Ruling by the Press Ombud and a Panel of Adjudicators (Tshamano Makhadi, public representative, and Franz Krüger, representing the press).
8 February 2017
This ruling is based on the written submissions of Mr Lethuxolo Ntuli of the law firm Bowman Gilfillan, on behalf of Prof Peter Mbati, vice-chancellor of the University of Venda (Univen), the university itself and its council (“the complainants”), and those of Dumisane Lubisi, executive editor of the City Press newspaper – as well as on a hearing held in Johannesburg on 22 November 2016.
Representing the complainants at the hearing were Nicole Lewis, Ntuli, Yonela Sicam (all from Bowman Gilfillan) and Takalani Dzaga (from Univen). Lubisi and Sizwe sama Yende appeared on behalf of the newspaper.
While taking all the correspondence prior to the hearing into account, the panel decided procedurally to largely follow the text presented at the hearing by Lewis, as this document adequately summarized the complaint in all its detail.
The complaint concerns two news stories and an opinion piece in City Press, headlined:
· Victory at last in sex pest battle (published on 20 June 2016 – the first news story);
· Complicity in the academic patriarchy (July 10 – the opinion article); and
· Professor cleared of ‘sex pest’ charge (July 17 – the second news story).
The complaint was lodged out of time, but it was accepted by both the newspaper and this office as there was a “good and satisfactory explanation for the delay”. (See Section 1.3 of the Complaints Procedures.)
Complaint
Mbati et al complain that some allegations were incorrect. They were also unreasonable, as City Press had not asked for comment on most of them.
The allegations in question are that:
· one of Univen’s employees, Prof Thidziambi Phendla, was charged with corruption only after she brought a complaint of sexual harassment against Mbati;
· Phendla was “hounded out of her job” (by Mbati and / or Univen) on the basis of “trumped-up charges”;
· The purpose of the application before the High Court was not to clear Phendla of the charges of financial misconduct against her, but to challenge the allegation that Mbati sexually harassed Phendla and then, with Univen, hounded “her out of her job on trumped up charges”; as well as to challenge the claim that Phendla had been vindicated by the court;
· the Commission for Gender Equality (CGE) was “scathing” about Mbati’s conduct;
· the High Court had “enforced” the CGE’s recommendation that Clause 5.2 of the Complainant’s Sexual Harassment Policy should be implemented (which calls for a formal procedure wherein the human resources director has to demand a written explanation from an alleged offender and, if there was a prima facie case of misconduct, a charge sheet has to be drawn up); and
· Univen did not comply with the court order.
They add that, to the extent that the allegations:
· constituted allegations of fact, they were inaccurate and unreasonable; and
· were capable of being construed as opinion or comment, they were not clearly presented as such, nor did they take account of all material facts that were substantially true.
Univen and Mbati argue that the allegations were defamatory and that they impacted negatively on their right to dignity and reputation.
They also argue that the reasonable reader would have interpreted the articles as implying that Univen had acted improperly and disobeyed the court order when deciding not to discipline Mbati; also, that Mbati and the university were complicit in this conduct, which constituted unfair discrimination against Phendla and violated her rights.
The texts
The first news story, written by Sizwe sama Yende, said Phendla received justice – a “bittersweet victory” – after a sexual harassment battle against her boss (Mbati) five years previously. He stated that she had the “last laugh” after the South Gauteng High Court ordered the university’s Council to take disciplinary measures against Mbati, in line with the institution’s sexual harassment policy.
He wrote, “Mbati allegedly pestered Phendla for sex and when she resisted, he hounded her out of her job as dean of the School of Education in 2011 on trumped-up fraud and corruption charges.”
Phendla approached the CGE, which reportedly found that:
· her allegation that she had internally been charged for misconduct because she had refused Mbati’s sexual overtures were “convincing considering the manner in which the disciplinary process was conducted”;
· she was dismissed on charges emanating from a forensic report, yet she had not been given a copy of that document to facilitate her own defence;
· the decision to institute disciplinary proceedings based on that report was “quid pro quo harassment”;
· the university and its council failed to take the next step after mediation between Phendla and Mbati had collapsed, which left her frustrated and stranded without support from the custodians of the university’s sexual harassment policy.
Yende also reported that Mbati approached the court in a bid to have the CGE report set aside – “but the court last month upheld it and ruled that the council had to implement the university’s sexual harassment policy”.
The opinion piece or second story, based on the first article and written by Prof Pumla Gobodo-Madikizela (professor and research chair of historical trauma and transformation at Stellenbosch University), said that when Phendla faced sexual harassment, she reported the matter to the relevant office – but instead of investigating her complaints, the perpetrator of the abuse (Mbati) silenced her by accusing her of using her position fraudulently to benefit from a university tender process, and then dismissed her as dean of the university’s school of education. “This action served to shift the spotlight away from Phendla’s abuser, and to protect him from facing the consequences of his actions,” she continued.
