Ruling by the Deputy Press Ombudsman
December 24, 2012
This ruling is based on the written submissions of Ledwaba Mazwai Attorneys, for Mr T Matona, and the Sunday Times newspaper (in its Business Section).
Complaint
Director General of the Department of Public Enterprise Mr Tshediso Matona complains about an opinion article in the Sunday Times on 7 October 2012 and headlined Crooked gang in love with the bling.
Matona complains that the column unfairly and incorrectly made statements about:
· his participation in a wine charity auction;
· the ValorIT vs. Cipro matter and him having an atrocious record at the Department of Trade and Industry (dti);
· him having awarded a bonus; and
· him being in love with the bling life.
He also complains that the above liked him unfairly and incorrectly to the journalist’s depiction of the corrupt manner in which the state was run.
He adds that Mulholland did not contact him for comment.
In general, he also complains that the allegations made against him were unfair, inaccurate, a negligent departure from the facts, omission and a failure on the part of the writer to exercise exceptional care and consideration involving his dignity and reputation.
Analysis
The article, written by Stephen Mulholland, was a hard-hitting column describing the state as “a vast criminal enterprise conducted by a Mafia run, in turn, by dons and their consiglieri”. Mulholland: “It is a gangster state in which petty civil servants demand bribes, in which state or provincial or city contracts are rented out to a descending structure of sub-contractors all taking a cut while the contract seldom is ever fulfilled.”
Following the description of state corruption, the column focused on Matona. Mulholland said the “extravagant behaviour on the part of those paid to serve the public is exemplified by the story … about the oenological pursuits of one Tshediso Matona …” He followed this up with examples of Matona’s alleged conduct.
In adjudicating this complaint, I shall be guided by:
· Art. 8.1 of the Press Code that says: “The press shall be entitled to comment upon or criticise any actions or events of public interest provided such comments or criticisms are fairly…made”;
· Art. 8.3 of the Code: “Comment by the press shall be an honest expression of opinion, without malice or dishonest motives, and shall take fair account of all available facts which are material to the matter commented upon”; and
· the Constitutional Court that has ruled in April 2011 (Robert McBride vs. National Media) as follows: “Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that are true”.
In the interest of freedom of speech, I am therefore only interested in the questions if Mulholland’s comments were an honest opinion, without malice, and if he took fair account of all available facts – and not if his comments were extreme, exaggerated, etc.
I also take into account that this was a matter of public interest as Matona was paid with public money.
Participation in the wine charity auction
The column said that at a charity wine auction Matona was the highest bidder for a set of La Motte wines for R5 500 and a single bottle of Chateau Margaux 1962 for R6 000. “That’s right. R6 000 for a bottle of wine paid by a civil servant.” Mulholland linked this to “extravagant behaviour on the part of those paid to serve the public”. He also stated that Matona spent his time “blowing a miner’s monthly wages on a few bottles of wine”.
Matona says that he attended the charity event in his personal capacity and that the money which he spent on the wine was his own. He complains that nothing in the column warranted the link between his professional responsibilities with “wine loving” or someone who spends his time “blowing a miner’s monthly wages on a few bottles of wine”.
Sunday Times says that it was not obliged to emphasise the fact that the money paid for the wine would benefit three charities, and denies that the column suggested a link between the execution of Matona’s duties and his love for wine.
The newspaper also argues that Mulholland commented on the amount of money spent on wine at the auction, and says that the column “gave readers enough information to make up their own minds whether they agree or disagree with his interpretation of the facts”.
Note that I shall deal with the issue of corruption later. At this stage, I am merely interested in Mulholland’s conclusion that Matona, as a civil servant, acted extravagantly – and related matters.
So here are my observations and conclusions:
· The newspaper was obliged to have stated that the wine had been bought for charity, as this would have put the matter in another (and the correct) perspective – his so-called extravagant behaviour was in the first place not for his own benefit, but rather for that of a worthy cause;
· This means that the newspaper’s argument that it gave readers “enough information to make up their own minds” is only partially correct; and
· The column did not link Matona’s execution of his duties with his love for wine – it merely stated that he was a civil servant (which was correct).
ValorIT vs. Cipro
The column said that, while Matona was DG at the dti, he “blotted his copybook” in the award of a contract to ValorIT, that he had an “atrocious record at the DTI” and that “…on Matona’s watch, a quick R56 million was paid to ValorIT…”
Matona says a press statement by the Minister of the dti explained this matter. He adds that Mulholland also did not access the court file and says that if he had, he would have noticed several key facts that were excluded from his text. This, he argues, caused a misrepresentation of the real situation. He adds that during his time as DG of the dti the department “never had a qualified audit report”. This fact, he says, flies in the face of his so-called “atrocious record” at the dti, and challenges the newspaper to produce information to the contrary.
