Financial Advisory and Intermediary Services (FAIS) Ombud & its office vs. The Citizen


Thu, Mar 22, 2018

Ruling by the Press Ombud

22 March 2018

Financial Advisory and Intermediary Services (FAIS)

PARTICULARS

 

Complainants

 

 

FAIS Ombud Noluntu Bam; her office

 

 

Lodged by

 

 

Bam

 

Date of article

 

 

9 February 2018

 

Headline

 

 

Financial services ombud runs office like her household, staff complain to PP

 

 

Print and online

 

 

Yes

 

Author of article

 

 

Gosebo Mathope

 

Respondents

 

Charles Cilliers, digital editor; Mathope

Complaint                                            

Bam complains that the:

·         journalist communicated with her and her office in an improper, unfair and unprofessional way, and that he did not afford her adequate time to respond to his questions;

·         story contained the following false and misleading reportage in that it:

o   suggested that she had been parachuted through to her present position and therefore had not been qualified to hold the position of Ombud;

o   neglected to inform readers of the protocol that substantiated her appointment; and

o   published unfounded allegations of nepotism, her alleged personal use of an employee, and the awarding of a loan of R50 000.

She adds that the:

·         sources had ulterior motives to achieve their own agenda;

·         reporter:

o   was conflicted and biased; and

o   did not verify his information.

Bam concludes that the reportage has tarnished the reputation of all concerned, fostered mistrust with the public, and created unnecessary tension in her office.

Note:

·         Bam also mentions Mr Ashley Percival in her complaint, but the article did not refer to that person – which means that I cannot adjudicate on this part of her complaint; and

·         The Citizen published a follow-up story, about which the FAIS Ombud did not complain; I therefore disregard any references in the relevant documentation to that article.

The text

The article said staff members alleged in a letter to the Public Protector (PP) in July 2017 that Bam had spent an inordinate amount of time inculcating a toxic office culture, instead of mediating in financial disputes; they reportedly asked the PP to investigate Bam for “unethical, unprofessional and abusive conduct towards staff members”.

Mathope wrote these members doubted if Bam would ever achieve FAIS’s strategic mission.

The members reportedly alleged that Bam had been running the entity like her own fiefdom – “hiring and firing staff members without following human resources policies; unlawfully extending loans to employees who do her bidding; woefully causing paralysis within the HR division by hiring inexperienced managers and carrying on as if the ministerial handbook applies to her”.

The list of grievances included nepotism, Bam’s general conduct, and unprofessionalism. The letter also stated that an employee who joined the office as a junior case manager moved through the ranks to become head of HR, and was granted a R50 000 loan before leaving the organisation to serve articles in a law firm. This person allegedly had returned to the FAIS Ombud’s office as the human resources manager.

The letter also stated the following:

·         Bam had been employing close to ten staff members who were either allegedly biologically related to her, or were extended relatives through marriage bonds; one employee in particular, said to be the supervisor of cleaners, reportedly “runs all sorts of errands for Ms Bam, from transporting her children, sisters and relatives using the office car, to making deliveries to the Ombud’s house when she’s working from home”; and

·         “In the office, the Ombud is very disrespectful and insulting. She enjoys humiliating people and wants to rule by fear. She calls people out in the passages about their hair and dress sense. On numerous occasions she has informed us that the Board has instructed her to ‘fire until she feels nothing’. In our last meeting, she indicated that she will fire us, and when we get legal assistance she will get all her resources, and we will lose.”

Mathope quoted Bam as saying that she had been “mindful of the fact that a lot more needs to be done”, adding that in the short period between the establishment of the office and her appointment in 2010, “my belief is that we have only scratched the surface”.

The story said the newspaper had called Bam on a Thursday on her cell phone, but she neither answered it nor returned the call; the reporter also e-mailed questions to her office on more than one occasion. Bam’s PA,  Ms Hestie Teessen, reportedly told the journalist Bam had instructed her to tell The Citizen that all queries should done in writing and that there would be no telephonic communication.