The following statement set the tone for her article: “Phendla’s story focuses our attention on the interaction of race and gender in her experience of discrimination. It clearly demonstrates the grave injustice done to her, leaving her with no recourse except to approach the courts. In the aftermath of her fight for justice, it seems reasonable to assume that at the centre of her dismissal, and traumatic five-year struggle, was black male privilege and the complicity of others in positions of authority. It is an important reminder of the various ways in which university cultures sometimes discriminate against women who have no power or influence in the university hierarchy.”
In the third story or second news article, Yende reported that the university’s Council had cleared Mbati of sexual harassment charges, but had refused to release the reports resulting in its decision.
Background
It may be helpful to take a look at how Ntuli summarised the background:
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In June 2010 the university appointed the auditing firm Deloitte and Touche to conduct an investigation into the appointment of a company called Clean Shop, following an allegation of irregularities made by trade union Nehawu. On November 5 of that year, Deloitte reported that Phendla had met with representatives of Clean Shop while she was on the Board of the university. During that meeting she promised to promote the company, and accepted R1 000 in return. Deloitte recommended that the university should consider disciplinary proceedings against her. The university then instructed Bowman Gilfillan to handle disciplinary hearings against Phendla. It was during her cross-examination that she first alleged she and Mbati had had a romantic relationship, but that he later sexually harassed her, and finally that he raped her. (Par. 55) On 31 October 2011 a report was issued in which Phendla was found guilty of corruption and it was recommended that she should be summarily dismissed. Regarding her allegations of sexual harassment, the chairman said he found Phendla’s allegations “improbable”. (Par. 56) Phendla had by then, on 14 September 2011, lodged a sexual harassment complaint with the council of the university. In terms of Clause 5.2.1 of the university’s Sexual Harassment Policy, it appointed Mr Lavery Modise, from Eversheds, to attempt to mediate between Phendla and Mbati. On November 1 of that year, the university dismissed Phendla. Two days later, Modise reported that his attempts had been unsuccessful, adding that Clause 5.2 may be invoked (in terms of which Phendla could lodge a written complaint with the Department of Human Resources). It is noteworthy that Phendla suggested, as a “condition” for mediation, Mbati’s dismissal of the disciplinary charges against her – which the latter said he did not have the power to do. Before the university could invoke Clause 5.2, Phendla instituted criminal charges against Mbati, after which the university decided to await the outcome of the police investigation. After the police / prosecutor had decided not to prosecute Mbati, and because Phendla was no longer an employee of the university, the institution ultimately decided not to proceed with Clause 5.2. In the meantime, Phendla was awarded the opportunity to appeal the chairman’s findings against her, which she did. Her appeal was heard on 24 March 2012, and was dismissed. Then, on 11 May 2012, Phendla submitted a complaint to the Commission for Gender Equality. After an investigation, the CGE found that Mbati had sexually harassed Phendla, and recommended that Clause 5.2 be invoked. On 27 February 2015 Mbati, the university and its council launched an application to review and set aside the CGE report. This matter was heard on May 30. Within an hour of the beginning of the applicants’ submissions, Phendla’s counsel suggested settling the matter. The effect of the court order following this development was that the CGE withdrew previous findings and made no determinate findings (anymore), including its earlier finding that Mbati had sexually harassed Phendla – which meant that its recommendations were not binding. As the mediator had previously found that there was no prima facie case against Mbati, the university considered the matter resolved. |
Analysis
The six allegations
The first allegation
The allegation was that Phendla was charged with corruption only after she brought a complaint of sexual harassment against Mbati.
The texts in question read:
· “Mbati allegedly pestered Phendla for sex, and when she resisted, he hounded her out of her job as Dean of the School of Education in 2011 on trumped-up fraud and corruption charges…Mbati claimed that Phendla’s alleged ‘impropriety’ was uncovered in a forensic report by Deloitte… ‘A wrong picture was painted that I was charged for fraud and corruption, and I then laid sexual harassment charges to retaliate,’ Phendla said this week.” (first story); and
· “When Professor Thidziambi Phendla faced sexual harassment from the highest office of executive management at the University of Venda, she reported the matter to the office that deals with these issues. Instead of investigating the complaints, the perpetrator of the abuse silenced her by accusing her of using the position fraudulently to benefit from a university tender process, and then dismissed her as dean of the university’s school of education. This action served to shift the spotlight away from Phendla’s abuser, and to protect him from facing the consequences of his actions.” (opinion piece)
The complaint is that these texts inaccurately stated or implied that Phendla was charged and disciplined only after she brought a complaint of sexual harassment against Mbati – while, in fact, she was charged and disciplined first (for corruption in accepting R1 000 from a company for agreeing to use her influence as a member of Univen’s Council to obtain a tender award for that company) and that she brought a charge of harassment against Mbati only at a later stage.
“It was only during her cross-examination (in the disciplinary proceedings against her) that Professor Phendla alleged for the first time that Professor Mbati had sexually harassed her. She alleged firstly that she and Professor Mbati had had a romantic relationship, then that he had sexually harassed her and finally that he had raped her,” the complainants stated.
They add that the independent chairman who chaired the hearing dismissed Phendla’s allegations saying, “While I am not required to make substantive findings on whether the Employee had been sexually harassed or raped, I find the Employee’s testimony improbable. The impression conveyed by her testimony was that she resorted to revealing more serious and dramatic issues as the case progressed and the evidence pointed to her guilt. Instead of alerting me to the potential for abuse of the disciplinary process, the revelations had the opposite effect.”
In addition to being inaccurate the allegation is also unreasonable, Mbati and Univen argue, as City Press did not seek their comment in this regard. Moreover, on 29 July 2016 (after the publication of the three texts in dispute) Univen sent a letter to City Press, stating that this allegation was materially inaccurate – and yet, the newspaper still failed to publish either a clarification or a retraction.
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Lubisi says Phendla lodged a sexual harassment complaint with the Univen council on 14 September 2011; it is also factual that on 31 October 2011 the report of her internal disciplinary hearing, which led to her dismissal, was finalised. He submits that, while Phendla might have made the first allegation of sexual harassment during the disciplinary process, she was dismissed after she lodged the complaint to the council. The editor adds Phendla is on record as saying that she was charged with fraud only because she was resisting sexual harassment from Mbati. In the first story, she is quoted as saying, “A wrong picture was painted that I was charged for fraud and corruption, and I then laid sexual harassment charges to retaliate.” Lubisi argues that the newspaper merely recorded the events in the sequence of how they happened. “The dismissal came after she had laid the sexual harassment claim,” he concludes. |
Ntuli replies that Phendla was charged with corruption in respect of her participation and involvement in the Clean Shop contract and pursuant to the recommendations of the Deloitte report. This was extensively covered in the comprehensive letter delivered to City Press on 29 July 2016 – he denies that these charges were “trumped-up” or preceded her cross-examination, and adds that the allegations of sexual harassment were not known to Univen’s council,
Ntuli adds that City Press never requested Univen to comment specifically on Phendla’s comments – the newspaper merely accepted her version of events as facts and did not test her version against any objective evidence. (The university responded to the specific questions asked by the newspaper.) “Therefore, City Press was unfair in the manner in which it reported the story as it only took Prof. Phendla’s version as the factual version without testing it with objective evidence.”
The panel’s considerations
At the hearing, Lewis provided the panel with a timeline regarding the unfolding of events. City Press did not challenge this information.
The following dates are important:
· 19 May 2011: Charges of misconduct were laid against Phendla.
· 26 July 2011: Phendla was provided with amended charges.
· 2 August 2011: The disciplinary hearing against Phendla started.
· 24 – 25 August 2011: The enquiry continued.
· 14 September 2011: Phendla lodged a complaint of sexual harassment (at Univen) against Mbati.
· 31 October 2011: The chairman announced that he found Phendla guilty of misconduct;
· 1 November 2011: Univen dismissed Phendla.
· 11 May 2012: Phendla lodged her complaint with the CGE.
From the above, it is clear that Phendla lodged her complaint nearly four months after charges of misconduct were first brought against her.
The allegation (in the first story) that Mbati pestered Phendla for sex, and when (only after) she resisted, he “acted” therefore is not reasonably true.
The same goes for:
· Phendla’s statement to the effect that a wrong picture was painted that she had been charged for fraud and corruption, and that she then brought sexual harassment charges to retaliate; and
· The statement in the opinion piece that when Phendla faced sexual harassment she reported the matter to the relevant office – upon which “the perpetrator of the abuse silenced her…”
The panel keeps in mind that Phendla was fired after she had allegedly experienced unwelcome sexual advances by Mbati, and after she had complained about the matter – the alleged incidences of harassment took place some time before she was charged.
However, we are also mindful of the fact that her claim of sexual harassment came only after she had been charged with misconduct (a fact that Lubisi conceded at the hearing).
Having made this distinction, we note that Lewis convincingly argued that the issue was not about Phendla’s dismissal, but rather about the charge of misconduct. City Press overstepped the mark by suggesting that disciplinary action was taken against her in response to her complaint.
But there are other issues at stake here: The panel notes that the first story presented the allegation as an allegation, while the opinion piece manufactured this into fact. We need to comment on both of these issues.
The question is if it was legitimate to report Phendla’s belief that action was taken against her because she stood up to Mbati. Although the publication of such an allegation can be potentially harmful, and unnecessarily so, the panel is convinced that the newspaper was justified to publish her views, given the public interest in the matter – but then, on condition that Mbati was given a right of reply.
After all, the CGE backed Phendla’s claims in its initial report, even though it was later forced to drop its conclusions.
On this issue, City Press failed. The newspaper merely asked Mbati whether he was looking forward to clearing his name – and that was not sufficient.
The fact that the opinion piece turned this allegation into “fact”, however, is simply indefensible.
The second allegation
The allegation is that Phendla was “hounded out of her job” (by Mbati and / or Univen) on the basis of “trumped-up charges”.
