Mapula Mokaba-Phukwana vs. Sunday Times


Thu, Feb 2, 2017

Ruling by the Press Ombud

2 February 2017

This ruling is based on the written submissions of Ms Mapula Mokaba-Phukwana, MEC for Agriculture and Rural Development in Limpopo, and those of Susan Smuts, legal editor of the Sunday Times newspaper.

Mokaba-Phukwana is complaining about an article in Sunday Times of 20 November 2016, headlined Protector tears apart R6 million ‘forensic probe’.                                                                                                              

Complaint                                            

In general, Mokaba-Phukwana complains that the story was imbalanced, with intentional departure from the facts by distortion, exaggeration and misrepresentation, material omissions, and summarization.   She adds that the verification of the facts was telephonically made on the eve of the article after the so-called information (via SMS) was already in the public domain (without her knowledge).

In particular, she complains about the following sentences:

·         “A debt col­lec­tion com­pany owned by a po­lice ad­min­is­tra­tion clerk was paid al­most R6-mil­lion to carry out a foren­sic in­ves­ti­ga­tion into com­put­ers miss­ing from Lim­popo’s trans­port depart­ment, which had al­legedly been re­pos­sessed due to non­pay­ment”;

·         “Then-transport MEC Mapula Mokaba-Phukwana awarded the contract to the company without any tender process and flouted the Public Finance Management Act, according to a provisional report by the public protector”;

·          “The debt collection firm, MPA Investigation Team, didn't have the qualifications to conduct the investigation”;

·         “Two days before the contract was awarded, the company's director attended a five-day crash course in forensic investigation”;

·         “The appointment was made purely on a recommendation to the MEC by ‘a comrade’ who used to stay with her mother during the political struggle”;

·         “Mpho Antonio, an administration clerk with the police, was MPA Investigation Team's ‘sole director’ when the R5.8-million contract was awarded on September 16 2014. She was involved in extra remuneration work without permission;” and

·         “Mokaba-Phukwana’s actions were ‘improper’ and constituted ‘maladministration’.

The text

The first two sentences of the article, written by Mzilikazi wa Africa, adequately sums up the gist of the story. They read, “A debt col­lec­tion com­pany owned by a po­lice ad­min­is­tra­tion clerk was paid al­most R6-mil­lion to carry out a foren­sic in­ves­ti­ga­tion into com­put­ers miss­ing from Lim­popo’s trans­port depart­ment, which had al­legedly been re­pos­sessed due to non­pay­ment. Then-trans­port MEC Ma­pula Mokaba Phukwana awarded the con­tract to the com­pany without any ten­der process and flouted the Pub­lic Fi­nance Man­age­ment Act, ac­cord­ing to a pro­vi­sional re­port by the pub­lic pro­tec­tor.”

The story stated the PP’s report inter alia also found that:

·         the debt col­lec­tion firm, MPA In­ves­ti­ga­tion Team, didn’t have the qual­i­fi­ca­tions to con­duct the in­ves­ti­ga­tion;

·         the ap­point­ment was made purely on a recommendation to the MEC by “a com­rade” who used to stay with her mother dur­ing the po­lit­i­cal strug­gle;

·         Ms Mpho An­to­nio, an ad­min­is­tra­tion clerk with the po­lice, was MPA In­ves­ti­ga­tion Team’s “sole di­rec­tor” when the R5.8-mil­lion con­tract was awarded on Septem­ber 16 2014. She was in­volved in “ex­tra re­mu­ner­a­tion work” without per­mis­sion; and

·         Mokaba-Phukwana’s ac­tions were “im­proper” and con­sti­tuted “mal­ad­min­is­tra­tion”.

The pub­lic pro­tec­tor’s in­ves­ti­ga­tion was reportedly launched after an EFF com­plaint.

The complaint in more detail

R6-million paid

The sentence in question read, “A debt col­lec­tion com­pany owned by a po­lice ad­min­is­tra­tion clerk was paid al­most R6-mil­lion to carry out a foren­sic in­ves­ti­ga­tion into com­put­ers miss­ing from Lim­popo’s trans­port depart­ment, which had al­legedly been re­pos­sessed due to non­pay­ment.”

