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Nage vs Sunday Times


Tue, Sep 5, 2023

Ruling by the Press Ombud

Date of article:                    29 January 2023

Headline of publication:   “They have broken me, my life is hell”

Sub-headline:                      “Daybreak Farms whistleblower says she would never do it again after enduring two years of harassment and financial ruin”

Author:                                  Sabelo Skiti

                                                                                        

  1. Sunday Times has been writing a series of articles about Daybreak Farms, a company owned by the Public Investment Corporation (PIC).
  1. Lerato Nage (“Nage”), former chairperson of Daybreak Farms, complains about one of these articles.
  1. Nicki Güles answered on behalf of the Sunday Times.
  1. The written representations and supporting documents submitted by both parties comprised no less than 359 pages.

The backdrop

  1. The controversy surrounding Daybreak Farms is a quagmire, as is evident from the sheer volume of written representations in this matter.  At its core, the topic concerns wide-ranging allegations of malfeasance at Daybreak Farms. As the PIC mostly invests money of pensioners an intensive media spotlight on Daybreak is both to be expected and warranted.
  1. The board of directors has changed more than once in the last few years, several top executives have been suspended and axed, an investigation was launched by the PIC, at least one forensic investigation was performed, charges were laid with the police, and several tip-offs from various role-players were received.   From the documents provided by the parties, it is clear that many of these processes were still pending when the article appeared:

6.1 Two Labour Court cases are or were pending;

6.2 A criminal investigation by the Hawks was pending, although charges were provisionally withdrawn in one matter brought to court;

6.3 Other litigation was apparently underway or planned, as is evident from the existence of a so-called Anton Piller order, which is an order obtained without notice to other parties in order to search for and preserve evidence for litigation.

  1. None of the complexities mentioned up to now bars the media from conducting thorough and responsible investigative reporting. Quite the contrary.
  1. In adjudicating this matter, two guiding principles must be stated upfront.

8.1 As a general rule, media consumers only know what they are informed about. A reader does not know nearly as much about a topic as the author of the article. There is difficulty in performing an after-the-fact analysis of the truth or otherwise of certain statements where the parties rely on extensive documents not referenced in the article or not widely known to the public.   

8.2 The mechanism provided by the Office of the Press Ombud to adjudicate complaints has constraints to resolve disputes of fact. The Ombud is not a court of law, has no independent investigative mandate or powers, nor the ability to subpoena witnesses. These constraints are, in my view, by design and a necessary consequence of providing a flexible and pragmatic procedure to the public and news media to resolve complaints outside of the legal system..

  1. As a final introductory remark, I can assure the parties that I read the entirety of documents provided, even though it is impossible in a ruling like this one to scratch the surface of issues raised. In addition, it is in my opinion even undesirable to canvass all the issues raised.

The article

  1. Sunday Times interviewed Mathapelo More (“More”), an auditor by profession, who used to be an executive of Daybreak Farms. More recounted in some detail the hardships she had to endure since leaving Daybreak Farms and her view that she was ostracised and persecuted for being a whistleblower.
  1. The article’s focus is on the subject of whistleblowing in the widest sense. It quotes various experts on this subject and highlights the need to protect those who make disclosures in the public interest.
  1. Nage’s name features in only five paragraphs of the article. They are:

12.1 “More’s problems began in January 2021 when the PIC announced to Daybreak where she was working as an audit and risk manager, that it had appointed a new board made up of three nonexecutive directors including chair Lerato Nage.”

12.2 “Last October, the Sunday Times reported that more than R150m had been siphoned from Daybreak through irregular procurement deals that benefited individuals linked to Nage and PIC company secretary Bongani Mathebula.”

12.3 “A Sunday Times investigation over several months uncovered that Mathebula, who has styled herself as a whistleblower against former PIC boss Dan Matjila, was identified by the PIC’s own forensic investigation as having allegedly flouted and manipulated its policies to appoint the board chaired by Nage, with whom she had previously worked but had not declared.”

12.4 “Nage and his board have maintained that they had nothing to do with the looting and were instead dealing with corruption perpetrated by executives.”

