Ruling by the Press Ombudsman
5 September 2015
This ruling is based on the written submissions of Mothuloe Attorneys, those of Steven Motale, editor of The Citizen newspaper, and those of Riana de Lange on behalf of The Citizen.
Complaint
Mothuloe Attorneys and Mr Wycliff Mothuloe (“Mothuloe”) are complaining about two stories in The Citizen of 7 July 2015, headlined:
· Police look into missing millions – Family feud: Private investigator told to back off – Bakgatla-Ba-Kgafela chief investigated after R49 million disappears from Moruleng community’s trust account; and
· It’s just sibling rivalry, says lawyer – Firm handled billions of rands
Mothuloe complains that the stories falsely stated that:
· money went missing;
· he had:
o erected a “brick wall” against efforts to find the allegedly missing millions; and
o accused Chief Kgafela Kgafela of having received some of the missing funds – implying that by doing so he had admitted his guilt as he knew of funds going missing.
He also says that the stories omitted material information.
Mothuloe complains that the headlines falsely:
· stated as fact that millions of rands were missing;
· involved the police in this matter; and
· mentioned “billions of rand” – while the story is about R49-million in legal fees over a period in excess of five years.
He concludes that the stories as well as the headlines carried the false innuendo that he and his firm had stolen money from the Bakgatla-Ba-Kgafela Traditional Community, and that there was an apparent grudge on the part of the newspaper against him.
The texts
Both stories were written by Vicky Somniso-Abraham.
The first story said that police were investigating Chief Nyala Pilane of the Moruleng township in Rustenburg and attorney Wycliffe Mothuloe over R49-million that had allegedly gone missing from the Bakgatla-Ba-Kgafela Traditional Community (BBKTC) trust account.
The complainant was Chief Kgafela Kgafela, who had appointed investigating firm Paul O’Sullivan & Associates to investigate his cousin Mothuloe and uncle Pilane. Mothuloe Attorneys were representing BBKTC. Mothuloe reportedly refused to co-operate with O’Sullivan.
The second story stated that Mothuloe had accused Kgafela of having received some of the funds that had gone missing.
Analysis
The stories
Missing money
The first story mentions R49-million “that has allegedly gone missing”. The second mentions the “missing” money as fact (“Mothuloe made the claim after The Citizen asked him about the missing R49 million…”)
Mothuloe complains about the “innuendo” in the stories that he, through his firm, had stolen money from the Bakgatla community. He denies that any funds are missing – instead, payments have been made to several service providers.
A ‘brick wall’
The first story said, “O’Sullivan said his team went to Mothuloe’s office, but they were ‘rudely shown the door’. He said Mothuloe later sent an e-mail to his office, but they did not respond ‘in view of the attitude of non-cooperation displayed therein’.”
Later in the story, the following statement was made: “But the probe appears to have hit a brick wall with Mothuloe’s refusal to cooperate with investigators.”
Mothuloe complains about the use of the words “brick wall” and about the use of the plural where the story stated that he refused to co-operate with “investigators”.
In later correspondence he said O’Sullivan was a private investigator and he had no obligation to co-operate with him – he had, however, drawn up an affidavit for the police (which demonstrated his co-operation), after which he had not heard from the police again.
Implying admission of guilt
The second story said that Mothuloe had accused Kgafela “[of] being a recipient of some of the funds he claims went missing from the community trust fund”.
Mothuloe complains the implication that he knew of funds going missing also implied an admission of guilt.
He concludes that the stories had a “stinging innuendo” which amounted to defamation.
