May 7, 2013
This ruling is based on the written submissions of Mr Lukas Swart, for the Swartberg Intelligence Support Services (SISS), and the Sunday Times newspaper.
COMPLAINT
SISS complains about two stories in the Sunday Times (in its Business Times edition) on 20 January 2013, headlined Eskom uses spy agency to counter labour unrest, and Outrage over Eskom’s spying tactics at Medupi project (January 27).
Regarding the first story SISS denies that it was involved in spying and challenges the following statements:
· “Documents and e-mails forwarded to Business Times reveal that Eskom contracted the services of intelligence support company Swartberg to spy on employees, communities, unions, political parties, green lobbies and government officials”;
· “Clever guises were used to infiltrate communities…where agents were placed to gather information and influence people’s attitudes towards the project and company management. Local scouts were also recruited to keep an ear to the ground”;
· “Swartberg advised Eskom to send out positive ‘media propaganda’ on what the company was doing to better the lives of communities close to the Medupi project in order to influence perceptions”;
· According to a source “tactical information was supplied to the company to get an advantage over unions during negotiations”;
· Workers contracted by Murray & Roberts and Grinaker LTA had damaged vehicles and some equipment at the power plant and that they had protested because their contracts were due to end;
· Energy Minister Dipuo Peters attended an ANC meeting in Shongwane last year;
· “The documents also revealed plans by the Association of Mineworkers and Construction Union to delay Medupi in 2013 by engaging in joint-venture operations with green lobby groups such as Greenpeace, Earth Life and GroundWorks”; and
· Swartberg had also worked on Transnet’s multi-product pipeline from Johannesburg to Durban that experienced a three-year delay and had budget overruns of R14-billion.
The passages in dispute in the second story said:
· Eskom’s spying on its stakeholders could be illegal;
· Eskom’s industrial relations system was failing;
· “More documents received this week showed that extremely personal information has been gathered on individuals”;
· Commercial law attorney Paul Jacobson said it was legal for companies to gather information on its workers “if it was doing so in a relatively public context” – although the collection of personal information in a private context and then disclosing it in a different context might be a violation of workers’ rights to privacy;
· The DA’s public enterprises shadow minister Natasha Michael also reportedly said that a state-owned enterprise spying was scandalous, unethical and illegal; and
· “Democratic Socialist Movement spokesperson Weizmann Hamilton said Eskom’s actions confirmed that business was more concerned with profits than (with) development.”
In general, SISS also complains that Sunday Times did not ask it for comment and asserts that the newspaper acted without integrity.
ANALYSIS
The first story said that evidence had come to light that Eskom had resorted to spying tactics at its Medupi power-station in Lephalale to mitigate risks related to labour unrest. It implied that Eskom had used a company called Swartberg Intelligence Support Services for this purpose.
The second one added that Eskom’s spying tactics could be illegal.
The FIRST STORY
Spying
The story said: “Documents and e-mails forwarded to Business Times reveal that Eskom contracted the services of intelligence support company Swartberg to spy on employees, communities, unions, political parties, green lobbies and government officials.”
SISS argues that a spy would steal information, invade someone’s privacy and infiltrate one’s organization in order to collect vital information. “We are not spies and we are not nearly as detailed as media journalists when it comes to laboring issues. We merely concentrate on portraying the bigger strategic picture on risk issues that may result in strikes and…destabilize the community. We gather hearsay information on site and in the community and clearly hearsay can not (sic) be specified as spying.”
Sunday Times says that, according to the Collins English Dictionary, a spy is a person who keeps secret watch over others. “We (therefore) submit that our use of the word spy is consistent with this definition.” It argues that, by SISS’s own admission, it made use of informers. The newspaper says: “It goes without saying that informers do not advertise what they are up to as this would induce people to guard what they say in the presence of informers.” It also argues that Eskom terminated SISS’s contract because the scope of its activity included “gathering intelligence”.
SISS replies that:
· it has an open line of communication between the workforce, the community and the police – “how secret can that be?” It says that all its informers openly talk to their friends about their affiliation with SISS, and states that everybody knows who it is and what it stands for. “Swartberg ISS also created its own hotline where everybody can report crime and labour issues. Swartberg ISS were also quoted in local newspapers. What is secret about that?” It also states that even after its contract was terminated, local leaders still invited the organization to help with negotiations regarding the strike;
· people who supply others with information can be called informers or sources – it uses both words, and argues that there is “nothing serious about it”;
· its informers openly admit to be its representatives and states that “information is openly shared”;
· the reason why its contract was prematurely ended was not because of intelligence, but rather because of the bad publicity created by the Sunday Times; and
· “intelligence” is merely “verified or confirmed information”.
