Dr Gary Paul vs City Press

Fri, Apr 28, 2023

Date of publication: 10 March 2023

Headline: Deputy vice-chancellor drags university to CCMA

Author: Msindisi Fengu

Particulars

This finding is based on a written complaint by Dr Gary Paul, a written response on behalf of City Press by its Deputy Editor Mr Rapule Tabane (together with a statement by the Central University of Technology’s Council and a letter by Higher Education, Science and Innovation Minister Dr Blade Nzimande) and a further written response by Dr Paul. In addition, Dr Paul responded by email to my enquiry on certain aspects related to his complaint, and included a letter to him from the CUT Council and an email to him from then Vice-Chancellor Prof Henk de Jager. City Press elected not to provide a response to this.

Complaint

The complainant submits that the online article transgresses Clauses 1.1, 1.2, 1.3, 3.3 and 3.3.1 of the Press Code:

“The media shall:

“1.1 take care to report news truthfully, accurately and fairly;

“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; …”

“3. The media shall:

“3.3 exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:

“3.3.1. the facts reported are true or substantially true …”

1. Summary of article

1.1. According to the article, the Central University of Technology (CUT) in Bloemfontein allegedly failed to renew the contract of its deputy vice-chancellor for resources and operations, Dr Gary Paul, who subsequently lodged a dispute with the Commission for Conciliation, Mediation and Arbitration (CCMA) for unfair dismissal.

1.2. This was reportedly not the first time that Paul and the university were at loggerheads.

1.2.1. The newspaper stated that Paul was previously reinstated by the university following allegations relating to procurement irregularities which resulted in the departure of then vice-chancellor Prof Henk de Jager after a mutual separation agreement with CUT last year.

1.2.2. Higher Education, Science and Innovation Minister Dr Blade Nzimande subsequently appointed Prof Norman Duncan to investigate allegations of maladministration at CUT.

1.3. According to City Press, Paul also faced allegations of sexual harassment by an employee in 2021. However, the report noted, Paul was found not guilty at a hearing.

1.4. The newspaper further pointed out that neither the university nor Paul wanted to comment when it approached them.

1.4.1. Paul was only prepared to state that he was aware that City Press had approached the university regarding his CCMA case and that CUT had responded. He did not want to provide any comments or responses.

1.4.2. University spokesperson Dan Maritz declined to comment as well and said that to do so would be to contravene the university’s policies on discussing personnel matters with the media and the public. 

1.5. City Press pointed out that it understands that the university’s new vice-chancellor and principal, Prof Pamela Dube, was briefed about “Paul’s matter” in January.

1.5.1. According to an internal memorandum to Dube from Thami Majola, the university’s deputy director for employee relations, Paul had declared a dispute on January 10.

1.5.2. Majola’s memorandum, dated January 15, noted that Paul had declared in his referral documents to the CCMA that he was not consulted in line with the necessary process and was also not provided with reasons for the non-renewal of his employment contract.

1.5.3. Majola referred to Paul’s request to the CCMA for an unconditional renewal of his contract for a further five years.

1.5.4. According to the newspaper, Majola also pointed out that the CCMA case “had been activated for conciliation or arbitration and would communicate the date for the case with Paul and the university”.

2. Arguments

Dr Gary Paul

2.1. The complainant states that he received a WhatsApp text message from City Press on March 10, which concerned “your CCMA matter with CUT and information that we received that you are currently employed by Nelson Mandela University”.

2. 1.1. The message includes a screenshot of an email which the newspaper had erroneously sent to the complainant at his previous place of employment (which had bounced back), and also provides a list of questions.

2.2. The complainant sent a brief reply on the same day, noting that he was aware of the newspaper’s approach to CUT and that the university had provided a response. He informed the newspaper that he would not provide any comment or response.

2.2.1. The newspaper replied and noted his response.

2.3. The complainant then proceeds to outline the basis of his complaint, which centres on the following two statements:

Statement 1: “Paul was reinstated by the university following allegations relating to procurement irregularities, which resulted in the departure of former vice-chancellor Professor Henk de Jager after a mutual separation agreement with the council last year.”

Statement 2: “Paul also faced allegations of sexual harassment in 2021, which were made by an employee, whose name is known to City Press.”

2.3.1. Firstly, the complainant objects to the claim in the report that he was “reinstated by the university following allegations relating to procurement irregularities”.

2.3.1.1. He states that there was no need for him to be reinstated, given that he was never dismissed by CUT, and denies that any allegations over procurement irregularities were levelled against him by the university.

2.3.1.2. He further states that it is factually incorrect that “these allegations resulted in the departure of Professor Henk de Jager after a mutual separation agreement with the council last year”.

2.3.1.3. He therefore contends that the newspaper report is in breach of Clause 1.1 of the Press Code, and submits that the newspaper took “absolutely no care” to comply with this requirement.

2.3.2. The complainant further argues that, because this aspect of the report is not reasonably true, it is also in violation of Clause 1.3 of the Press Code.

2.3.3. In addition, the complainant submits that this aspect of the report impaired his dignity and reputation, both on a personal and a professional level.

2.3.3.1. He states that he is respected in the higher education sector in South Africa and abroad, and that “the harmful effects of such a reckless and baseless statement on my good name, dignity and reputation, are unimaginable”.

2.3.3.2. He therefore submits that this aspect of the article – which, he states, is factually incorrect – is in breach of Clause 3.3 of the Press Code.

2.3.4. The complainant argues that this aspect of the article is in breach of Clause 3.3.1[1] as well in that it is presented as factually correct whereas, in fact, it is completely untrue.

2.3.5. Secondly, the complainant objects to the reference in the article that he faced allegations of sexual harassment, and states that this is both factually incorrect and “out of context with both [the newspaper’s] line of questioning” and the heading of its WhatsApp message.

2.3.5.1. He regards this as a departure from the facts simply “for the sake of exaggeration”, and dismisses the “rehash[ing]” of allegations of sexual harassment previously raised against him as baseless.

2.3.5.2. He argues that, as this reference is out of context, it is in breach of Clause 1.2 of the Press Code, and adds that it reopened “the wounds which had been nefariously inflicted upon me and my entire family”.

2.3.6. Lastly, the complainant repeats his assertion that the reference to allegations of sexual harassment “is contextually disconnected from the context of the journalist’s purported line of questioning”, and disregards his dignity and reputation.

2.3.6.1. He reiterates his contention that the reference was intended to exaggerate the importance of the article at the expense of his reputation and dignity, and that it was not in the public interest.

2.3.6.2. He believes that the fact that he was cleared of the allegations should have been sufficient cause for the journalist to realise that republishing those allegations would not serve the public interest in any way.

2.3.6.3. As such, he believes that this aspect of the report is in violation of Clause 3.3 of the Press Code.

2.4. In conclusion, the complainant contends that the journalist allowed himself to be misled by his informants who, according to him, are committed to trying to destroy his career and reputation.

2.4.1. He declares that the Press Ombuds cannot ignore this, and calls for the newspaper and the journalist to be held accountable for the report.

City Press

2.5. The respondent submits in its opening remarks that the report is fair, accurate and in context, and therefore does not believe that it is in breach of the Press Code.

2.5.1. It denies that the report suggests at any point that the complainant was fired. It states that the reference to his reinstatement is to the fact that he was suspended in November 2020 and “later reinstated to his position”.

2.5.1.1. It also submits that it was fair to place the complainant’s dispute with the university in context and report that this was “not the first such adversarial encounter”. And once it did so, it argues, it was its duty to publish what the first dispute between him and the university was about (namely, the allegations regarding sexual harassment).

2.5.1.2. It adds that the report does state that he was cleared of these allegations at a hearing.

2.5.1.3. It further notes that reports about the complainant specifically, and in general “about what happened in the institution”, are in the public domain.

2.6. The respondent then addresses each of the arguments of the complainant.

2.6.1. Firstly, with regard to the complaint that the article is in breach of Clause 1.1 of the Press Code by stating that the complainant was reinstated after allegations regarding procurement irregularities, the newspaper replies that this was widely reported and cites a number of news reports (see footnote).[2]

2.6.1.1. It also invites the complainant to assist with information on a PwC investigation if there is no truth in the allegations in these reports. (It does not provide any details about this investigation.)

2.6.1.2. In addition, it refers to a CUT council statement issued on 6 November 2020 and a Department of Higher Education report in Parliament on 9 February 2022 which mentions the complainant’s suspension.

2.6.1.3. It goes on to point out that it previously reported on the allegations relating to De Jager, and that this was based on a letter by Nzimande to CUT. It adds that this story was never challenged.[3]

2.6.2. The respondent does not specifically address the complainant’s objection that the article impaired his dignity and reputation in breach of Clause 1.3.

2.6.2.1. However, as the newspaper notes in its opening remarks, it denies that its report suggests that the complainant was fired, and points out that the reference to his reinstatement is to the fact that he was suspended and “later reinstated to his position” (see point 2.5.1 above).

2.6.3. The respondent also does not specifically address the complainant’s objection to the reference to his reinstatement following allegations of procurement irregularities on the grounds that is in breach of Clause 3.3.