The arguments

Improper communication

Bam complains that the journalist failed to communicate his intended time and date of publication to her, and adds that he did not afford her adequate time to respond to his questions (taking into account the daily demands of running a public institution).

She says Mathope posed questions on February 8 at 13:12 (similar to those asked by the Sunday Times) and followed it up the next day at 10:02 – without any indication of his intention to publish on the same day. This showed that he did not genuinely intend to check the veracity of the allegations and to provide her with reasonable time to respond to the allegations, she alleges.

The Ombud submits that, at the time of the reporter’s initial query, there was evidence to substantiate that she was occupied with serious governance matters. She adds that she sent Mathope a comprehensive response to the allegations at 15:42, not knowing that his article had already been published (at 15:14).

She says the notion that she should drop everything in order to respond to the journalist is discourteous and unfair, and adds that the journalist “maliciously” chose to omit in his written communication his intention to publish imminently – which he should have, instead of incessantly calling her phone.

Bam submits that her office is obliged to maintain records of its operations and to avail such information when sought. However, she says, “[t]here is no obligation in law or otherwise, that the Ombud and senior management drop any and everything that they are confronted with and answer to journalists”.

In fact, she adds, if the journalist pursued his request with genuine intentions to inform the public, he should have used the Promotion to Access to Information Act (PAIA), which was designed to protect the day-to-day running of public entities against such “disruptions”.

She also argues that a previous ruling of mine (20 July 2017, in the matter between Parliament and The Citizen) should have alerted the journalist not to make the same mistake; instead, she asserts, Mathope’s behaviour demonstrated contempt for this ruling. She concludes that the reporter’s actions could not have been driven by the duty to inform the public.

Cilliers responds that PAIA was not the appropriate route to follow, as the journalist was not trying to find documents; instead, he was asking for a personal response.

Mathope says he based his story on a complaint submitted to the PP by concerned staff members in July 2017. “As Bam herself confirms, the allegations and questions were not new to the office. That they are similar to those posed by another journalist is purely coincidental and reinforces that the matter had not been resolved. It is also strange that she needed more time to answer questions she admits she has received before,” he argues.

He submits he sent his initial set of questions to Bam’s office on February 8, marked as urgent. When he had received no response, he phoned the next morning and spoke to Bam’s PA at length. He says she indicated that the Ombud would prefer everything in writing – to which he responded that he had (already) sent questions in writing.

The journalist says after the PA had indicated that Bam was refusing to take his call, he published at 15:14. He received Bam’s response at 15:42, upon which he again tried calling the office – but the landline, and Bam’s cell phone, went unanswered.

He points out my ruling in the Parliament matter was that he had neglected to indicate that he had contacted that institution – and not that he had made no such attempt.

Analysis

In his e-mail, dated February 8 and sent at 12:38, Mathope remarked that he had tried to phone Bam, and that the Ombud’s website also did not have a media section through which he could communicate with a media liaison manager.

He then requested Bam to respond “urgently” (in capital letters) to his questions.

It would have been better if Mathope had informed the Ombud of his intended time of publication, but I do not believe that he was in breach of the Press Code for not doing so – he did mark his questions as “urgent”, and he did follow it up with a phone call or calls to Bam’s office.

Therefore, I cannot agree with Bam that the reporter’s conduct in this regard showed that he did not genuinely intend to check the veracity of the allegations.

In order to adjudicate the complaint that Mathope did not give Bam adequate time to respond to his questions, I need to ascertain:

·         when he had sent his message;

·         how many questions he had asked her; and

·         what the nature of those questions was (as some might have taken longer to respond to than others).

According to my records, he sent his first e-mail on February 8 at 12:38. This was more than a day prior to publication.

He asked the Ombud ten questions. Given that total, as well as the type of questions posed to her, I believe that she, or her representative, should have been able to respond meaningfully within a few hours – if Bam had the time to do so, that is.

I take Bam’s argument that she cannot be expected to drop whatever she was doing in order to respond to Mathope, and that she was busy at the time. However, a mere note to say she would respond in due course, as she was busy at the time, could have gone a long way in ironing matters out. As it is, the journalist was confronted with the sound of silence.

I also note that the Ombud has described the journalist’s attempts to get comment as “disruptions”. This, in itself, seems to give credence to the reporter’s decision to publish with or without her comment.

If Mathope’s questions resembled those received by Bam from Sunday Times a few months before, it can only be incidental – not only did the reporter work for a different newspaper, but in fact also for a different media house.

I can also not agree with Bam that The Citizen should have used PAIA – the nature of the questions was such that a (personal) response from her was required.

Lastly, Mathope is correct that in my previous finding against him in the matter Parliament vs. The Citizen, I merely found that he should have reported that he had tried to obtain comment – which is materially different to the complaint at hand.

Inaccuracies in the article

Status of the document

Before adjudicating on the alleged inaccuracies in the text, I first need to establish what the status of the document was on which Mathope based his story.

I asked Cilliers why the document was unsigned and anonymous, if the journalist has established that this was actually lodged as a complaint with the PP, if the latter has accepted it as a bone fide complaint, and if the PP accepts anonymous complaints. I also wanted to know how the journalist got hold of this document.

Cilliers speculated (as he was not sure about this) that it was possible that the PP had been aware of at least some of the identities of the person/s who submitted the complaint, and had probably agreed to handle it anonymously.

Mathope replied as follows:

·         The employees told him they were too scared to give their names for fear that they would lose their jobs (as happened to close to twenty other people);

·         He never asked why the document was not signed;

·         He spoke to the PP’s spokesperson, Cleo Mosana, who said the reference number was genuine; however, she could not discuss the merits of the case until it has been fully investigated and the final report delivered;

·         He was told the case had been allocated to an investigator; and

·         The document was e-mailed to him after he had asked for it.

The information given to the journalist by Mosana is crucial – if the official spokesperson of the PP told Mathope that the complaint was genuine and that the case had already been allocated to an investigator, surely the reporter was justified to report on the content of that document.

Of course, this is not to say that the allegations contained therein were true (or false).

On the issue of verification: I do not, and in fact cannot, expect the reporter to ascertain the veracity of the allegations contained in the said document – that was the task of the PP, and not of the media. As long as Mathope made it clear that the document contained allegations, and did not state them as fact, he would be on the right side of the Press Code.

The journalist did indeed not fall into that trap.

There is, of course, another condition – the right of a reply (on which I have already commented).

Parachuted to position

The story stated, “Bam, who worked for three years as the deputy ombud, said she was ‘mindful of the fact that a lot more needs to be done’, and said in the short period between the establishment of the office and her appointment in 2010.”

Bam says this sentence was designed to lead the reader to infer she had been parachuted through and therefore not qualified to hold the position.

She says prior to her appointment as Ombud, she served for three years (from 2003) as Assistant Ombud, a further three years as Deputy Ombud, and then only was she appointed (by the Board of the FSB) as Ombud. She submits that the journalist should also have communicated this information to his readers.

Cilliers says it is a fact that Bam worked for three years as a Deputy Ombud – the second highest ranking position within the organisation. He argues that this was contextual information to indicate that she had the requisite experience as she rose through the ranks, which meant that her credentials were not in question.

He adds that the article was not a comprehensive report on Bam’s professional biography, and that the newspaper anyway did not have adequate space and time to cover her entire CV in one article.

Analysis

The sentence in dispute was factually correct and, with respect to Bam, I do believe that she reads too much into it.

Appointment protocol

Bam says it was important to inform the reader of the protocol that substantiated her appointment – she, and her deputy, were appointed by the Board of the FSB in accordance with the requirements set out in section 20 of the Financial Advisory and Intermediary Services Act (Act 37 of 2002). She adds that the Board is a distinct and separate entity from her office. 

Cilliers says the protocol mentioned was not the focus of the article, nor did the writer venture into any allegations that she was improperly appointed – the matter primarily dealt with allegations brought against her by staff members.

Analysis

I agree with Cilliers on this point as:

·         there is nothing in the article that either stated or suggested that Bam’s appointment was improper; and

·         the focus of the story was not on the said protocol.

Nepotism

The article stated, “At the top of their frustration is Bam employing close to 10 staff members (names and positions furnished), who are either allegedly biologically related to her or are extended relatives through marriage bonds. One employee in particular, said to be the supervisor of cleaners, reportedly ‘runs all sorts of errands for Ms Bam, from transporting her children, sisters and relatives using the office car, to making deliveries to the Ombud’s house when she’s working from home’.”

Bam complains that this statement was inaccurate and should be corrected.

She argues that untested information in law has no probative value – and unless The Citizen possessed “positive” information, the publishing of such statements (without the necessary qualification), was reckless.

She says that Hector Gumede was a child of a cousin to her, as she has explained to the newspaper. She adds she has no idea who referred Gumede to apply for the position he currently occupies.

Cilliers says this was an allegation made by staff members, and not by Mathope. Also, the story did not mention Gumede.

Analysis

My arguments about a right of reply and verification, as outlined above, apply in this instance as well. Again, this does not mean it was true that Bam was guilty of nepotism, but merely that it was true that such allegations were made (which The Citizen was justified to publish).

And yes, the article did not refer to Gumede by name.

Errands

Bam calls the statement that Ms Yvonne Shili was related to her and ran errands for her “utter nonsense”. “The publication of such information therefore was reckless and ought to have been substantiated prior to publishing,” she argues.

Cilliers points out that the story did not mention Shilili.

Analysis

My arguments about a right of reply and verification  apply in this instance as well. Also, the story did not mention Shilili by name.

Loan of R50 000

The article read, “The employee said to have received the R50 000 loan was allegedly told ‘she can only get the loan on condition that she come back to the office after completing her articles so she can repay the loan’, and ‘a decision was then made that she will get a package of R420 000 on her return”, which is substantially higher than what junior case managers earn’.”

Bam says these accusations should have been substantiated with evidence to this effect, failing which an apology is demanded.

Cilliers says the article did not mention Ntantiso by name.

Analysis

Again, my arguments about a right of reply and verification apply here as well.

Allegations on R50 000 loan

Bam complains that this allegation was reported as fact, which was denigrating and designed to lead the reader’s mind to conclude that she was not conversant with the requirements of the PFMA. She adds that the policies of the FAIS Ombud do not provide for the approval of staff loans.

Cilliers says the story reported the matter in question as an allegation.

Analysis

The statement was indeed reported as an allegation, and not as fact (as it was listed under “grievances” in the letter to the PP, and was reported as such). And yet again, my arguments about a right of reply and verification apply in this instance as well.

Conclusion

Bam concludes that Mathope’s sources had ulterior motives, that the journalist was biased, and that the reportage has tarnished the reputation of all concerned, fostered mistrust with the public, and created unnecessary tension in her office.

The Ombud says the implications of Mathope’s conduct and reportage had:

·         impaired the reputation of all senior stakeholders who oversee governance matters of the FAIS Ombud, particularly those involved directly such as members of the Board of the FSB;

·         impaired relations with the financial services industry through the damage caused to the reputation of the institution;

·         fostered mistrust with members of the public;

·         impaired the reputation of the institution and of herself as a person; and

·         caused damage to internal relations with staff, which damage will continue until the untruth are corrected.

Cilliers points out that The Citizen has published a follow-up article based on Bam’s response.

He says that, while the FIAS ombud dismisses staff complaints to the PP it was inter alia made clear that she had:

·         rejected all allegations made against her;

·         found the questions similar to another publication; and

·         explained the lack of an HR department.

He adds that the follow-up story also addressed the Ntantiso’s matter, and that her denial of having been an office bully had been objectively covered.

Analysis

If the sources had ulterior motives, that is a matter for the PP to pronounce on – and not this office. Mathope based his story on an official document, and in this case he was merely the messenger. I have no reason to suspect bias on his part.

It should not be in dispute that this matter was in the public interest.

Finding

The complaint is dismissed.

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