12.5 “But More and her colleagues…were hounded out and are battling to clear their names after alerting the PIC to the alleged governance breaches and maladministration by Nage’s board.”

The complaint

  1. Nage’s complaint was initially based on breaches on clauses 1.1., 1.2, 1.4. and 1.8 of the Press Code. He later abandoned a complaint under clause 1.4., which was a complaint about the use of a picture of him without his permission.
  1. On clause 1.1., Nage says:

14.1 It is inaccurate and false that individuals, companies or service providers used by Daybreak Farms are linked to him. “I have no relations with any of them.”

14.2 It is false that a certain law firm used by Daybreak is linked to him. “This law firm was procured through a three-quote system in accordance with the company’s procurement policy and after a board resolution (not my sole resolution)”.

14.3 Nage says a forensic investigation report produced in March 2021 identified irregularities and misconduct of management, including More, and not the board.

14.4 The date of appointment of the board headed by Nage is incorrect. That board was appointed in 2020 already.  

14.5 It is factually incorrect to record in a caption to a picture of More that she “was fired from PIC-owned Daybreak Farms for exposing corruption”. Nage says More was irregularly appointed in the first place and her contract of employment expired. She was therefore not fired. He further states that there is “no corruption linked to me which Ms. More has exposed”. “It does not exist. The corruption and unlawful activities which were found were against management, including Ms. More.” He lists several findings allegedly made by forensic investigators, although the forensic investigation report was not provided to the Ombud based on confidentiality considerations.

14.6 “Ms. More is not a whistleblower, as the Sunday Times article has portrayed her to be.” He says More was involved in various acts of fraud and corruption, and this “resulted in the National Prosecuting Authority charging her at the Pretoria Commercial Crimes Court”.

14.7 Although More and other executives wrote a letter to the PIC in January 2021, “their complaint was not compliant with the provisions of the Protected Disclosures Act”.

  1.  With regards to clause 1.8, Nage says it was incumbent on Sunday Times to provide him an opportunity to respond to the allegations prior to publication. He says he was not contacted by Sunday Times.
  1. On clause 1.2., requiring balanced reporting without distortions and material departure from the facts, Nage says:

16.1 There is no mention made of other board members or that the decisions concerned were board decisions rather than Nage’s personal decisions.

16.2 “The Sunday Times article alleges that Ms More has been enduring harassment and financial ruin after exposing corruption and her employment was terminated. It does not state who terminated her employment. Furthermore, the Sunday Times article does not state who has been harassing Ms More, but it states as a fact that individuals linked to me have stolen money from Daybreak Farms. These omissions by Sunday Times constitute a breach of clause 1.2. of the Press Code.”

16.3 The use of the words “Nage’s board”, in the context that it appeared, “insinuates that (Nage) was an overpowering figure, the other board members did not fulfil their fiduciary duties and that (he) abused (his) position as the chairperson to further nefarious means.” This is a misrepresentation, Nage says.

Clause 1.1.

  1. The statements in question are all statements of fact. This means that clause 1.1. is applicable. This clause requires nothing short of accuracy and not “substantial accuracy” or material facts that are “reasonably true” which are thresholds applicable to other sections to the Code. (See Tim Edwards v YOU, Huisgenoot and News24, complaint 8939). A statement can only be accurate if it is true.
  1. The two broad themes of alleged inaccuracies are that Nage is said to be linked to individuals who siphoned off money from Daybreak Farms and, secondly, that More is described as a whistleblower who was fired for exposing corruption.
  1. Nage implores me to pertinently find the above-mentioned statements to be false. Sunday Times seeks a finding that the statements are true or accurate and therefore not a contravention of clause 1.1. of the Press Code.  
  1. For several reasons set out below, I can do neither.

The link with money “siphoned off”

  1. The relevant paragraph in the article is as follows:

“Last October, the Sunday Times reported that more than R150m had been siphoned from Daybreak through irregular procurement deals that benefited individuals linked to Nage and PIC company secretary Bongani Mathebula.”

