Adv Boyce Mkhize vs. City Press


Mon, Oct 22, 2018

Ruling by the Press Ombud

22 October 2018

Particulars

Date of article: 9 September 2018

Headline: Mega score for ‘victimised’ Mpumalanga exec

Online headline: R2m payout for ‘victimised’ Mpumalanga exec

Author of article: Sizwe Sama Yende

Respondent: Dumisane Lubisi, editor

Complaint                                            

The crux of Adv Boyce Mkhize’s complaint is that the reportage inaccurately, unfairly, maliciously and misleadingly portrayed him as having laid trumped-up charges against the former CFO of Mpumalanga Economic Growth Agency (Mega), Mr Velile Mqhum, after a fallout between the two.

He also complains that the journalist failed to:

  • publish several responses which he had provided him with;
  • disclose the basis for the allegation that he had interfered with supply chain management – and yet he reported this allegation without any substance; and
  • investigate Mr Velile Mqhum’s role in the matter.

He concludes that the reportage was unnecessarily damaging to his reputation.

The text

The story was about a “corruption-busting chief financial executive” (Mqhum) who was “allegedly victimised, instructed to accept a demotion and then fired” – and had finally “scored” a two-year legal battle.

Mqhum was reportedly fired in 2015 after a disciplinary hearing conducted in his absence found him guilty on a range of charges relating to contravention of the Public Finance Management Act. Eventually the matter was settled out of court, upon which he would receive a pay-out of more than R2-million.

Yende wrote Mqhum alleged that Mkhize, the then Mega CEO, had laid trumped-up charges against him following a fallout between the two of them. The altercation had been about Mqhum’s allegation that Mkhize had been interfering with supply chain management and had been trying to force him to pay a service provider an amount of R500 000 in advance.

“Mega fired Mqhum about eight months after Mkhize had been given a R4.4 million golden handshake and left the institution when a new board took over,” he reported.

The arguments

Trumped-up

MKHIZE complains the story falsely stated, portrayed or implied that he had laid trumped-up charges against Mqhum after a fallout between the two, which eventually led to the latter being fired from his job.

LUBISI says Mqhum was speaking out about what he felt was wrong at Mega during and after Mkhize’s employment at the institution.

He argues it was justified to say that the charges were trumped-up, because Mega:

  • could not and did not argue with Mqhum when the opportunity was presented in court: and
  • preferred to settle the matter out of court.

The editor says Mqhum was on sick leave when the sanction of dismissal was taken and he was not given an opportunity to state his case. He continued: “It boggles the mind why would MEGA go on with a disciplinary hearing in his absentia. A burning question is - Why would MEGA dismiss an employee on a list of three charges and without hearing the side of the employee’s story and then when challenged in the Labour Court fail to argue their case?” 

Analysis

Lubisi seems to argue that Mqhum was justified to say that Mkhize had laid trumped-up charges against him. That, I would argue, is not for him to say – and neither is it for me to pronounce on.

The editor would have been better off if he stuck to an attempt to merely justify the reportage of the allegation made by Mqhum.

Be that as it may, the crucial consideration is that the story did not state it as fact that Mkhize had laid trumped-up charges against Mqhum – it portrayed this as an allegation, and ascribed it to the latter.

It seems to me that it is a historical fact that Mqhum made this allegation – in which case it was part of the story, and therefore the newspaper was justified to report such. The issue is not if City Press should have reported the allegation, but how it did so.

Responses not reported

MKHIZE says when Yende asked him about the matter, he stated: “I cannot trump up charges… I work on the basis of fairness and justice and factual evidence.” The journalist did not publish this denial, he says. He calls it “selective reporting” which was aimed at portraying him in an unfavourable light.

He adds that Yende also asked him about Mqhum’s allegation that he had forced him to pay a service provider in advance. He says he responded: “That is a lie. There was an SLA in place regarding Frank Talk which included paying them in advance which is allowed by the framework – there is nothing illegal about that. Secondly, there was nothing illegal with not having Mqhum as chairperson of BAC – for … independence and separation of powers it is a good governance principle… The advice about how Frank Talk was to be paid came from Mqhum”. (Slightly edited.)

(Frank Talk was a service provider.)

The reporter also did not publish this response, he says. He accuses Yende of being biased and malicious, and having stooped to the lowest levels of journalism.

LUBISI says Mkhize was given the right of reply and his response was included in his story.

He says Mkhize did deny in his WhatsApp response to Yende his role in Mqhum’s victimisation. However, “his tone was that he was unwilling to entertain our queries and was somewhat nauseated”.

The editor says that, according to the reporter, the following response summed up Mkhize’s comment on the matter: “Please do not drag my name into this… I was not involved in the reinstatement of Mqhum neither was I involved in his dismissal. The settlement issue in the Labour Court had nothing to do with me.”

