Belinda Walter vs. Daily Maverick
Date
Ruling by the Deputy Press Ombud
This ruling is based on the written submissions of Belinda Walter and those of Branko Brkic, Editor of the Daily Maverick.
Complaint
Belinda Walter complaint relates to an article in the Daily Maverick dated 26 January 2016 entitled “SARS Wars: KPMG, SARS and Mashiane Moodley and Monama - who’s telling the truth?”
Walter’s complaint states that the article is in breach of the Code of Ethics and Conduct as:
• the journalist has made no effort to verify the alleged Kanyana report and not stated clearly that she has not done so;
• she was not contacted for comment.
Walter’s maintains the reporter should have started that her story was opinion not fact and the at the reporting was biased and not based on facts not does it provide a balanced view.
She takes exception to the use of the word “affair” to describe the relationship between her and Johann van Loggerenberg given that neither of them were involved with any other third parties at the time.
The article
The article “SARS Wars: KPMG, SARS, and Mashiane Moodley and Monama – who's telling the truth?” (http://www.dailymaverick.co.za/article/2016-01-26-sars-wars-kpmg-sars-and-mashiane-moodley-and-monama-whos-telling-the-truth/) is written by Marianne Thamm.
It relates to whether the investigation by KPMG on behalf of SARS was a “a forensic investigation pertaining to various allegations which include but not limited to the establishment and operation of a rogue and covert intelligence unit within SARS with particularity to activities such as the procurement of equipment with interception capacity and any acts of impropriety against SARS officials” as stated by lawyers Mashiane Moodley and Monama or whether it was "to undertake a documentary review” as stated by KPMG’s CEO Trevor Hoole who added that “any report, first draft or otherwise” remained that “until the client confirms to us that all matters have been addressed and that the report has been through the entity’s governance processes and is ready to be issued. A report may well be considered by KPMG to be complete or final but prior to being issued the client needs to notify us that it has been accepted by them. In most instances the board, audit committee, other senior governance body or regulatory authority would sanction the release of such a report, particularly if it were regarded as being potentially sensitive.”
It is an extensive 1725 word news analysis of the disputes at the SARS offices. Only one paragraph mentions Ms Walter: "The Kanyane report found – in relation Belinda Walter a double agent who was working for the State Security Agency as well as British American Tobacco and who had had an affair with Van Loggerenberg – it was “unable to conclude that the evidentiary material presented by Walter was credible or reliable.”
The primary sources for the story are the Khanyane Report and a letter sent by lawyers Mashiane Moodley and Monama. It acknowledges that four inquiries including the Kanyane Report, an internal SARS investigation; the Sikhakhane Report, commissioned by Pillay before his suspension; the Kroon Commission, established by former Minister of Finance Nhlanhla Nene, and now the KPMG report, have all been challenged by those fingered and who were not called to give evidence or refute claims. It then mentions Walter specifically.
Finally the newspaper notes that the November letter by SARS lawyers stating that KPMG was mandated to advise SARS on the institution of criminal charges, as well an earlier letter telling the firm what findings to make, should indicate that the “the entire matter needs to be re-examined by a new and independent judicial commission of enquiry”.
The arguments
Walter argues that the journalist made not effort the verify the report nor had she stated clearly that the report was not verified. She adds that she was not contacted by the journalist for comment. “Nor have I ever been provided with a document or report alleging to be the ‘Kanyane Report’...
“The journalist should have stated this as opinion as opposed to fact. I have noted a flavour or personal and biased narrative which this reporter has followed in previous reporting on the matter.”
In response, the Daily Maverick provided a copy of the Kanyana report and a copy of a letter by Mr Pillay submitted to the Labour Court where he sets out in detail his understanding of the Kanyane report and its findings.
In response to allegations that the journalist made not effort to verify the alleged Kanyane report or contacted her for comment, the Daily Maverick responded that: A copy of the Khanyane report was leaked from within SARS in August 2014. It is attached here. It was reported on in a front page article of Sunday Times in August 2014. The media has a copies of this report. The quote is verbatim from that report. There rests no obligation on a journalist to verify the report since its existence was never disputed by SARS or by Van Loggerenberg. In fact, in his Press Ombud complaints van Loggerenberg freely refers to it. The later-published (by SARS) Sikhakane report specifically mentions the existence of this report and the fact that the Sikhakane panel did not consider it.
SARS published the Sikhakane report on 28 April 2015. It was done on recommendation of the Kroon Board who endorsed its contents.
Paragraph 12 of the Sikhakane report reads: “The complaints by Ms. Walter are also detailed in the report of SARS's internal investigation, which was led by Mr. Moeti Kanyane ("Mr Kanyane") of Gildenhuys Malatjie Attorneys Incorporated. We were furnished with the report of this panel. However, we sought to conduct this particular investigation without any regard to the findings contained in that report. We considered afresh all the evidence that was placed before it. Its report and findings, though related to our terms of reference, were not considered as part of our investigation”
In response to Walter’ statement that she had noted a “flavour of personal and biased narrative which this reporter has followed in previous reporting on the subject matter. The journalist also failed to state that the Acting SARS Commissioner at the time, Mr Ivan Pillay, in a newsletter to all SARS staff on 18 August 2014 clearing stated that an investigation report was INCONCLUSIVE.”, the Daily Maverick responded that Former Deputy Commissioner Pillay stated that because the allegations made still lingered, it was decided to appoint the Sikhakane panel. It was clearly explained by Pillay publicly on several occasions. In other words there was no final report and SARS itself did not find the content of any such alleged draft report as credible. It said that the Kanyana report was submitted to the Minister of Finance as a final report.
To Walter’s response that Thamm’s reporting was wrong as she had said Johann van Loggerenberg was not given the opportunity to respond to the Kanyane report when the newsletter written by Ivan Pillay said the exact opposite, the Daily Maverick said the Kanyane report (paragraph 5) stated that it concluded the report without receiving a submission from Van Loggerenberg. It added that Van Loggerenberg had publicly stated that he was given an opportunity to make a submission to the Kanyane Panel nor an opportunity for a right of reply.
In response to Walter’s view that Ms Thamm completely failed to deal with the investigation of the same subject matter by the Inspector-General of Intelligence and the finding that there had been no wrong doing by any agents, Daily Maverick noted that since the IGI report was note made public, nobody could lay claim to any of its findings.
In response to the complaint that, Ms Thamm failed to provide unbiased and objective reporting by stating in her article that the attorney firm responsible for the alleged initial investigation (i.e. Kanyane) were also Johann van Loggerenberg’s personal attorneys, Daily Maverick noted that the attorneys (Malatji Gildenhuys - Moeti Khanyane) referred to were only briefed by Van Loggerenberg after the Kanyane Panel had concluded its process and report (Wim Cilliers). Van Loggerenberg was represented by an entirely different attorney firm (Dockrat) during the Khanyane process and at his own cost. A conflict of interest opinion was sought (by Wim Cilliers) and no such was found to apply.
The Daily Maverick did not wish to extrapolate on the various meanings or values attached to the word affair.
Analysis
The Daily Maverick’s article - while not marked opinion - is clearly understood to be news analysis. The information is attributed to the documentary source mentioned. While Walter is mentioned in the story, she is not the primary focus of the story. The question is therefore whether she is the subject of critical reportage and if those comments caused her unnecessary harm.
The newspaper has identified significant attempts to ensure the veracity of the documents which are the primary sources for the article.
Finding
The complaint is dismissed.
Appeal
Our Complaints Procedures lays down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Paula Fray
Deputy Press Ombud