Dates of publication:
Article 1: 9 September 2023
Article 2: 25 September 2023
Headlines:
Article 1: Health Minister accused of cover-up as official who probed corruption ‘suspended’
Article 2: Corruption cover-up: Court forces health minister to act on R.12 billion fraud report
Author: Khaya Koko
Particulars
This finding is based on a written complaint by Mr Rupert Candy, an attorney, on behalf of Ms Jeanette Hunter, the Deputy Director-General of Primary Health Care in the national Department of Health, in her personal capacity. The complaint includes four annexures, most notably a letter by Mr Candy to News24 on behalf of Ms Hunter (Annexure C) and a written response to this letter on behalf of News24 by its Political Editor, Ms Qaanitah Hunter, and its Public Editor, Dr George Claassen (Annexure D).[1] In lieu of a written response to the complaint, News24 submitted Ms Qaanitah Hunter and Dr Claassen’s reply to Mr Candy’s letter and elected not to make any additions. In a further written response, Mr Candy noted News24’s decision. In addition, at my request, Mr Candy provided a copy of the Auditor-General’s communication dated 15 September 2020, and News 24 provided a copy of a report by suspended health department advocate Maile Ngake dated 12 October 2020 as well as copies of a judgment by the North West High Court dated 30 July 2020 and a draft order by the Gauteng High Court dated 20 September 2023.
Complaint
The complainant submits that the two articles in question transgress Clauses 1.1, 1.2, 1.3, 1.7, 1.8, 1.9 and 3.3 of the Press Code:
“1. The media shall:
“1.1 take care to report news truthfully, accurately and fairly;
“1.2 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;
“1.3 present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such; …
“1.7 verify the accuracy of doubtful information, if practicable; if not, this shall be stated;
“1.8 seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated;
“1.9 state where a report is based on limited information, and supplement it once new information becomes available; …
“3. The media shall:
3.3 exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:
3.3.1 the facts reported are true or substantially true; or
3.3.2 the reportage amounts to protected comment based on facts that are adequately referred to and that are either true or reasonably true; or
3.3.3 the reportage amounts to a fair and accurate report of court proceedings,
Parliamentary proceedings, or the proceedings of any quasi-judicial tribunal or forum; or
3.3.4 it was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct; or
3.3.5 the article was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party; …”
1. Summary of articles
Article 1: Health Minister accused of cover-up as official who probed corruption ‘suspended’
1.1. According to the article, Health Minister Joe Phaahla’s recent suspension of health department advocate Maile Ngake, who reportedly uncovered R1.2 billion in tender fraud, is believed to support “contentions” that the Minister was part of a corruption cover-up.
1.1.1. An investigative report authored by Ngake in October 2020 found that the North West health department broke several laws when it awarded security contracts to 22 companies in September 2019 to guard the province’s health facilities and offices.
1.2. News24 reportedly established – from internal ministerial documents and other sources –that Ngake’s removal in August was part of Phaahla’s alleged concealment of corruption, and resulted from legal action by Dr Buyani Makhubu, the North West health department supply chain management director who was fired in August 2022.
1.2.1. Makhubu was dismissed despite the findings of the October 2020 probe that he “never played any role [in] the awarding of the tender for physical security services”.
1.2.2. According to North West health spokesperson Tebogo Lekgethwane, Makhubu was fired as a way of “implementing consequence management whenever there is evidence of wrongdoing”, but did not elaborate on what role Makhubu played in the tender.
1.2.3. Makhubu is challenging his dismissal and sent a number of legal letters to Phaahla requesting Ngake’s report. However, the Minister reportedly acknowledged but ignored these requests.
1.2.4. Makhubu declined to comment and did not respond to News24’s questions.
1.2.5. When Ngake was contacted for comment, he said he did not know why he was suspended and declined to discuss the matter.
1.3. In a report dated September 2020, the Auditor-General’s office states that the three-year security tender exceeded the initial budgeted amount of R900 million by nearly R322 million, and refers to various “anomalies”.
1.3.1. According to Lekgethwane, the Auditor-General only found the tender flawed due to the misinterpretation of what vehicle registration documents were required by the department for bids to be successful and contracts awarded.
1.3.2. He said the Auditor-General confirmed the North West health department’s position that the expenditure was irregular on the grounds that the tender was awarded with errors and not because it was riddled with alleged corruption.
