Finding Complaint 4400
Date of article May 26, 2019
Headline: “Jessie Duarte’s son, ex in kickback scandal.”
Author: Zingisa Mvumvu
Page: 2
Online: Yes
Particulars
This finding is based on a written complaint from Mr Krish Naidoo on behalf of the ANC and a written response from the Sunday Times’ Ms Susan Smuts. It also involves some reference to local and international case law on the subject of public figures and privacy.
Complaint
The ANC’s Mr Krish Naidoo, on behalf of the ANC and of Ms Jessie Duarte complains of an article in the Sunday Times about a private trading entity, Combined Private Investigations (CPI) that told law enforcement agencies it had paid R40m over two years to a “Gupta associate”, Salim Essa, and that the former husband and son of Jessie Duarte, one of the ‘top six’ of the ANC, were beneficiaries.
The article also carried a picture of Ms Duarte with a caption identifying her as a member of the ANC’s ‘top six’.
Mr Naidoo, on behalf of the ANC, complains that the Sunday Times neglected to report fairly, as well as to exercise due consideration in matters involving dignity and reputation.
Specifically, Mr Naidoo charges, the newspaper has contravened the following clauses of the Press Code:
3.3 The media shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only if it is in the public interest and in the following circumstances;
3.3.1 The facts reported are true or substantially true or
3.3.2 The reportage amounts to fair comment based on facts that are adequately referred to and that are true or substantially true; or
3.3.3 The reportage amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or
3.3.4 It was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.
3.3.5 The article was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party.
1.1 The story appeared under the headline, “Jessie Duarte’s son, ex in kickback scandal” with a sub-head, “Relatives of ANC leader named as firm comes clean.”
1.2 The story is accompanied by a picture of Ms Duarte with the caption: “ANC top-six member Jessie Duarte.”
1.3 The intro to the story says: “A company that scored tenders worth millions of rands from state-owned enterprises diverted money meant to fund supplier development programmes to ANC deputy secretary-general Jessie Duarte’s family members in return for them assisting it to snatch more state business.”
1.4 It goes on to explain that Combined Private Investigations (CPI), “a company that was previously found to have spied on journalists and politicians, among then Peter Bruce, Rob Rose and Trevor Manuel” told law enforcement agencies it paid more than R40 million over two years “to a group led by Gupta associate Salim Essa” The group included Malcolm Mabaso (former advisory to the former minister of mineral resources Mosebenzi Zwane), Ms Duarte’s son Yusha and her ex-husband John Duarte.
1.5 The article says the money was not paid to this group directly but to “two Gupta-linked companies”, Homix and Chivita, as well as two other companies, Forsure and Medjoul.
1.6 It explains that CPI had contracts with Eskom and Transnet
“The company said it agreed to use supplier development funds to pay a R1.4, monthly retainer to this group after Essa promised this would ensure the company won more contracts.”
1.7 It cites a letter written by CPI’s lawyers, Arthur Channon Attorneys, that says Mr Essa introduced CPI to a company called Chivita Trading in 2012. Mr Essa reportedly told CPI he was “well-connected” and could introduce the company to “potential clients” for business purposes.
The newspaper reports that John and Yusha Duarte were Mr Essa’s business associates. It cited the company as saying “The Duartes…were closely connected to Mabaso.”
This group then “persuaded” the CPI to enter into a “business deal for consulting services.”
1.8 The attorneys’ letter is further quoted as saying: “The rationale behind the consulting services emanated from our client’s obligation and responsibility to pay a certain percentage of the income or revenue it generated by virtue of the agreements or contracts it entered into and concluded between itself and various of its clients.”
1.9 The article reports that CPI paid a total of R15m to Chivita between 2013 and 2014 “for the benefit of the Duartes, Essa and Mabaso. Payments were channeled from Chivita to a company called Homix in May 2014.”
Homix billed CPI on a month-to month basis and was paid “a combined fee” of R13m between June 2014 and May 2015. Forsure, the other company, billed CPI for three months for nearly R5 million. Forsure was replaced by Medjoul from August 2015 to June 216 and CPI paid it R11m in this period.