The sentences in question read:
· “Mbati allegedly pestered Phendla for sex, and when she resisted, he hounded her out of her job as Dean of the School of Education in 2011 on trumped-up fraud and corruption charges…” (first story);
· “When Professor Thidziambi Phendla faced sexual harassment from the highest office of executive management at the University of Venda, she reported the matter to the office that deals with these issues. Instead of investigating the complaints, the perpetrator of the abuse silenced her by accusing her of using the position fraudulently to benefit from a university tender process, and then dismissed her as dean of the university’s school of education. This action served to shift the spotlight away from Phendla’s abuser, and to protect him from facing the consequences of his actions.” (opinion piece); and
· “Mbati had been accused of pestering former dean of the School of Education, Professor Thidziambi Phendla, with demands for sex, eventually hounding her out of her job.” (third text)
The complaint is that this allegation was inaccurate. Phendla was first charged with misconduct and only subsequently, whilst being cross-examined during her disciplinary enquiry, alleged that Mbati had sexually harassed her – which is inconsistent with the allegation that the charges against her were “trumped up”.
Instead, Lewis stated, the charges against Phendla were based on an investigation and report by the independent auditing firm, Deloitte and Touche. The chairperson found her guilty on the charge of corruption against her (acquitting her on other charges) and recommended that she be summarily dismissed.
In addition to being inaccurate the publication of this allegation was also unreasonable, said Lewis, as City Press did not ask the complainants for comment on this issue.
Lewis added that in its letter of 31 January 2015, Univen informed the newspaper that Phendla had been charged pursuant to an investigation by Deloitte and Touche; and even after the letter of 29 July 2016, indicating that the second allegation was materially inaccurate, City Press did not publish a clarification and / or retraction.
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Lubisi says Phendla was charged based on a report by Deloitte & Touche. He argues it was fair comment to say the charges against her were trumped up. He argues, “For a fair hearing, Professor Phendla was not given a copy of this report at the hearing to afford her the opportunity to prepare her defence properly. The CGE report, which we had used as part of the story, was clear that it was unfair for the university to institute disciplinary proceedings based on the report she did not have access to. This advantaged the university but clearly disadvantaged Professor Phendla in her case…” In short, Phendla could not have had a proper opportunity to defend herself against the seriousness of the charges she faced – and refusal to give her proper and timely access to the report meant that she was at an unfair disadvantage. Lubisi concludes, “We (therefore) believe it is fair comment to say that she was hounded out of her job, because the report could have been furnished to her days earlier to ensure that she prepared properly for the hearing which would determine her future employment with the university.” |
Ntuli denies that the charges against Phendla were “trumped up”. Also, the CGE report relied on by City Press to write its articles was largely excised by the court in the order handed down on 30 May 2016.
“Accordingly, City Press relied on the excised paragraphs of the report despite having knowledge that such paragraphs were excised.” Further, the newspaper then deemed it appropriate to pass a legal opinion despite not having any expertise in respect of the determination of fairness in disciplinary proceedings. The fairness of the disciplinary process is the subject of ongoing Labour Court proceedings and accordingly, an assertion that the disciplinary proceedings were in fact unfair would be unsubstantiated.
“In sum, City Press utilised legally unsubstantiated findings to draw an inference utilising knowledge of labour law which it cannot profess to have. The result is that readers are left labouring under the false impression that Prof. Phendla was not afforded the requisite fairness in the disciplinary proceedings,” he stated.
Further to Ntuli’s argument that City Press utilised knowledge of law it cannot profess to have and his statement that the newspaper essentially asserted that the circumstances of Phendla’s disciplinary proceedings were unfair, he noted that City Press did not state or mention the principle in law which justifies this conclusion. Instead, the newspaper assumed that because an employee was not afforded a piece of evidence timeously, the conclusion must be that any subsequent disciplinary proceedings were unfair.
“This leap from facts to application of law takes City Press out of the realm of media publication to legal presiding officer. On what legal basis does City Press assert that Prof. Phendla should have been furnished with the report days earlier? If it is based on a principle in law then such principle should be articulated, if it is based on the opinion of the writer who cannot profess to have expertise in legal matters then on what basis are they asserting such principle in the first place?”
At the hearing Lewis argued, “To the extent that the second allegation is capable of being interpreted as comment or opinion and to the extent that a factual basis was laid for such, it was that Professor Phendla first laid charges of sexual harassment and was then charged with misconduct. As set out above, this allegation was both inaccurate and unreasonable. The clear implication being that Professor Phendla was charged with misconduct and hounded out of her job in retaliation for laying charges of sexual harassment and in order to avoid Professor Mbati having to answer to such.”
She added that the chairperson of the enquiry rejected Phendla’s argument that she was entitled to the report, holding that she would not be disciplined on the basis of that report – rather, the evidence against her came from witnesses whom Univen would call to testify and therefore there would be no unfairness to her if the report was not disclosed to her. “The Chairperson consequently rejected her application for the disclosure of such. There is no evidence to suggest that the Chairperson’s independence was compromised and/or that the Complainant and/or Professor Mbati influenced or attempted to influence the Chairperson in this regard,” she argued – and concluded that, even if this allegation constituted comment or opinion, it still was unfair and / or unreasonable.
The panel’s considerations
The argument by Mbati et al that the charges against Phendla were not trumped up because she was first charged with misconduct and only subsequently alleged that Mbati had sexually harassed her cannot hold water, as the first charge against her (on 19 May 2011) could have been trumped up (theoretically speaking).
