Collins Letsoalo vs. Sunday Times


Thu, Oct 18, 2018

Ruling by the Press Ombud

18 October 2018

Particulars

Complainant: Mr Collins Letsoalo, former acting CEO of the Passenger Rail Agency of South Africa (Prasa)

Date of article: 24 June 2018

Headline: Pay it back, AG tells Prasa’s 350% boss – Special audit finds that Collins Letsoalo was not due the hefty raise he gave himself

Page: 3

Online: Yes

Author of article: Caiphus Kgosana

Respondent: Susan Smuts, internal ombud

Complaint                                            

Letsoalo complains that the:

  • article misleadingly / inaccurately / unfairly:
    • stated the Auditor-General (A-G) told him to pay back money;
    • referred to a “special audit report” which did not exist;
  • headline was unfounded and unfair;
  • sub-headline was misleading and untrue; and
  • journalist broke his promises to him (details below).

He also complains that the reportage has attacked him as a person, and has unnecessarily tarnished his reputation.

Letsoalo asks for a retraction and an apology in writing to himself, and for this to be published on the front page of the Sunday Times and on all online platforms. He also requests that the article be removed from the newspaper’s website and archives.

The text

The article said the A-G had recommended that Letsoalo should repay all the money he awarded himself after hiking his salary by 350%.

Kgosana wrote the newspaper saw a special audit by the A-G that substantiated this statement.

Three months after he had been seconded to Prasa from the Department of Transport in July 2016, Letsoalo reportedly raised his salary from R1.3-million to R5.9-million a year. The Prasa board fired him four months later. According to a Prasa management report at the time, Letsoalo had not been entitled to the money and should reimburse the agency, the journalist wrote.

Kgosana added the High Court in Pretoria ruled in April last year that Letsoalo had been entitled to be paid at the same rate as former group CEO Lucky Montana, who had received R5.9-million, and that the Public Service Commission came to the same conclusion.

The arguments

Pay back the money; special audit report

Letsoalo says neither the A-G report nor any other one has ever told him to pay back the money, as the article suggested. He says, “Fact is that I was entitled to what I was paid. The court found as follows: ‘It is not correct, in my view that the increase was unlawful or that it had not been agreed by the parties in the appointment document’.”

He says he referred Kgosana to this decision.

He emphatically denies that there is such a special A-G report. “It is clearly meant to mislead the reader and distort the fact that I was cleared by the court,” he concludes.

Smuts says the authenticity of the A-G’s document is not in question. She says the journalist has seen a copy of the document that has been sent to Prasa, who did not dispute the document (although it did not respond in detail to questions), nor has the AGSA refuted the document.

She says the AGSA conducted the extra audit because there were a number of non-disclosures that the office discovered in the 2016/17 annual report of passenger rail agency. “In responding to this non-disclosure, the AG then compiled a Management Report that highlighted in detail all those material issues that had not been disclosed in the PRASA 2016/17 annual report and what action the new PRASA board had to take in each instance to avoid the expenditure being deemed irregular,” she states.

Letsoalo replies that he was the subject of the media report, and not Prasa, as well as the apparent directive or instruction  by the AGSA from that “special report” to “pay back” the money. Therefore, he says, AGSA is the one that must refute its documents and not Prasa, as the reportage has attributed the instructions to the former and not to the latter.

He submits: “HI can only assume that the decision not to ask AGSA to respond is that their response may not have fitted the narrative being painted by the story and that it will confirm that the AGSA cannot change a high court decision. In fact it would be confirmed that in light of the high court judgment; AGSA could not have pronounced itself on the matter that was finalized in court.”

He concludes that the Sunday Times cannot be allowed to spread malicious lies and perpetuate myths that are both “unjustified and unfair”.

“The judge did not only find that I was entitled to my salary but also found that there was a perpetuation of a myth and that it was unfair and injustice. For a balanced story to be written, this facts must be put before the reader for the reader to make up their minds. A mere mentioning that I was entitled does not deal with the ‘perpetuation of a myth’. It in fact continues to do what the judge found to be unjustified and unfair,” he says.

Headline; sub-headline

The arguments regarding the headlines follow much the same pattern as above, and do not need repeating.

Broken promises

Letsoalo says Kgosana phoned him about the “Prasa issues” and the ‘special A-G report”.

In short, he says, the understanding was that the journalist would:

  • quote the court’s judgment “as a minimum to give a balance to a possible story”;
  • contact the Department of Transport for its views on the matter;
  • ask the A-G for comment; and
  • either mention, or at least confirm with the investigating office, the criminal case against Molefe.

He says he was shocked to see that he was the main subject of the article, together with all the “old allegations” that had already been refuted even thou the journalist was given all the information.

Smuts denies the reporter gave any undertaking:

  • about what was to be published – Letsoalo was offered an opportunity to comment on the A-G’s findings, which did not amount to an invitation to negotiate or have a hand in the structure or content of a story; and
  • to quote from the judgment, to contact the Department of Transport, to contact the AGSA for comment, or to mention the criminal complaint against Molefe.

She says the Department of Transport was not relevant to the story, there was no need to contact the AGSA for comment on a report drafted by his own office, and the criminal complaint involving Molefe was irrelevant to the story.

The internal ombud says the story nonetheless reflected that the High Court in Pretoria found that Letsoalo was entitled to be paid at the same rate as the former CEO, and that the Public Service Commission came to the same conclusion. It also reflected a comment from Letsoalo to the effect that the AGSA cannot go above the courts.

Personal attack; reputation

Letsoalo complains that the reportage has attacked him as a person, and has unnecessarily tarnished his reputation.

He says: “The article is clearly slanted to attack me and my person. Although other executives have been mentioned in the article, I’m the main subject whereas I am the only one who has given the evidence of being cleared on this matter.”

This, he concludes, was both unjustified and unfair to him.

Analysis

Pay back the money; special audit report

The crux of the matter is if a special A-G report exists and if so, what it says.

I have received the following documentation, on an official letterhead, dated 20 September 2018, and properly signed by A-G Kimi Makwetu:

“RE: ALLEGATIONS OF IRREGULAR EXPENDITURE AND REPAYMENT OF MONIES AT PRASA

  1. “Please be advised that the AGSA is not the author of the special audit report that the media articles (Sunday Times 24 June 2018 and the Democratic Alliance statement dated 24 June 2018 referred to. Please be advised further that no correspondences were sent from the AGSA to PRASA … to the effect that monies should be paid back to PRASA.
  2. “We have already written to the leader of the Democratic Alliance disassociating ourselves from the contents of a forged document that was purported to be sourced from our office.”

I have given the newspaper ample time:

  • firstly, to provide me with the special report that Kgosana says he has seen and from which he has quoted so lavishly; and
  • secondly, to respond to the content of the letter by the A-G.

It could not provide me with this “special report”, and I am in the dark as to who the source was (if there was one).

Instead, Smuts has sent me a Prasa document, in which it is stated that the latter should disclose some information to the A-G. However, this is a far cry from an investigation by the A-G, let alone from a finding made by that institution.

I have no other explanation for Kgosana’s inability / refusal to provide me with this document than one of the following alternatives:

  • Either there is no such document as a “special A-G report”, in which case the journalist has deliberately misled the public, his own newspaper, and this office; or
  • He has accepted the existence of a forged document as a real one, without proper verification.

I am highly suspicious of Kgosana’s failure to provide me with the “report”. In this circumstance, I am opting for the first alternative as the most likely scenario and reasonable explanation for his failure to co-operate with this office. I believe that, if he had such a document, he would have provided me with it.

This can only mean one thing – the journalist has deliberately misled all and sundry.

The journalist’s motive for this is not known to me. I leave this matter up to the editor to take it further as he sees fit.

Need I state what immense damage such reporting does to the credibility of the South African media in general, and to the Sunday Times in particular?

Headline; sub-headline

The headlines stated: Pay it back, AG tells Prasa’s 350% boss – Special audit finds that Collins Letsoalo was not due the hefty raise he gave himself.

There was no A-G report – and even if there was, the main headline would have been at odds with the decision of the High Court (namely that Letsoalo was entitled to the raise in his salary).

The same goes for the sub-headline.

I have hardly, if indeed ever, seen such misleading, unfair and untrue statements in a headline.

While the headlines reflected the content of the story, as required by the Press Code, they would be misleading, unfair and untrue if the article itself was misleading, unfair and untrue – which was what has happened in this case.

Broken promises

The issue is if Kgosana gave any undertaking to Letsoalo.

Given the fact that it is the reporter’s word against that of the complainant, and that I have no evidence to go on (not even some text messages), this matter must remain moot – I simply have no ground to make any sort of finding in this regard.

Personal attack; reputation

Given the shocking reportage, as described above, I have no doubt the statement that Letsoalo had to pay back some money – which was devoid of any trace of the truth – was creating the (false and unfair) impression that he had obtained money in an untoward way.

The reportage was therefore bound to unnecessarily tarnish his dignity and reputation.

Finding

Pay back the money; special audit report

The reporting regarding the “special A-G report” (which does not exist), as well as the reporting that the A-G’s “recommendation” that Letsoalo should pay back some money (which was never made), was in breach of the following sections of the Press Code:

  • 1.1: “The media shall take care to report news truthfully [and] accurately…”;
  • 1.1: “The media shall take care to report news … fairly”; and
  • 1.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion … or misrepresentation…”

Headline; sub-headline

The headlines are in breach of the same sections of the Press Code, as cited above, and for the same reasons.

Broken promises

There is no finding on this issue.

Personal attack; reputation

The reporting was in breach of Section 3.3 of the Press Code that says: “The media shall exercise care and consideration in matters involving dignity and reputation.”

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 3 offences.

Sanction

Sunday Times is directed to apologise to Letsoalo in particular, and to the public in general, and to retract the article in its entirety, for falsely, misleadingly and unfairly stating, both in the story and in its headlines, that the A-G has:

  • issued a “special report” on this matter – which it never did; and
  • ordered that he pay back money to Prasa – which it never did.

The newspaper is also directed to apologise to Letsoalo for creating the false, misleading and unfair impression that he had obtained money that he was not entitled to – thereby unnecessarily tarnishing his dignity and reputation.

The newspaper is directed to:

  • publish the apology:
    • at the top of page 3, with a headline containing the words “apology” or “apologises”, and “Letsoalo”;
    • online (at the top of that page); and
  • send a letter of apology to Letsoalo, in addition to the above.

Due to the seriousness of the matter, I am also directing the newspaper to publish a kicker on page 1, above the fold, which should also include the words “apology” and “Letsoalo”, and which should refer to the text on page 3.

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