1.10 The article says: “Throughout all the changes from Chivita to Homix, then Forsure and Medjoul, the beneficiaries remained the Duartes, Essa and Mabaso”
1.11 It then quotes Ms Duarte’s denial of any knowledge of her family’s involvement in the scheme, saying her son and ex-husband “should answer for themselves.”
She is quoted as saying: ”I cannot answer questions about my or anyone’s company activities, you have to ask the people involved to answer for themselves. I do not know.”
It also reports that John Duarte declined to comment and that neither Yusha Duarte nor Mabaso could be reached for comment.
1.12 In the letter from CPI’s lawyers, the newspaper reports it said, “none of the four companies provided supporting documents to prove their legitimacy when asked to.” They also failed to provide CPI with company registration documents, the ID documents of directors, proof of VAT registration or broad-based BEE certificates and tax clearance.
1.13 It quotes the attorneys’ letter as saying its client had “laboured under the bona fide impression that it conducted business at arm’s length with the team which complied with all the legal requirements, with specific emphasis on the empowerment of previously disadvantaged individuals or groups.”
1.14 It says it terminated its relations with the Duartes, Essa and Mabaso “upon learning of their ties to the Gupta family and stopped making payments in 2016.”
Mr Krish Naidoo on behalf of the ANC
2.1 Mr Naidoo has complained on behalf of the ANC and of Ms Duarte, who is the party’s deputy secretary-general and a member of the party’s “top six”.
2.2 He summarizes the article but also points to some gaps in information: for instance, the article does not state when the law enforcement agencies were provided with the information about the payments to the “Gupta associate”, Salim Essa and of which Jessie Duarte’s ex-husband and son were beneficiaries.
2.3 He argues the opening paragraph suggests payment was made to them as a quid pro quo “in return for the Duartes agreeing to assist the company to secure more state business.”
2.4 He points out the article is accompanied by a picture of Ms Duarte with a caption identifying her as a member of the top six.
2.5 He says both the ANC and Ms Duarte “align themselves with the principle that investigative journalism is necessary and that it is in the public interest to do just that.” However, both parties also believe that the newspaper, in this report, “exceeded the bounds of acceptable standards of journalism and impacted negatively on the dignity and reputation of both parties.”
2.6 The article ran “on the eve” of the 2019 elections, and also at a time when the Zondo Commission of Inquiry is investigating “inter alia, Gupta-related business transactions and that the evidence presented to the Commission is heard in open court and televised live.”
Negative reporting about the ANC at this time would “inadvertently or by design impact negatively on the electoral prospects of the ANC.”
2.7 He further argues that “ordinary readers” would have concluded that Ms Duarte “could have exercised her influence for the benefit of the business interests of her family members.”
2.8 Although it is not stated when the CPI reported the matter to law enforcement agencies “one can reasonably conclude [from the article] that the events occurred between 2012 and 2016...it is not clear how the interest of the public would be served by repeating these allegations in 2019. It is submitted that such reportage can only be described as malicious and cannot be justified.”
2.9 There was no basis to include Ms Duarte in the article, or her photograph with a caption identifying her as a member of the ANC’s “top six”.
Offering her an opportunity to comment does not “absolve the Sunday Times from complying with the Press Code.” In particular, he cites Clause 1.1 and 3.3
2.10 He argues the article “caused unnecessary damage to the dignity and reputation of the ANC and Ms Duarte”.
2.11 He asks that the newspaper be ordered to publish an apology.
Ms Susan Smuts for the Sunday Times
2.12 Ms Smuts argues the facts in the story are true and in the public interest; she adds it is “significant” that the complainant does not contest the veracity of any of the facts.
2.13 It is true that the events reported on occurred between 2012 and 2016 but the letter had only come to light recently. It was dated 2018-10-08 and not (as the complainant states) 2012.
2.14 The allegations contained in the letter were not “maliciously repeated” but constituted “fresh information” that had not yet been in the public domain.
“Although Ms Duarte’s relatives have previously been linked to the Gupta family’s business dealings, the details contained in the letter, including the name of the company involved, have not been previously reported on.” Moreover, those events are still “very much alive in that state capture is the subject of investigations at the Zondo Commission” The fact that this commission is investigating state capture “does not preclude us from reporting on fresh evidence that comes to hand.
“It is in the public interest that details about dubious business practices are published, and that the public can see how the deals were structured and by whom.”
2.15 The statement that CPI had “terminated” its relationship with the Duartes, Salim Essa and Malcom Mabaso after learning of their ties to the Guptas was “properly attributed.”
2.16 The letter from CPI’s lawyers “explicitly” states that John Duarte was the former spouse of Ms Duarte. However the article did not “state or imply that Ms Duarte could have exercised her influence” for his or her son’s benefit.
“However, it is relevant to include mention of her – and acceptable for us to have used a photograph or caption – because questions may legitimately be raised about whether she knew about the business dealings of her relatives and, if so, how much she knew.”
2.17 Ms Duarte’s comment was “sought and reflected” and was likely “to have been received as a reasonable prima facie rebuttal of any suspicion of complicity in the business conducted by her relatives.”
2.18 Ms Smuts also cites previous rulings of the appeals panel in her argument. These are:
2.19 In the first case, which concerned a story about a “dodgy toilet deal”, the contested article said the company that won a tender for toilets had “links to senior ANC leaders” (whose photographs also appeared). Judge Bernard Ngoepe and two adjudicators ruled that “neither the Press Code nor South African law holds the author of a factual article liable for any adverse inferences that are drawn by the reader.” It added that a critical part of the defence in this was that the facts in the article were verified.
In this case, the appeal panel noted “an average reader would not necessarily infer, from the photographs, the headline or the story, any direct or even indirect influence by the politicians themselves. It is more likely that the reader would infer that the municipal officials acted on their own upon noticing the political connection. This would not implicate the named politicians.”
2.20 Ms Smuts argues the link between the “ANC politicians” and the company that won the “toilet tender” was even more tenuous in that case than the link between Ms Duarte and her relatives in this.
2.21 In the second case, concerning the M&G, Ms Duarte had complained about being named in a story “that mentioned links between her relatives and the Guptas.” The ombudsman had found in her favour but the newspaper successfully appealed the decision.
2.22 The appeals panel, which overturned the Ombudsman’s ruling, found there was “legitimate public interest in the issue of alleged state capture by the Guptas and the question of connections that her family may have had to the Guptas. It also found that public interest was bound to spill over to her given the political office she holds.”
2.23 However, she herself was not accused of acting in an “untoward manner.”
Ms Smuts argues: “In the Mail&Guardian matter, readers were specifically cautioned not to jump to conclusions. Although the appeal panel highlighted this aspect of the story, we submit that this does not amount to a prescription. Such a caution was not deemed a requirement in the ANC/Dispatch matter. And the Mail&Guardian story was specifically about tracing connections between parties involved in state capture and their connections to other people in public life…
“We submit that our report was published in accordance with the precedents mentioned above. They affirm the principle that the publication should not be held accountable for inferences drawn by readers.”
2.24 The newspaper was fully aware of these rulings when it published the story which “was reasonable in the circumstances.”
3.1 Mr Naidoo, for the ANC, did not make further arguments in response to Ms Smuts’ submission.
3.2 It is true, as he argues in his submission that the article refers to events that occurred between 2012 and 2016. (I interpreted his statement that the letter was dated in 2012, and not 2018 as the newspaper says, as a typographical error).
3.3 There are three key questions raised by Mr Naidoo’s complaint:
3.4 On whether drawing on a non-contemporaneous document was “malicious”:
Although the letter from CPI’s lawyers dealt with incidents that occurred in 2013 and 2014, if it had only recently come to light, it seems justifiable for the newspaper to report on it. “State capture”, after all, is very much in both the public domain and the public interest, in large part thanks to the Zondo Commission of Inquiry.
That commission has dealt with many historical incidents dating back to even before the Zuma era, particularly in the evidence surrounding alleged bribes paid by Bosasa (now African Global Operations).
The then pending election, in my view, makes this more, not less, in the public interest.
3.5 However it is important to note that in this case, Ms Duarte is accused of no wrongdoing, and nor is the ANC. The newspaper rather drew attention to an extant network that included a well-known Gupta associate and those who were either connected or at one time connected to Ms Duarte (her son and her former husband)
3.6 It is also true, as Ms Smuts points out, that none of the facts in the article were disputed, even though there were some arcane and undefined phrases such as the reference to the “supplier development funds” CPI used to pay the group that included Salim Essa and Ms Duarte’s son and former husband.
3.7 The second question is about whether the reputation and dignity of Ms Duarte was harmed. The article does not implicate Ms Duarte herself in any wrongdoing. It is unfortunate if her reputation should be harmed by association, particularly as one of the parties in the business deal is, arguably, no longer a family member but her former husband.
3.8 There is no insinuation in the article that she was involved or even knew about the deal and her reply to the Sunday Times’ queries, clearly conveys this: “I cannot answer questions about my son or anyone’s company activities, you have to ask the people involved to answer for themselves. I do not know.”
3.9 So was it fair to use her picture when she was not implicated in wrongdoing?
Ms Duarte is undoubtedly a public figure being one of the “top six” leaders of the governing party. Her position as deputy secretary-general is a powerful and influential one.
3.10 It is also clear from evidence before the Zondo Commission that family networks have been important in securing business or payments. The evidence of Duduzane Zuma and Thalente Myeni is particularly instructive in this regard. In the case of the former, he used his relationship with his father to secure employment with the Gupta family and even to arrange meetings that could have resulted in favourable political appointments for the family, as seen in the “offer’ to Mcebisi Jonas to be finance minister. [3]
3.11 In the case of the latter, Mr Myeni told the Commission how his company was supposedly involved in a construction project in Mpumalanga, but he could not recall how many people it employed, nor had any records to account for the R2 million he was paid for the work (money that found its way into a business account that his mother, Ms Dudu Myeni, accessed, according to an anonymous witness) [4]
3.12 As this and other evidence comes to light about the networks that drove or benefited from state capture, it is not only legitimate for the media to use this information, but well within the public interest.
3.13 This is not to say that those who are politically powerful and whose family members have done business with, among others, the Guptas, are themselves liable, but it is to argue that such matters are of public concern.
Family networks – simply being connected to those in positions of power – have been an instrument through which government business has been accessed. Thus the mention of Ms Duarte’s name in the article cannot be illegitimate even if she herself is not accused of wrongdoing.
3.14 In a finding in the case similar to this one before us, and cited above, between Ms Duarte and the Mail&Guardian over an article that outlined her relatives’ business connections to the Guptas, the Appeals Panel of the Press Council found that although she herself was not implicated in wrongdoing, “Ms Duarte is a senior member of the ANC, serving as its Deputy Secretary General, a member of the ANC National Executive Committee; and a member of its so-called Top 6.
Her family connections, and their connections to people connected to the Guptas are in the public interest.”
3.15 I draw on a similar complaint, laid by Zizi Kodwa, then head of President Cyril Ramaphosa’s office at the ANC headquarters at Luthuli House. There, Mr Kodwa complained of an article that ran in News24 based on Facebook posts of him and Papa Leshabane, the spokesperson for Global African Operations (previously Bosasa), at various social events, including at the World Cup Final in Russia in 2018. Mr Kodwa was not accused of any wrongdoing but complained on the grounds that his friendship with Mr Leshabane was used to “infer guilt by association”.[5]
3.16 In that finding, I drew on South African and international case law to balance the right to privacy (guaranteed in the Constitution) with the right to freedom of expression insofar as it concerns public figures.