2.6.3.1. However, as the newspaper submits in its introductory remarks, reports about the complainant specifically, and in general “about what happened in the institution”, are already in the public domain (see point 2.5.1.3 above).

2.6.4. In relation to the complainant’s claim that the article is in breach of Clause 3.3.1 of the Press Code, in that it is not substantially true, the respondent submits that information on his suspension was already in the public domain.

2.6.4.1. It further contends that its article was about the CCMA matter. However, it adds, the article points out that this was not the first time that there was a dispute between the complainant and the university.

2.6.4.2. It goes on to state that it does not know whether CUT’s decision not to renew the complainant’s contract was based on “these previous matters”.

2.6.5. Secondly, in response to the complainant’s objection to the reference in the article that he faced allegations of sexual harassment in 2021, the respondent contends that this is factually correct and that Attorney N Ntanjana conducted an investigation in relation to these allegations in 2021.

2.6.5.1. In response to the complaint that the story is in breach of Clause 1.2 of the Press Code by being out of context, and not in accordance with the newspaper’s line of questioning and the heading of its WhatsApp message, the respondent states that the story is about the CCMA matter.

2.6.5.2. However, it adds, the story also draws attention to the fact that the CCMA matter was not the first time that the complainant and CUT were at loggerheads.

2.6.5.3. It argues that there is absolutely nothing wrong with including this context in the story. It states, furthermore, that these incidents are in the public domain.

2.6.5.4. It also contends that there was no need for the newspaper to go “back there” in its questions – in other words, to raise the sexual harassment allegations in its questions– as there were already reports about this in the public domain.

2.6.5.5. In addition, it argues that the article is fair and that it does state that the complainant was cleared.[4]

2.6.6. With regard to Clause 3.3 of the Press Code, the respondent argues that the allegations regarding sexual harassment were not kept secret by CUT, and that information on this matter is accessible to the public. It therefore argues that “weighing public interest and reputation … cannot be sustained”.

2.6.6.1. It also notes, once again, that the report mentions that the complainant was cleared of these allegations. 

2.6.6.2. Regarding the complaint that this aspect of the article is “out of context with [the newspaper’s] line of questioning” and the heading of its WhatsApp message, the respondent denies that there is any merit in this argument.

2.6.6.3. It states that this argument does not take into account that these allegations are already “publicly available”, and commends its journalist for noting that the complainant was cleared of these allegations.

2.6.6.4. It contends that, while the complainant was hurt by references to the allegations, it was important to include them in order to place the current dispute with the institution in context – “to show that there is a history”.

2.6.6.5. It goes on to argue: “While his view is that they are dragged in to the story to impugn his name, it is also possible to argue that they show that he has been unfairly levelled with baseless accusations that he has triumphed over.”

Dr Gary Paul

2.7. In the opening remarks of his reply, the complainant disagrees with the newspaper that the article is fair, accurate and in context. On the contrary, he says, the article is not factual, but humiliating and infringes on his right to human dignity.

2.7.1. He further argues that the respondent incorrectly understands the word “reinstate”. He contends that, in terms of labour law, reinstatement is a consequence of a dismissed employee possibly lodging a dispute and obtaining an award which results in “reinstatement”.

2.7.2. He goes on to argue that the newspaper has an erroneous understanding of the word “suspension” as well. He states that a suspension is not punitive, but precautionary.

2.7.2.1. He further submits that an employee is not “reinstated” after a suspension; instead, he argues, a suspension is “uplifted or terminated”. He adds that this was done in his case after De Jager’s successful challenge in the Free State High Court on the period of his suspension (and, by extension, that of the complainant).

2.7.3. Regarding the respondent’s observation that this is not the first adversarial encounter between him and the university, the complainant states: “The current process between myself and the university is completely different and unequitable to the disciplinary process initiated against me.”

2.7.3.1. He asserts that the flawed conflation of the two matters is evidence of the lack of a critical analysis of the information that the newspaper received from its informant.

2.7.3.2. He states that the fact that he was cleared of allegations of sexual harassment – “by a properly constituted forum in accordance with the relevant legal principles” – is precisely the reason why it was objectionable to conflate these with the CCMA matter.

2.8. The complainant then addresses each of the respondent’s responses to his complaint.

2.8.1. Firstly, in relation to Clause 1.1 of the Press Code, he refers to his response on the use of the word “reinstatement” (see point 2.7.1 above), and then goes on to deny that it was widely reported that he was reinstated after allegations relating to procurement irregularities.

2.8.1.1. He says The Citizen, TimesLive and IOL articles make no reference to procurement irregularities or to allegations against him with regard to such irregularities. (The references in the articles to the sexual harassment matter, he adds, relate to an untested allegation.)

2.8.1.2. He also denies that he was ever the subject of a PwC investigation and states that no allegations of any kind were ever raised against him based on a PwC report.

2.8.1.3. Regarding the City Press article on allegations relating to De Jager, based on Nzimande’s letter, the complainant submits that the article does not mention procurement irregularities or any related allegations against him (the complainant). He points out that the Minister’s letter also makes no reference to him.

2.8.2. With regard to his complaint about a breach of Clause 1.3, the respondent states there is “absolutely no justifiable contextualization to publish false and baseless allegations about procurement irregularities and defeated sexual harassment allegations in a matter which deals with an employee exercising his rights to fair labour practices as enshrined in the Constitution”.

2.8.3. Regarding the respondent’s reply to his complaint that the article violates Clause 3.3, he says he stands by his complaint – that his reputation was damaged by the article – and repeats his argument in point 2.8.2 above.

2.8.4. The respondent repeats the same argument in relation to his complaint that the article breaches Clause 3.3.1.

2.8.5. Secondly, the complainant argues that the reference in the article to the Ntanjana investigation on sexual harassment allegations was selective. He states that he was not given an opportunity to present his version by this investigation, and that it is one-sided and misleading not to mention this in the article.

2.8.5.1. Regarding the respondent’s reply to his complaint that the article breaches Clause 1.2 of the Press Code, he refers to his response in his opening remarks (see points 2.7.3, 2.7.3.1 and 2.7.3.2 above).

2.8.5.2. He repeats his point that there is “no justifiable contextualization” to publish false allegations in a matter which deals with an employee who exercises his rights to fair labour practices (see point 2.8.2).

2.8.5.3. He makes the same point in relation to the respondent’s comment that the article does record that he was cleared of the sexual harassment allegations, and rejects this as an implausible explanation.

2.8.6. With regard to the respondent’s reply to his complaint that the article breaches Clause 3.3, he again submits that there is no justification for publishing false allegations on the grounds that it provides a context.

Dr Gary Paul

2.9. In response to my request on 21 April 2023 for clarity on certain aspects of his complaint, the complainant provided the following information.

2.9.1 He states that he was not provided with the exact reasons for his suspension by CUT in November 2020, despite at least three requests.

2.9.2. In addition, he provides a copy of the letter of his suspension from the CUT council chairperson, which refers to “allegations made against yourself [the complainant] by Ms [surname withheld]”. He states that he has no idea what these allegations are.

2.9.3. He also states that CUT did not provide any reasons either when his suspension was lifted in March 2021, and assumes that it was done on the basis of the Free State High Court judgment (see point 2.7.2.1).

2.9.4. In response to my request for clarity regarding his complaint about the reference to De Jager in the article (see point 2.3.1.2), he replies that his objection is not to the reference to De Jager’s departure from the university after a mutual separation agreement, but to the link that the statement suggests between him (the complainant) and allegations of procurement irregularities.

3. Analysis

3.1. The complaint that the article breaches Clauses 1.1, 1.3, 3.3 and 3.3.1 of the Press Code relate to the reference in the report that the complainant was “reinstated by the university following allegations relating to procurement irregularities” (Statement 1).[5]

3.2. Firstly, the complainant challenges the use of the word “reinstated” in this statement, and argues that there was no need for him to be reinstated as he was never dismissed by CUT in the first place.

3.2.1. He contends that, in terms of labour law, a reinstatement occurs when a dismissed employee lodges a dispute with an employer and the outcome is in favour of the employee (see point 2.7.1).[6]

3.2.2. On the other hand, the English dictionary does not specifically link a reinstatement to a dismissal, and generally explains the word “reinstate” as meaning “to restore to a former rank or condition” (see, for example, the Collins English Dictionary: Millennium Edition).

3.2.3. This is presumably what the word means to many general newspaper readers, rather than a narrow, legal interpretation of the word.

3.2.4. Nonetheless, in the interests of accuracy, it would be more appropriate to refer to the lifting of a suspension rather than to a reinstatement after a suspension.

3.3. The second aspect of the complaint about Statement 1 relates to the respondent’s claim that the complainant was “reinstated following allegations relating to procurement irregularities” (my emphasis).

3.3.1. Although the CUT’s Council statement of 6 November 2020 refers to the complainant’s suspension, it does not specifically state that this is in relation to allegations about procurement irregularities. Instead, it makes a general reference to “various allegations” against the complainant and De Jager.

3.3.2. Furthermore, Minister Nzimande’s letter to CUT dated 12 May 2022 makes no reference either to the complainant or to allegations relating to him about procurement irregularities.

3.3.3. The newspaper’s argument that other publications reported widely on the matters raised in Statement 1 lacks merit, too.

3.3.3.1. The headline of The Citizen article does mention “graft … allegations”. However, the article itself does not include any specific allegations in this regard against the complainant, even though it refers to an allegation that he was aware that officials in the university’s procurement department allegedly requested “kickbacks” from potential suppliers in order to secure contracts with CUT.

3.3.3.2. While the TimesLive article does refer to “a multimillion-rand tender blunder”, the complainant’s name is only mentioned in relation to the reportedly lavish refurbishment of his office. And, the article notes, he was suspended “for what is believed to be an unrelated matter”.

3.3.3.3. The IOL article does not refer to any allegations of procurement irregularities against the complainant, and exclusively concerns the allegations of sexual harassment against him.

3.3.4. With regard to the respondent’s reference to a PWC investigation on allegations of procurement irregularities, it is unreasonable for the newspaper to call on the complainant to assist with information in this regard. It is the newspaper that is making claims regarding such an investigation; the onus, then, is on the newspaper to provide this information.

3.3.4.1. In any event, there is no reference anywhere in the newspaper report to a PwC investigation.

3.3.5. Furthermore, the CUT letter informing the complainant of his suspension does not refer – either directly or indirectly – to allegations of procurement irregularities (see points 2.9.1 and 2.9.2). No reference is made either to such allegations when his suspension is lifted (see point 2.9.3).

3.3.6. Based on the information outlined under points 3.2 and 3.3, it is therefore incorrect to report that the complainant was “reinstated”, let alone that he was “reinstated … following allegations relating to procurement irregularities”.

3.4. With regard to the complainant’s claim that Statement 1 impaired his dignity and reputation, two issues are relevant in this regard: whether the article is in the public interest, and whether the article is true or substantially true.

3.4.1. On the face of it, there can be no doubt that a matter involving the complainant is in the public interest: he held a senior management position at a public institution.

3.4.2. However, in itself public interest does not justify publication. Public interest is a valid justification only if it complies with the requirement that an article is true or substantially true (note the word “and” in Clause 3.3).

3.4.3. Thus, if the complainant did not return to his position “following allegations relating to procurement irregularities” (my emphasis), the article cannot be held to be true or substantially true, and the defence of public interest is rendered null and void.

3.5. The complaint that the article breaches Clauses 1.2 and 3.3 of the Press Code relates to the reference in the report to allegations of sexual harassment (Statement 2).

3.5.1. With regard to this complaint, there is merit in the complainant’s claim that the reference to allegations of sexual harassment is out of context.

3.5.2. It is unclear what the relevance is of referring to these allegations when the complainant was cleared of them.

3.5.3. The allegations concerning sexual harassment – which go back several years – are not related in any way to the complainant’s current case before the CCMA regarding the non-renewal of his employment contract.

3.6. In addition to the reasons outlined above under point 3.5, there is merit in the complainant’s contention that Statement 2 damages his dignity and reputation.

3.6.1. The fact that the article reported that the complainant was cleared of these allegations does not mitigate or nullify the potentially harmful effects of repeating such allegations.

3.6.2. Furthermore, the fact that he was cleared of these allegations was all the more reason for the newspaper not to repeat the allegations.

4. Finding

Statement 1:

The complaint that the article is in breach of Clause 1.1 is upheld (see the reasons outlined under points 3.2 and 3.3 of my Analysis).

The complaint that the article is in breach of Clause 1.3 is upheld (for the same reasons set out under points 3.2 and 3.3 of my Analysis).

The complaint that the article is in breach of Clause 3.3 is upheld (see the reasons under point 3.4 of my Analysis).

The complaint that the article is in breach of Clause 3.3.1 is upheld (for the same reasons set out under point 3.4 of my Analysis).

Statement 2:

The complaint that the article is in breach of Clause 1.2 is upheld (for the reasons set out in points 3.5.1 to 3.5.3 of my Analysis).

The complaint that the article is in breach of Clause 3.3 is upheld (for the reasons set out in points 3.6.1 and 3.6.2).

City Press is required to publish an apology to the complainant at the top of the online article for breaching Clauses 1.1, 1.2, 1.3, 3.3 (on two counts) and Clause 3.3.1 of the Press Code. The headline of the apology should contain the words “apology” and “Gary Paul”, and 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;
• be published online as well as on all platforms where the article complained about was published;
• 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; and
• be approved by the Deputy Press Ombud.

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

Tyrone August

Deputy Press Ombudsman

28 April 2023