Clearly, SISS uses one definition of spying, and the newspaper another. The semantic field of this word includes both these descriptions.
While I can understand its aversion to the use of the word “spying”, I also believe that SISS’s initiative to gather information would not have been successful if unionists and community workers had been aware that the information from its operatives was passed on to Eskom. The newspaper was therefore justified in calling this spying as information was surreptitiously collected from people and this information was passed on to a client to use for its own purposes.
Infiltrating communities
The sentence in dispute read: “Clever guises were used to infiltrate communities…where agents were placed to gather information and influence people’s attitudes towards the project and company management. Local scouts were also recruited to keep an ear to the ground”.
SISS says that it has never put people “on the ground” to monitor situations. “What we did, was to speak to and learn from contractors themselves on how they approach these … projects.”
Sunday Times replies that it based these sentences on SISS’s report to Eskom (titled the “Medupi Annual Review”).
The newspaper says:
· In the preface to this document (page 3), it referred to “peace committees” which had been established in communities which acted as “intelligence centres to provide Swartberg with information from the communities”; and
· On page 12 of the same report, SISS offered to try to “infiltrate the GroundWorks training programme in Natal (sic) to learn exactly how the activists are taught to demobilize an entire community.”
It concludes that its reporting on this matter was based on SISS’s own report and concludes that the story was therefore was fair, reasonable and accurate.
SISS replies that:
· the name of “peace committees” has been changed to “bridging committees”. It says that the latter’s intention is to build bridges between farming, urban and traditional communities;
· intelligence support does not only stand for crime and labour issues – “our challenge…is to add value to people’s lives. No matter where we work we will always make an effort to know our surroundings. Can that be wrong?”
· “infiltration” means it finds somebody who is part of a structure to talk to us at Swartberg;
· the newspaper neglected to mention that it pleaded for community upliftment;
· because it worked on hearsay and because it did not place people in organisations, “it is impossible for us to obtain tactical information of critical value”; and
· its own report was based on the presentation of Mr Pierre van Zyl “who from the beginning was a double agent” (he was a member of the PAC long before he joined SISS; he later also joined the Democratic Socialist Movement – the DSM).
Firstly, I am satisfied that the newspaper was justified in its reporting as it based its information on relevant and credible documentation.
Also, I find it ironic that SISS itself makes use of terms that are normally used for spying – in its response to the newspaper’s reply it even says that van Zyl was “a double agent”. SISS cannot blame the newspaper for using the word “spying” if it uses spy-terms itself.
Positive ‘media propaganda’
The story said: “Swartberg advised Eskom to send out positive ‘media propaganda’ on what the company was doing to better the lives of communities close to the Medupi project in order to influence perceptions”.
SISS say that “propaganda” is the strategic use of disinformation to manipulate public views; it argues that Eskom was building numerous tar roads in the area and asks: “How can it be called propaganda it the tar is already on the road?”
Sunday Times refers me to a report from Swart in which he recommended “media propaganda” (his words) to manage public perceptions of Eskom.
I have this document in my possession. It says that the area would be stable for a long time if SISS can defeat the criminals and follow it up with the “right media propaganda release” from Eskom.
‘Tactical information’
The story reported that a source said that “tactical information was supplied (by SISS) to the company (Eskom) to get an advantage over unions during negotiations”.
SISS complains that this is untrue.
The newspaper says that one of its sources provided it with this information.
I note that the statement in dispute was not stated as fact, but that it was attributed to a source. This source had the right to say what s/he did, and the newspaper was entitled to publish it as such.
Protesting workers damaging equipment
The story said that workers contracted by Murray & Roberts and Grinaker LTA had damaged vehicles and some equipment at the power plant and that they had protested because their contracts were due to end.
SISS complains that this is untrue.
Sunday Times argues that this portion of the story did not refer to SISS and that this part of the complaint should therefore not be entertained.
The newspaper is correct, of course.
Energy Minister attending ANC meeting
The story said that Energy Minister Dipuo Peters attended an ANC meeting in Shongwane last year.
SISS complains that this is untrue. It says: “Dipuo Moatshe, a community leader, attended the public meeting and not a minister as the newspaper reported.”
The newspaper admits to this error and says that it is willing to correct it.
Plans to delay Medupi
The story stated: “The documents also revealed plans by the Association of Mineworkers and Construction Union to delay Medupi in 2013 by engaging in joint-venture operations with green lobby groups such as Greenpeace, Earth Life and GroundWorks”.
SISS states that this was information “based on hearsay from open meetings”.
Sunday Times refers this office to an email by Swart, directed to Eskom’s Kubenthan Nair, in which he stated that Earthlife Africa, GroundWorks, Greenpeace and Amcu were planning a joint venture to disrupt Medupi during 2013. He claimed that these organisations had held more than 50 meetings “and Swartberg could see the threat growing”.
The newspaper argues: “He (Swart) now claims that this information was hearsay and stolen from Swartberg. He cannot have it both ways. Either it is credible information which he presented to his client or he presented hearsay evidence as credible.”
In its response, SISS raises several issues, none of which is relevant to the complaint at hand. I have this document, dated 1 December 2012, in my possession. The sentence in dispute is indeed accurate.
Transnet’s pipeline
The story said that Swartberg had also worked on Transnet’s multi-product pipeline from Johannesburg to Durban that experienced a three-year delay and had budget overruns of R14-billion.
SISS complains this statement was untrue.
The newspaper points out that it already ran the following correction: “Last week…we reported that Swartberg…worked on Transnet’s multi-product pipeline from Johannesburg to Durban. Transnet has since pointed out that it did not make use of Swartberg’s servies. It was in fact another company working on the pipeline that did the work.”
In its response, SISS says that its complaint was not about who it worked for, but rather “about the faulty perception created by the Sunday Times, claiming that the pipeline project was delayed because of Swartberg ISS’s presence on the pipeline”.
The newspaper’s correction was sufficient – if SISS did not work on the pipeline, it follows that Sunday Times could not have created a perception that work was delayed because of its presence.
General comment
Apart from providing SIS’s interpretation regarding the statements contained in the article, it does not offer any facts which demonstrate inaccuracies in the story. At best, SISS provides a different spin to the statements in the story related to spying on activists and on gathering intelligence.
The SECOND STORY
I have pondered on the question if SISS had the standing to complain about this story, as the article was about Eskom’s (possible illegal) activities. However, the article also mentioned SISS and it was clear that the company was involved in these possible unlawful actions. Also, this story should also be read in conjunction with the first article, which was all about SISS.
This does not mean, though, that I am going to entertain every part of the complaint.
Illegal
The story said that Eskom’s gathering information on its stakeholders at its Medupi power-station were said to be in breach of the country’s Constitution and that it could therefore be illegal.
SISS says that it used the internet to do research on Eskom’s stakeholders. It states: “What the Sunday Times reported on as an investigation on stakeholders is probably nothing more than us using the Internet to look for new partners.”
Sunday Times replies that the story did not present the information in dispute as fact, as it used the words “are said to be” (and “could be”). It adds that the story immediately afterwards substantiated this statement by quoting two people who made the contention (Mr Gideon du Plessis of Solidarity and Mr Lesiba Seshoka of the NUM).
The newspaper’s argument is convincing as its reporting can be construed as normal journalistic practice.
Failing system
The story said that Eskom’s industrial relations system had been failing and that the company had reverted to covert operations instead of fixing its industrial relations weaknesses.
SISS’s complaint appears to be not about covert operations in this case, but rather about Eskom itself. I submit that SISS does not have the standing to complain about Eskom’s alleged failure of its relations system.
I am therefore ignoring arguments from both sides pertaining to this issue.
Gathering of personal information
The sentence in dispute read: “More documents received this week showed that extremely personal information has been gathered on individuals”. As an example, the story cited two organisers of Earthlife Africa in this regard.
SISS says that its employee (van Zyl) was never instructed to gather information on specific persons – his only task was “to gather information on tactics and motives which had the intention to sabotage or hinder the project”. It says that van Zyl acted on his own and that he tried to destroy SISS in order to create an opportunity for his own business.
Sunday Times retorts that it had paid its source for this information.
I asked the newspaper to provide these “more documents” to me, which it did. I am satisfied that this reporting was accurate. Also, even if SISS’s argument is correct in that van Zyl acted on his own, Sunday Times still was justified to use the information contained in these documents.
Let me state in passing that the personal content of these documents affirmed my decision above regarding the use of the word spying.
‘Relatively public context’
The story quoted commercial law attorney Paul Jacobson who had reportedly said that it was legal for companies to gather information on its workers “if it was doing so in a relatively public context” – although the collection of personal information in a private context and then disclosing it in a different context might be a violation of workers’ rights to privacy.
SISS complains that this was hearsay information, gathered by van Zyl.
Sunday Times says that these statements were direct quotes from Jacobson, who was speaking in general terms and who did not offer an opinion on specifics of the Medupi case.
Indeed.
‘Scandalous, unethical, illegal’
According to the story, the DA’s public enterprises shadow minister Natasha Michael said that a state-owned enterprise spying “is a scandal of the highest order. It is unethical and, to my knowledge, illegal”.
