Appeal hearing decision: ANC vs Daily Dispatch


Tue, Nov 3, 2015

DAILY DISPATCH                                                                                        APPLICANT

versus

AFRICAN NATIONAL CONGRESS                                                              RESPONDENT

MATTER 990/03/2015

 

MAJORITY RULING OF THE APPEALS PANEL

 

The Ruling of the Ombudsman and Application for Leave to Appeal

1)      On 28 February 2015 Daily Dispatch (“applicant”) published a story headlined “ANC faces behind toilet tender scandal”.  The article stated that a company known as Siyenza Group had been hand-picked and awarded a R631m contract in the Eastern Cape to build toilets.  It said the company had links, through certain individuals, to a number of high-ranking leaders of the African National Congress (“respondent”).  Names of senior ANC members were mentioned: President Jacob Zuma; Mr Gwede Mantashe, and Minister Lindiwe Zulu.  The story also stated that the tender had been irregularly awarded in that no proper tender processes had been followed.  Photographs of the three leaders were prominently displayed.

2)      The respondent complained to the Office of the Ombudsman.  Broadly speaking, it complained that the article was malicious as its members had nothing to do with the tender; that it does not adjudicate tenders; that the headline was misleading and damaging to its leadership and that no evidence was provided to warrant the parading of the faces of its leadership.  Respondent also complained that there were inaccuracies in the story and that crucial facts were omitted.  The applicant stuck to its guns, and the matter had to be heard by the Ombudsman.

3)      A panel of three, comprising the Ombudsman and two others, adjudicated over the matter.  In the Panel’s Ruling dated 20 April 2015, the following were the material findings:

a)      “Daily Dispatch ... failed to verify the link between the awarding of the tender and the influence ANC leaders mentioned in the story and depicted pictures”.

b)      “Newspaper “failed to return to Mantashe … to answer his concerns about his influence over the tender.

c)       “The headline that reflected the content of the article was based on information that could not be proven and was therefore unfair.”

d)      The complaints relating to motive as well as others of a like nature were dismissed. 

e)      Applicant was found to have acted in breach of the Press Code:

i)        Section 2.1: duty of care to report news truthfully, accurately and fairly;

ii)      Section 2.4: the need to verify, failing verification, to so state in the story;

iii)    Section 4.7: care and consideration where dignity and reputation is involved.

f)       Sanctions:

i)        Applicant was directed to apologise to the ANC for “failing to verify the suggested link between the awarding of the tender and the influence of ANC leaders mentioned in the story, depicted in the pictures and suggested in the headlines, and for the possible unnecessary harm this did to their dignity and reputation”. 

ii)      The newspaper was reprimanded for “failing to get proper comment from Mantashe

4)      The Daily Dispatch lodged an application for leave to appeal the above Ruling. 

5)      On 1 June 2015 Judge B M Ngoepe, Chair of the Appeals Panel, ruled that the application for leave to appeal was out of time and the application was dismissed.

6)      On 25 June 2015 Judge Ngoepe condoned the late filing of the application for reasons that were fully set out in his decision.

7)      In granting leave to appeal, Judge Ngoepe stated:

a)      I am of the view that the applicant has reasonable prospects of success against the Ruling of the Ombudsman and his panel. The Ruling says The Daily Dispatch is ordered “to apologize to the ANC for failing to verify the suggested link between the award of the tender and the influence of the ANC leaders mentioned in the story, depicted in the pictures and suggested in the headline”.  I am of the view that the other tribunal may have a different view with regard to this finding, given inter alia; the following facts which are either common cause or are not in dispute:

i)        The taxpayers’ money was involved.

ii)      The matter was therefore of public interest.

iii)    The amount allegedly involved was not trivial; it was more than half a billion rand.

iv)    The Development Bank disputed the allegation by the municipality that the latter had been put under limited time by the former.

v)      There is indeed a relationship between the senior ANC members mentioned and the beneficiaries of the tender; albeit to varying degrees.  Even in the case of Mr Sambudla, it seems he had connections, not with the project as such, but with Siyenza Construction and/or Mr Bongani Mpeluza. The latter is at the helm of the Siyenza Group, which is said to be a holding company to not only Siyenza Construction which was awarded the contract, but also to Siyenza Consulting in which Mr Sambudla, according to what Mr Mpeluza allegedly told the journalists, also has interest.

b)      It must be clearly mentioned that I am merely saying that the case is worth arguing before the Appeals Panel, and not that a finding will necessarily be made one way or the other.  The test, after all, for granting leave is merely whether or not there are reasonable prospects of success.  The following is stated in the Ruling: Daily Dispatch, in its efforts “to investigate the reasons behind the awarding of the tender, failed to verify the link between the awarding of the tender and the influence of the ANC leaders mentioned in the story and depicted in the pictures.”  It is arguable whether the respondent had to “verify” any “link” or “influence”, or merely to state accepted facts and leave it to an average reader to themselves infer a “link” or “influence.”

c)      The other finding against the applicant, which attracted the reprimand, is “for failing to get proper comment from Mantashe”.  Respondent’s contention is that two journalists expended hours trying to speak to Mr Mantashe, but that he persisted, pressing issues which were not relevant or that he wanted disclosure of sources.  Here again the matter is arguable.

The First Hearing of the Appeals Panel

8)      Heads of Argument were submitted by both parties prior to the first sitting of the Appeals Panel on 11 August 2015.

9)      The heads presented by the Daily Dispatch included a sworn affidavit from the editor of the Daily Dispatch, Mr Bongani Siqoko and a confirmatory affidavit by the journalist who wrote the contested article, Mr Siphe Macanda.

10)  In presenting the case for the ANC, Mr Krish Naidoo contested the admissibility of the affidavit, arguing that the applicant was using it to introduce new evidence and “cure certain defects” in their case before the Appeals Panel.

11)  Counsel for the Daily Dispatch, Ms Carol Steinberg, responded that a key thrust of the affidavit was to clarify evidence that had been presented to the Ombudsman but was ignored or misunderstood by the Ombudsman and thus misrepresented in the ruling. This related to the “concession” allegedly made by Mr Siqoko before the Ombudsman’s Panel, namely that Mr Siqoko was reported in the ruling to have “conceded that Sambudla had no factual relationship with Siyenza or its subsidiaries”. This he denied in his affidavit.

12)  The ANC representatives who had been present at the hearing before the Ombudsman’s Panel confirmed that their recollection was that Mr Siqoko had indeed made the concession.

13)  Following a brief adjournment, the Chair of the Appeals Panel undertook to clarify with the Ombudsman his recollection of what transpired in his hearing with regard to the evidence presented by Mr Sambudla; and any concessions made by the editor. He also invited Mr Mantashe to present a sworn affidavit relating to this matter.

14)  The hearing of the Appeals Panel was then postponed until clarity could be obtained from the Ombudsman.

15)  Mr Mantashe submitted a Sworn Affidavit to the Panel on 14 August 2015, confirming his understanding of the “concession”. In the event, the response of the Ombudsman, which was circulated to all parties on 19 August 2015, did not clarify matters regarding the reported “concession”.

The Second Hearing of the Appeals Panel

16)  The Appeals Panel reconvened on 7 October 2015.

Verification of inferences or implications and impact on dignity and reputation

17)  Ms Steinberg, for the Daily Dispatch, argued:

a)       “The success of the appeal turns on the question as to whether a newspaper has to verify the implications that a reader might make when reading undisputed facts. The Daily Dispatch published an article in which the material facts are not in dispute. The respondents’ complaint is that the facts imply certain conclusions which the Dispatch failed to prove. The Ombudsman agreed with the respondent that the newspaper was required to prove not only the facts published, but also the inferences that the average reader would make from those facts.”

b)      ”The Press Code imposes no such duty on the press. Its obligation extends only to verifying its facts and not omitting important facts. There is no suggestion that implications must be proved.”

c)      “The effect of the ruling is that a newspaper may not publish a set (of) facts that is substantially accurate and comprehensive if it cannot prove the implications that logically and reasonably arise from those facts.”

d)      “The precedent that this ruling sets, if allowed to stand, would drastically stifle press freedom and the free flow of information of public interest. There is no precedent for such an approach in our law.”

e)      The Ombudsman did not take into account the accuracy of the facts in the article, or ask if the inferences complained of were justified by those verified facts. He ruled that the inferences had not been verified. The Ombudsman’s ruling therefore imposed a “far greater” burden on the newspaper that was contained in the Press Code and was also “out of kilter with the substantial body of case law that speaks to the appropriate balance the courts must find between the right to dignity and reputation of the subjects of the article and the right to freedom of expression of the press”.

f)       Ms Steinberg conceded that the newspaper had no evidence that the ANC leaders mentioned in the article had themselves influenced the award of the tender. The article was “about the Municipality’s unlawful award of a lucrative contract to a company with links to prominent ANC families.”

g)       “Unless a complainant can establish that the facts are inaccurate or that material facts were omitted, then our law requires it to live with those implications, even if they are damaging to its reputation.”

18)  Mr Naidoo, on behalf of the ANC, argued:

a)      “The editor of the Appellant admitted at the hearing that the newspaper could not independently verify its conclusion that the company’s or it’s owner’s link or connection to individuals related to ANC leaders was the reason behind the awarding of the tender to Siyenza.”

b)      Despite the admission of the editor, the story did not leave it to the imagination of a reasonable reader with the only inference that strong links to a group of politically connected individuals was the reason for the award of the tender to the Siyenza Group. In short, the award was driven by the ‘ANC faces’.”

c)      It would have been more reasonable to infer that a possible unethical relationship existed between the Siyenza Group and the municipality” (that awarded the tender).

d)      “The conduct of the appellant was reckless and the publication of the article together with the headlines and photographs constituted an unreasonable intrusion of the privacy of the complainant and supported the Press Ombudsman’s finding that any insinuation or impression that there was impropriety, undue influence or pressure, fraudulent or corrupt relationship without proof was likely to cause some serious unnecessary harm to the subject’s dignity and reputation.”

