Ruling by the Press Ombud
7 July 2017
This ruling is based on the written submissions of Adv Ronald Tshikororo and those of Wendy Pretorius of the Sowetan newspaper, as well as on a meeting I had with the Sowetan in Johannesburg on 28 June 2017.
Tshikororo is complaining about a story on 14 March 2017, headlined Hundreds lose as Ponzi goes bust – Limpopo official under investigation for failing to pay investors’ money.
Complaint
Tshikororo denies that he had:
· operated a travel operation as a Ponzi scheme, that people deposited money in his bank account for this purpose, and that he swindled people out of their money for this purpose;
· had a joint account with Ms Lovey Modiba, and that he had been her boyfriend;
· been a member or founder of any company modelled on Indian Travel Venture International Express (TVI); and
· been investigated by the SA Reserve Bank at the time of publication of the article.
He also complains that the newspaper did not give him a right of reply, and adds that the story has harmed his professional reputation and business.
The text
The article, written by Peter Ramothwala, said that Adv Ronald Tshikororo and his girlfriend, Ms Lovey Modiba, had faced a probe by the SA Reserve Bank for allegedly running a multi-million rand pyramid scheme that swindled people out of their money. They allegedly operated a travel scheme that promised people huge returns, car rentals and overseas trips if they deposited money into the couple’s bank accounts.
The scheme was reportedly modeled on TVI.
Sowetan replies
Pretorius replies that Sowetan has a document written by attorneys Bowman Gilfillan detailing, with calculations in a spreadsheet, how Tshikororo and Modiba allegedly obtained funds unlawfully for the scheme. “The letter and the spreadsheets form part of the law firm’s investigation of TVI activities, as contracted by the SA Reserve Bank,” she states.
She adds that the:
· information about the joint account came from Modiba, as did the information that she and her boyfriend had been part of the collapsed scheme;
· story did not state as fact that Tshikororo was a director or a member of TVI, but reported this as an allegation; and
· newspaper indeed did not give Tshikororo a right of reply, and offers him an opportunity to respond to the allegations made against him.
The meeting
I have summarized the outcome of the meeting in the following letter to Tshikororo:
|
Dear Sir, It was unfortunate that you could not make it to the meeting. However, I am now giving you an opportunity to reply to the following: · It is not in dispute that Bowman Gilfillan investigated TVI on behalf of the Reserve Bank – when Sowetan asked the law firm some questions about the matter, the journalist was referred to that bank; · In this regard, your name came up in a spreadsheet, which connected you (rightly or wrongly) to TVI and to some “earnings”; · I am satisfied that Sowetan’s source is credible and independent (meaning with no apparent agenda); · However, documents which you have provided show that you are not being investigated anymore; · The newspaper did not report this fact as the journalist was not duly informed – and there was no reason to suspect such; and · The newspaper also used Ms Modiba as a source. It would only be fair for the newspaper to now report that you were discharged (I am not sure if this word is correct), and that there is no investigation against you pending. The text should also include your denials – whatever you want to deny. The text should carry both your and my approval prior to publication. I believe this route is fair to all. However, I reserve my judgment after I have heard from you. Kind regards, Johan |
Tshikororo replies that it was “embarrassing” for Sowetan to rely on a seven-month-old letter, dating back to when he was facing a probe, “when in fact the matter had already resulted into a court case which was already finalised”. He calls this the “worst form of untruthful, inaccurate and irresponsible reporting”.
He stresses the newspaper did not conduct proper research, which should have included hearing his side of the story. He says, “Had they conducted proper research they would have noticed that I had been discharged from any investigations pertaining to TVI on the 31st January 2017, that was 43 [days] before their defamatory article. As a matter of fact I was discharged in late November 2016…”
He says it was unfortunate that the High Court went on recess at that time; hence he was discharged immediately when the Courts reopened at the end of January 2017.
He admits he had a relationship with Modiba, but says it had already ended in December 2013. He blames the newspaper for not verifying this information, as the result has been a strain on his current relationship. He adds, “It was unfair of Sowetan to go into Miss Modiba’s FaceBook account and download a very old photo of her leaning against my car and attach it to their article.”
He – vehemently – denies that anybody has ever deposited money into his account for the purposes of any pyramid scheme, be it TVI or any other.