In this regard, the panel notes Section 8.3 of the CGE’s report, which states that it found Phendla’s allegation that she was charged for misconduct after she refused sex to Mbati “to be convincing”.
Whether or not it was convincing is not for the panel to say – we merely note that it was possible that Phendla’s allegations could have some truth to them.
The panel therefore needs to look elsewhere for a proper response – which is to be found in the report by Deloitte and Touche. This independent firm found against Phendla on the charge of corruption, which makes a mockery of the statement, or allegation, that Mbati’s charges against her were trumped up. If the charges were indeed trumped up, it is hard to believe that they would have been upheld.
The editor’s argument that it was fair to say that the charges against Phendla were trumped up and that she had been hounded out of her job because she was denied a copy of the report at the hearing is not logical – the ruling that Phendla was not entitled to the report was made by the (independent) chairperson, and not by either Mbati or Univen.
The panel therefore believes that the statement, or the allegation, that Mbati hounded Phendla out of her job on trumped-up charges were unreasonable and intrinsically unfair.
The panel also notes with concern that the opinion piece called Mbati (albeit without naming him) “the perpetrator of the abuse”. The writer has already decided that Mbati was guilty – but with nothing solid to base it on…
Looking closely at the first and third texts as cited above, it is debatable whether or not the reference to “hounding Phendla out of her job” on “trumped-up charges” was stated as fact or as an allegation.
Even if the panel gives City Press the benefit of the doubt in this regard, accepting that it was presented as an allegation, the reportage on this matter was still unfair and unreasonable (using the same argument as above).
And again, the opinion piece has turned such an allegation into “fact”.
The third allegation
In the second text it was alleged that the purpose of the application before the High Court was to challenge the allegation that Mbati sexually harassed Phendla and then, with Univen, hounded “her out of her job on trumped up charges”, as well as that Phendla had been vindicated by the court.
It read, “At great cost to her personal life, Professor Phendla began the painful and lonely journey of fighting for justice…The charges of financial misconduct against her have now been dismissed by the South Gauteng High Court and the University of Venda was ordered to take disciplinary action against its vice-chancellor.”
The complainants say this statement was:
· inaccurate – Univen and Mbati were the applicants, aiming to review and set aside the CGE’s report. This application was settled by agreement between the parties, in which Univen was (only) required to call for a report from Mr Lavery Modise, whom the university had appointed to mediate between Phendla and Mbati. Univen complied with this order; and
· unreasonable – all court papers, the application to the High Court and the papers filed in response were matters of public record. City Press could have obtained a copy of the court order from the University, but did not do so, or asked for comment on this allegation. In fact, On June 23 Univen (prior to the publication of the second article) attached the court order in its correspondence with the newspaper.
The complainants add that City Press did not publish a clarification and / or a retraction, even after Univen’s correspondence of July 29 in which it was stated that this allegation was incorrect.
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Lubisi replies that the court has ordered the CGE recommendations to be implemented by all parties. He explains that in the first story, the university council’s chairperson, Serobi Maja, is quoted saying that “the council was awaiting a report by mediator Lavery Modise” and that “the institution will take [it] from there”. In the report, which City Press had seen, Modise recommended that the university should, in case the mediation talks fail, allow Clause 5.2 of the university’s sexual harassment policy to kick in. This clause allows for a formal procedure whereby the human resources director has to demand a written explanation from an alleged offender and, if there is a prima facie case of misconduct, a charge sheet has to be drawn up. In the first story, this was true and Maja indicated only that the report was being awaited. In the third story, City Press clearly indicated that Mbati had been cleared of the sexual harassment charges laid by Phendla. This was done after the HR director found there was no prima facie case. It is worth noting that the university failed to provide the second report by Modise, in which Professor Mbati was cleared, citing that the report was “confidential”. The editor says the question whether the court’s process was a victory for Phendla or the university depends on the interpretation by each party. The university claims it was victorious and that there was no order against it. However, one of the court orders – reached by concession by both parties – was that the university should allow Clause 5.2 to kick in. This meant that the university was ordered to do what the CGE had recommended should be done. Whether the outcome of such a process yielded any positive results for Professor Phendla or not was another story. In the end the university agreed to allow the Clause 5.2 process, and afterwards it was found that there was no prima facie case for Professor Mbati to answer. The editor says the outcome of the process is clearly captured in the third story, where university council deputy chairperson Thovhele Tshivhase said: “Pursuant to the report, council resolved that the matter of sexual harassment against the vice-chancellor be closed as the report found that there was no basis for the sexual harassment claims by Professor Phendla.” He further said: “The council is also delighted that the CGE has duly complied with the court order and issued a new report with the excised paragraph.” |
Ntuli says Univen takes issues of sexual harassment very seriously and implemented some of the CGE recommendations much earlier than the court order of 30 May 2016. This was done because it was the right thing to do and not because the university, its council or Mbati admitted to any guilt or any wrongdoing.
He adds that on the basis of the report issued by Modise in terms of the court order, the council resolved to clear Mbati of sexual harassment. Furthermore, CGE issued the excised report as ordered by the court. “Accordingly, these are the facts and need not be interpreted in any way, but City Press elected to write the stories in a manner that readers will be sympathetic to Prof Phendla and critical of the University, the Council and Prof. Mbati.”