Failure to return to Mr Mantashe for further comment

19)  Regarding the newspaper’s failure to return to Mr Mantashe for further comment (after having agreed to do so) Ms Steinberg told the Panel that this was because Mr Mantashe demanded to know the identity of the newspaper’s sources and his demands that the newspaper provide details of the manner in which he or his wife was alleged to have influenced the award.  The newspaper was not willing to reveal its sources and did not intend to publish details of the Mantashe family’s alleged influence, “and nor did it”. Although the journalist and the editor had agreed to revert back to Mr Mantashe later in the day, they had then decided that it was no longer necessary. The newspaper had complied with the requirements of the Press Code in seeking and publishing Mr Mantashe’s comments.

20)  Mr Naidoo said the newspaper’s failure to honour a promise (to revert for further comment) was a serious breach of the Press Code. As an experienced politician who often dealt with the media Mr Mantashe would never have asked for the source of the article to be named. It was an established rule that the views of the subject of critical reportage must be obtained in advance of publication. Given the inference against Mr Mantashe, the newspaper was obliged to revert back to him to obtain his comment in full.

Unfair headline and photographs

21)  Ms Steinberg argued that the headline (“ANC faces behind toilet tender scandal”) and the photographs (of Mr Mantashe, President Zuma and Minister Zulu) could only be regarded as unfair if the article itself was ruled by the Panel to be unfair: “Should the Appeals Panel find that the article was justified in implying a link between the unlawful award of the tender and the involvement in Siyenza of prominent ANC families, then the photographs and the headline, which reflect that link, cannot fall foul of the Code.”

22)   Mr Naidoo told the Panel that the headline explicitly drew a nexus between the award of the tender and the “ANC faces” that was not supported by the content of the article. The headline and photographs were fundamentally unfair to the subjects. The headline and article had failed to show the link to some of the personalities shown in the photographs. 

The Deliberations of the Appeals Panel

23)  In analysing the evidence, the Appeals Panel focussed on the issues identified in the decision to grant leave to appeal.

Verification of inferences or implications and impact on dignity and reputation

24)  In particular, the Panel wrestled with the concepts of “inference” and “insinuation”, a popular and powerful journalistic tool, opposite the requirements of the Press Code and established precedents in South African law. The Panel also considered the degree to which, in the public interest, the dignity and reputation of public figures (and their families) can legitimately be linked to inferences of possible wrong doing by those in their actual or perceived spheres of influence.

25)  The Panel accepts the submission of the appellant that neither the Press Code nor South African law hold the author of a factual article liable for any adverse inferences that are drawn by the reader. Critical to this defence is that the facts (not the inferences) must be verified.

26)  The only contested fact in the article was whether Lenwabo Sambudla had “links” to Siyenza Group as reported (“Others linked to the company include President Jacob Zuma’s son-in-law, Lonwabo Sambudla….”). The Ombudsman remarked in his ruling that “the editor conceded that Sambudla had no factual relationship with Siyenza or its subsidiaries despite being the friend or having done other unrelated business work with Mpeluza” (the owner of Siyenza). The Ombudsman’s observation is contradictory. Regardless of what the editor conceded or did not concede, it stands to reason that the admitted friendship and previous business dealings between Sambudla and Siyenza signified a “factual relationship”.  It is common cause that even though Sambudla was not necessarily linked to the project under discussion, he was in the past involved in business with a subsidiary of Siyenza Group, namely, Siyenza Consulting.

27)  Nevertheless, the editor denied having made any concession that would undermine the article’s claim that Sambudla had “links” to Siyenza. He produced his notebook in which he had set out the Siyenza Group structure as briefed by Mpeluza. The organogram showed Sambudla as being part of Siyenza Consulting, which was part of the Siyenza Group.

28)   It is the Panel’s view that there was significant confusion around this issue during the hearing before the Ombudsman’s Panel, in the Ombudsman’s Ruling, as well as during argument before us.

29)  Regardless, the Appeals Panel accepts that the broad formulation used in the article (i.e. there were indeed “links” between Sambudla and Siyenza Group, even if at arm’s length to the tender) was an accurate reflection of the facts.

30)  In evidence, the parties suggested numerous inferences that could be drawn from the article by “the ordinary reader”, including those who skimmed only the headline and photographs. These ranged from an inference that the “ANC faces” had deliberately interfered in the tender process, to a possible perception that decision makers at the municipality had independently taken it upon themselves to favour Siyenza Group to “curry favour” with the ANC leadership. While it is for the ordinary reader to draw their own inferences based on their interpretation of the facts presented, the Appeals Panel believes that an average reader would not necessarily infer, from the photographs, the headline or the story, any direct or even indirect influence by the politicians themselves. It is more likely that the reader would infer that the municipal officials acted on their own upon noticing the political connection. This would not implicate the named politicians.

31)  The Panel observes that the sting of the article was based on more than mere “inferences”. The anonymous sources quoted in the article state unequivocally that the Siyenza tender was “imposed on the municipality and appears to have been due to political connections (sic)” and “When these guys arrived they changed that (i.e. the previous service provider arrangements) and also changed agreements on prices”. The sources clearly had inside knowledge of the tender process as the Amathole District Municipality confirmed in writing the source’s contention that the tender was not advertised and that the “normal tender process” was not used in the appointment of Siyenza as the main contractor.

32)  The requirements of the Press Code in respect of dignity and reputation have been met. The facts reported are true or substantially true, the article is fair comment based on the facts and it was reasonable for the article to be published because it is in accordance with acceptable principles of journalistic conduct (with one possible exception mentioned in Point 33 below) and in the public interest.

Failure to return to Mr Mantashe for further comment

33)  Referring back to “acceptable principles of journalistic conduct”, it is clear that the editor and reporter failed to honour their promise to revert back to Mr Mantashe for further discussion and comment.  This was discourteous. “Acceptable journalistic conduct” is not defined in the Press Code but the Appeals Panel does not consider the discourtesy sufficient to qualify for a breach of Section 4.7. of the Press Code. The newspaper did after all obtain and report the major thrust of Mr Mantashe’s comment, including his stirring defence of his wife’s involvement in the project and his characterisation of allegation of political involvement as “malicious”.

Unfair headline and photographs

34)  The Panel paid careful attention to the headline “ANC faces behind toilet scandal”, which, along with the photographs, encapsulated and highlighted the sting of the article. The Panel accepts that there were “ANC faces” behind the toilet tender process because of the connections of Siyenza Group participants to prominent ANC leaders. But was it fair to describe the tender as a “scandal”?

35)  The Oxford English Dictionary describes a scandal as “an action or event regarded as morally or legally wrong and causing general public outrage.”

36)  Appellant’s heads of argument repeatedly refer to the tender process as being “unlawful”, a claim that was further embellished in evidence. Respondent did not address the legality or otherwise of the tender, claiming no direct knowledge of the circumstances of the award. It is common cause that the tender award is currently being investigated by the Public Protector.

37)  The Panel must decide, however, whether the word “scandal” in the headline is justified by the facts or inferences contained in the article itself:

a)      It reported that Siyenza Group had been “handpicked” and that there was little evidence of construction work done for R60 million that had already been paid to the company.

b)      Anonymous sources claimed that the tender was “imposed” on the municipality, that existing supply chain arrangements were changed to accommodate “these guys” and that pricing agreements were changed.

c)      The Development Bank of South Africa denied a claim by the District Municipality that Section 32 of the Supply Chain Management regulation had been used (instead of “normal tender processes”) because of the urgency imposed by the bank.

d)      Appellant described how widespread rumours and public indignation had resulted in the newspaper being tipped off about the suspect tender award; and how “well-placed” sources “close to the sanitation project” were prepared to confirm the suspicious circumstances surrounding the award (Events subsequent to the publication of the article have confirmed that the tender award is a matter of “general public outrage”).

38)  In summary, the article suggested strongly that the award was “morally or legally wrong” and it is clear that public knowledge of the alleged wrong doing caused “outrage” before and after publication.

39)  That said, the “link” between the “ANC faces” and the “scandal” is tenuous at best. But the headline was nevertheless a fair reflection of the content of the article. Likewise, the display of photographs of “ANC faces” was relevant to the content of the article.

40)  The Panel must record that it was not comfortable with the harsh “tabloid treatment” of the headline and photographs in both the print and online editions of the article but also asserts the prerogative of the editor to decide on the style and content of headlines and layout. The Press Code does not set standards for style and good taste.  

Finding of the Appeals Panel

41)  For the reasons given above, The Appeals Panel is of the view that the Ombudsman erred in his finding that appellant was in breach of Sections 2.1 and 2.4 and 4.7 of the Press Code and the appeal must therefore succeed. 

42)  It is accordingly ordered that the finding of the Press Ombudsman and Panel of Adjudicators dated 20 April 2015 is overruled, and the sanctions imposed are set aside.      

Dated 26 October 2015                                          

Judge B M Ngoepe, Chair, Appeals Panel

Brian Gibson, Member, Public Representative

Henry Jeffreys, Member, Press Representative