1.4. The Auditor-General’s view that unauthorised officials received bid documents were reportedly echoed by Ngake’s findings, which state that two senior North West health officials – with Hunter’s full knowledge – met with prospective bidders “to negotiate [alleged bribery] payments”.
1.4.1. A North West High Court judgment also previously ruled in July 2020 that the security tender was irregular and ordered it to be set aside.
1.5. Ngake’s probe recommended that Hunter be suspended and investigated for her “irregular” role in awarding the contract and approving appointment letters “without exercising due diligence to ascertain whether the letters [were] accurate and correct”.
1.5.1. Hunter was appointed an administrator in April 2018 when the national government placed 10 North West departments under administration following governance failures in the province. She was the designated accounting officer for the health department during the four-year administration.
1.5.2. According to both Ngake’s report and the Auditor-General, Hunter reportedly backdated the appointment letters sent to the 22 companies awarded the security tender to 30 September 2019 – “the last legal day in which the tender process had to be concluded”.
1.6. News24 sent detailed questions to Phaahla’s office and the health department. Its spokesperson, Foster Mohale, promised to respond but said he needed the Minister to sign off on the answers.
1.6.1. Mohale referred News24 to Phaahla’s media liaison officer, Ngwako Tshwale, who said the Minister was in a meeting and would sign off on the responses after the meeting. Repeated attempts to obtain a response from Phaahla, including text messages and telephone calls, were subsequently “ignored”.
Article 2: Corruption cover-up: Court forces health minister to act on R.12 billion fraud report
1.7. According to the article, the Gauteng High Court in Pretoria ordered Health Minister Joe Phaahla to act on an investigative report into corruption involving R1.2 billion “after the minister’s months-long alleged attempts to conceal the widespread fraud”.
1.7.1. Phaahla was also issued with a cost order for the application and directed to explain what happened to an October 2020 forensic probe that uncovered large-scale corruption by the North West health department. The report found that several laws were broken when 22 companies were awarded security contracts in September 2019 to guard the province’s health facilities and offices.
1.7.2. The original security tender amount was for R900 million which, according to an Auditor-General report in 2020, increased to more than R1.2 billion.
1.8. The High Court ruling followed a legal challenge by Dr Buyani Makhubu, the North West health department’s former supply chain management director who was fired in July 2022 for allegedly taking part in the corrupt contract even though the October 2020 report found that he “never played any role [in] the awarding of the tender for physical security services”.
1.8.1. Makhubu launched an urgent application to force Phaahla to provide him with the signed forensic report so that he could challenge his “unfair” dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA).
1.8.2. In an affidavit deposed by deputy director-general Malixole Mahlathi on behalf of Phaahla, the Minister requested a postponement to the court application in order to verify the information in the October 2020 report and to sign it.
1.8.3. This was dismissed and the court reportedly found that the ministry had three years to finalise the recommendations listed in the report, including probing its deputy director-general for primary healthcare, Jeanette Hunter, the national health department-appointed administrator in North West from 2018 to 2022, who was implicated in the findings.
1.8.4. Phaahla’s spokesperson, Doctor Tshwale, told News24 that the Minister would “provide an update [on the 2020 findings] … as per the court order”.
1.9. According to the News24 article, it established from several health department sources that Phaahla orchestrated the August suspension of advocate Maile Ngake from the national health department’s anti-corruption unit “in his alleged concerted corruption cover-up efforts”.
1.9.1. Ngake, who declined to comment, authored the 2020 report and spent the past three years agitating for the implementation of its recommendations.
1.9.2. In a media statement, the health department denied that Phaahla had anything to do with Ngake’s suspension and said the Minister “cannot suspend or take disciplinary action against an employee”, in line with the senior management handbook of the public service.
2. Arguments
Jeanette Hunter
2.1. The complainant submits that News24 published the two articles without providing her with an opportunity to respond to the allegations contained in them. As a result, she contends, inaccurate, unfair and defamatory statements were published about her.
2.1.1. The complaint refers to four paragraphs in Article 1 and to one paragraph in Article 2. It goes on to argue that these articles contravene a number of clauses of the Press Code, namely Clauses 1.1, 1.2, 1.3, 1.7, 1.8, 1.9 and 3.3.
