the show and from which she wanted the listeners to connect the dots, as “insidious”. ‘The dictionary meaning of the word “insidious” is “proceeding in a gradual, subtle way, but with very harmful effects”. (emphasis added) It is axiomatic that, despite her explanation that she did not state that they are corrupt or that they made inappropriate decisions, she ascribes to these links a measure of impropriety. It, therefore, cannot be correct for Ms Brown to contend, as she did uring the Gostner meeting, that she did not pronounce on anything ~ she gave context because that is what her show is about~it is a specialist context show; it is a specialist political show. She did pronounce and labelled the relationships in a way that is harmful to the individuals that ‘were mentioned,BAL 8.12. 8.13. 8.14, 81 During the Gostner meeting, Ms Brown stated that Ms Mbete’s view that she did not give Mr Tsedu and Mr Thloloe an opportunity to come to the show, is “factually incorreci”. Ms Brown contended that they gave these individuals a sufficient right of reply because they wanted “as many people from the SABC to come onto the programme. ... None of them wanted to come onto the programme. And you simply don’t believe Ms Brown also stated that Ms Momodu refused them access to board members and members of the executive and referred them to the SABC statement. Ms Brown’s abovementioned contentions are incongruent with the facts, Firstly, Mr Moagi’s WhatsApp of 12 November 2018 to Ms Momodu indicates that it was only addressed to her and makes no reference to board members or members of the executive. Secondly, in his interview, he stated that he was not aware that other individuals were going to be mentioned and, more specifically, that Ms Momodu’s employment history would come up. Itis clear that, on a preponderance of probabilities, Ms Brown's assertion cannot be correct,8.16. 8.17. 8.18, 8.19, 82 The only reference 10 Mr Tsedu and Mr Thloloe, leaving the defects associated with that attempt to give them a right of reply aside, is in the subsequent WhatsApp sent as a result of Ms Mbete’s instruetion.'* What is also startling in respect of the invitation to the SABC is Ms Brown’s stance. When the shoe pinched during the interview, she postulated a different stance that “/7/he spokesperson must prepare that anyone can be mentioned, That is just how it works”. ‘Ms Brown cannot ride two horses. She cannot say, on the one hand, that they did invite a member of the board or the executive and Ms Momodu refused them access to such persons and yet, on the other hand, contends that it was up to the spokesperson fo appreciate and prepare that “anyone can be mentioned”, The latter was an attempt to explain why the affected individuals, ie. Mr Tsedu and Mr Thloloe, were not offered a right of reply. In addition, apart from the difficulty that Mr Thloloe was not connected with the SABC and could not be covered, either by the invitation to Ms Momodu or the attempt to give a right of reply, her other explanation that said MrMoagi should get “either a member of the board or a member of the executive or Ms Momodi” in the event that none of the first two were available, is also not without difficulty. On this version, 15 This instruction was also not followed {othe letter dhe to the fact that Ms Brown felt that she still noeded to exercise her editorial independence in giving the affected individuals a right of reply. This, in my view, accounts for the ‘defective manner in which a right of rly was purportedly given.8.20. 8.21, 8.22. 83 any member of the board or an executive of the SABC, if either was available, or Ms Momodu, could have sufficed according to Ms Brown (for purpose of a right of reply) to answer for the links that were drawn in respect of Mr Tsedu, Mr Thloloe and Ms Momodu, This version simply cannot withstand scrutiny.'* It is important to appreciate that what Ms Mbete intended to achieve, when she first approached Ms Brown, was an understanding of how the story was approached in the face of the complaints, Ms Mbete approached the meeting with an open mind and was prepared to listen to Ms Brown’s side of the story. It is for this reason that she did not issue instructions for the implicated individuals to be offered a right of reply. Ms Mbete was looking for evidence to justify the links made to the main story in order to demonstrate that the principles of a balanced and fair reporting were observed. She was given none. ‘At the conclusion of te meeting and having heard Ms Brown's and Mr Moagi’s explanation, Ms Mbete undertook to go and listen to the show once again and would revert. 16 From Me Moagi's WhatsApp of 19 November 2018, it is clear that it is Ms Momodu and either Mr'Tsedu or MrThloloe who are being invited. This was done in circumstances where Mr Tsodu and Mr Thioloe were each ‘mentioned in their own individual capacity and thus aright of reply ought fo have been granted fo both, separately.84 8.23. MsMbete exercised a judgment call, based not only on her editorial experience, but as the editorial custodian who would ultimately be accountable in the event of a challenge. 8.24, What needs to be considered is Ms Mbete’s decision not to disclose the person that Mr Mantashe called, being Ms Mablase, to complain about the show. Whether she was right or wrong in making this decision is, in my view, neither here nor there, What matters is that she was not actuated by any ulterior motive or bad faith. Her understanding was that | ‘Ms Brown and Ms Mahlase have an unpleasant relationship and thus did not want the issue of principle to be compromised by the point of entry of complaint. 8.25. What needs to be interrogated is whether Ms Mbete’s concerns had merit, because if they do not, the possibility of Ms Brown’s concerns being properly founded can arise. 9. THE MEANING OF THE STATEMENTS MADE ABOUT THE [INDIVIDUALS MENTIONED ON THE SHOW 9.1. Itis important to analyse the statements that were made on the show with reference to legal principles to ascertain whether Ms Mbete’s concerns were well-founded.9.2. 93. 94, 95. 85 Itis trite that statements about the five individuals must be interpreted i the context in which they are made. In radio broadcasts, the test applied by the BCCSA - and the courts - is what the reasonable listener of the station will understand the statements to mean.!7 The issue of meaning was explained thus by the majority of the Constitutional Court in Le Roux v Dey,'® a defamation case (and of obvious relevance to the interpretation of statements made on radio and television in the context of the BCCSA Code): “The test 10 be applied is an objective one .... [T]he criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the statement in its context and that he or she would have regard not only to what is expressly stated ut also to what is implied.” Reasonable listeners of the show would, in my opinion, think that Ms Brown is implicating the five individuals in untoward or questionable conduct, either in the context of the specific deal about which the Commission's report related, or in some general sense. This is the sting of the statements, understood in the context in which they were made. It matters not to the sting of the statements that Ms Brown is correctly stating certain facts, for example, that the son-in-law of Mr Mantashe is a chief director of MultiChoice, that Ms Momodu used to work for GCIS "See ey Maxegwana v 702 (Case No 06/ 2018) pata 6; Sterenborg v SABC (Case No 06/2011) para 9. Le Ron v Dey 2011 (3) 8A 274 (CC) at para 89,|= 97. 86 and News24, that Mr Tsedu's salary as executive director of SANEF was paid by Media24, or that Mr Thloloe headed the SABC Commission into political and editorial interference and has been appointed as advisor to the new news channel on MultiChoice. Accepting that these statements are factual, the reasonable reader is told by Ms Brown that “these links are insidious so they cannot be ignored because we know how power works”, and that MultiChoice's dominance is conceming “its relationships, the overlaps the blurring of lines does constitute a huge level of concern” In other words, the allegation made by Ms Brown here, in my view, is that there is a network of patronage which means that MultiChoice gets its way or will get its way with government and the SABC, Ms Momodu of the SABC used to work for one of its companies and before that government; Mr Tsedu was the executive director of SANEF but had his salary paid by a MultiChoice company; Mr Thloloe is the chair of an enquiry at the SABC but also aligned with MultiChoice through the new news channel, and a senior director, Mr Mawela, is related by marriage to Mr Mantashe. Ms Brown’ statements in my view are critical of the five individuals, Reasonable listeners of the show would understand that she is criticising the five individuals, not only MultiChoice and the SABC.87 9.8, Turn to the obligations that the BCCSA Code imposes on broadcasters where individuals are criticised in this manner, 10. THE BCCSA CODE 10.1. The relevant sections of the BCCSA Code are ss 12, 13 and 15. T quote them hereunder: “12, Comment (iL) Broadcasting service licensees are entitled 10 broadcast comment on and criticism of any actions or events of public importance. 