SISS says that this information came from van Zyl, and accuses him of double standards.
Sunday Times says that this statement was properly attributed and therefore argues that it was justified in its reportage. The newspaper adds that van Zyl had nothing to do with this information “and we do not understand why he is mentioned in relation to this quote”.
I accept this explanation, and also take into account that the statement in dispute was indeed properly attributed.
Profits over development
The sentence in dispute read: “Democratic Socialist Movement spokesperson Weizmann Hamilton said Eskom’s actions confirmed that business was more concerned with profits than (with) development.”
SISS says that Hamilton was van Zyl’s new best friend.
The newspaper – quite correctly – says that this statement was properly attributed and therefore argues that it was justified in its reportage.
In general
Not contacted for comment
SISS complains that Sunday Times did not ask it for comment and asserts that the newspaper acted without integrity. “The fact that they still maintain to plead their innocence after they admitted that they did not make an effort to seek the truth, puts to us…a huge question mark behind the Sunday Times as a newspaper with integrity.”
It adds that its contract with Eskom was terminated as a result of the stories (on 2 February 2013), which led to a loss of millions of rands and job opportunities.
Sunday Times concedes that it did not contact SISS for comment. It also admits that the reporter did not verify information about the attendance of a Minister at a meeting and states it is willing to correct that error.
The Sunday Times has failed to comply with a fundamental rule of journalism. In the stories a range of people were quoted and it is alarming that no one at the newspaper, with all its gatekeepers, saw this basic failure. This has prejudiced SISS – and the public.
Even though the neglect to ask SISS for comment is inexcusable, I am not going to conclude that “Sunday Times as a newspaper” lacks integrity (as SISS put it). That, to my mind, would by way too harsh.
FINDING
The first story
The complaint is dismissed in its entirety, except for the inaccurate statement that Energy Minister Dipuo Peters attended an ANC meeting in Shongwane last year. This is in breach of Art. 1.1 of the Press Code that says: “The press shall be obliged to report news … accurately…”
The second story
The complaint is dismissed in its entirety.
In general
Not contacted for comment
Sunday Times neglected to ask SISS for comment, which is in breach of Art. 1.5 of the (former) Press Code that states: “A publication should seek the views of the subject of serious critical reportage in advance of publication…”
Lack of integrity
This part of the complaint is dismissed.
SANCTION
Sunday Times is directed to:
· apologise to SISS for its failure to obtain its comment;
· correct the inaccurate statement that Minister Peters attended an ANC meeting in Shongwane last year; and
· reflect SISS’s view (if it wants to put forward its views) as a separate story that should be published in its Business Times edition next to the text (below).
The story reflecting SISS’s comment should be approved by SISS as well as by this office.
Beginning of text
Sunday Times apologises to Swartberg Intelligence Support Services (SISS) for neglecting to obtain its comment on two stories that we published in January this year in our Business Times edition.
The stories, headlined Eskom uses spy agency to counter labour unrest, and Outrage over Eskom’s spying tactics at Medupi project, said that evidence had come to light that Eskom had resorted to spying tactics at its Medupi power-station in Lephalale to mitigate risks related to labour unrest. They implied that Eskom had used SISS for this purpose. We also reported that Eskom’s spying tactics could be illegal.
SISS lodged a complaint with the Press Ombudsman that consisted of 16 different sections. The company’s main issue was that we unjustifiably labelled its work at Medupi as “spying”, and that we did not ask it for comment.
Press Ombudsman Johan Retief dismissed 14 of these complaints, but said that we have failed to comply with a fundamental rule of journalism. “In the stories a range of people were quoted and it is alarming that no one at the newspaper, with all its gatekeepers, saw this basic failure. This neglect has prejudiced SISS – and the public,” he said.
He also directed us to correct the statement that Energy Minister Dipuo Peters attended an ANC meeting in Shongwane last year. The person that we referred to was in fact Mr Dipuo Moatshe, a community leader.
Regarding our use of the term “spying tactics”, Retief said that SISS used one definition of spying, and we another.
“The semantic field of this word includes both these descriptions. While I can understand its aversion to the use of the word ‘spying’, I also believe that SISS’s initiative to gather information would not have been successful if unionists and community workers had been aware that the information from its operatives was passed on to Eskom.
“The newspaper was therefore justified in calling this spying as information was surreptitiously collected from people and this information was passed on to a client to use for its own,” he said.
Retief directed us to report the views of SISS, which we do elsewhere on this page.
Visit www.presscouncil.org.za for the full finding.
End of text
Appeal
Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombudsman