Ruling by the Press Ombudsman and a Panel of Adjudicators
12 September 2015
This ruling is based on the written submissions of Mr Mvusiwekhaya Sicwetsha, ANC member of the sub-committee for communication (Eastern Cape), on behalf of the Provincial Secretary of the ANC in the Eastern Cape, Mr Lubabalo Oscar Mabuyane, and those of the editor of the Saturday Dispatch newspaper, Bongani Siqoko.
It is also based on a hearing that took place in East London on 9 September 2015. Present were Mabuyane, Sicwetsha, ANC spokesman for the Eastern Cape Mhilo Qoboshiyane, Public Advocate Latiefa Mobara, and two others. Siqoko and journalist Zwanga Mukhuthu represented the newspaper.
Serving on the adjudication panel were press representative Fanie Groenewald, public representative Neville Woudberg and press ombudsman Johan Retief.
The finding
The panel could not reach consensus on all matters pertaining to the complaint. References to “the panel” should therefore be understood within this context. The minority view is portrayed right at the end of this document. This panelist has dismissed the complaint in its entirety.
Complaint
Lubabalo Oscar Mabuyane is complaining about a:
· front-page story in the Saturday Dispatch of 18 July 2015, headlined ‘Give it to my boys’ – Top Bhisho officials implicate ANC boss in tender manipulation; and
· cartoon, published on 24 July 2015.
He complains that the:
· newspaper acted unethically and unfairly by being dishonest when interviewing him, which resulted in an out-of-context and unfair story;
· journalist did not properly verify his information;
· headline did not properly reflect the content of the story; and
· cartoon was misleading.
The text
The story, written by Zwanga Mukhuthu, said that a four-minute audio clip recording two of the province’s most senior government officials had for the first time shed light on methods used in the awarding of lucrative government contracts – “sometimes long before going to tender”.
The article said the conversation between (acting) superintendent-general (SG) of education Raymond Tywakadi and the former head of the Eastern Cape treasury, Marion Mbina-Mthembu (who later became director-general in the office of Premier Phumulo Masualle), was about a R1-billion schools nutrition programme that was still in the pipeline and about a second one, worth more than R20-million.
“The audio clip was secretly recorded and released exclusively to the Saturday Dispatch by local businessman Sipho Leve.”
The journalist reported that the officials spoke openly “about what comes across as political interference in the tendering process from…Mabuyane. The two officials can be heard clearly discussing how Mabuyane wanted one of the tenders awarded to his ‘boys from Ngcobo’.” The reporter also stated that Mbina-Mthembu asked for clarity from Tywakadi on Mabuyane’s exact instructions and asked which of the two tenders he wanted for his “boys”. Tywakadi reportedly responded that it was the contract worth R1-billion. “Mabuyane is originally from Ngcobo.”
The cartoon depicts two animals at a restaurant table, with a waiter lifting the lid of a dish containing a big piece of steak. A flag in the steak reads “tender” and under the lid is written, “under cover deals”. The waiter is saying, “Compliments of the chef.” Mabuyane is sitting in the background, smiling and reading a newspaper with a headline stating, “ANC boss implicated in tender tampering”.
Documentation prior to the hearing
Unethical gathering of information
Mabuyane complains the newspaper treated him unfairly and relied on the recorded conversation between Tywakadi and Mbina-Mthembu for its story.
“In the recording [the two] don’t mention my name, neither Lubabalo Oscar Mabuyane nor my clan name, Diya or Ndungwane, which are known to the Dispatch… And yet in its story the Dispatch claims [the two] were talking about me when they claim a certain Nobhala wanted a particular tender ‘withdrawn so that he can include his boys’.”
He argues that if he had been given access to the audio recording, he could have told the reporter that it was important to verify the identity of the nobhala (secretary) that the two were discussing. “There was no honesty and fairness in how the Dispatch obtained…information or my comment, which was used in this story.”
Mabuyane later explains that the newspaper misled him by saying the two were talking about him when in fact this was not the case (because there was no mention of his name in the clip).
“In this regard, I was not going to comment on this any further owing to the issues of identity of this Secretary General. I feel that by not giving me access to this audio recording before giving them my comment, the Dispatch acted unfairly in collecting and gathering information for news reporting.”
He argues that the newspaper should not have mentioned his name nor have used his picture – as neither Mbina-Mthembu nor Tywakadi, who were the main sources of the story, mentioned his name in their conversation. “Based on this, I am convinced that the Dispatch published its opinion as a fact.”
He adds that an sms from Mukhuthu confirmed that the newspaper had misled him – by not sharing the recording with him – into making a comment on a matter not involving him.
The SMS from the journalist read: “Good afternoon Secretary my name is Zwanga Mukhuthu a reporter at the Daily Dispatch newspaper in East London. We are doing a story for Saturday about a complaint laid to the Eastern Cape education department by a service provider alleging that you have conspires with the department's acting-SG Raymond Tywakadi to award a schools nutrition tender to people close to you Engcobo. There is a recording that was submitted to the department by the complainant. The recording is a conversation between Ray and former Treasury HOD Marion Mthembu where Ray can be heard saying you instructed him to reserve the said tender to your people in Engcobo. We want to talk to you about that. Please come back to me.”
Mabuyane says he never instructed anyone to manipulate tender awards.
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Siqoko denies that the newspaper was unethical in the gathering of its information. He also denies that the story was unethical or unfair to Mabuyane. “What we had before us was an official complaint from a member of the public to the Eastern Cape Department of Education. The complaint was lodged after a conversation between two of the provincial administration’s highest ranking officials (Mbina-Mthembu and Tywakadi) was recorded. The two were discussing what appeared to be manipulation of tenders in favour of politically-connected individuals.” He argues that the story was in the public interest – the two had knowledge of this “manipulation” yet, despite the positions they held in government, had done nothing about it. “The public had the right to know.” The editor says while the newspaper used the contents of the recorded conversation, it did not rely on just the recording – in order to understand the contents of the recording, they needed to read the whistleblower’s official written complaint to the Department of Education. “The two officials are discussing an instruction from a leader of the ANC, who has no business interfering in the awarding of tenders in the first place. The fact that these two discussed it freely and have never reported it to the law enforcement agencies, makes this to be in the public interest. One of the officials was the head of the provincial treasury and had a duty to report any unlawfulness, fraudulent or corrupt practices in the tender processes to law enforcement agencies or at least to her superiors. None of that happened.” Siqoko admits that neither Mabuyane’s name nor his clan name was mentioned in the recording. However, he says it is a pity that Mabuyane is limiting his complaint to the recorded interview. “[We] certainly informed Mr. Mabuyane that we were following up on an official complaint lodged with the Education Department. This was a written complaint (in the sms cited above).”
On the matter of the sms, Siqoko says it also mentioned that a complaint had been lodged with the education department. “In our conversation later we told him exactly what Mr Leve was alleging. Mr Mabuyane was never misled. Both the reporter and the editor had a frank discussion with Mr Mabuyane before publishing.” The editor adds that he does not remember Mabuyane asking for the recording. “We had no reason to hide it from him. When we went to meet with both Mr Tywakadi and Mrs Mbina-Mthembu we took the recording with and were all too happy to play it in front of the two. Why would we mislead Mr. Mabuyane? “ Siqoko says the story revealed Mabuyane’s name as, according to Leve, Mbina-Mthembu mentioned that Mabuyane was the one who wanted the tender given to “his boys from Ngcobo”. “This is contained in an official complaint and when this was brought to Mr Mabuyane, he was given enough space in the article to rebut this.” The editor adds that Mabuyane did not deny knowledge of the R1-billion schools nutrition programme or the proposal submitted to him for the nutrition programme to be placed in the hands of business people. “It then became a fact that the Secretary-General or Nobhala (Secretary) that…Tywakadi and…Mbina-Mthembu were talking about was none other than…Mabuyane.” Siqoko concludes that Tywakadi, in his interview with the journalist, explained on record that “[t]here was a discussion at Calata (the provincial headquarters of the ANC, where Mabuyane is the boss) about revising the model for school nutrition. There were groups lobbying for the model to be changed, and the groups always go to the office of the Secretary (Oscar Mabuyane)." |
No verification of the identity of the SG
Mabuyane complains that the newspaper did not verify the identity of the SG who was a subject of the taped conversation.
“The least the newspaper could have done was to inform its readers that they don’t know who is this Secretary General or Nobhala mentioned by the two, that’s if they failed to verify the identity of this person. Or at least present a view from one of their sources identifying this Nobhala but because this was not done, I am aggrieved by what the newspaper did.”
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Siqoko argues that, while there were other “secretaries” in the ANC, Mabuyane was the only one from Ngcobo who had the clout and the power to summon senior government officials to meetings and give them orders. “We must state though that we are not aware of any instance where Mr Mabuyane had summoned senior government officials to give them orders. We are merely raising this in trying to show how powerful a provincial secretary is.” He also says that the report deals mainly with the two officials discussing what appears to be an instruction to manipulate a tender process and award it to people who are politically connected – Mabuyane is not the main subject. “We however could not have reported the contents of the recording without mentioning his name.” The editor reiterates that Leve did mention Mabuyane by name in his complaint. The newspaper also verified the authenticity of the audio file. “We then contacted Mr. Leve and told him that the newspaper will not grant him anonymity status and will only publish his claims if he was prepared to go publicly on record. We did this as we did not want to be seen playing to factional politics.” The newspaper also interviewed both Mbina-Mthembu and Tywakadi prior to publication, who both confirmed that they were the people recorded. It also sent an sms to Mabuyane, after numerous calls. |
Headline
The main headline reads, ‘Give it to my boys’.
Mabuyane complains that this is unethical and did not reasonably reflect the content of the story because:
· he never made such a statement; and
· the recorded conversation never mentioned his name.
Siqoko replies that Leve mentioned Mabuyane’s name. “He goes into detail in terms of what he is alleged to have said and suggested. That is why we gave the story such a headline and used Mr Mabuyane’s picture together with those of Mr. (sic) Mbina-Mthembu and Mr. Tywakadi.”
Cartoon
Mabuyane says the cartoon depicted the newspaper’s view of the matter, showing that it believed he had instructed government officials in a manner tantamount to the manipulation of tender awards. This, he attests, did not amount to fair comment.
The newspaper does not reply to this part of the complaint.
The Panel – at, and after the hearing
Allegation as fact?
The panel’s central question was if the story was fair to Mabuyane – had the newspaper been justified in identifying him as the (corrupt) official who had been trying to influence the awarding of a tender?
In question were the headline, the cartoon, and the following sentences in the story:
· “[Mbina-Mthembu and Tywakadi] can be heard clearly discussing how Mabuyane wanted one of the tenders awarded to his ‘boys from Ngcobo’.”
· “In the recording Mbina-Mthembu can be heard asking for clarity from Tywakadi on Mabuyane’s exact instructions and which of the two tenders he wants for his ‘boys’.”
· “Mbina-Mthembu repeatedly asks which of the two (tenders) is supposed to go to Mabuyane’s ‘boys from Ngcobo’.”
Clearly, these statements linked Mabuyane with the nobhala. But was it fair and justified to link Mabuyane with the nobhala, while the former’s name had never been mentioned?
Qoboshiyane argued that the newspaper had made “a giant leap” – from an “intimation” as described by Leve, to a statement of fact.
Siqoko’s reasoning amounted to the following:
· Mabuyane was the only nobhala from Ngcobo;
· Mabuyane was the only one with the influence and the clout to issue such an instruction;
· Leve mentioned Mabuyane by name in his complaint to the Department of Education;
· Mbina-Mthembu mentioned Mabuyane by name before calling Tywakadi (according to Leve); and
· Mabuyane discussed the matter with either Mbina-Mthembu or Tywakadi.
We took seriously the editor’s reasons for believing that Mabuyane was indeed the nobhala. The question was if this gave us enough evidence to state as fact that Mbina-Mthembu and Tywakadi were indeed referring to Mabuyane.
At the hearing, Siqoko first said that these statements cited above could have been phrased better and added that the newspaper “probably should have presented the story differently”. He said, “Maybe we failed in our framing (of the story)”.
At a later stage, the editor attested the story “should have stated that we believed the nobhala was Mabuyane”.
Towards the end of the hearing he “conceded” (his word) the story should have indicated that it was “only an allegation – we believed the discussion referred to Mabuyane”. He added that the newspaper was ready to correct where it had erred (while still maintaining his belief that the nobhala was indeed Mabuyane).
The panel agreed with him on this issue. This is why:
Section 2.3 of the Press Code is relevant. It reads, “Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with due regard to context and importance. Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.”
The panel firstly debated the question whether the newspaper’s conclusion/opinion/supposition could have been reasonably true. We were mindful of the fact that the matter has not been investigated yet, and that there was a chance that such an investigation might have ended up in a conclusion that Mabuyane was innocent. In other words, there was enough doubt in our minds not to come to the same conclusion that the newspaper came to and to allow the publication to state it as fact that that Mabuyane was indeed the nobhala.
We then discussed the second sentence of Section 2.3. We were mindful of the fact that someone is innocent until proven guilty; we concluded that the newspaper at least should have outlined its reasons for believing that Mabuyane was the nobhala, and stating that this was its conclusion/opinion.
Headline, cartoon
Having decided that the newspaper was at fault in presenting as fact that the two officials referred to Mabuyane, it follows that the same goes for the headline as well as for the cartoon.
The use of inverted commas in the main headline was also problematic – there was no evidence that Mabuyane ever uttered those words, neither did the story ascribe them to Mabuyane.
Moreover, the sub-headline linked Mabuyane directly with the nobhala in the recording, while this was not evidenced in the recording itself.
Flawed, misleading newsgathering
Qoboshiyane argued at the hearing that the news gathering process for this story was flawed and misleading because not all the information was put to Mabuyane to enable him to make a more informed response.
Siqoko disputed this.
The first question was why Mukhuthu did not send Mabuyane a copy of the recording prior to publication.
The newspaper argued that Mabuyane promised to send the reporter his e-mail address and that the former never did so (a statement that Mabuyane refuted). Mukhuthu argued that he “wanted the e-mail address (to come) from Mabuyane”.
The panel found this to be a weak argument – Mukhuthu got Mabuyane’s phone number from a colleague, and he could (and should) have done the same with his e-mail address. The allegation (stated as fact) was enormously serious, and the neglect to provide Mabuyane with the recording prior to publication was equally problematic.
Secondly, Sicwetsha said he went to the newspaper to get hold of the recording. For some reason which Siqoko could not explain (he said he could not remember why the recording was not given to Sicwetsha), the latter left empty-handed.
Another matter was the fact that the journalist told Mabuyane that Tywakadi could be heard saying that he had instructed him to reserve a tender for his people in Ngcobo. That information was false, as Mabuyane’s name was not mentioned in the recording.
Also, the panel was of the view that the newspaper should have waited for Mabuyane’s response to the recording before publishing the story. The Daily Dispatch has no opposition of note, and the allegation (stated as fact coming from the mouth of at least one of the people speaking in the recording) was so serious that it necessitated his proper response before going to print.
Omitting critical information
Qoboshiyane said information critical to the story, which Mabuyane gave to the newspaper, was omitted in that the names of other people from the ANC in the meeting with the business group presenting a policy proposal should have been mentioned in the story.
The panel found this to be trivial, as the story was about the recording and Leve’s complaint to the Department of Education.
The newspaper indicated that it had played the recording to both Mbina-Mthembu and Tywakadi, and that sought comment from them. Even though neither wanted to comment, the panel found it strange that Mukhutu did not report the fact that he had asked them to comment. However, this cannot amount to a breach of the Press Code as this was not material to the story.
Verification
Qoboshiyane complained that the newspaper did not verify its information besides the authenticity of the voices and the audio file – even though it had had access to people speaking in the recording, the newspaper didn’t verify the identity of the SG or the nobhala they were talking about.
The panel believed that this part of the complaint had no legs to stand on. The newspaper did speak to Mbina-Mthembu, Tywakadi, Leve and (albeit unsatisfactorily) to Mabuyane. There was nobody else to speak to.
Dishonesty, malice
The panel had no reason to believe that the newspaper was deliberately dishonest or malicious.
Finding
Allegation as fact?
The newspaper stated both in the story, in its headline and in the cartoon as fact the allegation that Mabuyane had been implicated in corruption.
This is in breach of Section 2.3 of the Press Code (as cited above), as well as of Section 2.1 which reads, “The press shall take care to report news truthfully, accurately and fairly.”
Flawed, misleading newsgathering
Because not all information was put to Mabuyane to enable him to make a more informed response and clarify the allegations, and because the journalist (falsely) told him that Tywakadi could be heard saying that he had instructed him to reserve a tender for his people in Ngcobo, this is in breach of Section 1.1 of the Press Code that states, “News should be obtained…honestly and fairly…”
The rest of the complaint is dismissed (verification; dishonesty; malice; omitting critical information).
General comment
It should be noted that it was not the panel’s mandate to find whether Mabuyane had been guilty or not – our only task was to adjudicate if what the newspaper had published had conformed to the Press Code. Our finding for Mabuyane on critical issues should therefore not be interpreted as a decision that he was innocent.
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 as describe above are all Tier 2 offences.
Sanction
Saturday Dispatch is directed to apologise to Mabuyane for:
· stating as fact that the two officials referred to him when they spoke about a nobhala who wanted to influence the awarding of a tender and to retract those statements;
· the insinuation in the headline and the cartoon that he was guilty of corruption;
· not putting all information to him to have enabled him to make a more informed response; and
· falsely telling him that Tywakadi could be heard saying that he had instructed him to reserve a tender for his people in Ngcobo.
The newspaper is directed to publish a notice of this apology and retraction on its front-page, above the fold, and to refer to the text which should be published on page 4, also above the fold.
The text, which should be approved by the panel, should end with the sentence, “Visit www.presscouncil.org.za for the full finding.”
If the offending texts were published on its website the apology and retraction 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.
Neville Woudberg
Fanie Groenewald
Johan Retief
Minority opinion
The crux of this matter is whether it was reasonable for the newspaper to present as a fact that the “nobhala” mentioned in the audio clip of the conversation between Tywakadi and Mbina-Mthembu was indeed Mabuyane.
Section 2.3 of the Press Code reads: “Only what may reasonably [my emphasis] be true, having regards to the sources of the news, may be presented as fact, and such facts shall be published fairly with due regard to context and importance.” (The rest of this section is about where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, which is not applicable in the current case.)
Even if the newspaper might have conceded that with the advantage of hindsight it would have been better to have stated in the report that the “nobhala” in the audio clip had not been mentioned by name, they maintained their position that this “nobhala” was in fact Mabuyane.
In contrast with the view of the other two members of the Adjudicating Panel, I find that the newspaper has proved that it was indeed “reasonably true” that the “nobhala” mentioned by Tywakadi and Mbina-Mthembu was Mabuyane.
Even if the newspaper had stated in the report that the “nobhala” was not mentioned by name in the audio clip but it had solid reasons to believe that it was Mabuyane, the gist of the story would have remained the same: two top officials have implicated Mayubane in tender manipulation.
I thus find the newspaper was justified to have reported as it did, including the headline and cartoon and accordingly dismiss all the complaints.
END