  1. It deserves repetition that the sentence is coached as a statement of fact.
  1. The question is not whether Sunday Times indeed reported what it did in October 2022, but whether Sunday Times can show its assertion of fact that R150m had been “siphoned” from Daybreak through “irregular procurement deals that benefited individuals linked to Nage and PIC company secretary Bongani Mathebula” as accurate and true.
  1. This principle is well-established in journalism practice and also in the law of defamation[1].
  1. The article referred to by the Sunday Times was published on 2 October 2022, some four months prior to the article that is the subject of this complaint. The October article, headlined “PIC official under cloud over R150m payout to pals”, reported that “more than R150m has been siphoned out of a company wholly owned by the (PIC) by a group of individuals and companies linked to the PIC’s company secretary (Mathebula).”
  1. The October article is not the subject of this complaint and it is therefore not necessary to consider the contents of that article in too much detail, save to state that the focus of the October article appeared to be the PIC’s secretary, Mathebula. Nage’s involvement in that article was that “Mathebula apparently broke the asset manager’s own rules to recommend an associate of hers – Lerato Nage – to the board of Daybreak farms”. It further said that “the board allegedly introduced several providers linked to Malahlela [Pule Malahlela, said to be an associate of Mathebula] outside proper processes”. (My emphasis)
  1. The R150m quoted in the article consists of payments made to law firms, a forensic investigations company and public relations agency.
  1. The dispute raised before me is not focused on the amount of R150m, but rather on whether the payments in question can be accurately described as being “siphoned” out of the company and whether Nage has any link to the individuals who allegedly benefited from the payments.
  1. The Oxford Dictionary definition of siphon is to “draw off or transfer over a period of time, especially illegally or unfairly”. To a reasonable reader, the word has a distinctly negative connotation. 
  1. Sunday Times says about the “link” between Nage and the individuals who received payments from Daybreak farms is “simple”. The argument is that Nage was appointed to the Daybreak board “through the irregular intervention of Mathebula”. The publication proceeds:

“The first law firm in question, PJM Attorneys, has Mathebula listed as an associate director according to the Legal Practice Council, while Pule Malahlela was a director. The other law firm, BlackWhite, is solely owned by Malahlela, Mathebula’s partner in PJM Attorneys.”

  1. The Sunday Times further relies on a report by a forensic firm conducted at the behest of the PIC. While the investigation indeed made adverse findings against Mathebula for not declaring that she knew Nage, it does not provide conclusive proof of all Sunday Times’ statements.
  1. Somewhat ominously, Sunday Times states in its response: “The link might appear tenuous.” But, the publication says, one should consider that “Nage then contravened good governance prescripts and instructed Daybreak management to increase the law firm’s monthly retainer by more than 400%, when management had only agreed to 10% increase, it becomes clear what the link is/was.”
  1. The latter statement, about the alleged 400% increase and Nage’s alleged involvement therein, was met with a stringent denial by Nage. Both parties submitted various documents to convince me of their arguments. I deem it inappropriate to discuss these arguments any further.
  1. Nage makes the following additional statements about the alleged absence of links with the individuals concerned:

34.1 “I have no relations with any of them. All the decisions to the provisions of the Company Secretary Services (Mathebula Attorneys), were carried out by the former CEO, Mr Boas Seruwe.”

34.2 It is false that Malahlela Attorneys are linked to me. This law firm was procured through a three (3) quote system in accordance with the company’s procurement policy and after a Board resolution…”

34.3 The law prohibits any non-legal practitioner from holding interest in a law firm. “I am a chartered accountant, not a legal practitioner. I am not a client of these law firms and have never procured their services. I have never rendered accounting services to these firms.”

