Finding complaint 4418
Date of Publication: 07/06/19
Headline: “Prisons boss Fraser at odds with jailers
Page: 6
Online: Yes
Author: Paddy Harper
Particulars
This finding is based on a written complaint by Singabakho Nxumalo representing Mr Arthur Fraser, the National Commissioner of the Department of Correctional Services and the DCS, a written response from the M&G, further enquiries with both parties, and a reading of the High Level Review Panel on the State Security Agency.
Complaint
Mr Nxumalo complains of a story published in the M&G under the headline “Prisons boss Fraser at odds with jailers” on the grounds that it presented “misleading information” as facts. He complains, too, about the “tone” of the article and “the choice of words.” He also complains that Mr Fraser was not given adequate opportunity “to prepare himself and respond adequately, and that it did not properly reflect the response given to the High Level Review Panel by Mr Fraser.
He does not specify but from his complaint he describes breaches of the following clauses of the Press Code:
The media shall:
1.2 present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization;
1.3 present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such; and
1.8 seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated;
1.1 The story, under the headline, “Prisons boss Fraser at odds with jailers”, focuses on developments at the Department of Correctional Services after Arthur Fraser, the erstwhile director-general of the State Security Agency, took over in April 2018.
1.2 The intro to the story reads: “Eight prison warders who were fired for refusing to feed prisoners because they were participating in an illegal strike in 2015 have been reinstated retrospectively. The move, at a cost of R12-million, comes on the order of controversial prisons boss Arthur Fraser.”
1.3 It explains the eight will be paid between R1.2 million and R1.3 million each and “will be re-employed after Fraser…, overturned a decision by KwaZulu-Natal prison bosses to oppose an order reinstating them.
“Their reinstatement was then ordered by the General Public Service Sector Bargaining Council in April.”
1.4 It says that posts will be created in a prison in Empangeni to accommodate them.
It then goes on to say that this and other decisions “have come under fire from senior officials in the department.”
1.5 It reports that Mr Fraser was “implicated in corruption and abuse of power” in journalist Jacques Pauw’s book, The President’s Men and that he was “also the subject” of a high-level review panel, appointed by President Cyril Ramaphosa, to probe abuse in the SSA at the time he headed it.
1.6 A “senior prison official” in KZN who spoke on condition of anonymity “because he is not authorised to speak to the media”, told the paper the regional leaders’ decision (to oppose the order reinstating the prison officials) was “countermanded by Fraser”.
Among other things, the official said: “This has huge financial implications for the state as currently estimates of the cost are R12-million. Good governance is being compromised by the DCS ..”
1.7 It also quotes “officials” as criticizing “Fraser’s appointment of Mandla Mkhabela as chief operating officer” as ‘irregular’.
The source said the post was not advertised and there were more qualified officials who were passed over, and now “forced to report to him.”
1.8 A “third source” said the department’s’ national management committee had also been bypassed.
1.9 It also recounts how Mr Fraser had suspended KZN regional commissioner Mnikelwa Nxele “over the firing of a correctional service manager in 2014.” The manager was reinstated by the bargaining council, and Mr Nxele has challenged his suspension in the Labour Court.
1.10 It quotes a fourth source saying it was “of concern that Fraser, who has been dumped on DCS because of the allegations of corruption and mismanagement against him, appears to be intent on bringing in his own people and undermining qualified officials”.
He added there was a “history” of Mr Fraser “manipulating structures at the SSA” and it appeared the DCS was now being subject to the “same thing.”
1.11 The story cites the High Level Review Panel’s finding that the strategic development plan initiated by Fraser “had disastrous consequences for the security agency”; it ordered that the restructuring and appointments be set aside.
1.12 In the last paragraph it notes that correctional services spokesperson Singabakho Nxumalo “had not responded to calls and emails ..requesting comment” by the time the paper went to print.
Mr Singabakho Nxumalo for the DCS
2.1 Mr Nxumalo represented the DCS and Mr Fraser
2.2 He said the department was ‘strongly aggrieved by the tone used, choice of words (unpalatable) and misleading information presented as facts”.