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Motale denies that the stories and the headline stated as fact that Mothuloe was a thief – they clearly stated that these were “mere allegations”. Moreover, both O’Sullivan and lieutenant Katlego Mogale of the SA Police Service had confirmed that a case of fraud was being investigated against Mothuloe. He also argues that the newspaper reported the facts objectively, and notes that it also published Mothuloe’s views extensively in the story below the main article. “This dismisses his assertion of The Citizen fuelling an innuendo.” And, “What we cannot do is to report the facts in a manner that will suit Mr Mothuloe.” The editor adds that Mothuloe himself, in his reply, mentioned that Kgafela had benefitted from “some of the funds that went missing”, and told the reporter that he had handled 21 cases for the BBK community involving billions of rands in the community’s trust account (Mothuloe’s response to O’Sullivan, par 9). “By his assertion that [Kgafela] is a beneficiary of the money he claims is missing, Mr Mothuloe is indirectly confirming that money is missing.” However, nowhere did the newspaper create the impression that Mothuloe had admitted guilt. Motale states it as a fact that Mothuloe is being probed – it is neither an allegation nor a rumour. Furthermore, responds Motale, it was not the newspaper who accused Mothuloe of “mounting a brick-wall” against efforts to find missing millions, it was O’Sullivan who made this claim. He adds that Kgafela appointed O’Sullivan to investigate Mothuloe. “It is not the responsibility of The Citizen to doubt his credentials…” The editor also argues that the sub-headline Firm handled billions of rands was accurate – it was taken from Mothuloe’s statement that he had handled billions of rands in the community’s trust account. |
My considerations
It is factual that the police are investigating Pilane and Mothuloe over R49-million that has allegedly gone missing. Therefore, there is nothing wrong with the introductory sentence in the first story.
The second sentence of the second story did refer to the money as missing, if viewed in isolation. However, the preceding sentence said Kgafela claimed the money went missing. It would have been safer to state it again as an allegation, but the context is the decisive factor in this regard.
Secondly, the use of the plural (“investigators”) clearly referred to O’Sullivan’s team. This cannot be held against the journalist.
However, I do believe that the journalist should have reported the reason for Mothuloe’s refusal to co-operate with O’Sullivan, as this was material information.
I asked the newspaper why it reported that Mothuloe had accused Kgafela “of being a recipient of some of the funds he claims went missing”.
De Lange replied, “Although our reporter confirms that in a three hour long interview with Mr Mothuloe, she insisted that part of it not be recorded. However, she remembers clearly how Mr Mothuloe claimed Kgafela was a recipient of some of the money.”
In this case, it is Mothuloe’s word against that of the reporter, and I have no way of deciding whom to believe.
Omission of material information
Mothuloe asks what the reason would be, if not malice and biased reporting, for the journalist to accuse him of being un-cooperative in the investigations, while he had already explained that the private investigator (O’Sullivan) had no investigate power – a fact The Citizen chose to omit because it would have defeated the accusations and innuendo the newspaper was fuelling (he says).
He adds that the newspaper also failed to report other relevant matters:
· that Kgafela had failed to obtain court orders against Mothuloe;
· that Kgafela had tried to bribe him to abandon a retainer agreement – an attempt he rejected outright; and
· an accusation related to fees for legal services for a period of over five years, which had been concluded in 2012.
My considerations
The story did not reflect Mothuloe’s reason for refusing to co-operate with O’Sullivan. This was material, and it should have been included (as I have already argued).
The rest of this part of the complaint, all reflected in the bullets, was not material to the story.
The headlines
Mothuloe complains that the headlines falsely:
· stated as fact that millions of rands were missing;
· involved the police in this matter; and
· mentioned “billions of rand” – while the story is about R49-million in legal fees over a period in excess of five years.
Motale denies that the stories and the headline stated as fact that Mothuloe was a thief – they clearly stated that these were mere allegations.
My considerations
I have asked the newspaper the following question:
“In one place in the first story it was stated that R49-million ‘allegedly’ went missing. In the second story, as well as in the headline of the first story, this was stated as fact. I accept it is factually correct that Mothuloe is being investigated, but can it at this stage be stated as fact that the money IS missing? If so, why?”
De Lange replied that “there might be some substance to the question about the ‘missing millions’ in the headline” of the first story.
