Luvo Makasi, Boqwana Burns Attorneys vs. City Press


Wed, Mar 29, 2017

Ruling by the Press Ombud

29 March 2017

This ruling is based on the written submissions of Mr Ricky Stone of Boqwana Burns Attorneys, on behalf of the company itself as well as on behalf of Mr Luvo Makasi (also of that law firm), and those of Dumisane Lubisi, editor of the City Press newspaper.

Boqwana Burns Attorneys (BBA) and Makasi are complaining about a story in City Press of 19 February 2017, headlined Nomvula’s ‘Ben 10’ calls the shots.

Complaint                                            

They complain that:

·         they were not given enough time to respond to questions;

·         the reporting was inaccurate and / or unfair and / or deliberately dishonest (details below); and

·         the newspaper allowed commercial, political, personal or other non-professional considerations to influence or slant its reporting.

The text

The article, written by Sipho Masondo and Ntombizodwa Makhoba, said that the Minister of Water Affairs and Sanitation, Ms Nomvula Mokonyane, was allowing her young male companion (Makasi, 32) to call the shorts in her department – so much so that he was giving orders to her director-general.

The story listed several examples of an allegedly untoward relationship between Mokonyane and Makasi.

The complaint in more detail

Comment

Stone says that on Friday, February 17, at 13:58, Makasi received an e-mail from Masondo, requesting a response to 44 questions by 12:00 the next day. The company asked for an extension until at least up to close of business on Tuesday, February 21.

On February 17 at 20:52 Masondo refused his request.

During the morning of February 18 (prior to the deadline) BBA replied that, given the short space of time and the number of questions (including some requiring quite detailed responses), the request for an extension was not unreasonable. The company added that the questions related to historical matters, which meant there was no rush to publish, and indicated that some of the questions raised related to Makasi’s function as director and attorney at BBA – which would by law require consultation with the relevant parties, and which would per implication take some time.

Masondo again refused the request.

Stone concludes that this conduct was in breach of the SA Code of Ethics and Conduct and that, “if the extension had been granted, [it] would have been in the interest of City Press and the public”.

Inaccurate, unfair, deliberately dishonest

The story

The complaint

“Two weeks ago, at African Pride Irene Country Lodge in Pretoria, Makasi allegedly gave instructions to senior officials, including director-general Dan ‘Gorbachev’ Mashitisho and chief financial officer Sifiso Mkhize.”

 

The story failed to disclose that Makasi attended the meeting with Adv Terry Motau, who is a Senior Council appointed by the Minister to head a task team to conduct a due diligence exercise within the Department of Water and Sanitation. “This is public knowledge and it is strange that these sources that City Press refers to did not disclose this basic information.”

 

Makasi did not give instructions to either Mkhize or Mashitisho.

 

“Makasi and Thele Moema, Mokonyane’s special adviser, met with officials at Limpopo water board Lepelle Northern Water, allegedly to discuss which companies should get tenders in water projects around that province.”

 

“In the middle of last year, Makasi visited Polokwane’s mayor, Thembi Nkadimeng, and allegedly issued instructions on who should get a stake in a R2.2bn water project the municipality is carrying out around the city.”

 

Moema was not in the administration of the Department, but only acted as an adviser to the Minister – he has not, and was not empowered to make any administrative decisions on behalf of the Minister.

 

Makasi did not visit that province or Polokwane at any time during the previous year (he was last there in 2009).

 

The allegation is false, dishonest and calculated to achieve a particular goal which had nothing to do with the public interest.

 

 

“Boqwana Burns, the law firm of which Makasi is a director, was hired to give Lepelle Northern Water a legal opinion on the controversial R5bn Giyani Emergency Water Project.”

 

 

BB was appointed to conduct a review and a due diligence exercise into the controversial Giyani Water Project by the Lepelle Northern Water Board. BB concluded that the appointment of LTE Holdings and the cessions of that contract to Khato Civils and South Zambezi were irregular, and recommended that the Water Board terminate the appointments and proceed with open tender. This “[d]oes not support or align with City Press’s allegation of Mr Makasi obtaining kickbacks.”

 

Even though the journalist had this information at his disposal, he chose to ignore the findings “[w]hich do not support the conclusions he has chosen to make in his article”. It was simply illogical for LTE and / or Khato Civils to pay kickbacks after BBA’s conclusion which would have affected them and their business negatively.

 

“Department officials close to Mokonyane apparently ordered contractors to meet with Makasi ‘if they don’t want issues with their contracts’.”

 

Mr Simbi Phiri, a director in LTE, Khato and South Zambezi repeatedly requested to meet with Makasi, but those requests were refused.

 

Makasi has not met with the contractors carrying out work for the Department other than in his professional capacity as an attorney and director of BBA.

 

“In his capacity as chairperson of the Central Energy Fund, Makasi has already written to Mokonyane asking if they can work together on hydroelectricity projects ‘and other renewable energy programmes which may even assist with water conservation’.”

 

This allegation attempted to create an impression of an inappropriate relationship between the Central Energy Fund and the Department.

 

It was not untoward for Makasi to have engaged with the Department.

 

“[Makasi and the Minister] travel together; they are always together. They travelled together to Iran and New York.”

 

Makasi has never travelled to Iran or to New York, let alone travelling with the Minister to those places.

 

As an attorney Makasi provide advice to clients when asked to do so, including the Department. “Therefore it is neither inappropriate nor irregular for Mr Makasi to spend time with the Minister or the Department pursuant to our legal practice.”

 

The reference to Makasi as the Minister’s “Ben 10” implied an inappropriate relationship between them – without any factual basis for such a defamatory allegation “[w]hose only purpose is to malign and impair Mr Makasi’s personal and professional integrity for nefarious reasons”.


Slanted reporting

Based on a sworn affidavit by Mr Siviko Mabunda, a member of the Forum of Limpopo Entrepreneurs (FOLE), dated 18 February 2017, the complainants say they have reason to believe that Masondo and / or City Press have an “inappropriate relationship” with Phiri and / or Khato Civils – hence the complaint that the newspaper has allowed non-professional considerations to influence or slant its reporting.

Stone says it is clear from the affidavit that Masondo initially was “not favourable” towards Khato Civils and Phiri. However, following a meeting with them he changed his view and turned his back on his initial sources (Mabunda and FOLE). “[T]he only reasonable inference can be drawn is that there is an inappropriate relationship between Masondo and Phiri…” he argues.

He adds there is prima facie evidence of foul play and inappropriate conduct on the part of Masondo, Phiri and Khato Civils, and also of an attempt to tarnish or malign the Department of Water and Sanitation, Makasi and BBA, as well as an attempt to mislead the public.

The complainants ask that Masondo be suspended pending an investigation, that this office should investigate both him and the newspaper, and that City Press be ordered to publish an article which would give an accurate and fair depiction of Makasi and his comments, on the front page, including an apology and a retraction of the “Ben 10” allegation.

City Press responds

Comment

Lubisi says City Press has been investigating the Department of Water and Sanitation for over a year. During September of last year the Department requested the newspaper to postpone a story to the following week. The story would have been a front-page lead, based on documents from the National Treasury that the Department was leading other departments in awarding irregular contracts and tenders, therefore racking up billions of unauthorized and irregular expenditure.

A day later, City Press was approached by an individual who claimed to have been in a meeting where Mr Thele Moema, Mokonyane’s special advisor, a senior Presidential VIP protection agent and senior officer in the SAPS discussed “what to do with Masondo”, who was refusing their offers of incentives in order to drop the investigation into what is now known as Watergate. According to this individual, some in the meeting pushed for “Masondo’s disappearance”. Others were vehemently opposed to that suggestion, but in the end, no firm decision was taken.

The editor says the source reached Moema on the phone, on loudspeaker, and he was adamant that he would do everything to prevent the story from being published that particular weekend. This included “making Masondo disappear” if the situation called for it. His reasoning was that there was an ANC National Executive Committee meeting that weekend and Mokonyane could not afford to be seen on the front page of City Press by that meeting.

Due to these threats, Lubisi says, the story never saw the light of day. Following that incident, the newspaper organized a security company to look after Masondo and his family for a month.

“With this background in mind, we were not prepared to grant Mr Makasi an extension in which to comment,” the editor submits.

Lubisi adds:

·         Makasi had enough time to respond as the questions put to him were straightforward and would not have required him to dig into archives;

·         Instead of responding, Makasi would have found alternative ways to kill the story;

·         The newspaper was vindicated on Saturday evening when an affidavit by Mabunda surfaced, accusing Masondo of unprofessional and unethical conduct. Had City Press not run the story on Sunday, the affidavit would have made it impossible to run the story the following week. A critical story of that nature, with massive public interest, would have looked like a desperate attempt on the part of City Press to cover for the journalist; and

·         Over the past year, City Press has reported extensively on the so-called “Watergate” issue.

He argues that, with these considerations in mind, City Press could not allow itself to be censored, for the second time, and public interest considerations compelled the newspaper to publish the story without delay.

Inaccurate, unfair, deliberately dishonest

“Two weeks ago, at African Pride Irene Country Lodge in Pretoria, Makasi allegedly gave instructions to senior officials, including director-general Dan ‘Gorbachev’ Mashitisho and chief financial officer Sifiso Mkhize.”

Lubisi says Mokonyane appointed Adv Terry Moat (sic – read, “Motau”) to conduct a so-called due diligence on tenders in the department. “But this fact on its own does not provide answers as to why Mr Makasi was at the meeting,” he states.

In support of this argument, he continues to explain why the newspaper questioned Makasi’s presence at the meeting. (As this part is irrelevant to the complaint, I do not include the added motivation.)

Regarding the “instructions”, Lubisi says the story did not disclose the type of instruction issued by Makasi so as not to compromise its sources. He adds, though, that Makasi had apparently ordered Mashitisho and Mkhize to get the due diligence underway as it was “long overdue”. “This claim made perfect sense when one considers that Mr Makasi’s company will work with [that company] and therefore stands to benefit as soon as the ‘due-diligence’ gets underway,” he comments.

He states, “At least seven senior executives told City Press how minister Mokonyane had outsourced the running of the critical department to Mr Makasi, giving out orders and instructions to senior officials.”

The editor adds that City Press sent detailed questions to the Department about the meeting. “If the meeting was what Mr Makasi portrays it to be, the department would have had little trouble corroborating [his] version. Instead, the department chose to sidestep all the questions about the meeting,” he attests. 

“Makasi and Thele Moema, Mokonyane’s special adviser, met with officials at Limpopo water board Lepelle Northern Water, allegedly to discuss which companies should get tenders in water projects around that province; In the middle of last year, Makasi visited Polokwane’s mayor, Thembi Nkadimeng, and allegedly issued instructions on who should get a stake in a R2.2bn water project the municipality is carrying out around the city.”

Lubisi notes the story stated that Moema was a special advisor to Mokonyane. “By definition, an advisor is not employed as a bureaucrat and is not empowered to make administrative decisions. But [that] doesn’t mean he does not make them,” he argues.

The editor says a senior executive in the Department and a source from Limpopo told City Press about Makasi’s visit to the mayor of Polokwane. “We were not satisfied by their version of events, and we asked the Limpopo businessman to prove to us that the said meeting took place. A source, who is well known to Nkadimeng, put her on the line and on loud speaker, and she recounted what happened on the day when she was visited my Mr Makasi, who was in the company of another gentleman of Indian descent. The meeting was confirmed by an additional two sources, one a senior official within the department who is very close to Mokonyane, and the other an independent contractor who is also very close to Mokonyane,” he adds.

Lubisi concludes the information was true and that it confirmed that Makasi was abusing his proximity to the Minister, with or without her knowledge, to advance himself financially. 

“Boqwana Burns, the law firm of which Makasi is a director, was hired to give Lepelle Northern Water a legal opinion on the controversial R5bn Giyani Emergency Water Project.”

Lubisi notes the story stated this as a “neutral fact”, and it seems that it is not disputed by Makasi.

In any event, he continues, BBA claims to have been appointed by Lepelle Northern Water Board. But on February 21, during his media conference, Makasi said the company was subcontracted by Phambani, another law firm which had been appointed by Lepelle Northern Water Board.

(He belabors this issue, pointing out that BBA’s appointment “served no purpose and was of no value to the water utility” – which, again, is irrelevant as far as this complaint is concerned.)

The editor admits that City Press was in possession of BBA’ conclusion that the contracts were irregular and should be terminated on the basis that LTE had irregularly ceded all of its contracts to South Zambezi and Khato Civils.

However, he says there was nothing new in the finding. A year ago, City Press revealed that the contracts were irregular because LTE had ceded the work to South Zambezi and Khato Civils. The newspaper also recently reported that Department officials told Khato Civils that its contracts would be terminated because Treasury was unhappy with such contracts.

“In any event, throughout the entire course of 2016, City Press had maintained that the contracts were irregular. Reporting that Boqwana Burns’ legal opinion has found the same would not have made the story better or worse,” he argues.

He adds, “The advice by Boqwana Burns that the contracts are irregular and should therefore be cancelled does not render allegations that Mr Makasi received kickbacks implausible.”

Lubisi says it is critical to add that an associate of Makasi told City Press that the latter, Mokonyane, Moema and LTE boss Mr Thulani Majola would be happy to see a story which did not paint Khato Civils CEO Mr Simbi Phiri in a good light.

“Department officials close to Mokonyane apparently ordered contractors to meet with Makasi ‘if they don’t want issues with their contracts’.”

Lubisi says City Press did not claim that Makasi had met with contractors – it mentioned that officials in the Department have ordered contractors to meet with him. According to a senior official in Mokonyane’s office, these officials were the Department’s infrastructure Deputy Director General, Ms Zandile Mathe, and Moema. City Press asked the department detailed questions about Mathe and Moema ordering contractors to meet with Makasi, but the Department did not respond to these questions, he says.

The editor adds that a senior source at Lepelle Northern Water Board confirmed that Makasi and Moema visited Legodi to “discuss tenders”. This was corroborated by a senior official close to Mokonyane, as well as one in Lepelle Northern Water Board. There were also several meetings between the parties during the course of 2016.

“In his capacity as chairperson of the Central Energy Fund, Makasi has already written to Mokonyane asking if they can work together on hydroelectricity projects ‘and other renewable energy programmes which may even assist with water conservation’.”

Lubisi says the story simply reported that Makasi, who was then in the second month of his role as chairman of the Central Energy Fund, has wasted no time in writing to Mokonyane, requesting for “cooperation”. 

“[Makasi and the Minister] travel together; they are always together. They travelled together to Iran and New York.”

Lubisi says the mere fact that Makasi was involved with Mokonyane was not newsworthy. However, to the extent that their relationship interfered with the latter’s duties as a public servant, it became news.

He states, “City Press was not the first to report the allegation that Minister Mokonyane has a close personal relationship with Mr Makasi…This followed the public dissemination of a letter from the EFF to Minister Mokonyane dated 7 February 2017 in which detailed questions [were asked], not only about the minister’s relationship with Mr Makasi, but also about Mr Makasi’s apparent irregular influence in the running of the department.”

The editor says subsequently, EFF spokesperson Floyd Shivambu tweeted that Mokonyane “has outsourced the ministry to a Ben 10, who she travelled with to Iran and New York last year."

He says the term “Ben 10” originated from Shivambu, and was widely adopted in the media. So too was the allegation that the minister had travelled with him to Iran and New York.  “City Press tested the allegation against senior sources at the department… Two very senior officials confirmed the trip took place, as well as an independent contractor who is very close to the minister herself,” he says.

Explaining the headline, Lubisi says the words “Ben 10” was placed in inverted commas, to indicate that those are the words of another person. City Press also questioned its sources about the nature of the relationship. One senior official said of the relationship, “Minister Mokonyane has had many Ben 10s before, what is wrong with this one that makes her so crazy about him?” Another official said “Mr Mokonyane has been calling me, he wants to know what is happening to his wife. What do I tell him? I avoided his calls because I don’t know what to tell him”.

He argues that, based on all these considerations, the reportage was fair and reasonable.

Slanted reporting

Lubisi points out that the affidavit first surfaced on the evening before publication of the story in question. City Press instructed its attorneys to respond immediately to the affidavit, which was done on Monday 20 February 2017.

He says Masondo has been advised that he is under no obligation to respond to those allegations in this forum, but he reserves the right to respond if and when he may be required to do so in future.

The editor concludes, “For the purposes of this complaint, suffice to say that Mr Mabunda’s affidavit is not only illogical but also incoherent and that we categorically deny any bias, wrongdoing or slanted reporting in this matter. In any event, the press ombudsman has no power to ‘suspend’ Mr Masondo, nor to ‘investigate’ City Press and Mr Masondo. City Press asks that the complaint in its entirety be dismissed.”

BBA replies

Stone asks, if it is true that City Press has been conducting an investigation for over a year, why then did it wait until the Friday to seek comment. “The reasonable and logical conclusion is that they did not have any intention to obtain the comment but were simply going through the motions,” he submits

He also says the newspaper does not explain the change in its attitude, which implies that City Press is condoning Masondo’s conduct and relies on deferment to protect the unethical and unprofessional conduct of the reporter.

He adds that:

·         there is nothing in the newspaper’s response which supports any factual basis for the defamatory allegation of an inappropriate relationship between Makasi and the Minister;

·         the allegation of a so-called threat to Masondo is no more than an allegation, and the question must be asked as to why City Press did not take legal action in respect of this threat;

·         Makasi has never indicated his desire to prevent the article from being published – instead, his intention has always been to allow for the publication of an accurate article;

·         City Press’s belief concerning the time reasonably required to respond is irrelevant; the legal test for reasonableness is an objective one, namely that of an objective reasonable person – which the newspaper did not adhere to;

·         BBA and Makasi engaged in an exercise to check relevant files, facts and information to enable him to respond meaningfully, as well as to obtain expert advice and to address legal privilege, which is binding on the legal profession. “Wherein consent from clients to waive this legal privilege could not be obtained within the extremely limited time period stipulated by City Press which it must be noted was partially over a weekend, it would be impossible for him to do so,” he adds;

·         if Makasi had only responded to some of the questions, it can only been concluded that the story would have been even more defamatory and malignant;

·         the affidavit was published late on Saturday evening and accordingly had no bearing on City Press’s decision to deny Makasi’s request for an extension. He says, “City Press cannot be allowed to retrospectively rely on the affidavit to justify their unreasonable refusal… Given City Press’ unreasonable conduct throughout, the only conclusion that can be made is that the article was an attempt by Mr Masondo and City Press to pre-empt the affidavit of Mr Mabunda by casting unfavorable light on Mr Makasi and the Minister and in so doing distract the public from the serious allegations of misconduct on the part of City Press and Mr Masondo”;

·         there are several reasons for Makasi or another BBA representative to be at the meeting. In this instance there was no need for more than one attorney to accompany Motau (with whom Makasi is authorised to liaise); this is consistent with the normal practice of lawyers and there is no reason for City Press to find this newsworthy, except to find a slant consistent with its unlawful and defamatory conduct;

·         Makasi did not give any such orders, a point which has been clarified in Parliament, where all the participants were asked about the matter and none of the attendees corroborated the version published by the newspaper;

·         City Press has provided no response to the portions of the complaint which deal with alleged travel to Iran and/or New York; if the newspaper now abandons these allegations, which are also based upon so-called sources, the validity, reliability and veracity of all the allegations and sources must be questioned.

Stone also mentions questions arising from and as an implication of Mabunda’s affidavit. (I forego the parts of the explanation to which I have already referred.) He adds, though, “The affidavit raises serious allegations which cannot be ignored by the Press Ombudsman or by legal authorities and which relate to fraud and/or money laundering, tender irregularities, complicity in defrauding government institutions both in South Africa and abroad, and purposely and intentionally misleading the public… It is trite and accepted law that if an affidavit is signed by the deponent and commissioned by a commissioner of oaths that affidavit is a legally binding document which serves as prima facie proof of its content.”

He also refers to a letter from Willem De Klerk Attorneys, on behalf of City Press, to Mabunda’s attorneys – the content of (and comment on) which I do not find essential to the gist of this complaint.

Regarding the term “Ben 10” he argues that:

·         the tweet referred to by City Press did not mention Makasi by name and accordingly the term could not have originated in relation to him;

·         placing the term in inverted commas did not render it any less defamatory – it is not uncommon for such colloquial terms to be placed in inverted commas, and this practice has nothing to do with showing that the words are a quote; rather it is intended to show that the words have a colloquial context and meaning with which readers will identify or of which they will be aware. “In light of the context of the article as a whole, it is far more likely that City Press placed the term in inverted commas for the latter reason and to emphasize its colloquial meaning to the detriment of Makasi”;

·         the article did not state that Makasi has been called the Minister’s “Ben 10” by Shivambu; rather, it simply repeated the term without qualification or explanation – which supports the conclusion that City Press intended the meaning of this colloquial term, as understood by the general public, to be applied to Makasi.

He adds that the article would have been more balanced and accurate it the story reported that:

·         BBA also found the contracts were irregular; and

·         Makasi is a professional attorney who in the normal course of business engages with clients and provides legal advice.

 Analysis

Treading lightly

I have not had a complaint as serious as this one since I started my work in this office more than seven years ago.

The complainants are adamant that:

·         the journalist’s reporting was influenced by considerations other than professional ones, which would constitute a Tier 3 breach of the SA Code of Ethics and Conduct (if found guilty). This tier is headlined “Serious misconduct”, and it represents the worst kind of breach possible; and

·         there was prima facie evidence of foul play, corruption and inappropriate conduct on the part of Masondo, also of an attempt to tarnish or malign the Department of Water and Sanitation, Makasi and BBA, as well as an attempt to mislead the public.

Those are extremely serious allegations.                                                

The complainants also ask that this office investigate both City Press and the journalist, and that Masondo be suspended pending this investigation.

Such an investigation and suspension falls outside the jurisdiction of this office. At best, though, these requests do demonstrate the seriousness of the matter.

On the newspaper’s part, a source allegedly told City Press that he or she had been in a meeting where Moema, Mokonyane’s special advisor, a senior Presidential VIP protection agent and senior officer in the SAPS discussed “what to do with Masondo”. According to this source, some pushed for “Masondo’s disappearance”. The newspaper took this information so seriously that it organized a security company to look after the journalist and his family for a month.

A threat of murdering (which is what “disappearance” clearly means) a journalist is also unprecedented in the history of this office, at least to my knowledge.

I treat every complaint landing on my desk for arbitration seriously and with the respect it deserves; in this case, though, I shall think more than twice before coming to any findings, as I am mindful of the serious ramifications that my decisions may have for the various parties.

Let me add that the parties have, sometimes even extensively, argued the merits or de-merits of contracts and behavior. These matters also fall outside my mandate – my task is not to investigate the standing of contracts, and neither am I investigating either BBA or Makasi. My sole interest is in the text that was published, in order to determine whether City Press was in breach of the SA Code of Conduct or not.

Comment

The following details are not in dispute:

·         On Friday, February 17 at 13:58, Makasi received an e-mail from Masondo, requesting a response to questions by 12:00 the next day;

·         The list comprised of 44 questions;

·         On Friday and again during Saturday morning, BBA asked for an extension until at least close of business on Tuesday, February 21; and

·         Masondo replied to the first request on February 17 at 20:52, advising that there would be no extension, and did so again the next morning.

I am not going to speculate as to what hidden agendas City Press might have had (if any) which influenced its decision in this regard. Instead, I’ll look at this matter clinically and apply accepted principles and practices in this regard.

The central question is whether it was reasonable for City Press to expect BBA to respond meaningfully between Friday at 13:58 and Saturday at 12:00 – given the number of questions (quantity), as well as the importance (quality) thereof, and given the argument that by law the firm was required to consult with the relevant parties prior to giving comment (which would take extra time).

The journalist grouped his questions into three headings: The nature of Makasi’s relationship with Mokonyane (four questions), the Irene meeting (six questions), and other issues (34 questions).

Regarding Mokonyane, the reporter asked Makasi if and how he knew her, and what type of relationship he had with her (whether blood relatives, romantic, or otherwise). He also wanted to know if Makasi had travelled with Mokonyane to Iran and New York; and if yes, what the purpose of those trips had been.

Looking at these questions alone, the content of which form an integral part of the story, it should not have taken Makasi more than a few minutes to respond to them; he also did not need to consult anybody in this regard.

The questions about the Irene meeting were also straightforward and again, it should not have taken Makasi long to respond to them, nor did he need to consult anybody.

The reporter asked what he was doing in the meeting; who invited him; how he know about it; and if, what and why he contributed to the meeting.

The first twelve questions under “other issues” were about Ms Zandile Mathe and Dr Thele Moema – the journalist asked if and how Makasi knew them; what kind of relationship he had with them (whether blood ties or otherwise); if he knew their home addresses, if he had been to their homes, and how often he visited their homes.

Again, Makasi did not have to consult anybody before responding, and the questions were of such a nature that it should not have taken him long to reply.

Then, the journalist wanted to know whether Makasi had visited the Polokwane mayor in the company of a gentleman of Indian descent; if yes, what the date of the meeting was and if a R2.2 bn water project in and around Polokwane was discussed – and if not, what the purpose of that meeting was.

Masondo also asked Makasi which Water Boards he and Dr Moema visited, whom he met at those meetings and what contracts they discussed.

On the alleged relationship between Makasi and Mokonyane and the Department, the journalist asked about the allegation that officials accused the Minister of outsourcing the running of the department to him; he also wanted to know why he thought those officials were picking on him, and enquired into how he responded to the accusation of officials in the Department that he was destabilizing administration.

Yet again, Makasi’s response to these questions could have been simple and straightforward

The reporter then referred to a letter by a whistleblower, detailing corrupt activities in the Department – one such case allegedly involving Makasi having conversations with Mr Lawrence Kandaswami, MD of SAP in South Africa, discussing the SAP contract. Masondo wanted to know whether Makasi had seen the letter; whether he was concerned about the allegation; whether the whistleblower’s claim was true that he had received a R35-million kickback from the SAP contract; and what he was doing about such serious allegations against himself.

Again, Makasi could have responded to those questions without delay.

Regarding the CEO of Amatola Water, Mr Lefadi Makibinyane, Masondo asked whether Makasi knew him, ever called him, and how he defends himself against the allegation of kick-backs from companies after he had facilitated the involvement of such companies at Amatola Water.

He also asked for comment on the letter from Willem De Klerk Attorneys – comment which might have taken longer than the other questions I have already mentioned.

I conclude that Makasi and BBA had enough time to respond adequately to the majority of Masondo’s questions. Indeed, if I were in Makasi’s shoes, I would have replied to as many questions as possible – and if there were some questions about which Makasi felt that he needed to consult relevant people, he could have pointed that out to the reporter.

I do not buy the argument that it would have made matters worse for him, had he only responded to some and not to all questions.

The case of Malema v Rampedi and Others, a decision of the Johannesburg High Court in 2011, is relevant in this instance. The court regarded Malema’s failure to respond adequately to questions as an important factor favouring the reasonableness of the publication. The court said that the applicant “was in a position to properly answer and properly set forward facts which would cast a different light upon the issue should he have wished to do so” – and by failing to do so, merely adding credibility to the newspaper’s sourcing.

I believe that by far the majority of Masondo’s questions were of such a nature that Makasi could have relatively easily responded to them. My conclusion, therefore, is that City Press was justified in refusing to grant him an extension.

This decision will impact on many of my decisions below.

Inaccurate, unfair, deliberately dishonest

Giving instructions to senior Department officials

The story said, “Two weeks ago, at African Pride Irene Country Lodge in Pretoria, Makasi allegedly gave instructions to senior officials, including director-general Dan ‘Gorbachev’ Mashitisho and chief financial officer Sifiso Mkhize.”

It is not in dispute that Makasi attended the meeting in Irene. Lubisi’s questioning of the reason for his attendance and Stone’s reply are interesting at most, but not relevant to the complaint – I am not investigating the “merits” of that meeting.

What is relevant, though, is the allegation that Makasi gave instructions to Department officials.

While the story did not disclose what sort of “instructions” Makasi allegedly gave, Lubisi, in his response to the complaint, does provide some details; I also note that the journalist made use of several sources (whose credibility I have no reason to doubt), and that the allegation in question was not stated as fact.

Of further, and vital, importance is the fact that Masondo specifically asked Makasi about his role in the Department. He had the opportunity to deny this allegation and to state his case – but instead opted to ask for an extension.

Given all of these considerations, I cannot blame City Press for publishing this allegation as an allegation.

Let me be clear about this: I do not know whether the allegation is true or not – what I do know, though, is that City Press had enough grounds to justify publishing it as an allegation.

Attending the meeting with Motau

Stone’s argument that the story should have “disclosed” the fact that Makasi attended the meeting with Motau cannot hold water. He himself says it was public knowledge – so then, why the need to “disclose” information which was already in the public domain?

Moema empowered to make administrative decisions

I cannot entertain this part of the complaint as Makasi does not have the standing to complain on Moema’s behalf.

Visiting the mayor of Polokwane

I have two conflicting statements on this matter: Makasi’s denial that he visited Polokwane, and the newspaper’s reason for believing that he did; and I do not have any solid evidence to convince me of the truth of either.

My mandate, though, is to establish how reasonable it was for City Press to publish this allegation.

In this regard, I note that the story quoted “seven highly placed sources” (and other evidence). I also take into account that the newspaper telephonically spoke to an eye-witness in its search to verify its information – and that it did ask Makasi about this issue.

I have no reason to disbelieve the editor in this regard and, given the other considerations mentioned above, I am satisfied that City Press was justified in publishing this information as an allegation.

Not reporting BBA’s findings regarding Giyani

I entertain Lubisi’s argument about BBA’s claim to have been appointed by Lepelle Northern Water Board and Phambani having subcontracted the firm as purely background material.

The editor’s admission that City Press was in possession of BBA’s conclusion that the contracts were irregular and should be terminated on the basis that LTE had irregularly ceded all of its contracts to South Zambezi and Khato Civils is relevant.

The question is whether this information was material to the story, and therefore whether its omission constituted a breach of the Code of Ethics and Conduct.

I note that City Press already reported that the contracts were irregular, but also that it did not state (at least not in the stories that Lubisi refers me to) BBA’s findings in this regard.

I can well understand that BBA would want City Press to report its findings, but I do not believe that this was material to the gist of the story and therefore I do not blame the newspaper for not having done so.

In the meantime, I cannot comment on the suggestion that BBA itself might stand to benefit by the cancellation of the contracts – again, that falls outside the sphere of my mandate.

Kickbacks

Masondo specifically asked Makasi how he defended himself against allegations of having received kickbacks – an opportunity that he missed.

Also, the story did not state this allegation as fact – it referred to a letter in which such an allegation was made.

Again, for the same reasons as argued above, I cannot blame City Press for reporting this allegation as an allegation.

Officials ordered to meet with Makasi

The sentence in question said, “Department officials close to Mokonyane apparently ordered contractors to meet with Makasi ‘if they don’t want issues with their contracts’.” (Emphasis added.)

I cannot entertain this part of the complaint, as Makasi does not have the standing to complain on behalf of the Department.

Untoward relationship between the Central Energy Fund and the Department

The sentence read, “In his capacity as chairperson of the Central Energy Fund, Makasi has already written to Mokonyane asking if they can work together on hydroelectricity projects ‘and other renewable energy programmes which may even assist with water conservation’.”

Again, this information was attributed to several sources.

Also, I do believe that Makasi is reading too much into this specific sentence – it does not, by default, imply any improper relationship.

‘Always together’; travelling to Iran, New York

The story did not state this information as fact, but it attributed it to sources.

Masondo also specifically asked Makasi about this allegation – an opportunity of which he failed to make use.

‘Ben 10’

The question regarding the origins of the reference to Makasi as Mokonyane’s “Ben 10” is not relevant – and neither is the fact that other media followed suit. The fact that a statement is made in the media does not make it true; ditto for the repeated publication of a false statement.

The point is: The media are mostly not primary sources; the mere fact that other media called Makasi Mokonyane’s Ben 10 is not enough reason to repeat such an allegation – City Press had to have more substance than merely where it originated or who repeated the allegation.

The question, then, is how reasonable was it for City Press to use this term?

The story did mention and imply, several times, that Makasi and Mokonyane had more than a professional relationship – hence his alleged undue influence in the Department and their alleged travelling together and “always” being together.

Given all the allegations in the story about Makasi’s and Mokonyane’s “close” relationship, I cannot blame City Press for suggesting a Ben 10 situation.

Slanted reporting

BBA bases it allegation of an “inappropriate relationship” between Masondo and Phiri and / or Khato Civils on Mabunda’s affidavit, arguing on that basis that City Press has allowed commercial, political, personal or other non-professional considerations to influence or slant its reporting.

Stone argues that this affidavit presents prima facie evidence of foul play and inappropriate conduct on the part of Masondo, and also of an attempt to tarnish or malign the Department of Water and Sanitation, Makasi and BBA, as well as an attempt to mislead the public.

While I accept the legal standing of the affidavit, I also need to take into account that Mabunda has not yet been cross-examined on its content.

Unlike BBA, I am not willing to accept the “evidence” in the affidavit as gospel – not before it has been proven to be true.

BBA makes much of Masondo having “changed his mind” after meeting with Khato Civils and Phiri, and accuses the journalist of an inappropriate relationship on that basis.

That is one bridge too far for my liking – surely, a reporter who listens to various parties is allowed to change his or her mind if new evidence is presented? The mere fact that Masondo changed his mind cannot, by default, denote an inappropriate relationship.

Finding

The complaint is dismissed in its entirety.

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