I referred to a Supreme Court of Appeal decision in 2005 that substantially reduced the damages paid to an attorney who had sued a newspaper for an invasion of privacy.
The case arose out of damages awarded to a Pretoria advocate, Ephraim Seima, who sued the newspaper for reporting that he had given his girlfriend, a television presenter, a “hot klap” at a petrol station in Giyani because she had “taken notice of other men” at a wedding reception.
In the judgment, Judge Harms reduced the award partly by arguing the definition of a public figure. “Not unlike politicians, persons who move in or close to the limelight, have to expect that their lives will be to some extent in the public domain and they must be prepared to endure somewhat more than an ordinary citizen has to endure.”[6]
3.17 If this is the case for those merely “close to the limelight” how much more so for those who are public officials in the majority party?
3.18 The Kodwa/News24 finding was upheld by Judge Bernard Ngoepe, chair of the Appeals panel on the grounds that both Mr Kodwa and Mr Leshabane were public figures. “That being the case, the applicant’s right to privacy had to yield to a publication that was in the public interest.” [7]
3.19 Public officials, as the US Supreme Court found in the “Sullivan vs New York Times” case, have to be a “hardy breed.”[8]
This does not provide any excuse for reckless or negligent reporting but in this case there was none: Ms Duarte is not accused of wrongdoing; she had an opportunity to respond, which she did, as did her son and former husband (the former could not be reached for comment, the latter refused to comment).
3.20 Lastly, could, “ordinary readers”, as Mr Naidoo suggests have “concluded that Ms Duarte could “have exercised her influence for the benefit of the business interests of her family members.”
3.21 The Appeals panel finding referred to by Ms Smuts, between the ANC and the Daily Dispatch, concerned a “dodgy toilet deal”. The article said the company that had won the tender “had links to senior ANC leaders”; it also ran pictures of those leaders.
There was no evidence, and no suggestion, that the said leaders benefitted from or influenced this tender.
3.22 The Appeals panel grappled with two critical concepts: that of public figures, and that of the inferences that could be drawn by “ordinary readers.”
In its finding, it said: “The Panel …considered the degree to which, in the public interest, the dignity and reputation of public figures (and their families) can legitimately be linked to inferences of possible wrong doing by those in their actual or perceived spheres of influence.
“The Panel accepts the submission of the appellant [the Dispatch] that neither the Press Code nor South African law holds the author of a factual article liable for any adverse inferences that are drawn by the reader. Critical to this defence is that the facts (not the inferences) must be verified. “ [9]
3.23 In the article that is the subject of this complaint, the facts are not in dispute. “Ordinary” readers may or may not draw inferences from the article, but as noted above, the article at no point accuses her of wrongdoing.
3.24 However, as also pointed out above, family networks – simply being connected to those in positions of power – have been an instrument through which government business has been accessed. Thus the mention of Ms Duarte’s name in the article cannot be illegitimate even if she herself is not accused of wrongdoing.
Finding
The facts of the article are not in dispute. The relevant letter about Ms Duarte’s relatives’ business interests in a Gupta-related company had only recently come to light. She is a public figure, and was not implicated in any wrongdoing herself thus her dignity and reputation were not harmed. Public evidence about “state capture” has shown the extent to which networks, including family networks, have been used to secure state business and thus the article was in the public interest. The precedents in this Council for deciding standards that should apply to “public figures” and what “ordinary readers” may infer indicate that if the facts are correct, and if an article is in the public interest, the author/s of that article cannot be held liable for those inferences.
For the reasons cited above, the complaint is dismissed.
Appeal
The 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.
Pippa Green
Press Ombudsman
April 7, 2020
[3] Commission of Inquiry into State Capture, transcripts 7 and 8 October, 2019
[4] Commission of Inquiry into State Capture, transcripts 17 and 18 February, 2020
[6] SCA, Case no 575/04
[8] Quoted in Lewis, A: Make No Law; The Sullivan Case and the First Amendment (Random House, 1991)
[9] Op cit