2.2. The complainant’s arguments are outlined in more detail in a letter to News24 dated 27 September. This points out her “grave concerns” about the two articles and notes that the letter is an attempt to resolve these “directly and amicably” with the news website.
2.2.1. The letter goes on to state that the articles do not portray a truthful and accurate representation of the facts, and that there are clear misrepresentations with regard to the complainant.
2.2.2. It submits that the author neglected to approach the complainant for comment on the allegations against her and also failed to verify the accuracy of the details insofar as they relate to her.
2.3. The complainant’s letter further notes that Article 1 contains “numerous quotes from and references to an unsigned and unofficial investigation report allegedly authored by Mr Ngake” (emphases in original), and submits that these purportedly direct quotes, in fact, misquote the report.
2.4. The complainant’s letter also contends that neither the North West High Court nor the Auditor-General have made findings or allegations against the complainant or the provincial health department.
2.4.1. Rather, the North West High Court handed down a draft order which was agreed to by the parties. This was, in part, because the North West health department identified errors in the bid specifications document.
2.4.2. For example, bidders were expected to provide details of vehicle ownership, but some submitted certificates of roadworthiness instead. The North West health department felt this was an error on its part and that it could have worded the bid specifications document better.
2.4.3. It was on this basis, the letter contends, that it was decided that the North West High Court matter referred to in the article was consented to in terms of a draft order. It argues that this was a simple matter in an unopposed motion, and that nothing indicates corruption, particularly on the part of the complainant.
2.4.4. The letter further submits that Article 1 refers to a previous City Press story which was also published without any attempt to verify its contents with the complainant.
2.5. The complainant’s letter argues that the News24 articles undermine the dignity, integrity and reputation of the complainant by containing damaging and untruthful statements and allegations, and that they contravene a number of clauses of the Press Code.
2.5.1. As such, the letter demands that amends are made by publishing a retraction and an apology on every platform where the original content was published, in line with Clause 1.10 of the Press Code. If News24 fails to do so by 5 October, the letter says, it will file a formal complaint with the Press Council.
News24[2]
2.6. In its reply on 2 October to the complainant’s letter, the respondent points out that it published various articles which led to the complaint.
2.6.1. It further notes that the reports that formed the basis for its articles “happened” during the complainant’s four-year tenure as the appointed administrator of the North West health department.
2.6.2. It states that when News24 sent the first media query to Mohale on 1 September, its reporter Khaya Koko clarified that the allegations he would write about related to the complainant’s administration period, “with all the attendant dates of the reports stated”.
2.6.3. The respondent gave the department more than a week to respond to the questions before publishing its first article on 9 September. During this period, messages were sent and calls were made to the national health department’s Director General, Dr Sandile Buthelezi, by both Koko and Qaanitah Hunter, News24’s Political Editor.
2.6.4. News24 concedes that it did not specifically mention the complainant’s name in its questions. This was based on the assumption that, by alluding to the health department’s role in the administration of the North West, she would be one of the people involved in answering its query both as a health department employee and as someone directly involved in the matter.
2.7. Regarding the quotes from Ngake’s report in Article 1, the respondent submits that “these were quoted as [they] appeared in the report”.
2.7.1. It goes on to deny that the information in the report was “unofficial” in view of the fact that it went to the Gauteng High Court, which found the allegations in the report to be “valid enough to order the Minister to act on it by determining whether he accepts the findings”.
2.7.2. The Ngake report was therefore, in the respondent’s view, an official document lodged in court and on which News24 and other media could report. News24 states that it is common knowledge that reporting from court is from “a privileged environment” and that media reports quoting from official court documents cannot be regarded as defamatory.
2.7.3. Moreover, the respondent adds, its articles included comments from the health ministry and health department on the status of Ngake’s report, including the complainant’s views on it being unsigned.
2.8. The respondent notes that the Auditor-General’s report was addressed to the complainant as the accounting officer of the North West health department during the period of the security tender, and that it found that several laws were broken during the issuing of the tender, including the Public Finance Management Act (PFMA).
2.8.1. It submits that it is false if the complainant is saying she was not the accounting officer during the North West’s administration.
2.9. The respondent further contends that the North West High Court order was unrelated to the Auditor-General’s findings, whose outcomes and recommendations included that the contravention of section 38(1)(b) of the PFMA resulted in the budgeted amount increasing by more than R321 million and that there were “anomalies pertaining to the unfair awarding of bidders that were initially disqualified; however, [they] were added by pen [in] the evaluation stages”.