2.3 He said any media inquiry should have been “explicit in stating that it wanted to do an audit ‘or scrutinize the decisions’ taken by the National Commissioner” since April 2018. This would have afforded him “an opportunity to prepare himself and respond adequately”, understanding that he was the focus of the article.
2.4 There are numerous examples in the article of why Mr Fraser is treated “unfairly”.
The first is in the introduction that states that the reinstatement of the officials was ordered by Mr Fraser; yet in the third paragraph, the article makes a “U-turn” and states (correctly) that this was ordered by the General Public Service Sector Bargaining Council. “All the Department did was to enforce this particular order, having studied the judgment.”
2.5 He goes on to detail what Mr Fraser has done in “100 days in office”:
2.6 He says it is “unfortunate” that “a review of these structures is now framed by sources to the newspaper as an attempt to undermine and bypass the National Management Committee. The Head of Department in the Public Service acts as the Accounting Officer and is responsible for decisions taken by the organisation.”
He argues the National Management Committee convenes quarterly but can be postponed for various reasons. “It can never be true that it last met in January 2019”.
2.7 On the suspension of Mr Mnikelwa Nxele, the regional commissioner for KZN, he says it is a “matter between the employer and the employee and we refuse the temptation of discussing such matters in a public domain. However, what needs to be stated is that an employee in the Public Service can only be placed on suspension when there are grounds for such.”
2.8 On the claim by a source that Mr Mandla Mkhabela was not “deserving nor suitable for the position of Chief Operations Commissioner”, he argues this is a “blatant lie and somehow laughable.”
“The source should have informed the paper that, when Mr Fraser was moved to Correctional Services in April 2018, Mr Mkabela was the Acting National Commissioner of Correctional Services. At the time, Mr Mkhabela’s permanent position was that of a Regional Commissioner for Limpopo, Mpumalanga and North West. Regional Commissioner positions are equivalent to Deputy Directors-General in the Public Service. Therefore, the only person senior to Mr Mkhabela in the Department is the National Commissioner.
2.9 The newspaper was also “misled” by its “fourth source” who said Mr Fraser was “intent on bringing in his own people.” He challenged the paper “to go back to the source and provide the names of these officials.”
“Since April 2018, Mr Fraser has never brought any official to the Department. He inherited officials who were serving the previous National Commissioner and is currently working with them.”
2.10 On the High Level Review panel on the SSA, he said it was “disturbing” that the newspaper made reference to it but “decided to keep quiet on the response that Mr Fraser provided.”
The writer was even provided with a copy of Mr Fraser’s response document.
Mr Nxumalo requested that an apology to the DCS be ordered.
Mr Beauregard Tromp for the M&G
2.11 Mr Tromp answered the specific factual points of dispute that Mr Nxumalo raised.
2.12 On the point that Mr Fraser did not order the reinstatement of the officials as the M&G reported, he responded: “While the order was granted by the Public Service Bargaining Council, the KwaZulu-Natal management of the DCS had decided to take the matter on review. However, this decision was countermanded by the office of the National Commissioner, which issued the instruction for the dismissed employees to be accommodated in the DCS Empangeni/Richards Bay region.”
He said he could make a copy of the instruction available to the Ombudsman.
2.13 On the suspension of Mr Nxele and Mr Nxumalo’s claim that proper procedures were followed, Mr Tromp replies: “Nxele had previously challenged the process at the Labour Court and in other forums, arguing that proper process had not been followed. He had also stated so publicly in several interviews and has indicated his intention to again challenge the decision to suspend him at Labour Court. The offence for which Nxele has been suspended is not new and formed the basis for his earlier suspensions.”
2.14 On the issue of Mr Mkhabela’s promotion, and on the argument that the only person senior to him is the National Commissioner himself, Mr Tromp replies: “Nxele and several other regional commissioners hold the same level of qualification as Mkhabela. “
2.15 On the claim that Mr Fraser “did not bring any officials to the Department” – he is working with those he “inherited” from the previous Commissioner, Mr Tromp replies: “There have been a number of appointments made internally in which managers with relationships with Mr Fraser from his first term of office in DCS have been promoted”
He offered to provide a list of some of these names.
2.16 Insofar as the right of reply is concerned, Mr Tromp says the reporter was contacted by Mr Nxumalo after the article had been published and he had “conceded” that he had not followed up on requests for comment. He also said the National Commissioner was “unhappy with the coverage and challenged the factual accuracy of the report.”
The newspaper offered to conduct an interview with Mr Fraser “in order to set the record straight regarding any inaccuracies …and to outline his vision for the DCS”. However there was no follow-up from the Department.
Further arguments
2.17 In his response to the newspaper, Mr Nxumalo challenged it to “produce evidence”.
‘We will be interested to know who are these officials that Mr Fraser brought to the Department.”
2.18 On the promotion of Mr Mkhabela he says the “paper stated that [he] was a junior official and we disputed that by providing facts. To simply say Mr Mkhabela holds the same level of qualification as with Mr Nxele does not answer to the allegation they raised as a fact, unless the paper says both of them are junior officials. “
2.19 He conceded that the suspension of Mr Nxele is before the court “and we have to allow that process to run its course. However, it is interesting that the media inquiry was not explicit on this issue. We therefore need to know if this was a tactical move on the paper to achieve a particular narrative.”
2.20 He also conceded that the reporter had indicated that the DCS could provide a response after the article was published but said it had felt “gravely aggrieved” and thus decided to bring the matter to the Ombudsman.
3.1 Mr Nxumalo has three key complaints: one is about the “tone” of the piece and “the choice of words”. He complains that both are “unpalatable”.
3.4 It should be pointed out that it is difficult for the Ombudsman to adjudicate on the “tone” of the article. Tone is not a clause in the Press Code; rather it is a code that emphasizes fair reflection of the facts, as well as the context, opportunities to respond to critical reportage, and ethics concerning privacy and dignity.
3.5 Mr Nxumalo spends much of his argument laying out what he considers the merits of what Mr Fraser has done since arriving at the DCS, such as in-sourcing the catering after the effective collapse of its main supplier Bosasa, enhancing security, and increasing the intake of DCS officials. He also emphasizes measures taken to improve financial compliance.
3.6 It is well within Mr Nxumalo’s rights (and indeed duty) to emphasize what he believes are significant improvements at the DCS. But the newspaper is not obliged to reflect those unless ignoring them substantially alters a story by not providing context.
3.7 The focus of this story was clearly on developments in the department since Mr Fraser, who had previously headed the SSA, arrived as National Commissioner.
This is legitimate. Mr Fraser has been prominent in the public eye as the former head of the SSA. The High Level Review Panel made serious findings about the way the SSA operated during his tenure.[1]
3.8However, it is crucial then that certain allegations are either verified or balanced.
3.9 The report begins by asserting that eight prison warders had been reinstated at a cost of R12-million and on the orders of Arthur Fraser.
It also it states that this was ordered by the General Public Services Sector Bargaining Council and that when the KZN region wanted to oppose it, Mr Fraser overturned this.
In support of this, the M&G offered to provide a copy of this instruction.
However, this was not forthcoming.
3.10 The second disputed assertion was whether Mr Mkhabela had been appointed to the position of COO above several other regional commissioners of similar standing. This is linked to the suspension of Mr Nxele as the M&G argues that he “and other regional commissioners” hold the same level of qualification. However, the newspaper could also not provide proof of this assertion. This statement was attributed to an official or officials, one of whom said: “The post was not advertised and a number of more qualified persons in the department, who are more up to date on how it is run, were passed over.”
It is quite within the bounds of the Press Code to report that other officials are unhappy with this appointment. However, the reporter could have checked whether the post was advertised or not.
3.11 The third dispute of fact was over the number of times the National Management Committee had met. The report simply says it was it was “bypassed” in relation to the appointment of Mr Mkhabela and that Mr Fraser wanted it to act as an “advisory body on administrative matters” and not take decisions.”
Mr Nxumalo’s argument refuting this does not address the main allegation. He simply says it convenes quarterly but can be postponed to later dates “due to unforeseen reasons.” This does not answer the allegation that it was “bypassed” in relation to this appointment so I must accept the newspaper’s version.
3.12 The fourth dispute was over the suspension of Mr Nxele, whom the newspaper reported had been suspended over the firing of a correctional services manager in 2014 and was subsequently reinstated.
The newspaper also reports that Mr Nxele had approached the Labour Court to challenge his suspension. Mr Nxumalo’s response was simply to acknowledge that the matter was before the court and the process must be allowed to “run its course”. So there seems to be no dispute here.
3.13 The fifth and last dispute is over the newspaper’s assertion, quoting an official, that Mr Fraser “appears intent on bringing in his own people and undermining qualified officials.”
In his argument, Mr Nxumalo says Mr Fraser had brought in nobody but was working with officials he “inherited”. In response Mr Tromp said there had been a number of internal appointments “in which managers with relationships with Mr Fraser from his first term of office in DCS have been promoted”. He also offered to provide the Ombudsman with a list of these officials.
However, unfortunately, the newspaper could not provide such a list.
I also asked Mr Nxumalo whether Mr Fraser had been at the DCS before this appointment and he replied that this was the first time he had been employed there. “This will mean that there is no previous stint at DCS.”
I could find no evidence that he was at DCS before being appointed National Commissioner, neither in his official CV on the DCS website, nor in Jacques Pauw’s major investigative book, in which most of his career in intelligence is painted in a distinctly critical light.[2]
So there is neither context nor evidence to back this claim that he favoured those with whom he had “previously” worked because there appears to be no “previously”.
3.14 Finally, on Mr Nxumalo’s complaint about the “reference” to the findings of the High Level review panel’ into the SSA: The article reports that the strategic development plan “initiated by Fraser had had disastrous consequences for the security agency” and recommended the structure be dismantled. Mr Nxumalo believes this is “disturbing” as the reporter had seen Mr Fraser’s “response document”.
The article mentions the findings of the HLR panel only in passing: in fact the HLP report is more damning than referred to in the article and includes allegations that the SSA in the period was subject to “politicization”, “manipulation”, and “wide-ranging resource abuse”. Although individuals are not named in the report, it is clear that many of the abuses identified by the Panel occurred under the watch of Mr Fraser.
The reference to the HLR panel’s findings is legitimate and in the public interest especially as a high-ranking intelligence official, whose operations were sharply criticized by the Panel, was appointed into a senior position at the DCS.
So I can find nothing “disturbing” in this.
3.15 On the right of reply: the newspaper records that Mr Nxumalo had not responded to calls and emails requesting comment at the time of going to print. The reporter sent me a record of his emails to show this.
I asked Mr Nxumalo about this and he said he was “puzzled” he did not receive a text notification.
It may have been better for the newspaper to have done this, but it seems it did try on more than one occasion to reach him.
In any event, after he had complained to the newspaper, it offered Mr Nxumalo a right of reply in the form of an interview with Mr Fraser “to set the record straight regarding any inaccuracies ..and to outline his vision for the DCS.”
So there is evidence of attempts to reach Mr Nxumalo and a willingness to reflect his (and Mr Fraser’s) views.
Finding
The M&G has breached section 1.3 of the Press Code in presenting as fact that Mr Fraser had instructed the KZN region to abandon its appeal against the order from the General Public Services Bargaining Council that eight prison officials be reinstated; on the promotion of Mr Mkhabela and not verifying the allegation that the post was not advertised; and on not verifying the claim that Mr Fraser was “bringing in his own people”.
This is a Tier 2 offence.
The rest of the complaint is dismissed.
The M&G should apologize for not verifying the above allegations. It should also make good on its offer of allowing Mr Fraser a right of reply in the form of an interview or a written comment by the Department of about 400 words.
Appeal
The Complaints Procedures lay down that within seven (7) 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
June 7, 2020
[1] High Level Review Panel on the State Security Agency report, December 2018.
[2] Pauw, J: The President’s Keepers, Tafelberg, 2017