  1. The Sunday Times goes into detail on why it believes Nage’s arguments do not hold water.
  1. Again, I am of the view that it is inappropriate to dissect every argument advanced by both parties for the simple reason that it is impossible to make a finding on where the truth lies.
  1. Upon reading the hundreds of pages submitted by the parties, several probabilities – even strong probabilities – emerge. But probabilities by themselves are not sufficient to make a finding whether the factual statement is true or false.
  1. This is the constraint of the Press Ombud mechanism alluded to above. In Justice Ndaba vs Sondag (29 February 2012) a previous Ombud held: “Note that my office is not a court of law, which means that it is not my task to establish if Ndaba is guilty or not or, for that matter, if the story is accurate. My sole interest in this matter is whether the newspaper’s reportage was justified, or if it was breaching the Press Code.”
  1. Save for a qualification about establishing the accuracy of an article, I am in respectful agreement with my predecessor about the role of the Ombud. The Sondag matter concerned reportage of allegations rather than factual assertions and the comment about accuracy ought to be viewed in that context. The test to be applied to allegations differ. It is, of course, necessary to ascertain the accuracy, and therefore truth, of a factual statement if clause 1.1. of the Press Code is invoked.
  1. What might be perceived as a shortcoming in the Press Ombud process is in fact only a reflection of the journalistic reality that “facts” are very seldom black and white. To be clear: Journalists are most definitely not confined to reporting “facts” as found by a court or another forum or that are so clear that it is incapable of being disputed by any right-thinking individual. Journalistic practice, and the Press Code, makes provision for the reasonable reporting of allegations. It is, however, an immutable requirement that facts and allegations must be clearly delineated for readers.
  1. There may also be instances where the unique circumstances of the story would justify stating a deduction of a journalist as a fact. In National Lotteries Commission vs GroundUp (15 October 2021) it was found that an inference drawn from other objective facts stated in the article could be justified as a statement of fact.
  1. But this is not one of those cases, despite the Sunday Times’ invitation to draw inferences about the alleged link. This is not least because the Sunday Times itself implicitly concedes that the link may appear “tenuous” and several more deductions, which are disputed by the complainant on grounds that do not seem baseless, are needed to arrive at a finding that the alleged fact is accurate.
  1. Journalists go out on a limb when reporting their own conclusions and findings as the gospel. There is a very real risk that journalists believe in the veracity of their information and pieces of the puzzle to such an extent that it conflates allegations with objective facts. A publication cannot be allowed to be the jury and an executioner of what the objective facts are. (See Mthembu Sibongiseni Jerome vs News24,30 September 2021,)
  1. This is the real problem with the article in question. It stated an allegation as fact.
  1. Neither the Ombud nor an Appeals Panel is confined to the Clauses identified by the parties, as highlighted by the Appeals Panel in Patriotic Alliance vs News 24 (5 June 2023). The only question is fairness towards both parties and whether the issues have been ventilated.
  1. Clause 1.3. of the Press Code is more appropriate in the current context. This clause requires a publication to report allegations as such and not as fact.
  1. While I decline to find that the statement was false and in breach of clause 1.1., I also decline to find that the publication has shown the factual statement to be accurate and true. The statement is rather a breach of clause 1.3. of the Press Code by presenting an allegation as fact.

Appointment date of board

  1. Sunday Times concedes a factual error in the reported date of appointment of the board chaired by Nage. Güles rightly says the sentence should have read that More’s problems started after she and other management executives wrote a letter to the PIC in January 2021 – not that the board headed by Nage was appointed then.
  1. This factual error needs to be corrected. With that said, I agree with the publication that the error has little bearing on the remainder of the complaint.
  1. It is nevertheless a breach of clause 1.1. of the Press Code for being factually inaccurate.

The “whistleblower”