2.9.1. News24 states that none of the Auditor-General’s findings were listed in the North West High Court challenge, and suggests that it was therefore disingenuous to maintain that the only irregularities with the tender involved erroneous vehicle documents submitted by the bidders.
2.9.2. It adds that the Minister said during a media briefing on 28 September that he would “follow up” on whether the Auditor-General’s recommendations on the security contract were implemented.
2.10. The respondent further states that, as the administrator in the North West health department, it expected that the complainant would be involved by the health department’s spokesperson in drafting a response to its enquiry. It submits that this is “a valid way of allowing and applying the audi alteram partem (right of reply)” to the complainant.
2.10.1. It adds that nothing it quoted was false and can be backed up with documentary evidence from the Ngake report filed in court.
Jeanette Hunter[3]
2.11. In response to News24’s reply to her letter, the complainant referred to the following questions sent by News24 to Lekgethwane on 1 September: “Why has the Department and the MEC not only concealed reports of wrongdoing about the aforementioned contract, but also not implementing directives including from the High Court? Is the Department and MEC not worried about the Government’s image and perceptions of corruption cover[-]ups by not acting on evidence of corruption?”
2.11.1. Lekgethwane replied on 4 September that the Auditor-General did not allege any corruption and that the security tender was set aside by the North West High Court by agreement between the parties.
2.11.2. The complainant submits that News24 was therefore in possession of the North West health department’s response, but did not include this in Article 1 and that no explanation was provided for the omission, in violation of Clause 1.2 of the Press Code.
2.11.3. She also states that the department was never furnished with Ngake’s report and that, when the department requested a copy from News24, Koko indicated that he does not have the report.
2.12. The complainant refers to News24’s acknowledgment that her name was not mentioned in the questions addressed to the health department and, instead, attempts to rely on the “assumption that by alluding to the Department’s role in the administration of the North West, she would be one of the people involved in answering News24’s query as an employee of the Department and directly involved in the matter”.
2.12.1. She states that “[t]he mere reliance on assumptions and allusions are simply not good enough”, and that there was no indication that she would be “named and defamed” in the article.
2.12.2. The complainant was not asked to respond to the allegations against her and her name was not included in the department’s response because she had never been linked to “the allegations [that] stem from multiple reports on the irregular Physical Security Tender by the North West Health Department”.
2.12.3. She submits that she had no reason to believe that she would be mentioned in the article because no allegations were made against her in the questions posed to the department.
2.13. The complainant reiterates that Koko informed the North West health department that he was not in possession of Ngake’s report when it requested a copy (see 2.11.3 above). However, she states, News24 claims in its reply to her letter that its statements about her were “quoted as [they] appeared in the report by Advocate Maile Ngake”.
2.13.1. One of these quotes in Article 1 states that two senior North West health officials met prospective bidders “to negotiate [allegedly bribery] payments”, with the full knowledge of the complainant.
2.13.2. She states that she has no knowledge of a meeting between government officials and the security companies that submitted bids on the tender, and that no-one has come forward with evidence of such a meeting.
2.14. The complainant further argues that the mere fact that Ngake’s report was lodged in court does not make it an “official” document (Article 2).
2.14.1. Moreover, she submits, the respondent does not reference the quotes from Ngake’s report “in the context of quoting a court document”. She contends that the report was quoted as though the article was repeating statements made about the complainant in an official investigation report.
2.14.2. According to the complainant, the national Department of Health still does not have a signed version of Ngake’s report and the Minister therefore could not accept the report because it was not signed.
2.15. The complainant then addresses News24 claims that its articles include comments by the Ministry, the Department and the complainant on the status of Ngake’s report. She rejects this as untrue as she was not approached for comment and therefore did not make any comment.
2.15.1. She further argues that, even though the North West health department informed News24 that no allegations of corruption were made by the Auditor-General, the respondent refers to a “report” that was addressed to her that found that several laws were broken during the issuing of the security tender during her tenure as accounting officer.
2.15.2. She asserts that no such report exists and states that, while there was indeed communication from the Auditor-General to her in her capacity as the accounting officer, its purpose was not accusatory “but rather to bring the issues to the attention of the Accounting Officer to note the findings and act on them”.