He infers that it was therefore unnecessary to include the whole WhatsApp conversation in the story. “The comment, as quoted, suffices and reflects where Mkhize stands in the matter.”

Lubisi points out that the story did not mention Frank Talk. “It is also important to note that Frank Talk was not the only service provider to have been paid in advance. Yes, Adv Mkhize mentions Frank Talk but there are other service providers that were paid in advance. Mr Mqhum could have been referring to any,” he concludes.

Analysis

The story reported Mkhize’s response as follows: “Mkhize said he had nothing to do with the matter. ‘Please do not drag my name into this… I was not involved in the reinstatement of Mqhum, neither was I involved in his dismissal. The settlement issue in the labour court had nothing to do with me’, he said.”

The “matter” referred to in the first sentence has to be read in the context of the whole story – it was about Mqhum’s victory in court, and not about trumped-up charges or the payment of a service provider in advance.

Mkhize is correct this time: The story did not reflect his denial that he had laid trumped-up charges against Mqhum, and neither did it reflect his response to the allegation that he had forced the latter to pay a service provider in advance.

Yes, it was old hat – but as Yende chose to report on these allegations again, he also should have reflected Mkhize’s denials again. That would have brought balance to the story. It is intrinsically unfair to refer to the allegations (which, in itself, was not wrong) without mirroring the denials as well.

Basis for allegation: failing to disclose

MKHIZE complains Yende failed to disclose to him the basis for the allegation that he had interfered with supply chain management, despite repeatedly asking for such an explanation. “Yet, he was emboldened to go ahead and report a bare allegation, without substance, without attending to the basis thereof,” he states.

He argues that this was unfair and adds that, if reporters are allowed to write what they like without substance, it would be a sad day for this country’s democracy.

LUBISI replies that Yende in fact did tell Mkhize that the basis for the allegation about his interference with supply chain management was Mqhum, as well as the internal audit report done by Mega, which Mqhum had initiated. 

Analysis

This complaint cannot be upheld, as I can only adjudicate on what was published.

Mqhum’s role

MKHIZE complains that Yende never bothered to enquire about Mqhum’s role in the allegations. “Had he done so, he would have realized that MEGA was remiss in even entertaining a thought of reinstating him,” he asserts.

 

LUBISI says nothing warranted an investigation into Mqhum’s role, especially due to the fact that he claims he was being victimized and that he was stripped of his powers as the CFO. 

He adds that Mega did not bother to use the court when it had an opportunity to expose Mqhum’s wrongdoing, and that the agency spoke for itself when it was approached for comment.

Analysis

It is not the newspaper’s job to investigate Mqhum’s role in this matter – it merely reported that he had won a legal battle. That was Yende’s job, which he did well (save for the omission of Mkhize’s denials, as indicated above).

Reputational damage

MKHIZE complains that the unfair, unjustified and malicious reporting has tarnished his reputation.

LUBISI denies this claim. He says Mkhize is under false illusion that City Press and Yende are targeting him. However, he adds, Mkhize cannot divorce himself from the Mega story when his tenure becomes news (which is in the public interest).

Analysis

I have no reason to believe that the reportage was malicious or unjustified – the omission of Mkhize’s denials, though were unfair. This did leave an unnecessary question mark over his reputation.

Finding

Trumped-up

This part of the complaint is dismissed.

Responses not reported

The neglect to report Mkhize’s denial that he had laid trumped-up charges against Mqhum, and that he had forced the latter to pay a service provider in advance, was unfair to him and in breach of the following sections of the Press Code:

  • 1.1: “The media shall take care to report news … fairly”; and
  • 1.8: “The media shall seek the views of the subject of critical reportage in advance of publication... (and report those views)”.

Basis for allegation: failing to disclose

This part of the complaint is dismissed.

Mqhum’s role

This part of the complaint is dismissed.

Reputational damage

The unfair omission of Mkhize’s denials, as described above, has left an unnecessary question mark over his reputation. This was in breach of Section 3.3 of the Press Code that states: “The media shall exercise care and consideration in matters involving … reputation.”

The complaint that the reportage was malicious or unjustified is dismissed.

Seriousness of breaches                                              

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).                                         

The breaches of the Press Code as indicated above are all Tier 2 offences.

Sanction

City Press is directed to apologise to Mkhize for:

  • unfairly neglecting to report his denial that he had laid trumped-up charges against Mqhum and that he had forced the latter to pay a service provider in advance; and
  • unnecessarily tarnishing his reputation in this process.

The newspaper is directed to publish the apology at the top of the same page where the story:

  • was carried; and
  • appears online.

Both headlines should contain the words “apology” and “Mkhize”.

The text should:

  • be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
  • refer to the complaint that was lodged with this office;
  • end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
  • be published with the logo of the Press Council (attached); and
  • be prepared by the publication and be approved by me.

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.

Johan Retief

Press Ombud