The panel’s considerations
The question of whether the decision by the High Court vindicated Phendla or Mbati is largely a subjective one – it depends from which angle one looks at it.
What concerns the panel more, is the statement that the court has ordered Univen “to take disciplinary action against its vice-chancellor”.
The court order, which is in the panel’s possession, did not say that at all.
The fourth allegation
The allegation is that the Commission for Gender equality (CGE) was “scathing” about Mbati’s conduct.
The third story read, “A report conducted by the Commission for Gender Equality on 4 December 2014 was scathing on Mbati’s behaviour…”
The complainants say this statement was inaccurate, as the matter was settled by agreement between the parties and all prior determinative finding were excised from the report – as such, the CGE made no findings against either Mbati or Univen.
In addition, this allegation was unreasonable as the court order was a matter of public record, and Univen had sent that order to City Press (on June 23), and in its letters of 1 July 2016 and 29 July 2016 Univen drew City Press’s attention to the contents of the court order and the fact that in terms of it, the CGE had excised all of its determinative findings from the report.
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Lubisi says that, while the report itself might not have been directly scathing about Mbati’s conduct, it did not paint him in a positive light. He refers for example to paragraph 8.2 of the CGE’s report, which states that Mbati, when consulted “could not explain some of the incidences that took place during the time in questions, such as the reason for the telephone calls he made to the Complainant late at night and the messages he sent to the Complainant.” |
Lewis points out that City Press:
· concedes that the report, as originally drafted, was not in fact scathing about Mbati – at best, “some of the facts of the investigation” did not paint him in a positive light; and
· relied on one “fact” (paragraph 8.2 of the CGE’s report) – but this was one of the findings that had been excised from the CGE’s report. “Thus, at the time of publication, the finding did not form part of the CGE’s report,” she concludes.
The panel’s considerations
The word “scathing” is rather strong, and if a report does not paint someone in a positive light it does not by default mean that it was scathing about that person.
These are the findings of the CGE’s report regarding Mbati:
· There was sufficient evidence of a romantic relationship between him and Phendla;
· Even though Mbati denied this allegation, he could not explain the reason for the telephone calls he had made to her late at night and the messages he had sent her;
· Phendla’s allegation that she was charged with misconduct only after she refused Mbati sex was “convincing”;
· Univen’s management, under Mbati’s leadership, refused to provide Phendla with the Deloitte and Touche report, which made it difficult for her to prepare for her defense; and
· After the mediation process failed, Univen’s council failed to take the next step as required by the university’s Policy on Sexual Harassment.
Looking holistically at all of the above, the panel believes that the word “scathing” was justified.
However, what the text neglected to say was that the court ordered all of the issues mentioned above to be excised – that would have provided the necessary context, which the text sadly lacked. The panel notes the story did say the court had ordered the CGE “to excise certain findings” from its report – without stating that the basis on which it called the report “scathing” was part of the order.
The fifth allegation
The allegation is that the High Court had “enforced” the CGE’s recommendation that Clause 5.2 of Univen’s Sexual Harassment Policy should be implemented.
The third story stated, “A report conducted by the Commission for Gender Equality on 4 December 2014 was scathing on Mbati’s behaviour and had recommended, amongst other things, that the university invoke section 5.2 of its sexual harassment policy. This clause calls for a formal procedure wherein the human resources director must demand a written explanation from an offender and, if there was a prima facie case of misconduct, a charge sheet must be drawn up. The South Gauteng High Court enforced the recommendation on May 30…”
The complainants say this allegation was inaccurate – the High Court did not “enforce” the CGE’s recommendation. The matter was settled by agreement between the parties. As part of the settlement, the University agreed to implement Clause 5.2.1 of the Policy, as the CGE had recommended in paragraph 9 of its report. This clause required the Human Resources Director to call for a report from the mediator – it did not “call for a formal procedure wherein human resources director must demand a written explanation from an offender and, if there was a prima facie case of misconduct, a charge sheet must be drawn up”. That is required under Clause 5.2.3 of the Policy. Clause 5.2.3 is only triggered in circumstances where the mediator’s report concludes that there is a prima facie case of harassment. Clause 5.2.3 was not referred to in either the CGE’s report or the Court’s order.
They add that the publication of this allegation was also unreasonable, as the court order (which City Press had in its possession) clearly stated that it was an order by consent between the parties.
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Lubisi replied that the High Court compelled Univen to ensure that the allegations raised by Professor Phendla were procedurally investigated. |
Lewis insisted that the High Court only directed Univen to implement Clause 5.2.1 of its policy, which requires it to call for the mediator’s report (with which the university has complied).
The panel’s considerations
This is a matter of semantics – yes, the matter was settled by agreement, but the settlement was part of the court proceedings. This issue is neither so serious nor so clear-cut that it can be construed as a breach of the SA Code of Ethics and Conduct.
The sixth allegation
The complaint is that the third text implicitly alleged that Univen did not comply with the court order.