2.16. The complainant further argues that News24 erroneously relies on an alleged audit report by the Auditor-General addressed to the complainant to justify its actions. However, she argues, such a report does not exist.
2.16.1. She assumes that News24 is referring to communication from the Auditor-General to the complainant that brings certain issues to her attention for action (see 2.15.2 above). However, she adds, many of the statements that were allegedly based on this “report” were not even included in the communication from the Auditor-General.
2.17. The complainant also argues that News24 erroneously relies on Ngake’s report filed at the Gauteng High Court to justify its actions. She submits that this report is not an investigation report, but “merely a poor record of what specific persons have allegedly said”.
2.17.1. She adds that the mere fact that the report was lodged at court does not change the nature of the document: it is an unverified, unsigned and unofficial document without any evidentiary value. She maintains that the validity of the report was not considered by the court and that it did not make any decision on it.
2.17.2. Moreover, she submits that News24 failed to take reasonable steps to determine the validity of the report or the veracity of its contents, in violation of Clauses 1.1, 1.3 and 1.7 of the Press Code.
2.18. Lastly, the complainant argues that News24 erroneously relies on the court order granted by the North West High Court regarding the security tender to justify its actions.
2.18.1. She submits that the court order was agreed to by the parties: the North West health department discovered errors in the evaluation and adjudication of the tender that justified reviewing and setting aside the award; the department therefore agreed with the order to set aside the bid.
2.18.2. She notes that News24 was provided with this information in the North West health department’s response.
2.19. In conclusion, the complainant maintains that News24 failed to provide a satisfactory response to her and failed to make amends in accordance with the Press Code (before the 5 October deadline it gave to the news website).
2.19.1. She submits that she was not provided with an opportunity to respond to the allegations in the two articles and that no reasonable explanation was provided for News24’s failure to do so.
2.19.2. She notes that, in terms of Clause 1.8 of the Press Code, the media must “seek, if practicable, the views of the subject of critical reportage in advance of publication”. She argues that she was one of the subjects of such reportage in her personal capacity and that the questions addressed to the national Department of Health and the North West health department do not suffice.
2.19.3. She contends that the questions were “specifically related to the Departments in a general sense”, and that there was no individual mention of her.
2.19.4. In light of the above, the complainant requests that News24 be ordered to publish a retraction and an apology.
3. Analysis
Article 1: Health Minister accused of cover-up as official who probed corruption ‘suspended’
3.1. The status and contents of Ngake’s report are at the centre of the complaint that Article 1 is in breach of Clauses 1.1, 1.3 and 1.7 of the Press Code (see the points outlined under 2.17 above).
3.1.1. With regard to Clause 1.1, it should be noted that, contrary to the complainant’s submission (in point 2.3 above), there is no evidence of any “misquotes” from Ngake’s report in Article 1.
3.1.1.1. The only deviation from a direct quote in this article is the reference to “the terms of their negotiations” instead of to “their … negotiations terms” as in the original report. While a direct quote should always be retained word for word, unless clearly indicated otherwise, in this instance the amendment is by no means material and does not alter the original meaning of the direct quote in any way.
3.1.2. Secondly, the complainant takes issue with the reference in the article to a “report” from the Auditor-General’s office in September 2020. The complaint insists that no such report exists, and acknowledges only that a “communication” was sent by the Auditor-General to the complainant in her capacity as the accounting officer (see points 2.15.2, 2.16 and 2.16.1).
3.1.2.1. However, even if this is correct in the strict sense, it amounts to not much more than a quibble about semantics. At one point – in her letter to News24 – the complainant herself refers to the communication as an “audit report from the Attorney-General” (my emphasis).
3.1.2.2. It is also worth noting that the communication to the complainant is headed as follows: “Communication of findings identified during the audit of compliance with legislation for the year ended 31 March 2020.”
3.1.2.3. In light of the above, there is little merit in the complaint that the article relied on a report which does not exist.
3.2. The complainant’s argument that Article 1 is in breach of Clauses 1.3 and 1.7 is largely premised on its view that Ngake’s report is an unofficial document without any evidentiary value. As such, she argues, there was an obligation on the respondent to verify its contents.
3.2.1. However, even though the report is not signed, it is the outcome of hearings conducted by a duly authorised official and, as such, enjoys a quasi-judicial status. In other words, it enjoys a status similar to the outcome of court proceedings.