He attaches a copy of his bank statement, which indicated that he had joined TVI on 9 November 2011 by depositing R21 200 into the account of one Miss Noko Malahlela, who recruited him to invest. He says that, for all intents and purposes, he is a victim of TVI – on 28 July 2012 he invested a further amount of R21 200.
Tshikororo says he put in more than R43 000, and he received back an amount of R88 800.
He denies ever organising any TVI-related workshops and says nobody joined TVI because of him. He says he relies on his good name and reputation for his business, adding that he is entitled to a public and prominent apology by Sowetan.
Pretorius responds:
· It is not in dispute that Tshikororo:
o was investigated – the law firm referred the newspaper to the Reserve Bank when asked for information, which refused to comment (on more than one occasion);
o received some money from the scheme;
· The newspaper only became aware of the discharge once Tshikororo furnished this office with the court order (she adds that the newspaper cannot find any information on this discharge; that Tshikororo now refers to different discharge dates; and that the newspaper can only rely on the information he has supplied to me);
· Sowetan has admitted it did not provide Tshikororo with a right of reply – however, the newspaper has offered such a reply to him through this office, which he has declined;
· He has admitted to having a relationship with Modiba; and
· Tshikororo says this relationship ended in December 2013; but the picture used was posted on Facebook on 18 July 2014; Modiba also admitted to being in a relationship with him. Prior to his latest correspondence, Sowetan was unaware that it was his car Modiba was leaning against.
She agrees with my suggestion that the newspaper should report that Tshikororo was discharged and that there was no investigation pending against him, and that the text should include his denials.
Analysis
If the story was written prior to Tshikororo’s discharge, there would have been no problem, and probably no complaint either – it is true that the SARB investigated him, and that he and Modiba had been a couple. Moreover, the investigation would have had little sense if he was not suspected of operating the scheme, and benefitting from it (which the story, correctly, did not state as fact, but presented as allegations).
The problem is that Tshikororo had been discharged by the date of publication. I accept his discharge as no evidence could be found that he had been implicated in running the scheme (which is materially different from participating in it, as an investor).
Although I tend to believe all of his denials (with the possible exception of when he and Modiba broke up, a matter about which I am getting mixed signals), I cannot state that as fact – a conviction which will re-emerge in my finding and sanction.
At our meeting, Pretorius indicated that Sowetan was not aware of his discharge. Asked why this was the case, she explained that the newspaper could not find any evidence of it – which she again emphasized in her last reply to Tshikororo.
Given the evidence at my disposal, I cannot fault the newspaper for not knowing – and therefore also for not reporting – Tshikororo’s discharge; it follows that I also cannot blame it for publishing the article which is in dispute as, at the time of publication, it was convinced that the story was true.
This puts me in quite a unique situation – on the one hand, it is difficult to find that the newspaper was in breach of the Code of Ethics and Conduct because all the evidence it had at the time of publication pointed to it having been accurate and fair, but at the same time the story was inaccurate and unfair to Tshikororo.
The only (basic) error Sowetan made was its failure to ask him for comment.
I need to be fair to both. Hopefully this will be clear to all and sundry, both in my finding and sanction.
Finding
Sowetan was in breach of Section 1.8 of the Code which states, “The media shall seek the views of the subject of critical reportage in advance of publication …”
The complaint about accuracy and fairness 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 breach of the Code of Ethics and Conduct as indicated above is a Tier 2 offence.
Sanction
Sowetan is directed to:
· apologise to Tshikororo for not asking him for comment prior to publication;
· state as fact, not as his opinion, that he has been discharged and was no longer under investigation by the SA Reserve Bank, or any other institution.
The newspaper is also asked to report his denials that he:
· was a member or founder of any company modelled on TVI;
· operated a travel operation as a Ponzi scheme;
· swindled people, who had deposited funds into his bank account, out of their money;
· had a joint account with Modiba; and
· was her boyfriend.
The text, which should be prepared by Sowetan, should:
· be published:
o on the same page as that used for the offending article;
o online as well, if the offending article was carried on its website; and
o at the earliest opportunity after the time for an application for leave to appeal has lapsed;
The headlines should contain the words “apology” or “apologises”, and “Tshikororo”.
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