The article inter alia read (as cited by Lewis):
“The University of Venda (Univen) council has cleared the institution’s vice-chancellor, Professor Peter Mbati, of sexual harassment charges, but it refused to publicly release the reports that led to its decision…
“A report conducted by the Commission for Gender Equality (GCE) on December 4 2014 was scathing on Mbati’s behaviour and had recommended, among other things, that the university invoke section 5.2 of its sexual harassment policy. This clause calls for a formal procedure wherein the human resources director must demand a written explanation from an offender and, if there was a prima facie case of misconduct, a charge sheet must be drawn up. The South Gauteng High Court enforced the recommendation on May 30 after the council took the matter to court…
“ ‘Pursuant to the report, council resolved that the matter of sexual harassment against the vice-chancellor be closed as the report found that there was no basis for the sexual harassment claims by Professor Phendla,’ [Univen deputy council chairperson Thovhele] Tshivhase said…
“CGE spokesperson Javu Baloyi was noncommittal about whether the commission would launch another challenge in court. Baloyi could also not say whether the CGE agreed or disagreed with the council’s decision to clear Mbati. ‘The high court, in an order granted by consent between the parties, ordered that the University of Venda must follow up and implement the recommendations issued by the Commission for Gender Equality,’ Baloyi emphasised. ‘To the extent that any of those recommendations have not been implemented, the university and any other party bound by the court order will be in contempt of court…’ he added.”
The complainants say that this allegation was inaccurate, as the court order only directed Univen to call for the mediator’s report within 30 days (which it did) – therefore, there is no basis for the allegation that it failed to do so.
They add that this allegation was also unreasonable, as City Press had been in possession of the court order, and Univen had informed the newspaper of the facts in this regard.
Lubisi has not responded to this part of the complaint.
The panel’s considerations
The text neither stated nor implied that Univen had failed to comply with the court order. The only reference to this effect is a quote of Baloyi. The panel cannot blame the newspaper for reporting his view – but again, it then should have balanced the quote by reporting what the court had in fact ordered Univen to do (and hopefully also that it had already complied with the order).
Not asked for comment
Mbati and Univen complain that City Press did not give all the parties involved in this matter a right of reply, as alleged by the newspaper.
The panel asked for the relevant documentation, and we base our argument on what we have received.
The issue is simple and boils down to the question of whether City Press adequately:
· asked the complainants about the allegations raised; and
· reported the gist of such replies (if received).
We disregard the allegations which we have (largely) dismissed (namely that Phendla had been vindicated by the court, that the High Court had “enforced” the CGE’s recommendation, that the third text implicitly alleged that Univen had not complied with the court order, and that the CGE’s report was “scathing” about Mbati).
The remaining allegations now under scrutiny are:
· Phendla was charged with corruption only after she had brought a complaint of sexual harassment against Mbati; and
· Phendla was “hounded out of her job” on the basis of “trumped-up charges”.
On June 23 (after the publication of the first story but prior to the publication of the second and third texts), Yende sent an e-mail to Univen legal adviser Edward Lambani, copied to Mbati, in which he asked whether the latter was looking forward to the disciplinary process to clear his name, and how this issue had affected his integrity, dignity and reputation.
Lambani responded as follows:
· No disciplinary inquiry was instituted against Mbati; the court did not order such an inquiry, neither did the council institute any charges against him; and
· Mbati’s integrity had not been impaired at all; he is pleased with the order handed down by the High Court on 30 May 2016 which effectively nullified the report issued by the CGE; the court order has fortified his confidence in the judiciary, which has restored his dignity and reputation.
On July 15 (after the publication of the first story and the opinion piece, but prior to the publication of the second news report), Yende sent an e-mail to Lambani (copied to Mbati), saying that he had just read the Council’s statement regarding the case between Mbati and Phendla. He noted that the statement referred to a report stating “there was no basis on sexual harassment claims by Phendla”.
He asked:
· Which report was that?
· Could Lambani provide him with a copy for the purpose of verbatim quotes?
· Did obtaining that report mean that Univen has fully complied with Clause 5.2 of the Sexual Harassment Policy?
On the same day, Lambani replied that:
· The report was that of the mediator, issued on 24 July 2016.
· He regretted that Univen was not in a position to disclose the mediation report as it was confidential. He added, “However, for the sake of completeness, the finding made in the report was that there was no basis for Prof. Phendla’s complaint that Prof. Mbati sexually harassed her. In light of that finding, the University took a decision not to pursue any disciplinary charges against Prof. Mbati.”
· As far as the University was concerned, it has complied with Clause 5.2 of its Sexual Harassment Policy as it has obtained the relevant report.
At the hearing, Lewis presented an affidavit by Lambani in which he confirmed the correctness of the facts as presented in the relevant e-mails.
The panel notes that it has no evidence of questions asked by City Press prior to the publication of the first story, except for correspondence dated 30 January 2015 (with a response the next day).
The gist of the response was as follows:
· It was denied that Mbati made any romantic or sexual advances towards Phendla.
· Phendla alleged the above “at a very late stage in her disciplinary enquiry”.
· Univen regarded the forensic report as confidential, and did not rely on this report for the purposes of the disciplinary hearing against Phendla.
· The (independent) chairperson who presided over the disciplinary hearing ruled that the report was not necessary for the purposes of that hearing (and to the extent that it did become necessary, he would request that it be made available).
· Phendla’s dismissal was related “to her own misconduct” – the allegation of rape only arose later in the disciplinary process.
So then, looking at the three texts in dispute, the panel notes the following:
· The response that Phendla’s allegation of sexual advances against Mbati came after she had been charged, and not before that, was not reported in any of the three texts;
· Yende did not ask about the allegation that Phendla was “hounded out of her job” on the basis of “trumped-up charges”; and
· City Press largely failed to test Phendla’s version of events.
General comment
The panel cannot escape the impression that City Press published the stories in a manner that was biased in favour of Phendla. The allegation and / or statement of fact that Phendla was only charged with corruption after she had laid a complaint against Mbati, as well as that the latter has hounded her out of her job on trumped-up charges, were particularly harmful, which unnecessarily harmed Mbati’s and Univen’s dignity and reputation.
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Finding
The six allegations
The first allegation
The allegation that Phendla was charged with corruption only after she had brought a complaint of sexual harassment against Mbati warranted a right of reply by the latter to this specific issue. The newspaper’s neglect to do so was in breach of the following sections of the SA Code of Ethics and Conduct:
· 1.8: “The media shall seek the views of the subject of critical reportage in advance of publication….
· 7.2.4: “Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it…has taken fair account of all material facts that are substantially true” (second text).
The second allegation
The allegation that Mbati hounded Phendla out of her job on trumped-up charges (in the first and third texts) was unreasonable and intrinsically unfair, and is in breach of Section 1.1 of the Code.
The statement of fact in the opinion piece that the above was true is in breach of Section 7.2.4 of the Code.
The third allegation
The complaint about Phendla’s “vindication” in the opinion piece is dismissed.
The omission of the content of the court order is in breach of the following sections of the Code:
· 1.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”
· 7.2.4
The fourth allegation
The complaint about the use of the word “scathing” in the third text is dismissed.
The neglect to state that the court has ordered the issues which (at the time) justifiably led to the use of the word “scathing” to be excised, is in breach of Section 1.2 of the Code which reads, “News shall be presented in context and in a balanced manner…
The fifth allegation
This part of the complaint is dismissed.
The sixth allegation
The complaint that the third text implicitly alleged that Univen did not comply with the court order is dismissed.
The omission of the content of the court order was in breach of Section 1.2 of the Code.
Not asked for comment
City Press did not ask comment on the allegation that Phendla was “hounded out of her job” on the basis of “trumped-up charges”. This is in breach of Section 1.8 of the Code which says, “The media shall seek the views of the subject of critical reportage in advance of publication…
The newspaper largely failed to verify Phendla’s version of events, rendering this omission to be in breach of Section 1.7 of the Code which reads, “Where there is reason to doubt the accuracy of a report or a source and it is practicable to verify the accuracy thereof, it shall be verified…”
Univen’s response that Phendla’s allegation of sexual advances against Mbati came after she had been charged, and not before that, was not reported in any of the three texts. This is in breach of Section 1.2 of the Code.
General comment
The allegation and / or statement of fact that Phendla was only charged with corruption after she had laid a complaint against Mbati, as well as that the latter has hounded her out of her job on trumped-up charges were particularly harmful, which unnecessarily harmed Mbati’s and Univen’s dignity and reputation. These statements are in breach of Section 3.3 of the Code which states, “The media shall exercise care and consideration in matters involving dignity and reputation…”
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Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breaches of the Code of Ethics and Conduct as indicated above are all Tier 2 offences.
Sanction
City Press is directed to apologise to Mbati as well as to Univen for:
· reporting the allegation and the statement that Phendla was charged with corruption only after she had brought a complaint of sexual harassment against Mbati, and that the latter had had hounded her out of her job on trumped-up charges, without giving the latter a right of reply on this matter;
· omitting to report the content of the court order, specifically the fact that the agreement stipulated that all the negative statements made in the CGE report against Mbati be excised; and
· the unnecessary damage these reports, statements and omissions have done to their dignity and reputation.
The newspaper is reprimanded for:
· not asking for comment on the statement of hounding Phendla out of her job on trumped-up charges;
· largely failing to verify Phendla’s version of events; and
· not reporting Univen’s response to the effect that charges were brought against Phendla only after she had brought a charge of sexual harassment against Mbati.
The text should:
· be published prominently;
The headline should contain the words “apology” or “apologises”, and “Mbati”.
Addressing on sanction
Section 5.5 of our Complaints Procedures reads, “At the conclusion of a hearing, and after a Panel has reached a decision, both parties shall be entitled to address the Panel, personally or in writing, on sanctions and where appropriate mitigation.”
This section should not be confused with an appeal – it merely gives each party an opportunity to address the panel on the sanction itself. The opportunity to appeal, either the finding or the sanction, remains open for the next seven workings days, as outlined below.
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.
Tshamano Makhadi, public representative in the Press Council
Franz Krüger, press representative in the Press Council
Johan Retief, Press Ombud