Ruling by the Press Ombud
21 August 2016
This ruling is based on the written submissions of Mr Tshepo Mathopo of Mathopo Attorneys, on behalf of Siyaya Consulting Engineers and its director, Mr Makhensa Mabunda (who is complaining in his personal capacity), and those of Shaun de Waal, editor-at-large of the Mail & Guardian newspaper.
Siyaya and Mabunda are complaining about a story in the Mail & Guardian of 24 – 30 June 2016, headlined Prasa accuses SA ‘partner’ of fraud – The rail agency claims a local company duped it by trading on a German rail firm’s name and reputation.
Complaint
The complaint firstly relates to the questions posed by the M&G’s journalist to the complainants. They say that the:
· journalist gave Mabunda an unreasonable deadline;
· article did not adequately reflect his response; and
· questions largely did not address the specific allegations reflected in the story.
They also complain that:
· a statement about Siyaya having used German rail firm DBI’s logo was false and misleading; and
· Mabunda had never used the word “subcontractor” – attributed to him in the article.
In general, they complain that the article was not presented in context, neither was it fair, accurate or balanced – instead, it intentionally and misleadingly misrepresented the facts and unfairly portrayed the complainants as having been guilty of illegalities. They add that the reportage infringed on Mabunda’s right to dignity and reputation, as it left the false impression that he was guilty of corruption.
Provision
I need to state the following up front: I am mindful of Section 1.7 of the Complaints Procedures that states, “Where at any stage of the proceedings it emerges that proceedings before a court are pending on a matter related to the material complained about…the Ombud….shall forthwith stop the proceedings and set aside the acceptance of the complaint by the Public Advocate, unless it is shown that the issue complained about is not among those that the court is adjudicating.”
Litigation in the matter is pending – so I need to be careful not to overstep the line and intrude into matters that belong in court. There are issues, though, which are of a journalistic nature only.
I am keeping this distinction in mind throughout my adjudication.
The text
The first few sentences adequately summarise the report, written by Pauli van Wyk:
“The German government-owned rail company Deutsche Bahn has been drawn into the Passenger Rail Agency of South Africa (Prasa) tender scandal. Its subsidiary, DBI, wants to have a local empowerment company, Siyaya Consulting Engineers, which bagged more than R5.8-billion in deals from the embattled state rail agency, liquidated. DBI has exposed how Siyaya Consulting Engineers hijacked its official logo to falsely imply a partnership between them. The ‘partnership’, which Prasa itself is now labelling a ‘suspected fraudulent misrepresentation’, was used to dupe the parastatal into concluding various deals with Siyaya.”
The arguments
Questions posed to Mabunda
Mathopo says that Van Wyk sent a list of questions to Mabunda on June 22, requesting a response by the close of business on the same day, alternatively the following day before 9:00. This timeframe, he submits, was “unreasonable”.
Secondly, he says that the newspaper proceeded with publication as if it had not received a response (which it did), failing to record the answers provided to the journalist.
He also complains that Van Wyk did not specifically enquire about an allegation attributed to Prasa, being the reference to “a suspected fraudulent misrepresentation to dupe the parastatal to concluding various deals with Siyaya”, as she should have.
Mathopo concludes, “M&G had an opportunity to request a respons to the allegations but it deliberately failed to do so. It is not difficult to appreciate therefore that our client was denied without any justifiable reasons to respond to the allegations of fraud… This was clearly unfair and in breach of the Press Code.”