He concludes that the reference to the ValorIT matter was therefore “inadequate, inaccurate and misleading”, as Mulholland failed to provide all the relevant information.
I note that Mulholland did not state that he had read the court record relating to ValorIT – yet he considered it necessary to comment on this matter. Court records are generally within the public domain. The Sunday Times was aware of how to access these documents and its excuse that the dti officials did not make the record available must be rejected.
I also note that the dti informed Mulholland that it could not comment as the matter was still before the court – and again, the journalist still saw it fit to make statements of fact.
This is the point: Mulholland did not disclose why Matona had had an “atrocious record” at the dti and why he had had “blotted his copybook in the award of the ValorIT contract”. My only conclusion can be that Mulholland disguised his opinion as fact. As the columnist has failed to disclose the facts on which his opinions were based, both in his column and in the newspaper’s response to the complaint, the publication cannot rely on the protection of the Press Code.
Awarding a bonus
The column stated that Matona had given a senior Cipro member a bonus of R105 228 for exceptional performance and this member had been one of two “suspended on suspicion of criminal behaviour”.
Matona says he awarded this bonus prior to allegations relating to tender irregularities that arose at a later stage. He states that at the time the bonus was made within the standard and accepted course of performance appraisals and processes. He argues that “any suggestions that the bonus was awarded in an irregular manner would be refuted by the fact that the Auditor-General has for that period issued an unqualified report”.
The Sunday Times offers no more information on this issue. It also does not deny that the Auditor-General has for the period in which the bonus was awarded issued an unqualified report.
I therefore accept that Mulholland was wrong in stating that Matona had given a bonus to an employee who had been suspended “on suspicion of criminal behaviour”, without clarifying that the bonus was given before the suspension.
As I cannot read minds, I can only wonder why Mulholland created this false impression. What I do suspect, though, is that this mistake must have caused Matona some serious, unnecessary harm.
In love with the bling life
The headline read: “Crooked gang in love with the bling life”. The column’s last sentence said: “But a modest lifestyle apparently doesn’t appeal to this civil servant. He clearly enjoys the bling life.” Mulholland also stated that “those who corruptly bilk the system in our gangster state are given to ostentatious displays of bling”.
Matona complains that these references to his lifestyle were a gross exaggeration and says that his lifestyle was far from the “suggested bling”.
Sunday Times says that it based this accusation on the amount of money that Matona spent on wine at the auction.
It was far-fetched of Mulholland to have come to this conclusion based on one incident only (which was anyway for charity and not in the first place for himself). Surely, one needs more than one example of extravagant behaviour to fairly come to such a conclusion.
Linked to the way in which the state was run
Matona complains that Mulholland linked him to his (Mulholland’s) depiction of the corrupt manner in which the state was run.
Sunday Times denies that Mulholland said Matona was corrupt. It argues that the journalist did say that Matona worked for the state and it did imply that he, like those who bilk the state, were prone to extravagant behaviour. But it did not say that he bilked the state. The newspaper says: “The fact that the columnist writes about Mr Matona in the same column as he writes about corruption does not imply that he thinks Mr Matona is corrupt.”
The newspaper argues that the part of the column that dealt with Matona related to opinions expressed, and argues that these opinions were covered “by fair comment and based on facts”.
It concludes that it is unreasonable to read the column as saying Mr Matona was corrupt because the column did not make that allegation or imply it.
So, did Mulholland:
· base his opinions on facts (as required by the Press Code); and
· unfairly link Matona to corruption?
Here are my considerations on both issues:
· Sunday Times did allege that the columnist based his opinion on facts, but it did not provide this office with any such evidence whatsoever (neither did Mulholland do so in his column). If these facts existed, it was for the newspaper to have made them available; and
· The first part of the column dealt with a state that was “simply a vast criminal enterprise conducted by a Mafia run, in turn, by dons and their consiglieri”; in the second section Mulholland “exemplified” this statement by referring to Matona. The word “exemplified” (read: demonstrate, typify, represent, illustrate, show, personify) says it all – the columnist used Matona as an example of the corruption that he accused the state of. This can only mean that the latter’s conduct should be interpreted within the context of a “gangster state” and that the column indeed linked the two in a damning way. Again, there would have been no problem with implying that Matona was corrupt, but then Mulholland must have had some factual foundation to base it on – of which he has not provided any evidence.
I therefore conclude that Mulholland did not have factual evidence to base his opinions on regarding Matona. He certainly was entitled to express harsh and hurtful opinions, if he had a legitimate, factual basis for them – which he did not provide this office with. His views are therefore not protected by the Press Code.