3.2.2. Ngake’s report has not been set aside or voided. In fact, the Gauteng High Court recently ordered the Health Minister to explain “what transpired with the unsigned … Investigation Report, explain why the report has not been signed, and adopt a final position (accept or reject) on the report”.
3.2.3. Furthermore, the respondent does not rely exclusively on Ngake’s report for the contents of Article 1. It draws on the communication from the Auditor-General as well as on what it describes in the article as “internal ministerial documents and highly-placed sources”.
3.2.4. This suggests that an effort was indeed made to obtain information from elsewhere to verify the contents of Article 1. Accordingly, the article sufficiently complies with the requirements of Clauses 1.3 and 1.7.
3.2.5. In addition, there is a compelling argument in favour of publishing the contents of Ngake’s report on the grounds of public interest, notwithstanding its status as an unsigned document.
3.2.5.1. Ngake compiled his report on allegations of maladministration and/or malfeasance in October 2020 – almost three years before the publication of Article 1. Yet there is no indication that the Health Minister previously made any effort to adopt a position on the report after it was written.[4]
3.2.5.2. This is cause for concern in view of the scale and frequency of corrupt activities in South Africa, whether by acts of omission or commission.
3.2.5.3. To quote an alarming statement from an article in last year’s annual report of the South African non-profit organisation Corruption Watch: “Corruption in South Africa is both endemic and systemic, part of the fabric of public governance from state-owned enterprises to most municipalities in the country.”[5]
3.2.5.4. The Auditor-General’s 2022/2023 annual report expresses a similar view: “The persistent lack of prudence in spending, inadequate financial management and inadequate accountability for financial performance erode the limited public funds available, and the scope for beneficial spending on service delivery is severely limited.”[6]
3.2.5.5. In light of the keen interest by the public in matters related to alleged financial mismanagement in South Africa, and the inordinate delay in adopting a position on Ngake’s report by the relevant authorities, there were sufficient grounds to publish the contents of this report.
3.3. Another aspect of the complaint is that Article 1 failed to include certain comments provided by Lekgethwane, the North West health spokesperson, in breach of Clause 1.2 of the Press Code (see 2.11.2 above).
3.3.1. However, the article does quote Lekgethwane’s statement that the Auditor-General did not allege any corruption as well as his explanation of why the provincial health department believes the security tender was set aside by the North West High Court.
3.3.2. He is quoted as saying that the Auditor-General only found the tender flawed due to misinterpretation by the department of the vehicle registration documents that bidders needed to submit.
3.3.3. Lekgethwane is quoted as follows: “It [Auditor-General] also confirms what the [North West health] department has stated that the expenditure was irregular because the tender was awarded with errors, not because it was riddled with corruption, as alleged. No corruption was alleged by the Auditor-General.” (my emphasis)
3.3.4. As this quotation clearly indicates, there is no attempt by the respondent to depart from the facts either through distortion or omission. There is, therefore, no basis for the complaint that Article 1 is not balanced and in breach of Clause 1.2.
3.4. The complainant further submits that the respondent failed to seek comment from her and, as such, is in breach of Clause 1.8 of the Press Code.
3.4.1. News24 notes in its letter to the complainant that it sent its first enquiry to Mohale, the health department’s spokesperson, on September 1. This is standard practice in a government department matter which is the subject of enquiry by the media.
3.4.2. And, in view of the fact that the complainant is a senior official in the health department, it is reasonable for News24 to expect that the response from the department will include input from her insofar as any questions relate to her portfolio.
3.4.3. However, the article also contains certain very specific allegations about the complainant in her individual capacity, yet she was not identified by name in the media enquiry in relation to these allegations. These allegations are that:
3.4.3.1. she knew about a meeting of two senior North West health department officials with prospective bidders to allegedly negotiate bribes (see 1.4);
3.4.3.2. Ngake’s probe recommended that she be investigated for her role in awarding the security contract, in particular approving appointment letters without first establishing whether or not the letters were correct (see 1.5); and
3.4.3.3. she manipulated the appointment letters by backdating them (see 1.5.2).
3.4.4. While the respondent was entitled to refer to these allegations in Ngake’s report (for the reasons outlined under points 3.2.1 and 3.2.2 above), these particular aspects of the article directly relate to the complainant in her individual capacity and, moreover, are of a serious and prejudicial nature.