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The editor-at-large denies that the time Mabunda was given to respond was “unreasonable” – in the time provided, he argues, the former was able to provide a substantial response to each of the queries. Also, Mabunda did not ask for more time to reply, neither did he complain that the time given to him was inadequate. De Waal also argues it is disingenuous to claim that Van Wyk did not raise the issue of “fraudulent misrepresentation”. He says that in her introductory paragraphs, as well as during a telephonic conversation, Prasa and the contracts awarded to Siyaya and DBI were always central to the discussion. The text he is referring to reads, “I further came upon evidence suggesting that Siyaya DB Consulting Engineers (Pty) Ltd and Db Siyaya International (Pty) Ltd may have benefitted unlawfully from various lucrative PRASA contracts. The alleged illegality comes down to apparent misrepresenting and/or misusing of DB International’s name.” The editor admits that the journalist did not use the word “fraud”, but argues that the implication of the queries about “misrepresentation” and unlawful benefit by Mabunda and Siyaya clearly would have constituted fraud. He adds, “We received Prasa’s response to our questions after those from Mr Mabunda, immediately before deadline, and used Prasa’s language as contained in its answer to our questions. We felt that Mr Mabunda had, in effect, already replied to such claims.” De Waal also states that Mabunda was being investigated for fraud and extensive tender irregularities, and according to Prasa sources there was strong prima facie evidence of serious wrongdoing. “Dr Popo Molefe later confirmed, on the record, that he has requested the NDPP to initiate racketeering proceedings against subjects under investiagion, including Siyaya and Mr Mabunda. Legally, there is an extremely high burden on the state to provide evidence of racketeering before such a case may be registered by the NDPP. We proceded on the basis of this corroborative evidence of such claims against Siyaya and Mr Mabunda,” he adds. |
Mathopo argues that the M&G’s attempt to justify its reportage on the accusations of a “partnership” between Siyaya and DBI and of fraud is “misplaced”, adding that his clients were never confronted with such allegations.
Mathopo also says it is not helpful for the newspaper to state that it had received Prasa’s response after those of his clients and that it had used the former’s language. He points out that this office has repeatedly held in various rulings that a publication is not at liberty to publish an allegation just because someone has made it – there has to be a certain measure of truth to the allegation before it can be said to be reasonable and fair to publish it. “We submit…that this is not so in this matter.”
DBI’s logo; ‘subcontractor’
Note: I have purposefully not summarised the arguments on these issues, as they may arise during the upcoming litigation. Where there is any reasonable doubt as to an issue that I may or may not entertain, I shall rather err on the side of caution.
I shall, however, return to the aspects of the complaint which are of journalistic importance, such as whether Van Wyk asked Mabunda for comment on these particular issues.
Out of context, ‘corruption’, etc.
Siyaya and Mabunda conclude that the article was not presented in context; neither was it fair, accurate or balanced – instead, they say, it intentionally and misleadingly misrepresented the facts and unfairly portrayed them as having been guilty of illegalities.
The story alleged, without any substantiation or any details given, that “he positioned himself to score from Prasa deals as far back as 2008 when the details of the rail company overhaul had not yet been publicly released”.
Mathopo says this was a sweeping statement – which the journalist did not even raise with Mabunda. “The reporting in this regard, we submit, left a distinct impression on the mind of the reader that he [Mabunda] was guilty of corruption.”
He argues that the article infringed on Mabunda’s right to dignity and reputation, as it left the false impression that he was guilty of corruption.
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De Waal attests that the sentences in question were backed up by information from sources, as well as from the journalist’s knowledge of information provided in affidavits forming part of the upcoming litigation. The sentences quoted were in summary of the following facts: · A shelf company, Blue Nightingale, was acquired in 2006; · This name changed to Siyaya DB Engineers on 22 January 2008, allegedly without DBI’s consent; · Formal letters to Prasa with combined Prasa and DBI letterheads which M&G had sight of showed that Mabunda had positioned himself to benefit from Prasa before the rail overhaul was announced. This issue will be aired in court in coming months; and · The relevant memorandum of understanding (MOU), mentioned above, was signed only on 16 March 2011 – years after Siyaya had purported to be in some sort of partnership with DBI. |
Mathopo replies that Mabunda was not confronted with the allegation about “the rail company overhaul before being made public” – and yet the article accused him of substantiating it.
He adds, “It does not assist Mail & Guardian to attempt to justify its conduct on [the] allegation that he is apparently being investigated for fraud and extensive tender irregularities. For the record, Mr. Mabunda is not aware of any such investigation neither has there been any legal processes instituted against him in this regard.”