Also, Mulholland linked the description of the criminal state with Matona’s conduct. Without any evidence, this was unwarranted and unfair, and again it caused him some serious, unnecessary harm.
Not asked for comment
Matona complains that Mulholland did not contact him for comment.
The newspaper says that the columnist’s opinions were based on facts that were available to him and that he had sought information from the dti, but adds that he did not get responses to all his requests.
This means that Mulholland admitted that he did not have enough facts (and yet he came to some damning conclusions) – in which case surely he should have obtained information from Matona himself about whom he made some harsh remarks (even though normally a columnist is not required to ask the subject of his column for comment).
The fact remains that, whether a newspaper publishes a column or a news report, fact-checking is always of paramount importance. The requirements of accuracy, fairness and truth continue to prevail and newspapers should be careful to not relying on information in other newspapers for their “facts” (Sunday Times provided me with other stories on some of the topics contained in the column, but these reports can hardly be seen as primary sources).
Unfair, etc.
Matona complains that the allegations made against him were unfair, inaccurate, a negligent departure from the facts, based on an omission of facts, and a failure on Mulholland’s part to exercise exceptional care and consideration involving his dignity and reputation.
Sunday Times denies that the column misrepresented or suppressed relevant information and states that the test for fair comment is “…that is must be honest and genuinely held”.
With respect, this comment is only partly correct – comment should also take fair account of all available facts and be based on true facts (see my arguments above).
My ultimate conclusion is that the column was without foundation and written in a manner that showed disregard for Matona’s dignity, which caused him some serious, unnecessary harm.
General comment
Please note that this ruling is not an attempt to curb freedom of expression – my office should at all times enhance it, not restrict it. However, as many (all?) other rights this one also is not absolute – both the Press Code and our country’s Constitution put some limitations to this (precious) right, as I have outlined above.
In this case, Mulholland based his views either on untruths or on the lack of information (as I argued above and also intend to show below) and therefore he cannot expect protection from the Press Code.
Finding
Participation in the wine charity auction
The neglect to state that Matona bought the wine for charity was a material omission that led to an unfair conclusion, and it did not give the public enough information to base its own views on.
This is in breach of Art. 8.1 of the Code that says: “The press shall be entitled to comment upon or criticise any actions or events of public interest provided such comments or criticisms are fairly…made.”
It also breached Art. 8.3 of the Press Code that states: “Comment by the press shall…take fair account of all available facts which are material to the matter commented upon.”
The complaint about the alleged link between the execution of Matona’s professional responsibilities with “wine loving” or someone who spends his time “blowing a miner’s monthly wages on a few bottles of wine” is dismissed.
ValorIT vs. Cipro
Mulholland made statements of fact, but instead it was merely his opinion which were not based on fact (at least not at the stage of publication). This is in breach of Art. 8.1 and 8.3 of the Code.
Awarding a bonus
Mulholland wrongly stated that Matona had given a bonus to an employee who had been suspended “on suspicion of criminal behaviour”. This is in breach of Art. 8.1 and 8.3 of the Code.
In love with the bling life
It was unfair to conclude that Matona was in love with the bling life, based on one incident. This is in breach of Art. 8.1 and 8.3 of the Code.”
Linked to the way in which the state was run
Mulholland linked the description of the criminal state with Matona’s conduct. This was unfair and unwarranted, as it was without any factual evidence. This is in breach of Art. 8.1 and 8.3 of the Code.
Not asked for comment
Mulholland should have asked Matona for comment as his information was inadequate. This resulted in unfair comment and was in breach of Art. 8.1 and 8.3 of the Code.
Unfair, etc.
I have already ruled on this issue.
General finding
In general, the column with reference to Matona was not based on facts and therefore it was misleading, unreasonable, negligent, unjustifiable and unfair.
Sanction
Sunday Times is directed to apologise to Matona for not basing its column on facts, which lead to a misleading, unreasonable, negligent, unjustifiable and unfair text.
In particular, the newspaper should apologise to Matona for:
· omitting to state that he bought the wine for charity;
· making unsubstantiated statements regarding the ValorIT/Cipro matter and for suggesting that he had an atrocious record at the dti without any substantiation;
· wrongly stating that he awarded a bonus to an employee who had been suspended “on suspicion of criminal behaviour”;
· displaying his “love” for the bling life, based on one incident (which had to do with charity);
· associating him with corruption; and
· not verifying its information with him.
Sunday Times is directed to include Matona’s comment in this text, if indeed he wishes to comment. The text should end with these words: “Visit www.presscouncil.org.za for the full finding.”
The newspaper should furnish this office with a copy of the text prior to publication.
The text should be published prominently.
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 Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Deputy Press Ombudsman