2) Comment must be an honest expression of opinion and must be presented in such manner that it appears clearly to be comment, and must be made on facts truly stated or fairly indicated and referred to comment or such a person could not reasonably be reached, it must be stated in the programme. (3) Where a person has stated that he or she is not available for 13. Controversial Issues of Public Importance (1) In presenting a programme in which a controversial issue of public importance is discussed, a broadcaster must make reasonable efforts fo fairly present opposing points of view either in the same programme or in a subsequent programme forming part of the same series of programmes presented within a reasonable period of time of the original broadcast and within substantially the same time slot. (2) A person whose views are to be criticised in a broadcasting programme on a controversial issue of public importance ‘must be given the right to reply fo such criticism on the same programme. If this is impracticable, reasonable opportunity to respond to the programme should be provided where appropriate, for example in a right to reply programme or in a pre-arranged discussion programme with the prior consent of the person concerned.88 15, Privacy, Dignity and Reputation (1) Broadcasting service licensees must exercise exceptional care and consideration in matiers involving the privacy, dignity and reputation of individuals, bearing in mind that the said rights may be overridden by a legitimate public interest.” 10,2. Inmy view, it is likely that the criticism of the five individuals breached Clause 12 of the BCCSA Code 10.2.1. While it clearly was Ms Brown's right to comment on the these provisions of the BCCSA's Code. | Commission's report as an event of public importance, her | adverse mention of the five individuals was in my view not | protected comment. This is because the facts underlying the | comment were not true, As the BCCSA has held in previous ! cases, “We need to have regard to the probative value of the evidence produced and placed in the insert, to establish whether the comment was based on facts truly stated or fairly indicated.” 10.2.2. Indeed, Ms Brown put up no evidence in her interviews with the panel that any of the five individuals had engaged in any wrongdoing, or would do so, in the context of the Jsimanguliso Wetlands Park Authority v M-Net (Case No 02/2016) at para 52.10.2.3. 10.2.4, 89, MultiChoice-SABC deal, or at all. She was of the view that the factual links by themselves created questions for the audience to answer, Presenters are of course at liberty to leave questions for the audience to answer, but must then take the risk that reasonable readers will reach a defamatory or adverse conchusion about the individuals, given the context in which their names are mentioned. Once it is understood that Ms Brown's mention of the five individuals in context was, in my view, not innocuous but carried with it some implication of wrongdoing, Ms Brown's duty under the BCCSA’'s Code was to ensure that there was @ factual basis for these comments. She did not do so. Clause 13 of the BCCSA Code I shall limit my comments to clause 13(2). It clearly requires that on issues of public controversy, those who are to be criticised must be afforded a right of reply. I accept that the show raised an issue of public controversy.10.2.5, 10.2.6. : 10.2.7. 90 ‘The BCCSA has previously explained the importance of a right to reply thus: “The right to reply is a crucial right in broadcasting law. One of the functions of the media is to inform audiences of a variety of opinions regarding important topics .... Radio stations should therefore exercise diligence in attempting to reach a person subjected to serious criticism during the same programme because a full picture can only be achieved when the person whose view is criticised is also heard.” *® ‘The SABC and MultiChoice were offered a right of reply to be interviewed on the show, ‘The Inquiry, as already mentioned, has been provided with text messages sent via WhatsApp by Mr Clive Moagi, Ms Brown's producer, to Ms Momodu before the show, in which he offers the SABC a right of reply. Mr Moagi said that he did not have a written confirmation of the tight of reply offered to MultiChoice as this was done verbally over the phone. When offering the right of reply to MultiChoice and the SABC, Mr Moagi merely canvassed the issue of the findings of the Commission. No mention was made that what would play a role in the show would be the allegations of the dominance of MultiChoice in the market and in particular the links of individuals associated with or once in some way linked to 2 Greyling v 702 (Case No 21/2018) paca 710.2.8. 10.2.9. 91 MultiChoice. In this regard I quote from the text message from Mr Moagi sent to Ms Momodu on 12 November at 14h05: «.,.Karima was wondering if it would be possible to speak to the SABC tonight following the Competition Commission's request for the SABC to and Multichoice to register the transaction as a merger, following the ruling that the distribution agreement signed in 2013 constitutes a notifiable merger, This would be roughly 15 min or so at 21h05 ...” None of the five individuals was offered a right of reply before the broadeast in relation to any of the personal comments made about them, Yet Ms Brown conceded in her interview that she foresaw naming the five individuals before the broadcast - she planned to do so; it was not that she made comments “off the cuff” that evening, [accept that the nature of live broadcasts is such that the host and producer cannot fully anticipate what issues will be raised by guests and callers to the show, and thus a right of reply to a person criticised, say, by a listener who calls and criticises someone on live radio, is not practicable, Indeed, the BCCSA Code caters for this possibility by allowing rights of reply to be provided in subsequent programmes where it was not practicable to do so in the same programme. This was not what happened here. As Ms Brown foresaw that she would be naming the five individuals in the context of a discussion about the dominance10.2.10. 10.2.1. 92 of MultiChoice, she and her producer ought to have given cach of the five individuals a right of reply before the show was broadcast. ‘This is what the BCCSA Code requires. Ms Brown stated to the Inquiry that, for instance in the case of Ms Momodu's personal employment history and the comments made about Mr Thloloe's and Mr Tsedu’s links with MultiChoice, a good spokesperson should have known that these links could be mentioned in the programme. This explanation by Ms Brown simply does not mect the standards expected of broadcasters by the BCCSA Code, When Ms Momodu was contacted in her official capacity as the SABC's spokesperson to discuss whether the SABC would come on-air to speak about the Commission's report, she could never reasonably have expected that her, Mr Thloloe and Mr Tsedu’s alleged “insidious” links to MultiChoice would feature prominently in the discussion. This is why Ms Momodu was Ikgitimately aggrieved after the broadcast. ‘The process that should have happened was a simple one - knowing in advance that listeners would be told about the “insidious” links between five individuals, Ms Brown or her producer should have directly contacted those individuals to offer them a right of reply in the show.93 10.2.12. I conclude that there was likely a breach of clause 13(2) of the BCCSA Code. Clause 15 of the BCCSA 10.2.13. Given that there was no attempt to verify the allegations made against the five individusls and further that no right of reply was afforded to any of them, as indicated above, it is likely that clause 15 of the BCCSA Code was also breached, in that exceptional care was not exercised in dealing with the reputational rights of the individuals. While there was certainly public interest in the focus of the show on the Commission's report, this did not mean that basic duties of verification and fairness in relation to the five individuals did not apply. iL OTHER RELEVANT ASPECTS. Wad It is quite unfortunate that Primedia did not act on and finalise the complaint by Ms Mbete against Ms Brown in relation to the latter's conduct at the workshop on the elections, when it was lodged. Primedia should, however, be complimented on taking a decision, once Ms Brown lodged the complaint, to set up an independent inquiry and allow its processes to be scrutinised from an element of independence.94 Is there_a distinction between the roles of presenters and journalists and, if so, does it matter on the facts of this Inquiry? 2. 113 ALS, ‘This is quite a difficult question to deal with having regarding to how media has and continues to evolve with modern technology. One finds that, increasingly, the lines between a commentator, a radio presenter and 2 journalist become blurred. ‘What cannot be disputed, of course, is the fact that whether one is wearing the hat of a presenter or of a journalist, if they are going to interview a person or to mention others in that interview, they will not be immune from the tenets of the BCCSA Code and other applicable preseripts. In the circumstances, and on the facts of this case, it becomes unnecessary to distil the distinction, if any, because Ms Brown tells us that she approached the show as a joumalist and contends that, in that capacity, she “ticked all the boxes”. ‘Whether she did, is a question of fact, based on the analysis of the material and the evidence placed before the Inquiry.Is there merit in the complaint lodged by Ms Brown? 11.6. 7. 118. 1110. For the reasons set out herein earlier, I find that there is no merit in the complaint lodged by Ms Brown. ‘The timeline of the events on which Ms Brown relied to draw the links and invite the listeners to connect the dots was disconnected to the alleged collusive relationship between the SABC and MultiChoice and to explain why the merger was not lodged as a notifiable merger. Some form of research would have indicated the discrepancy in the timeline. ‘Thus, the insidiousness of the links was not established. By way of example, what is “insidious” about Mr Thloloe's new position at Newzroom Aftika and his chairing of the SABC inquiry? How does this connect to the 2013 agreement? These are but some of the questions that indicate the gaps on the approach to the show. ‘Ms Mbete had every reason to be concerned about the show and there is no basis for the allegations of executive overreach into Ms Brown’s show. ‘Apart from failure to establish editorial interference and/or censorship, it should be bome in mind that the real complainant was Ms Mbete, who was affronted by the nature of the allegations and the manner in whichWt 11.12. 11.13. 1114. 96 they were raised, which impugned her professional standing, credibility and integrity among the attendees of the workshop. It was Ms Mbete, and not Ms Brown, who wanted the issue to be investigated and to be censured if she was found to have conducted herself in the manner alleged by Ms Brown, In other words, she was prepared to be disciplined, including being dismissed, if Ms Brown’s allegations had substance, Different would have been the case if, upon being called by Ms Mbete to a meeting, Ms Brown produced evidence to back the alleged “insidious” {inks and proof that the implicated individuals were offered a reply of reply. Had Ms Mbete issued the instruction on these facts, then there would undoubtedly have been proof of censorship and editorial interference based on Mr Mantashe leaning on Ms Mahlase and the latter leaning on Ms Mbete, who leaned on Ms Brown in turn. ‘Ms Mbete relied heavily on the argument that a politician, in the form of ‘Mr Mantashe, is the source of Ms Mbete’s subsequent actions. ‘This is not correct as complaints were also received from the SABC and MultiChoice. The point of entry of the complaint is thus irrelevant and the allegation of political pressure or Ms Mbete being influenced by her “political interest” has not been established.1s, 11.16, 97 In addition, and over and above, the incident relating to Mr Ramaphosa’s interview indicates the precise nature of the relationship between Ms Mbete, as the station manager and Ms Brown, as a presenter or journalist. The incident indicates the fact that a station manager is entitled to give editorial input and, where there is merit, it will be implemented, ‘The mere fact that a stati n manager disagrees with a joumalist and gives input contrary to that of the latter does not, in and of itself, without more, amount to censorship and/or editorial interference. Whether the decision not to renew Ms Brown's contract was in any way related to or influenced by the alleged incident set out in the complaint? WaT 11.18. 1119, There is no tangible evidence that was produced or a plausible basis that was laid out requiring that I disbelieve the explanation proffered by Primedia regarding the change of its strategic direction and focus of programming from night time to daytime. Equally plausible is Primedia’s explanation that its decision was also based on the low ratings of The Karema Brown Show. It was indicated that she had not grown the audience as had been intended. ‘The same also goes for the timing of when the consideration of discontinuing The Karema Brown Show, commenced.98 11.20. No nexus was established between the decision not to renew Ms Brown’s contract and the alleged incident set out in her complaint. 11.21. For purposes of completeness, 702's decision to keep Mr Gwala as part of its daytime line up despite his health condition, is a matter that falls within the purview of its discretion. Its correctness, or otherwise, does not fall within the remit of the terms of reference and I, accordingly, make no finding thereon, Recommendations regarding possible_amendments_and/or improvements to 11.22. Primedia should induct its employees and staff about its policies and employment procedures 11,22.1. One of the shortcomings that was illuminated by the evidence that was placed before the Inguiry, including by Ms Brown, is Primedia’s lack of inducting its employees and staff about its policies and procedures, at the commencement of their employment, 11.2.2. This lacuna is important in that, by way of example, Ms Brown, if she had cause of concern, could have utilised the grievance procedure fo air such concem, It is recommended that Primedia| | ; | 99 should introduce a programme of induction to ensure that its employees are au fait with its procedures and policies. Primedia should develop a comprehensive statement of editorial policy 11.23.1. Currently, Primedia entities have various documents which include material on editorial policy, These include: (a) the 702 Producer’s Handbook. The guidance offered to 702 producers includes some contextual information, such as on the nature and purpose of talk radio and audience figures; practical information on the planning tools in use, etiquette and the like, and some reflection on role and values; (b) the BCCSA Code; (©) _ the EWN Styleguide and Policy Handbook. Together with some information on the organisation, sections thereof deal with journalism ethies, reporting policies and news values; and (a) _ some points on editorial issues can also be found in the job specifications attached to individual contracts and elsewhere.11.23.2, 11.23.3, 1.23.4, 100 It is striking that no document was produced at the Inquiry that specifically sets out expectations of on-air staff even though they evidently play a central editorial role and represent Primedia. It is recommended that Primedia should develop a comprehensive statement of its editorial approach. This should: (a) draw together editorial points from existing documents, but extend the s ope; (b) reference the BCCSA Code as the binding industry document, and the Press Code as it applies to online content; and (©) focus on some areas that are specific to the media formats in use by Primedia. The obvious example would be a statement of how issues of faimess and right of reply should be dealt with on talk radio, ‘This document should also set out the various expectations of on-air staff, producers, journalists and others. The role of a show host is a particularly complex one, including both journalism and entertainment, A host provides information and commentary, holds people to account and facilitates public1.24.1, 1.24.2. 11.24.3, 101 Giscussion, end does so in a way that draws on his or her personality to engage audiences. The specific mix will vary for various shows and individuals, and it is pointless to attempt a simple definition, However, setting out the various aspects and acknowledging that they can exist in tension, would be usefal Finding the right balance for a successful show then becomes the ongoing job of thoughtful show production. 11.24, Primedia should improve channels for audience complaints Media outlets belonging to Primedia do not currently offer audience members a channel for complaints beyond the industry bodies that include the BCCSA, primarily for broadcast material, and the SA Press Council (“the SAPC"), for online content. Reminders of the possibility of laying complaints to the BCCSA are broadcast regularly, as required by the BCCSA. However, there is no equivalent offer on Primedia’s online properties. This is a significant gap that might undermine Primedia's commitment to accountability and may wittingly or unwittingly damage audience trust1124.4, 1.24.5, 11.246. 1.24.7. 11.248. 102 Its absence lays open the possibility of encouraging public figures to seek to use informal contacts to influence editorial approaches. It is recommended that Primedia should ensure that all its web properties should include a clear note reminding users of the possibility of laying complaints if they are dissatisfied with any ‘material on-air or online, and providing appropriate information linking audience members to the appropriate formal channels. Furthermore, it is recommended that Primedia establish an in- house complaints channel for audience members who want to bring an issue to Primedia’s attention without wanting to take it up with the BCCSA or the SAPC. ‘This has become standard practice for many media houses. Independent News and Media have an office of the Group Ombud (httpsy/Avww.iol.co.za/complaints), while News24 has a public editor (https://avww.news24,com/SouthA frica/News/eontact= news24s-public-editor-with-reader-complaints-20180212).. At the more informal end of the spectrum of possibilities, eNCA’s online contacts form includes a reference to complaints as it invites users. to contact the —_ station (hitps://www.enca.com/contactus). The Mail & Guardian and103 Tiso Blackstar both employed ombuds for some time but no longer do so. 11.249, Some years ago, Primedia employed an ombud to handle complaints in this way, but the office was discontinued, Witnesses that appeared before the Inquiry did not have knowledge of the reasons for this. 11.24.10. It has been suggested that Primedia should revive the office ‘of the ombud. Such an office need not be fulltime, and the volume of issues raised probably is unlikely to justify a fulltime ombud. 11.24.11. A channel for audience complaints could take the form of an ‘ombud, but could also simply be a complaints office. The responsibility for managing complaints in this way could be added to the responsibilities of an existing staffer. 11.24.12. If found acceptable and practicable, Primedia should develop details of where such an office should be situated and how it should work, However, it is important for the facility to be: (a) publicly visible: contact details should be publicised online and on-air;104 (b) quick and responsive: complainants cannot be left to wait for a response; (©) sympathetic and solutions-focused: the model of the Public Advocate at the SAPC: should be followed, who is charged with finding quick solutions that satisfy complainants; (@ able to refer matters onwards, such as to the BCCSA, if they cannot be resolved; and (e) transparent to staff: processes and ‘outcomes should be shared with Primedia staff. Handling complaints and feedback 11.25.1. It is recommended that Primedia should develop a set of guidelines on handling complaints, which may consider some of the following points: (2) complaints from audience members should generally be dealt with in a formal way, through the mechanism described above. People who contact Primedia should be encouraged to make use of it. If they are reluctant to do so,1.25.2, 1.25.3, 1125.4, 105 the person receiving such a communication should keep a clear record of what is said, for the sake of transparency; (b) editorial leaders, such as programme and station managers, should resist attempts by powerful individuals from side or outside Primedia to exert pressure through the back door. They have the obligation to shield producers, journalists and hosts from undue pressure. However, it is recognised that Primedia must be open to at. This can feedback that does not rise to the level of a comple come in many forms, and in many situations. It is the duty of editorial leaders to consider such feedback and take corrective action, if necessary. It is also recognised that part of the role of programme and station managers is to oversee the on-ait content, and this involves providing feedback to staff. It should be made clear that ultimate editorial responsibility rests at station level. It does not rest at corporate level, nor at the level of an individual show. In clarifying its stance on editorial interference, Primedia has made this very clear. In an internal memorandum dated 5 July 2016, the former Group CEO, Roger Jardine refers back to a 2014 decision “that no shareholder,11.25.5. 11.25.6, 106 director, or member of staff not working in nens/editorial will be allowed to imerfere in any editorial issue or give instructions on what to say, not to say and report". Jardine continues: we must allow our heads of news, editors, station and program ‘managers to do their jobs without fear or favour”. It is clear that the line of editorial responsibility ends with heads of news, editors ete, It becomes interference when other individuals get involved. Nevertheless, feedback should be given appropriately and with Gue regard to individuals? professional position ~ this is simply sound management practice, A regular habit of feedback through structured sessions will allow points to be raised as constructively as possible, and will avoid impressions that feedback is suspicious because it is exceptional or unusual. It will always be the responsibility of editorial leader to judge how best to handle complaints or feedback to achieve the best result, The fest is whether the leader takes an independent view of the validity and seriousness of an issue being raised.107 11.26. Primedia should create an internal mechanism to resolve conflicts over editorial and ethical standards 1.26.1. | 11.262. | 11.26.3. 11.264, 11.26.5. It is recommended that Primedia create a framework for resolving conflicts between staff on issues of editorial and ethical standards. It is natural for there to be differences of opinion in creative and journalistic environments. In most cases, these can be resolved with goodwill, and if necessary through the exercise of organisational authority (an editor may overrule a journalist, for instance). From time to time, these may be insufficient to resolve a conflict. The issues at stake affect professional integrity and reputation, and views can be very strongly held. A simple mechanism for resolving such conflicts should be set up. This would be a variant of the grievance procedure outlined ins 14 of the Corporate Policies and Procedures Manual.?! It should provide for an unresolved issue to be taken to the relevant station manager or the editor-in-chief of EWN. This could be done by either party, and should be done in writing. If 4 Ap.108 the dispute involves somebody at that level, it should be passed to somebody else in Primedia who is of equivalent seniority (perhaps the manager of another station in the stable) and, importantly, who has sufficient knowledge and expertise to deal credibly with the question, If such a person cannot be found, an outside expert might need to be brought in, but this should be resorted to sparingly. 16 September 2019