I also note that in what can be described as a second sub-headline the following statement appeared: “Bakgatla-Ba-Kgafela chief investigated after R49 million disappears from Moruleng community’s trust account.”
Again, this was stated as fact – which was not reflective of the story, and the newspaper was not justified to state it as such.
Clearly, the police was involved in the investigation.
Also, in correspondence by Mothuloe, directed at O’Sullivan and dated 23 June 2014, he mentioned that his firm had handled “billions of rands”. The sub-headline merely reflected that.
Grudge, bias
Mothuloe complains that The Citizen and the editor still bear a grudge against him for having acted against the newspaper on behalf of Mr J. G. Zuma (who later became president).
Motale says the newspaper has no reason to be biased against Mothuloe, or to hold a grudge against him. The fact that he was given a fair opportunity to state his side of the story reflects the newspaper’s “commitment to report fairly and objectively”.
He states it is appalling that Mothuloe would stoop so low as to use Zuma’s name to fight his own battles. “For the record, Mr Zuma withdrew his legal challenge against…The Citizen. How we can still bear grudges against a lawyer that acted on behalf of Mr Zuma [in] a matter that was never heard by the courts and in which he…was removed by the president defies logic.”
The editor says Zuma removed Mothuloe as an attorney as he believed the latter had been overcharging him. The newspaper exclusively reported that Mothuloe had not been paid a single cent for his services. “If this publication and its editor had a grudge against Mr Mothuloe why would it publish a story in his favour in which he was an alleged victim of the President? His argument is groundless.”
He denies that the newspaper is part of a campaign to have Mothuloe removed as an attorney for the Bakgatla-Ba-Kgafela, as Mothuloe claims.
My considerations
I have no reason to believe the serious allegation that the newspaper has a grudge against Mothuloe.
Overall impression
Mothuloe concludes that the overall impression of the stories is that he and his firm stole R49-million from the Bakgatla people, “[thereby] misrepresenting the truth in an unbefitting way which is in addition, unfair, unprofessional and in contravention of [the newspaper’s] code of conduct”.
He attests that The Citizen is biased, in part due to is its desire to project him in an unfavorable light so as to influence the subconscious minds of the courts with a view to frustrating his firm’s multi-million rand litigation against the North West Housing Corporation and the MEC of Housing, as reported by the newspaper in May 2015. “Sadly for you, judges and Courts do not work that way.”
Motale emphatically denies this.
My considerations
The report did not create that impression – the headlines to the first story excluded.
Finding
The stories
Missing money
This part of the complaint is dismissed.
A ‘brick wall’
This part of the complaint is dismissed.
Implying admission of guilt
There is no finding on this part of the complaint.
Omission of material information
The negligent failure to report the reason for Mothuloe’s refusal to co-operate with O’Sullivan was in breach of Section 2.2 of the Press Code which states, “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”
The rest of this part of the complaint is dismissed.
The headlines
The headline to the first story, as well as its second sub-heading, stated as fact that millions of rands were missing, while the text presented this as an allegation. This was in breach of Section 10.1 of the Press Code that says, “Headlines…shall give a reasonable reflection of the contents of the report…in question.”
The rest of this part of the complaint is dismissed.
Grudge, bias
This part of the complaint is dismissed.
Overall impression
This part of the complaint is dismissed.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breaches of the Code as described above are Tier 2 offences.
Sanction
The Citizen is reprimanded for:
· failing to report the reason for Mothuloe’s refusal to co-operate with O’Sullivan; and
· stating as fact, in the headline and second sub-heading to the first story, the allegation that millions of rands went missing.
The newspaper is directed to publish this finding either on page 2 or 3, above the fold, the text of which should be approved by me. The text should end with the words, “Visit www.presscouncil.org.za for the full finding.”
It the stories appeared on its website, the text should go there as well.
The headline should reflect the content of the text. A heading such as “Matter of Fact”, or something similar, is not acceptable.
Appeal
Our 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 Ombudsman