Analysis
Questions posed to Mabunda
Unreasonable deadline
If the deadline was unreasonable, Mabunda would not have been able to respond in the detail he did.
Given this consideration, as well as the fact that he neither asked for more time nor complained that the time was inadequate, I do not believe that this part of the complaint has a leg to stand on.
Article inadequately reflecting Mabunda’s response
The complaint is that the M&G published the story as if it had not received a response (which it did) – meaning that the newspaper failed to adequately record the answers provided to the journalist. The question is whether that is true.
These are my initial observations:
· In his response to the complaint, De Waal did not touch on this issue at all; and
· The online version of the story contained many of Mabunda’s (relevant and material) responses to Van Wyk – which is not the case with the printed report.
It is important to belabour the last point.
The following text was added to the online version:
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Makhensa Mabunda, director of the S-Group and its subsidiaries which include Siyaya DB Consulting Engineers and DB Siyaya International, said the companies only used the DB-link in its correspondence or letterheads for work for which it had sub-contracted to the German international company. He said the “intention” had always been to establish a joint venture with DBI, but this never materialised due to “internal” issues at DBI. He confirmed that the company officially dropped the use of the initials DB in its name after discussions with the international company, adding that this had provided Siyaya with an opportunity to establish its own identity. Mabunda said his company is currently suing Prasa for non-payment in respect of work done to date. The M&G has been told the company has so far been paid nearly R1-billion for contracts of more than R5.8-billion awarded. Asked whether his companies benefited unlawfully from Prasa contracts, Mabunda said: “We are not aware about the illegality or unlawfully beneficiation from the contracts. As far as we are aware and to the best of our knowledge, each and every request made through MOU or works advertised and awarded to us, went through Prasa’s own procurement process and was approved accordingly.” Siyaya DB Consulting Engineers had sub-contracted the German company on among other projects, the condition assessment of existing infrastructure in SA, safety management systems as well as station and real estate development. Mabunda said he was unaware of any investigation into his companies. |
Mabunda’s complaint is not about the online version, but about the printed report. (In fact, when asked, he told me that he had not even been aware of the online story, let alone that it contained some of his responses to Van Wyk.)
I therefore confine myself to the printed text.
This text recorded Mabunda as saying that:
· there was no “friction” between his company and DBI;
· his relationship with the entity dates back to about 2008;
· Siyaya was party to an agreement for “strategy assistance” signed with Prasa and the German rail company in March 2011; and
· the liquidation application will be challenged.
No reference is made to his explanation regarding the use of DBI’s logo (based on the nature of the relationship between DBI and Siyaya) and also not to his denial of the allegation that Siyaya has unlawfully benefitted from Prasa contracts.
That was intrinsically unfair to Mabunda and Siyaya. I shall shortly return to this issue.
Questions not addressing specific allegations
Mabunda complains that the reporter did not ask him about Prasa’s allegation that he had fraudulently misrepresented facts, upon which the latter awarded a contract to Siyaya.
Van Wyk wrote the following to Mabunda (in her introductory paragraphs), “I further came upon evidence suggesting that Siyaya DB Consulting Engineers (Pty) Ltd and DB Siyaya International (Pty) Ltd may have benefitted unlawfully from various lucrative PRASA contracts. The alleged illegality comes down to apparent misrepresenting and/or misusing of DB International’s name.”
Van Wyk did not use the word “fraud” in her questions to Mabunda – but the implication of her queries about “misrepresentation” and unlawful benefit by Mabunda and Siyaya certainly pointed to the possibility of fraud, as De Waal quite correctly states. Even though the reporter did not specifically ask a question about fraud, she did raise the issue of misrepresentation – and Mabunda responded to it.
But more needs to be said. I note that Van Wyk, in her e-mail, was rather careful not to state an allegation as fact – and quite understandably so. She mentioned evidence “suggesting that Siyaya…may have benefitted unlawfully… The alleged illegality…” (Emphases added.)