3.4.5. As such, there was an onus on News24 to explicitly mention her by name in its questions to the provincial and/or national health department on those aspects of Ngake’s report which directly and specifically implicate her in certain allegations.[7]
3.4.6. Its failure to do so is therefore in breach of Clause 1.8.
3.5. By failing to name the complainant and solicit comment on these specific aspects which directly relate to her in her individual capacity, the respondent also fails in its obligation to exercise due care and consideration in matters involving the complainant’s dignity and reputation, as required by Clause 3.3.
3.5.1. As noted in a previous Press Ombud finding, Clauses 1.8 and 3.3 must be read in conjunction with each other.[8]
3.5.2. The reason is that, more often than not, failing to give the right of reply to a subject of critical reportage results in an infringement of his or her dignity and reputation in that he or she is denied an opportunity to respond to allegations specifically directed at him or her.
3.5.3. Even though it is undeniably in the public interest to report on matters related to alleged maladministration and corruption in South Africa, Clause 3.3 adds the important rider in sub-clause 3.3.4 that an article must be “prepared in accordance with acceptable principles of journalistic conduct”.
3.5.4. Article 1 fails to fully meet this requirement by not explicitly seeking comment from the complainant on those aspects in Ngake’s report which deal directly with her in her individual capacity.
3.5.5. The respondent cannot rely on a defence that Ngake’s report is an official document lodged in court and that a media report quoting from such a document can therefore not be regarded as defamatory (see point 2.7.2).
3.5.6. Ngake’s report was only lodged in court on 20 September – while Article 1 was published on 9 September.
3.5.7. In view of the above, this article is in breach of Clause 3.3.
3.6. The complainant does not provide any specific evidence to support the claim that Clause 1.9 of the Press Code was breached in Article 1. No details are provided about what new information came to light that was not subsequently included by the respondent. The complaint merely presents this claim as a matter of fact.
3.6.1. In the absence of any evidence to support the claim that Clause 1.9 of the Press Code was breached in Article 1, this aspect of the complaint is found to be without foundation.
Article 2: Corruption cover-up: Court forces health minister to act on R.12 billion fraud report
3.7. This article is primarily a court report involving a legal challenge in the Gauteng High Court by Makhubu, with some background information on Ngake’s report and his recent suspension.
3.7.1. The complainant objects to the reference in the article to Ngake’s recommendation in his report for a probe into “… Hunter, who was implicated in the findings for leading the alleged fraud …” (emphasis by the complainant), and again questions the status of the report (see 2.14.1 and 2.17.1).
3.7.1.1. For the same reasons outlined under points 3.2.1 and 3.2.2 in relation to Article 1, the respondent was entitled to refer to Ngake’s report in Article 2.
3.7.1.2. Moreover, the quotation in question makes no pronouncement on the guilt or otherwise of the respondent; it merely states that she was “implicated” in the findings of Ngake’s report.
3.7.1.3. Furthermore, Ngake’s report was lodged in the Gauteng High Court. As a court document, the respondent was entitled to refer to its contents.
3.7.1.4. There is therefore no substance in the complaint that this aspect of Article 2 is in breach of Clauses 1.1, 1.2, 1.3 or 1.7 of the Press Code.
3.7.2. Secondly, as previous findings of the Press Ombud have noted, there is no obligation on the respondent to seek comment on court proceedings or documents.[9]
3.7.2.1. Accordingly, there are no grounds to support a claim that the paragraph in question in Article 2 is in breach of Clause 1.8 of the Press Code.
3.7.3. Thirdly, no persuasive evidence is provided that Article 2 is an unfair and inaccurate account of proceedings in the Gauteng High Court.
3.7.3.1. Furthermore, the article adequately meets the requirements set out in Clause 3.3 of the Press Code and its relevant sub-clauses. As such, there is no breach of the Press Code in this regard.
3.7.4. Lastly, as with Article 1 (see 3.6), the complainant does not provide any specific evidence or details about what new information came to light that was not subsequently included by the respondent. The complaint merely presents this claim as fact.
3.7.4.1. In the absence of any evidence to support the claim that Clause 1.9 of the Press Code was breached in Article 2, this aspect of the complaint is found to be without foundation.
4. Finding
Article 1
The complaint that the article is in breach of Clause 1.1 is dismissed (see the reasons set out under point 3.1 of my Analysis, in particular 3.1.1 to 3.1.2.3).
The complaint that the article is in breach of Clause 1.2 is dismissed (see the reasons outlined in points 3.3.1 to 3.3.4 of my Analysis).
The complaint that the article is in breach of Clause 1.3 is dismissed for the reasons under points 3.2.1 to 3.2.4 of my Analysis; also see the points raised under 3.2.5.
The complaint that the article is in breach of Clause 1.7 is dismissed for the same reasons set out under points 3.2.1 to 3.2.4 of my Analysis; note, too, the points raised under 3.2.5.
The complaint that the article is in breach of Clause 1.8 is upheld (see the reasons outlined in points 3.4.3 to 3.4.5 of my Analysis).
The complaint that the article is in breach of Clause 1.9 is dismissed for the reason outlined in points 3.6 and 3.6.1 of my Analysis.
The complaint that the article is in breach of Clause 3.3 is upheld (see 3.5 of my Analysis, in particular points 3.5.1 to 3.5.6).
Article 2
The complaint that the article is in breach of Clauses 1.1, 1.2, 1.3 and 1.7 are dismissed (see the reasons set out in points 3.7.1.1 to 3.7.1.3 of my Analysis).
The complaint that the article is in breach of Clause 1.8 is dismissed for the reasons outlined in points 3.7.2 and 3.7.2.1 of my Analysis.
The complaint that the article is in breach of Clause 1.9 is dismissed (see the reason outlined in points 3.7.4 and 3.7.4.1 of my Analysis).
The complaint that the article is in breach of Clause 3.3 is dismissed for the reasons outlined in points 3.7.3 and 3.7.3.1 of my Analysis.
Firstly, News24 is required to publish an apology to the complainant for not affording her the right of reply to allegations that were levelled against her and for not exercising care and consideration regarding her dignity and reputation in Article 1.
The headline of the apology should contain the words “apology” and “Jeanette Hunter”, and the text of the apology should:
Secondly, News24 must publish the complainant’s comment on the issues set out under point 3.4.3. This may be done in the text of the online article or at the bottom of the article, with an indication that it was amended following a ruling by the Deputy Press Ombud. These amendments should be approved by the Deputy Press Ombud.
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
Tyrone August
Deputy Press Ombudsman
30 November 2023
[1] The two News24 articles in question are included in the complaint as Annexures A and B.
[2] As noted earlier, the respondent elected not to make any additions to its reply to the letter from the complainant’s legal representative. News24’s reply to Candy’s letter is therefore treated as its response to the complaint.
[3] The response of the complainant’s legal representative to News24’s reply is included in the complaint to the Press Council, but is treated in this section as the complainant’s further written response.
[4] As noted previously, the Gauteng High Court addressed this issue on 20 September. In response to an affidavit deposed on the Minister’s behalf requesting a postponement to the court application in order to verify the information in Ngake’s report and sign it, the court instead directed the Minister to adopt a final position on the report.
[7] Former acting assistant Press Ombud Johan Retief expressed a similar view in Janine Julies Nale vs City Press (11 June 2020): “[The respondent] is correct to argue that questions to an official in a government department or ministry should be referred to an official spokesperson. However, the allegations published against Nale [were] of such a nature that City Press should have asked her comment on them. It was then up to her either to respond, or to refer the questions to a spokesperson.”
[8] Although in a different context, then Deputy Press Ombud Herman Scholtz rightly observes in Siyabonga Gama vs Sunday Times (16 June 2021): “… Clause 1.8 is in my view a general provision to protect the reputation and dignity of a subject of critical reportage. It cannot be isolated from Clause 3 which deals with matters of reputation and dignity in more detail. The clauses must be read together.”
[9] See, for example, Scholtz in Siyabonga Gama vs Sunday Times (16 June 2021): “… [M]y view [is] that Clause 1.8 is not applicable to reportage on privileged occasions or documents …” Court proceedings or court papers are deemed to have such a privileged status (the only proviso is that reporting on such proceedings or documents must be fair and accurate). Also see then Press Ombud Johan Retief’s finding in Tuwani Mulaudzi vs The Sunday Independent (16 October 2014): “The … story reported on court documents – which it was justified to do, without asking [the complainant] for comment.”