  1.  The final aspect of Nage’s complaint under clause 1.1. is the reportage that More “was fired from PIC-owned Daybreak Farms for exposing corruption”.
  1. This is again a factual statement.
  1.  Nage says a forensic investigation found that More and other executives were the actual participants in malfeasance. She is therefore no whistleblower. Sunday Times advanced cogent reasons why the forensic investigation referred to by Nage might be unreliable.
  1. There is no merit in Nage’s complaint that More is not a whistleblower. The provisions of the Protected Disclosures Act have little bearing on whether someone may be accurately described as a whistleblower.
  1. It is common cause that More and other executives raised a complaint to the PIC about alleged impropriety at Daybreak Farms. This letter was also provided to me. This makes her a whistleblower.
  1. The second part of the sentence, that More was fired for exposing corruption, is more complex.
  1. Nage argues that More was never fired and that her fixed-term agreement merely ended. This has also been Nage’s argument in the CCMA and the Labour Court. The CCMA found that she was indeed dismissed, but the arbitration award is currently the subject of a review application in the Labour Court.
  1. I was also provided with the board’s letter to More titled, “termination of employment contract”. It states in the first paragraph that Daybreak Farms “terminates the contract of employment entered into by you and the Company”. It proceeds to state that More need not report to her workplace with immediate effect and that Daybreak Farms will pay her one months’ salary in lieu of notice.
  1. A dispute about whether an employee was dismissed in terms of legal definitions matters in a labour law context, but not to the public at large. It is accurate to say More was fired based on the above.
  1. What is more problematic is the statement that More was fired “for exposing corruption”. This suffers the same defect as the statement about the “linked” individuals in that it remains an allegation rather than a fact. Nage disputes that there was corruption. The Sunday Times may be completely convinced that this is the case, but that conviction does not elevate it to an objective fact.
  1. I am acutely aware of the context of the article about whistleblowing and the protection of and support needed by whistleblowers. It is not suggested that the publication was supposed to create doubt in readers’ minds about the veracity of More’s claims. Her experience is worthy of being reported, but this can be done without breaching the Press Code. It could either have been reported as an allegation, or as More’s perspective, or even by simply stating that More was fired after blowing the whistle. Let the readers make of that what they will.
  1. The statement is also not devoid of any basis. In court documents, More’s signature to the whistleblowing letter is listed as one of the reasons for parting ways with her.
  1. But again, the line was crossed in presenting the allegation as fact.
  1. The sentence was in breach of clause 1.3. by reporting an allegation (of exposing corruption being the reason for the dismissal) as fact.

Clause 1.2.

  1. Nage says there is a distortion of facts by not mentioning the involvement of other board members.
  1. I disagree. The report makes it clear that a new board consisting of three non-executive directors was appointed at Daybreak farms and that Nage was the chairperson of that board.
  1. He further complains that the article did not state who terminated More’s employment and who harassed her.
  1. There is no merit in the complaint that this breached clause 1.2. of the Press Code.
  1. Finally, Nage takes issue with the use of the words “Nage’s board”.
  1. Sunday Times says the term was used to distinguish between the board led by Nage and the board that subsequently took over the direction of Daybreak Farms.
  1. Within the context of the article, there was nothing wrong with the reference to “Nage’s board”.
  1. The complaint of a breach of clause 1.2. is dismissed.

Clause 1.8.

  1. The article was undoubtedly critical of Nage.
  1. Being a subject of critical reportage, clause 1.8. the Press Code imposed an obligation on the publication to seek his comment prior to publication, save for a few possible exceptions that are not applicable to this matter.
  1. Nage says he was not afforded a right of reply despite the journalist having his mobile number.
  1. The article contains a statement that “Nage and his board have maintained that they had nothing to do with the looting and were instead dealing with corruption perpetrated by executives.”
  1. Nage does not take issue with the contents of the denial but says he did not provide this response to the publication and it is in any event not sufficient as it does not cover all the allegations raised against him.
  1. The Sunday Times says Nage has “on many occasions” either ignored calls and requests for comment or referred all queries to service providers that provided communications work for Daybreak. The latter would respond with inadequate answers. Says Güles: “When this happened, the Sunday Times would reflect Nage and the board’s previous stated denials furnished to us through a service provider. It was only relatively recently that Mr Nage began responding to Skiti’s text messages, but for a long time he avoided commenting directly to the reporter.”
  1. The publication’s response is unconvincing. I also agree with the complainant that the general denial does not address all the specific allegations made against Nage.
  1. In ational Lotteries Commission referred to above, the excuse of previous attempts was rejected:

“More often than not, journalists face extreme challenges to get any meaningful comment or co-operation from role-players. It is their jobs. This cannot be justification for not trying.”

  1. The only question is whether the publication approached Nage before the publication of this particular article and posed these particular allegations to him.
  1. It is somewhat unclear from the Sunday Times’ response whether they concede it was not done or not. It says the journalist “would have appended numerous WhatsApps and attempted calls as proof”, but that his cell phone was stolen.
  1. In reply, Nage attaches a printout of his WhatsApp correspondence with the journalist. It starts on 6 October 2022. Numerous exchanges followed until 1 January 2023.
  1. But there is a lacuna from 1 October 2023 until 2 February 2023 when another detailed media enquiry was sent (and answered).
  1. This request for comment on 2 February 2023 was after the publication of the article in question.
  1. In the Sunday Times’ further responses, no challenge was posed to the accuracy of and veracity of Nage’s WhatsApp printout. It merely persisted to state that all the allegations have earlier been put to Nage for a response. I already found that not all the allegations are covered by the earlier, general response, and that there was a duty on the publication to try again if it did not receive a response in earlier rounds.
  1. I therefore accept that the publication did not approach Nage for comment on this particular occasion, even though it approached Nage on earlier occasions and after this article.
  1. The failure to seek pre-publication comment is a breach of clause 1.8. of the Press Code.
  1. The publication says in yet a further response that “the invitation still remains open to him to come forward with his version of what transpired – bearing in mind that we will, however, not publish his claims just because he’s making them.”
  1. A publication is plainly not entitled to refuse to publish someone’s version because the publication believes it to be false. The test is not whether a publication believes a response is true, but only whether the response is relevant to a particular allegation. If it is, there is a duty on the publication to fairly reflect the version of the respondent. This does not mean that a publication writes everything a respondent says. The principle was stated in Siyaya TV vs amaBhungane (7 September 2023):

“A publication’s duty can, however, never be to merely be a copying machine for comments. Nothing prevents a publication from stating further facts contrary to an expressed claim to guide the ‘reader (to) be the judge’.” 

  1. In order to avoid further disputes on this aspect, Sunday Times is required to fairly reflect Nage’s comment on the following allegations:

91.2 That he is linked to individuals who received more than R150m from Daybreak farms. To my understanding, he denies that there is any link with the service providers and provides reasons for it.

91.3 That policies of the PIC were allegedly flouted in appointing Nage to the board. Nage provides a version in his response to this office, which should in fairness be reflected.

91.4 That there were alleged governance breaches and maladministration by Nage’s board.

Conclusion

  1. The article in question breached clauses 1.1., 1.3., and 1.8. of the Press Code.
  1. The breach of clause 1.1., being the incorrect date of the board’s appointment, is a Tier 1 (minor) infringement as it does not alter the substance of the article.
  1. The other infringements are Tier 2 (serious) infringements.
  1. The Sunday Times is directed to:

95.1 Correct the factual inaccuracy about the appointment date of the board in the online article itself and in the print edition of the Sunday Times.

95.2 Apologise to readers and Nage for stating allegations as fact. In the online edition, the framing of the statements may be corrected in-text. In the print edition correction, the allegations erroneously stated as fact should be identified.

95.3 Apologise to Nage for not approaching him for comment prior to publication.

95.4 Publish Nage’s comment on the issues set out in paragraph 91 above. It may be done in-text for the online version or at the bottom of the article. For the print edition, the response must be published as part of the correction/apology.

  1. The apology is to be published at the top of the online article. It should also indicate to readers that the article was amended following a ruling by the Press Ombud.
  1. The print edition apology/correction may appear on any page of the Sunday Times where corrections are usually published.
  1. The correction/apology, in print and online should be published with the logo of the Press Council.
  1. The correction, apology, and changes to the online version shall be approved by the Press Ombud prior to publication.

Appeal

The Complaints Procedure lays down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Herman Scholtz

Press Ombud

5 September 2023


[1] Tshedu and Others v Lekota and Another 2009 (4) SA 372 (SCA).