However, when she reports on this matter the allegations suddenly turned into statements of fact. Note the following: “DBI has exposed how Siyaya Consulting Engineers hijacked its official logo to falsely imply a partnership between them. The ‘partnership’, which Prasa itself is now labelling a ‘suspected fraudulent misrepresentation’, was used to dupe the parastatal into concluding various deals with Siyaya.” (Emphases added.)
In contrast to these statements of fact, both the headline and the sub-heading did not succumb to the temptation to fall into this trap – it mentioned Prasa’s accusation, and stated its claims to this effect.
In the context of the article I would not have objected to the reportage if the word “alleged” was used – but it was not, and it was not fair to make statements of fact at that stage (even though these may at a later stage prove to be accurate).
Out of context, ‘corruption’, etc.
Mathopo quotes the sentence in the story which said that Mabunda “allegedly positioned himself to score from Prasa deals as far back as 2008…”
Van Wyk’s e-mail message to Mabunda indeed did not include a request to respond to this allegation. De Waal’s explanation that the newspaper received a response from Prasa after Mabunda’s reply does not hold water. This allegation is a serious one – which should have been put to him.
I also do not agree with the editor-at-large’s argument that the M&G’s reportage was justified because it was backed up by information from sources, as well as by the journalist’s knowledge of information provided in affidavits forming part of the upcoming litigation – the content of these affidavits still had to be tested in court.
I need to agree with Mathopo that the story indeed left an impression on the mind of the reader that Mabunda was guilty of corruption – or, at the very least, that it was a distinct possibility.
As I have stated above, it is possible that he may be found guilty of corruption at a later stage (I say “possible”, not “likely”, as I am making a general statement), but at the very least it was unfair to have left the distinct impression that Mabunda was corrupt at the time of publication.
I therefore need to take Mathopo’s argument seriously that the article has infringed on Mabunda’s right to dignity and reputation.
Finding
The printed version of the story did not include Mabunda’s:
· explanation regarding the use of DBI’s logo; and
· denial of the allegation that neither he nor Siyaya had unlawfully benefitted from Prasa contracts.
These omissions were in breach of the following sections of the Code:
· 1.1: “The media shall take care to report news…fairly”; and
· 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…”
The story stated allegations as fact that DBI had exposed Siyaya’s hijacking of its official logo – which enabled Siyaya to falsely imply a partnership between them in order to dupe the parastatal into concluding various deals with Siyaya.
This is in breach of the following sections of the Code:
· 1.1: “The media shall take care to report news…fairly”; and
· 1.3: “[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.”
Van Wyk’s neglect to ask Mabunda about the allegation that he had “allegedly positioned himself to score from Prasa deals as far back as 2008” is in breach of Section 1.8 of the Code that says, “The media shall seek the views of the subject of critical reportage in advance of publication…”
The unfair reporting, as indicated above, did not show any concern for Mabunda’s and Siyaya’s dignity and reputation. This is in breach of Section 3.3 of the Code that states, “The media shall exercise care and consideration in matters involving dignity and reputation…”
The complaints about an unreasonable deadline and Van Wyk not asking Mabunda about “fraud” are dismissed.
There is no adjudication regarding the question whether the newspaper was justified in its reportage on the use of DBI’s logo and the use of the word “subcontractor”, as these matters may surface in future litigation.
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
The M&G is directed to apologise to Mabunda and Siyaya for:
· not referring in the printed story to his:
o explanation regarding the use of DBI’s logo;
o denial of the allegation that he or Siyaya had unlawfully benefitted from Prasa contracts;
· stating as fact the allegations that DBI had exposed Siyaya’s hijacking of its official logo – which enabled Siyaya to falsely imply a partnership between them in order to dupe the parastatal into concluding various deals with Siyaya;
· not having asked Mabunda for his comment about the allegation that he had “allegedly positioned himself to score from Prasa deals as far back as 2008”; and
· not properly exercising care and consideration regarding Mabunda’s and Siyaya’s dignity and reputation.
The text should:
· be published on the same page as that used for the offending article;
The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.
Appeal
Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombud