Ruling by the Press Ombud
30 March 2016
This ruling is based on the written submissions of Mr Nathan Kirsh and those of Kevin Ritchie, editor of The Star newspaper.
Complaint
Kirsh is complaining about an article in The Star of 22 February 2016, headlined Breytenbach faces new charges of influencing tenders.
He complains about the following statements in the story:
· “A report by the NPA’s Integrity Management Unit found Breytenbach had inappropriate relationships with advocate André Bezuidenhout and businessman Nathan Kirsh. It was recommended she he charged for corruption, misconduct and for defeating the ends of justice”; and
· “Her alleged misdemeanors include soliciting a $1m (worth R11m at the time) loan and a R6.3m donation from Kirsh”.
He calls these statements “defamatory” and argues that they did huge harm not only to himself, but also to his Group’s corporate image – “particularly as our Group CEO is non-executive Deputy Chairman of one of the world’s best known and most important Financial institutions”.
The text
The story, written by Solly Maphumulo, said that Ms Glynnis Breytenbach faced arrest again – this time on separate charges of defeating the ends of justice and corruption involving the rigging of multimillion-rand tender contracts.
She reportedly, according to sources close to the investigations, stood accused of abuse of power during her tenure as a National Prosecuting Authority (NPA) prosecutor by influencing the outcome of tender awards involving a medical aid scheme and projects in the construction industry related to the 2010 Fifa World Cup.
The only references in the story to Kirsh are cited above.
Analysis
Ritchie says that the newspaper reported on a story that was first published almost two years ago, following the leak of an NPA report to the publication.
He provides this office with two subsequent stories “off the back of the report” (both dated 19 June 2014) to show that the article in question was factually correct and that Kirsh has (to his knowledge) never approached The Star subsequently to dispute the veracity of those articles (which are both online), or alternatively to rescind his original response.
The editor points out that Kirsh, at the time:
· openly admitted to paying the funds to Breytenbach; and
· called his involvement “benign or obscure”.
Ritchie asks why Kirsh is taking exception to the newspaper’s reportage only now – after it has been in the public domain for almost two years and been disseminated by “most SA media”.
Kirsh replies that he did respond – but that Ritchie misinterpreted his response. “At the time my response was that the allegation of an inappropriate relationship was nonsense and what was written was both obscure and benign as nothing inappropriate was disclosed”.
He argues that the current allegation (that his group and he were involved in criminally corrupt activities with Breytenbach) is “very different’ from what appeared two years ago.
Kirsch calls a further allegation of using the De Klerk Foundation as a shield for the transfer of money equally nonsensical.
He argues, “The De Klerk Foundation is highly regarded and when the allegations against Breytenbach were made, I requested their assistance to assess the merits of the NPA’s allegations. They then gave me their findings and recommendations for going forward and offered to manage Breytenbach’s legal action but neither she nor the Foundation [was] able to fund the legal costs. I then agreed to do so.”
He enclosed a background paper of his group’s relationship with Breytenbach – “which explains our willingness to assist her”.
Kirsh points out that his involvement has not been disseminated by “most SA media”, but rather by the Independent Newspaper Group (which owns The Star). He argues that the ANC has “indirect control” of this media house “and it became it’s mouthpiece to attack anyone who challenge their corrupt practises – Breytenbach being a prime example”.
He also attaches letters from the De Klerk Foundation and the Helen Suzman Foundation, addressing some of the issues he is raising in his complaint to this office.
Finally, Kirsh wants to know how the Independent Newspaper Group came to be in possession of NPA reports that are not publicly available.
My considerations
The stories published some two years ago, together with who said what at the time, is not my concern – the scope of this finding is the article that was published on February 22.
I am not entertaining Kirsh’s response to Ritchie’s reply about the De Klerk and Helen Suzman foundations, as the editor did not have the opportunity to respond to these documents – and in any case, they are not mentioned in the article.
Ritchie has provided me with an official NPA document to substantiate the Star report – on condition that I keep it confidential. Having studied this document, I am satisfied that the journalist has used the document fairly and responsibly, and that the reportage complained about is essentially correct and therefore justified (regarding information garnered from this document).
Thereby I am not saying the contents of the NPA document are correct; I am saying the journalist reported the contents, as they are, correctly.
Kirsh wants to know how The Star got hold of this document. While I can understand his curiosity in this regard, I do not want to know – neither am I going to ask the editor about it. The press should respect its confidential sources, and so should this office.
Finding
The complaint is dismissed.
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 Ombud