Dr Iqbal Survé, Independent Newspapers vs. Sunday Times


Mon, Jun 26, 2017

Ruling by the Press Ombud

26 June 2017

This ruling is based on the written submissions of Ms Zenariah Barends, Chief of Staff of Independent Media, on behalf of Independent Newspapers and its executive chairman, Dr Iqbal Survé, and those of Susan Smuts, legal editor of the Sunday Times newspaper.

Survé and Independent Newspapers are complaining about a story on page 4 in Sunday Times of 14 May 2017, headlined Survé ‘canned editor over Molefe article’ – Independent chairman asked for apology to Zuma’s man. This article was also published online on http://www.timeslive.co.za/sundaytimes/stnews/2017/05/14/Iqbal-Surv%C3%A9-canned-editor-over-Brian-Molefe-article. A pull-out quote read, ‘Wally was removed because Brian Molefe was earmarked for the finance minister post’; and the caption stated, STOOD HIS GROUND (with pictures of Mr Brian Molefe, Survé and the former editor of Sunday Independent, Wally Mbhele).

Complaint                                            

Survé et al complain that the article:

·         made several false, untruthful and unfair claims and allegations (details below) – the crux of which was that:

o   an article in the Sunday Independent about Molefe was said to have led to former editor Wally Mbhele’s dismissal;

o   Survé’s “interference” in editorial operations was expected to raise concerns from other media owners about Independent newsrooms; and

·         was unbalanced, biased and omitted material responses from Independent Media.

They also complain that the:

·         newspaper’s information was fabricated and that its (single) “source” was not credible or reliable; and

·         headline, the kicker and the caption were misleading.

The text

The introductory sentence to the article, penned by Qaanitah Hunter and Sibongakonke Shoba, said, “An article about how Eskom CEO Brian Molefe was parachuted into parliament is said to have led to the dismissal of the editor of an Independent Media newspaper.”

Highly placed sources at Independent Media reportedly said Mbhele had been “removed” weeks after Survé had confronted him about a story that had detailed Molefe’s move to Parliament. The article quoted leaders of a branch in Hartbeespoort saying Molefe had not been an ANC party member, despite the provincial ANC claiming the opposite (in order to nominate him for Parliament).

The complaint in more detail

Background

Barends sketches the background as follows:

·         Sunday Independent published an article on Molefe on February 19;

·         Survé received verbal complaints that the article was factually incorrect;

·         On February 22, Survé referred the complaints to her;

·         On the same day, she wrote an e-mail to Mbhele:

o   Informing him that complaints had been received and that she had seen a televised media conference the previous day that appeared to contradict the Molefe article;

o   Arguing that if the article was incorrect, it could potentially harm the credibility of the Independent Group;

o   Confirming Survé’s previous caution that the newspapers in the group should avoid factional battles;

o   Stressing that her communication was based solely on allegations and that its purpose was to establish the facts; and

o   Requesting a report from Mbhele by February 27;

·         Mbhele responded on February 23; and

·         She responded the next day.

Barends documents the background to Mbhele’s departure from the company as follows:

·         On February 20, unrelated to the Molefe article, a meeting was arranged for February 28 between Mbhele and Messrs Takudzwa Hove and Howard Plaatjes, CFO and COO of Independent Media respectively, to review the poor trading performance of Sunday Independent;

·         On the morning of 28 February 2017, it was decided that instead of the performance review, they will arrange a lunch with Mbhele;

·         At that luncheon, Mbhele indicated he wanted to explore the possibility of resigning – he had for a while been considering a career in academia and of late had enjoyed working with young interns at Independent Media. (He had previously had some exploratory discussions with his contacts in academia.) The editor also indicated that he had a conversation with his attorney regarding his intention to resign, who advised him to have an exploratory discussion with Hove and Plaatjes regarding a settlement agreement;

·         Neither the Molefe article nor the communication between Mbhele and Barends was part of this conversation;

·         The executives enquired from the Independent Media Human Resources (HR) department whether an agreement as proposed by Mbhele was possible – HR agreed, subject to a confidentiality condition;

·         Sometime thereafter, Hove and Plaatjes informed Survé about this development; and

·         In terms of the agreement reached by the parties, Mbhele produced a proposed joint media release, which he e-mailed to Independent on March 2.

‘False’ allegations in more detail

In addition to what is stated above, the following statements and / or allegations in the story are in dispute:

·         Highly placed sources in Independent Media claimed that Survé confronted Mbhele after the Molefe article, claiming that the executive chairman had:

o   called him after an ANC press briefing, informing the editor that the ANC had produced proof of Molefe’s membership of the Hartbeespoort branch;

o   said that the Molefe article had misled the readers and had tarnished the image of newspaper and the group;

o   accused him, two weeks earlier, of supporting Cyril Ramaphosa and Gwede Mantashe;

·         Survé had a close relationship with Molefe and a cosy relationship with President Jacob Zuma;

·         An “insider” said Survé had requested a report on the drafting of the article and had asked Mbhele to apologise to Molefe;

·         A management team was sent to Johannesburg to confront Mbhele under the pretense of conducting a performance assessment (at a meeting in Rosebank);

·         The meeting agreed that the relationship between Mbhele and Survé had broken down irretrievably, upon which an agreement was reached that Mbhele should leave;

·         Mbhele left his office without saying goodbye to members of staff;

·         The editor did not resign, but was fired; and

·         Survé wanted Mbhele to leave as soon as possible.

Unbalanced, biased; omitting material responses

Barends says the article devoted three full columns to the statements of a source, while only a portion of one column covered Independent Media’s responses. “This renders the article unbalanced and indicates clear bias,” she argues.

The spokesperson adds that the journalist omitted material responses provided to her (however, she does not specify what these were – see below).

Information fabricated; ‘source(s)’ not reliable

Barends says that, despite the claim in the story that the information had been provided by several highly placed sources at Independent Media, it rather appears to have been based on a single source. She says this is reflected in the article, where reference is made to “the insider”, as well as another use of the singular form (“the source said”).

She adds that Mbhele had signed a confidentiality agreement, which means he could not have revealed the information – and argues it should therefore have been apparent to the reasonable journalist that the information disseminated by the source was a fabrication.

Headline, kicker, caption

In later correspondence, Barends says that, had the article been factually correct, the headlines etc. would have been justified – however the statements in the story (as reflected in the headline, etc.) that Mbhele had been asked to apologise, and that the latter had been dismissed (“canned”), were all untrue.

Sunday Times responds

Background

Smuts says the newspaper was informed about the reasons behind Mbhele’s departure in the week he left Independent Newspapers – several people, including editors from other Independent Media publications, confirmed that they had been informed in confidence that Mbhele had been removed after the publication of the Molefe story.

She adds that Mbhele refused to discuss the allegations about his departure with Sunday Times, but the newspaper spoke to the sources who alerted the publication about the departure.  She says the newspaper was also informed about e-mail correspondence between Mbhele and Barends over a complaint about the story; and that the publication also spoke to a senior editor in whom Mbhele had confided prior to his leaving the company, as well as to a senior manager who attended the lunch meeting at which it was decided that Mbhele would leave.

The legal editor states, “If Dr Survé insists that Mbhele resigned, we invite him to produce Mbhele’s resignation letter.”

Smuts says the senior editor in whom Mbhele had confided, confirmed that Survé called Mbhele after the ANC in the North West had denied the story. This editor said Survé was angry that the Sunday Independent had run the story, and told the editor he had received a verbal complaint about it. He said the story could damage the image of the Sunday Independent and the entire Independent group. According to this editor, Survé told Mbhele to issue an apology to Molefe.

She remarks the story reflected Survé’s denial that he had spoken to Mbhele prior to his resignation.

Smuts says the newspaper was aware of the relevant e-mail exchange between Mbhele and Barends – which confirmed the reliability of information provided by the newspaper’s sources.

She adds that senior staff members who spoke to Mbhele after the Rosebank meeting informed Sunday Times it had been agreed at the meeting that the relationship between Mbhele and Survé had broken down irretrievably. “We were told that Mbhele felt that he had been fired. From the meeting, he went to his office, packed his things and left without saying goodbye to staff,” the legal editor continues.

Smuts adds the newspaper was informed Mbhele had received messages of support from several editors within the group when he left.

She concludes, “We submit that at all times, the allegations made in the story were properly attributed to sources. We do not deal with every specific objection to information attributed to sources as these are self-evidently presented as allegations.  This was a story based on reliable and independent sources, all of whom corroborated the central thrust of the story — which was the allegation that Dr Survé had in essence fired Mbhele.”

Other responses

Smuts says the article reflected the responses of both Survé and Barends fulsomely and in all material respects. “There is no onus on us to reflect the entire response, only those parts that are pertinent to the facts and allegations in the published story. We submit we have discharged this duty.  We say that we incorporated the essence of the responses provided by Survé and Barends to the allegations,” she adds.

She argues that the e-mails attached by Barends support the version of events in the article as well as the thrust of the allegations. The tone of these e-mails, she says, suggest that Mbhele had been called to account for a story that had been questioned. 

Smuts asserts that the chronology of the meeting on February 28 “also supported the version of the sources who spoke to the Sunday Times”.

She adds it is clear from the complaint that Mbhele had taken legal advice over his departure from the Independent – which is not a normal course of action in the absence of conflict. “A settlement agreement is not a resignation. It indicates that the parties have agreed to part ways, usually after some disagreement,” she argues.

The legal editor says the fact that Mbhele produced the joint media release is irrelevant – this, she argues, frequently happens with the departure of senior staff from an organisation in order to protect all the parties, rather than to elucidate the reasons behind the departure.

Some material issues

Raising concerns about interference

The story said, “Reports of interference in the operations of the newspaper are expected to raise concerns about the independence of newsrooms from media owners.”

Smuts says it is unclear on what basis Barends complains about this sentence, as this amounted to justifiable comment – some people clearly felt there had been interference, both in the ways complaints are handled and in the requirement for PDF copies of the front page to be sent to Survé (which is not denied by Independent).

She argues it was not necessary to determine whether or not this amounted to actual interference – it was enough that it was perceived to be so, as was the case with its sources.

Links to Zuma

Smuts says Survé's links to Pres Jacob Zuma have been well documented. It is also common knowledge among Independent Media’s staff that Survé openly talks about his relationship with the President.

Headlines, etc.

Smuts denies that the headlines etc. were in breach of the Code of Ethics and Conduct. She says that the:

·         main headline accurately reflected the content of the article. Besides, the use of quotation marks made it clear that it was an allegation (not a statement of fact) that would be unpacked in the story, which was attributed to a source;

·         sub-headline was a further explanation of the allegation in the main headline, adding that former and present senior editorial staff members, who were privy to developments as they unfolded, confirmed its content. However, she says  Sunday Times accepts that its sub-headline should have been more carefully written to make it clear this was an allegation and not a statement of fact, as the main headline and the article made clear;

·         pull-out quote was properly presented as such; and

·         caption was a common device to highlight an aspect of the story.

Conclusion

Smuts concludes, “The Sunday Times published an article of public interest which was corroborated by several sources within Independent Newspapers with inside knowledge and whose allegations are shown to be reliable by the very email correspondence attached to Dr Survé’s complaint. It published the allegations without elevating them to statements of fact… The [newspaper] stands by its story…  Former and present senior editorial staff who were privy to developments as they unfolded, told us that Survé demanded an apology for the story.”

Sunday Times says it is willing to attach a brief comment from Survé or Barends about the meeting at which it was decided Mbhele would leave the company.

Barends replies

‘Evidence’ fabricated

Barends questions and disputes the “evidence” presented by the newspaper.

She concedes that the Press Ombud is not bound by the strict rules of evidence that would apply in a court of law – yet, she argues, there has to be an application of the rules of natural justice in the balancing of the complaint and the response. “It is in this context that we address the ‘evidence’ presented by the Sunday Times to justify the publication [of its story],” she says.

Barends argues that this office should treat that “evidence” with “extreme circumspection”, as it is primarily based on hearsay (which would not be allowed in a court of law).

She notes that the main (alleged, unnamed sources) were:

·         an editor in whom Mbhele had allegedly confided;

·         a senior manager who allegedly attended the lunch on February 28; and

·         several people, including editors, to whom Mbhele allegedly spoke in confidence.

She says Independent Media accepts that Mbhele was not a source.

Disputing the veracity of the “evidence”, Barends submits that the newspaper was left with one alleged, direct source, namely the unidentified senior manager who allegedly attended the luncheon on February 28.

Barends argues that the following facts prove that this source was a fabrication:

·         The lunch was arranged on the morning of 28 February 2017;

·         Only three people attended the lunch (Hove, Plaatjes and Mbhele) – and at no stage did any other senior manager of Independent Media join that meeting;

·         Early during the lunch, Mbhele informed Hove and Plaatjes of his wish to resign immediately, saying that he tendered his resignation to pursue other interests. He disclosed no other reasons;

·         Due to Mbhele’s senior position and the short notice, Hove made enquiries to Independent Media’s HR department as to the possibility of a financial settlement and, after receiving confirmation of the package that could be offered to Mbhele, the parties reached a verbal agreement on the terms. This agreement was put into a letter prepared after the lunch by Plaatjes; and

·         Neither Hove, nor Plaatjes, at any stage spoke to any reporter from the Sunday Times. (She attaches affidavits by both, confirming the aforesaid).

She concludes that the only “evidence” from an alleged, direct source presented in the Sunday Times response had to be a fabrication. 

Barends adds that on March 1, the letter Plaatjes had prepared was signed during another lunch, attended by Mbhele, Hove, Plaatjes and Japhet Ncube, the editor of The Star newspaper.

The latter, she explains, attended the lunch to discuss the temporary transition of the editorship of the Sunday Independent. Ncube was to edit the Sunday Independent until a new editor was appointed. “No discussions about the previous day’s meeting took place,” she asserts – attaching an affidavit from Ncube in which he confirms that he never spoke to the Sunday Times.

Barends concludes, “Inasmuch as it is proven that the Sunday Times relied on a fabricated anonymous source for the only direct ‘evidence’ to support the article, we submit that it raises serious questions about the existence of the other alleged anonymous sources. At best for the Sunday Times, they relied on rumours spread by persons with no direct knowledge of the events leading to Mbhele’s resignation.”

Barends says not one of the alleged sources had first-hand knowledge of the facts, as the article was replete with vague and unsubstantiated statements.

She argues with respect to the references in the article to:

·         “several people, including editors from other Independent Media publications” who allegedly confirmed that they had been informed in confidence that Mbhele was “removed”: No tribunal is in a position to test the veracity of this statement, which  reflected second and third hand information disseminated by other persons, whose identities are also anonymous. “At best,” she argues, “it shows the possible existence of rumours”;

·         the newspaper having spoken to a “senior editor” in whom Mbhele had confided prior to leaving the company: This was also hearsay evidence which lacked particularity – “Nowhere is it stated what the alleged person allegedly said. It is submitted that it is probable the alleged editor could be as reliable as the fictitious senior manager who attended the lunch on 28 February 2017”;

·         “a senior manager who attended the lunch meeting at which it was decided that Mbhele would leave”: There was no such person at the lunch;

·         the “senior editor” in whom Mbhele had confided, confirmed that Survé called Mbhele: The executive chairman did not call the editor, or speak to him about the article. She argues, “It is reckless to use the information provided by an alleged senior editor of dubious anonymous existence to publish information about an alleged telephone call (which never occurred) in the face of an actual denial from Dr Survé”;

·         “senior staff members who spoke to Mbhele after the Rosebank meeting”, telling the newspaper the meeting agreed that the relationship between Mbhele and Survé had broken down irretrievably and that they had been told the editor felt that he had been fired: This, Barends argues, is another example of anonymous hearsay evidence; and

·         the circumstances around Mbhele’s departure became an “open secret within the circles at Independent Media”: This is another bald statement, confirming that the article was based on unsubstantiated rumour.

Regarding the e-mail exchange between Barends and Mbhele (from which, Barends says, Sunday Times seeks corroboration for the hearsay rumours it eventually published), the spokesperson says all it indicated was that:

·         Barends requested a report from Mbhele, following a complaint to Survé’s office;

·         Mbhele responded, to which Barends requested further clarification;

·         Barends did not ask Mbhele to apologise for the Sunday Independent article; and

·         The alleged telephone call between Survé and Mbhele was not mentioned in the e-mail correspondence – the only reference to Survé concerned an open discussion at a conference three weeks before the article in dispute was published.

Barends says Sunday Times also seems to seek corroboration for the statement in the article that “a few weeks before that, Iqbal [Survé] had accused the Sunday Independent of being pro-Cyril [Ramaphosa] and Gwede [Mantashe]”. This statement, she says, is factually incorrect and is also not supported by the evidence.

She notes that Mbhele wrote to her, “Dr Survé told me that he has received complaints that The Sunday Independent is ‘pro-Cyril Ramaphosa and Gwede Mantashe’.” This, she says, was merely a notification of the complaint, which is not the same as an accusation.  

Moreover, she says she corrected Mbhele in her reply when she placed on record that she was present at the leadership conclave at which Survé had asked all editors to be balanced and fair in their reporting.

 

She adds that Survé also denies that he ever said to Mbhele that the Sunday Independent was pro-Ramaphosa or pro-Mantashe.

Barends argues it is likely that the e-mail exchange would have become known in the Sunday Independent newsroom, as Mbhele would have had to discuss the request for a report with the journalists and news editors involved in the original Sunday Independent article. It is also likely that the persons with whom Mbhele discussed the e-mail exchange would have discussed it wider amongst their friends and colleagues. She argues, “Whilst this is mere speculation on our side, this is the most likely source of the untrue rumours that eventually made their way into the Sunday Times article. That, after all, is how rumours start and why they make for bad journalism.”

She concludes that, contrary to the Sunday Times claim that the article was based on reliable and independent sources, “it is apparent that the article was based on unsubstantiated rumours and gossip circulating from hearsay statements and fabricated or fictitious ‘witnesses’.”

Right of reply

Barends attests that Sunday Times did not give Independent Media a right of reply – which she calls a “principle of fundamental justice”. This principle, she says, includes the right to confront the witnesses against him or her and have a fair opportunity to challenge the evidence against that person. “It is against this principle that the Sunday Times’ application of the rule relating to the right of reply must be judged and found to fall short,” she submits.

In this regard, she says Hunter asked:

·         Survé and Barends a series of questions in the proverbial style of “do you still beat your wife”. For example, in the e-mail to Barends, she starts off with the statement that she was “doing a story regarding interference in the Sunday Independent newsroom resulting in the depature (sic) of former editor Wally Mbhele”; and

·         three ostensibly innocuous questions about the e-mail Barends wrote to Mbhele which was probably widely known in the Sunday Independent newsroom at the time, to which Barends gave honest answers. However, she never confronted Barends with the “evidence” which was contained in the Sunday Times article – for example, she did not put the “facts” about the meeting of February 28 to anyone at Independent Media.

Barends concludes that officials at Independent Media did not get the opportunity to refute untrue allegations; also, Survé never had the opportunity to respond to the allegation that he had accused Mbhele of being pro-Ramaphosa or pro-Mantashe.

Settlement agreement; drafting of media statement

Barends says Sunday Times’s statement that it was “clear from the complaint that Mbhele had taken legal advice over his departure from the Independent” is an example of incorrect conclusions drawn by the newspaper, both in the article and in its response to the complaint.

She repeats her version of the meeting, as stated above, and adds that no lawyers were involved.

Editorial interference

Barends says the article stated or inferred that Survé had interfered in the editorial processes of Independent Media newspapers, that Mbhele had resigned as a result of such editorial interference, and that an example of editorial interference was the fact that newspapers in the Independent Media stable have to send PDF copies of their front pages to Survé.

She submits that there has been a campaign in rival newspapers about alleged editorial interference in Independent Media – and denies that this is true. She says Survé asked Barends to obtain a report from Mbhele, which would have determined whether the Independent Media ombud or the Regional Executive Editor would deal with the matter – which amounted to good governance.

Regarding Survé’s requirement to receive PDF copies from individual newspapers, Barends argues that this is a reasonable and non-interfering request.

She explains:

·         In Survé’s capacity as Executive Chairman of the Independent Media he needs to know what goes on in the newspapers and at least, what is contained on the front pages of the group he manages – ultimately he reports to shareholders;

·         Independent Media publish ten daily newspapers at different times of the day across the entire country, and have nine weekly broad-based newspapers, fourteen weekly community newspapers, a range of magazines and a range of internet-based publications – it is impossible for Survé, who has numerous board commitments, charities and other business commitments, to read each newspaper in the group;

·         Survé’s business commitments extend well beyond the newspaper group;

·         Survé also spends extended periods travelling for business reasons inside and outside South Africa;

·         Moreover, he does not have an office in any of the Independent Media buildings – due to this physical absence, and in order to provide him with a birds-eye overview of what is being reported as main news in the Independent Media titles daily and weekly, as any good manager would, he implemented the requirement that PDF copies of each newspaper’s front page be sent to his personal assistant on a daily basis;

·         In most cases the PDF front pages are sent after publication and in almost all cases he sees the PDF front pages only after publication; and

·         When Survé became the executive chairman of Independent Media, he became aware of a long-standing practice that paper copies of each newspaper was sent to the executive management office every day. In fact, for example, at the Cape Town Newspaper House a special table was placed outside the offices of the senior managers where these paper copies were laid out. However, due to his geographical location away from the newspaper houses, the advancement of the digital age and the logical practical consideration, Survé asked for the limited PDF’s of the front pages instead.

Barends says it is “annoying” to Independent Media and Survé that something as innocent as the change of an old, established practice is elevated in the Sunday Times to editorial interference, based on a dubious single source.

In conclusion

Barends says both Independent Media and Survé reject Sunday Times’s offered statement, especially in light of the fabricated sources, and asks for a ruling on the matter.

Sunday Times replies again

Smuts insists that one of the newspaper’s sources attended the lunch meeting where it was decided that Mbhele would leave the newspaper. “For obvious reasons, we cannot disclose this person’s identity,” she says.

She points out that Survé has not produced Mbhele's resignation letter. “We submit that in the absence of this document, his version is significantly weakened,” she argues.

The legal editor also questions the suggestion that the Sunday Times’s corroboration for its story is inadmissible hearsay evidence inasmuch as the corroboration takes the form of anonymous sources.  She argues, “It is astounding for a media group to take the position that corroboration in this form is ‘hearsay’ which ‘will not be allowed in court’.  This runs completely contrary to the time-honoured position that a journalist is entitled to rely on confidential sources.  She refers to the decision in Bosasa Operation Pty Ltd v Basson and Another 2013 (2) SA 570 (GSJ) (available at: http://www.saflii.org/za/cases/ZAGPJHC/2012/71.html) which recognises the protection of sources as an essential part of media freedom.

She points out that Independent Media's own Press Code states at clause 8.2: “Where a source specifically asks for confidentiality, the source shall not be identified and Independent Media shall protect the confidentiality as far as possible.” (See here: http://www.iol.co.za/press-code)

The legal editor concludes, “In these circumstances, to seek refuge in the  technical law of admissibility of evidence, and the hearsay rule, to debunk the Sunday Times’ reliance on confidential sources, goes against the common law, media freedom, media ethics and Independent Media’s own Press Code.  It is tantamount to saying that a newspaper cannot ever rely on confidential sources as this would always amount to hearsay evidence. This would turn media freedom on its head.”

She says all that is left of Survé's response is essentially an allegation that this office must find that the Sunday Times journalists are lying about what their sources told them.  “But, as we illustrate below, this is not the case,” she adds.

Analysis

As background, and for the sake of completeness, I first summarise the relevant correspondence between Barends and Mbhele.

Background

On February 22, Barends informed Mbhele that Survé’s office had received complaints about the Molefe story. She stated she had seen a televised media conference held by the ANC North West province where they had produced Molefe’s membership forms. “This can potentially embarrass Independent Media for misleading readers and [the] public on this issue. As you are aware the credibility of Independent depends on us being factual and balanced in our reporting,” she wrote.

The spokesperson emphasised:

·         Survé’s insistence that titles should not get involved in factional battles; and

·         that the complaints were allegations at that stage.

She requested a report from Mbhele within five days to establish the facts, saying, “Once this is established, we can jointly decide how to proceed.”

Mbhele reported back the next day, inter alia saying the following:

·         He had not seen a formal complaint, and asked to be provided with one in line with Independent Media’s policies;

·         The story was written by two senior, seasoned and respected journalists who relied on three sources who independently of each other corroborated the allegations;

·         Subsequent to the article a number of ANC branches came forward to claim Molefe as a member – “This in itself give credence to the allegation that his nomination is questionable”;

·         The media conference relied upon to counter the story appeared to have been based on falsified and fraudulent documents – Sunday Independent had in its possession audited membership statements which showed that Molefe never was a member of the branch in question;

·         The story was in the public interest and also carried on the front pages of competitors such as Sunday Times and City Press;

·         All relevant parties were given a right of reply, and were widely quoted; and

·         Molefe was also asked for comment, but he refused to reply – his very silence on this matter gave credence to the story.

Mbhele also objected to the manner in which Barends dealt with the complaints – instead, they should have gone to Independent Media’s internal ombud, he argued.

He ended his report by documenting his extreme concern that the latest allegations came a mere three weeks after Survé told him about complaints that the newspaper was pro-Ramaphosa and pro-Mantashe. He wrote, “I need to state categorically that the Sunday Independent does not belong to any particular ANC faction, but under my editorship strictly subscribes to the highest ethical journalistic standards required by the SA Press Code.”

On February 24, Barends responded as follows:

·         The complaints were verbal, which normally are brought to the editor’s attention;

·         The fact that a number of ANC branches came forward, did in itself not make the article factual;

·         How can Mbhele be so sure that the documents from the ANC branch were falsified if he had not seen them – and still, despite his report, there still was no clarity on this issue; and

·         The relevance of the former editor’s remark about factional battles is “baffling”, adding, “It appears that you are aiming this comment at the Executive Chairman in a manner which is uncalled for and unfair and is … puzzling. I request that it be withdrawn in writing immediately.”

A few days later, on March 2 (following the two luncheon meetings), Mbhele sent the following draft statement to Plaatjes and Hove (quoted in full):

“Independent Media Group is sad to announce the resignation of Mr Wally Mbhele as editor of The Sunday Independent.

“Mbhele has informed the company that he is going to pursue other interests in the field of communications and media training.

“Mbhele said he is very grateful for the opportunity to edit the paper. ‘It’s been an absolute honour and an exciting journey to work with a group of talented and passionate journalists in the Group’.

“We would like to take this opportunity to wish him well in his new professional endeavours.”

Information fabricated; ‘source(s)’ not reliable

As the credibility of the newspaper’s sources lies at the heart of this complaint, and its adjudication, I am dealing with this issue first.

The following bullets underscore the majority of the issues involved in this finding:

·         Sunday Times (partly) identified its main source to me;

·         I am not at liberty to disclose this information to anybody;

·         While I cannot vouch for the veracity of this person’s information, I also cannot blame the newspaper, given the information in my possession, for reporting what it had garnered from this source – as long as those data were published as allegations or opinion, and not as fact; and

·         This goes for all the information obtained from this person.

I am satisfied that the journalists – from start to finish, and consistently – referred to sources, either directly or indirectly, and not once presented the sourced information as fact. Well done to them. Moreover, even the headline put the statement in inverted commas, indicating a source.

I have nevertheless asked Barends for a copy of Mbhele’s letter of resignation – which, given all of the above, would have been the only way for me to find for the complainant on this issue.

I note that she has indicated, in the complaint, that the editor resigned verbally, and that a confidential agreement was thereafter prepared and signed by Mbhele and Plaatjes. Despite that, I expected a written resignation to follow – hence my request.

Barends confirmed that there was no such letter of resignation, arguing that a verbal resignation was equivalent to a written resignation by virtue of the South African common law. 

She also stated that the agreement signed by the parties was confidential, meaning she was not at liberty to disclose any information about its contents – save to say that Mbhele has resigned from Independent media.

In her response to the above, Smuts submits it is highly unlikely that Mbhele would have resigned verbally and not in writing. She says, “It is standard practice within the HR industry for employees to resign in writing so that the necessary documentation can be prepared for payroll, and related matters. It is also desirable for resignations to be done in writing so that there is a record of the resignation in order to circumvent situations where, for example, an employee may resign verbally and change their mind and return to work.”

She also points out that the affidavits of Plaatjes and Hove both stated that Mbhele had said he “wished” – they did not say that he tendered a verbal resignation.

Smuts submits “[that] the absence of Mr Mbhele's resignation letter, coupled with the above, supports the information we received from our sources that Mr Mbhele did not resign but was fired.”

Hence, my ultimate conclusion: While I cannot vouch for the veracity of the notion that Mbhele did not resign from Independent Media, but that he was in fact fired, the only reasonable conclusion I am left with is that Sunday Times was justified to believe that its information was essentially true at the time of publication.

Material information omitted

As it was not clear from the complaint to which omission(s) it referred, I asked for clarification on that issue.

Barends refers me to the sentence stating that she had “confirmed that she raised the Molefe complaint with Mbhele, but said it was a matter of ‘good governance’.”

She says Sunday Times asked, “Did you communicate with Wally regarding a complaint received by Mr Survé regarding a story he ran about the parachuting of Brian Molefe to parliament?”

To this, she says she responded: “Yes I did. It is part of my mandate as chief of staff, to bring to the attention of editors, any complaints made to the chairman's office or Independent Media. This is good governance. We encourage our editors to engage and resolve complaints. We also encourage any complaints, which cannot be resolved in this way, to be directed to the Independent Media Press Ombudsman, which was established recently.”

From this, Barends argues that the reportage incorrectly and intentionally implied that it had been Molefe who had complained to Independent Media.

She adds that “the bulk” of her response was omitted from the article.

Barends calls this a “material omission”, as it placed an entirely different slant to her response, as it was juxtaposed with Survé’s. The omission also follows the word “however”, meaning that her response had been a contradictory statement – while, in fact, she explained a process indicating that her request to Mbhele was standard procedure. “Nothing thereof was reflected in the article,” she says.

I gave Smuts an opportunity to respond to the above. She replies the reference to the alleged perception that it was in fact Molefe who had complained to Independent is without merit – the article clearly stated that the words “Molefe complaint” rather referred to the story about him.

I agree with Sunday Times on this issue.

In order for me to determine whether the journalists did indeed leave out material issues, I first need to peruse the correspondence between Hunter and Barends.

Correspondence between Hunter, Independent Media; editorial interference

Announcing that she was doing a story regarding Survé’s alleged interference in the Sunday Independent newsroom resulting in Mbhele’s departure, Hunter sent the following questions to him (on May 12):

·         Did he accuse Mbhele of misleading readers by running a story on how Molefe had been was parachuted to parliament?

·         Did he instruct the former editor to apologise to Molefe?

·         Was Mbhele effectively fired because of an irretrievable breakdown in relationship between the two of them?

·         What was his relationship with Molefe?

After she was referred to Barends, she sent the following questions to Survé’s spokesperson, and received the following answers from her (both slightly shortened):

Question

Response

 

Did she communicate with Mbhele regarding a complaint received by Survé regarding a story about the parachuting of Molefe to Parliament?

 

 

?Yes – it was part of her mandate as chief of staff, and good governance, to bring to the attention of editors any complaints made to the chairman's office or Independent Media.  

 

 

Did she communicate to the editor the need to apologise to Molefe?

 

 

No – it was not her mandate to tell editors to apologise as this would amount to editorial interference. 

 

 

Did this incident lead to the breakdown in the relationship between Survé and the former editor?

 

 

Not that she was aware of – Survé continued to hold Mbhele in the highest regard and was surprised to hear of his resignation.

As a follow-up question, Hunter wanted to know whether there had been an instruction to editors of the group to forward PDF copies of the front page to Survé or to his office before going to print.

Barends replied:

·          Independent Media had over twenty print titles spread across the country, all of which reported to Survé as their executive chairman;

·          It was not possible for him to read all the titles when they were published. In order to keep abreast daily and to have a quick snapshot of the titles, all editors send the front pages to him. However, this was done after the deadline had passed and after the pages had been sent for publication. Often the PDF copies were sent the day after publication; and

·         Independent Media was surprised by this question – it seemed that the journalist was trying hard to insinuate that there was editorial interference at Independent Media, which would result in misleading reportage.

From the correspondence provided to me, as summarised above, the journalist incorporated all Barends’s initial responses, save for her denial that she told Mbhele that he needed to apologise to Molefe (for publishing the “Molefe article”).

The story stated that Survé requested (a) a report and (b) an apology to be issued to Molefe. While the text did not state this explicitly, from the context it is clear that Survé communicated these requests to Barends, who then – as his spokesperson – contacted Mbhele.

Hunter reported that Barends demanded a report from Mbhele – but she did not state that Barends asked the editor for an apology. For that reason, I do not blame the newspaper for not reporting a denial (about a statement that was not reported in the first place).

Regarding the matter of interference in newsrooms, and the corresponding question about the issuing of front pages to Survé, Hunter did report Barends’s clarification that these pages were sent to him after deadline, and often even only the day after publication.

That was the gist of her reply to Hunter. The other two comments (on more than twenty titles, and Independent Media’s surprise at the question) were not material – and I therefore do not blame Sunday Times for not reporting them.

Headline, kicker, caption

The same argument than above (namely, that Sunday Times was justified to publish the source’s information as allegations, because it had reason to believe those data to be substantially true) goes for the headline, the kicker and the caption.

Finding

The complaint is dismissed.

Appeal

The Complaints Procedures lay 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.

Johan Retief

Press Ombud