Mokaba-Phukwana says that, according to information at her disposal, MPA Investigation Team was duly incorporated in terms of the South African company laws in 2013 and was registered as a “general business company”.  The company profile indicated the following business interests: private investigations; corporate investigations; infiltration and threat assessment; debt collection; asset recovery; body guarding; and a whole range of security related solutions.

She complains that the article deliberately misled the public by failing to disclose the scope of work listed in the MPA letter of appointment and the service level agreement issued under the signature of the Head of the Department (HOD) and the Accounting officer, Ms. Hanli du Plessis.

“Instead,” she continues, “the journalist decided to single out the investigation of missing computers from the Limpopo Department of Roads and Transport as the only service that the MPA was to investigate.”

Mokaba-Phukwana explains that the letter of appointment and the service level agreement issued by the HOD to MPA Investigating Team listed the following as the scope of work to be investigated: procurement and awarding of tenders; traffic management systems and contract management; learner driver license and testing centers; misstatement; falsifying subsistence and travel claims and many more.

She concludes, “As such, it is grossly misleading to suggest that the Limpopo Department of Transport paid almost R6 million to investigate stolen computers.  The reporter’s intention was not (to) report the fact and truth but to mislead the public and damage the MEC reputation of fighting corruption in the department to reduce road accidents fatalities caused by internal corrupt activities … the article misled the public by picking on debt collections as the only service rendered by the MPA…”  

No tender process

The disputed statement said that Mokaba-Phukwana “[a]warded the contract to the company without any tender process and flouted the Public Finance Management Act (FPMA), according to a provisional report by the public protector”.

In essence, Mokaba-Phukwana submits a rather long argument to state that she had not been in the wrong. (The argument itself is irrelevant as far as this finding is concerned, as I shall argue below.)

No proper qualifications

The sentence read, “The debt collection firm, MPA Investigation Team, didn't have the qualifications to conduct the investigation.”

Mokaba-Phukwana says information at her disposal sourced from the MPA Investigation Team profile was that the main operation personnel of the company had been in the private investigations field since 2003.

Five-day crash course

The part in dispute stated, “Two days before the contract was awarded, the company's director attended a five-day crash course in forensic investigation.”

Mokaba-Phukwana says there is nothing wrong for someone to continue improving the skills and competencies for empowerment.

Political comrade

The sentence: “The appointment was made purely on a recommendation to the MEC by ‘a comrade’ who used to stay with her mother during the political struggle.”

Mokaba-Phukwana admits that one Mokhine, the “comrade” in question, recommended the company to the MEC as an executive authority – however, it was communicated for consideration. She denies any special comradeship relationships with him and confirms that he was a friend to her late mother – and their relationship was restricted to that level.

She says she had no obligation, nor felt duty bound by the recommendation made by Mokhine to the extent that there could have been consequences had the MPA Team not been appointed as recommended.

Sole director acting untoward

The story said, “Mpho Antonio, an administration clerk with the police, was MPA Investigation Team's ‘sole director’ when the R5.8-million contract was awarded on September 16 2014. She was involved in extra remuneration work without permission.”

Mokaba-Phukwana notes that this was a matter between Antonio and her employers and had nothing to do with her as MEC. She adds, “The company registration documents from the CIPC as well as the company profile at my disposal then did not any way mention that the director was an administrative clerk somewhere in the state department. There is therefore no further comment hereon.”

Improper; maladministration

The sentence: “Mokaba-Phukwana's actions were ‘improper’ and constituted ‘maladministration’.”

Mokaba-Phukwana says the findings of the Public Protector’s preliminary report in this regard were “economical with the truth”.

Sunday Times responds

Smuts replies that the story was a straightforward news report of a provisional report by the Public Protector. “The subject matter of the report is self-evidently in the public interest, and we were well within our rights to report on the contents of the report,” she argues.

Therefore, she says, she will not deal with specific complaints as the newspaper is entitled to reflect the contents of the report. “We submit that Ms Mokaba-Phukwana’s disputes of fact should be directed to the Public Protector. The article did not seek to investigate afresh what the Public Protector had investigated – it was to publish what the Public protector had found,” she states.

The legal editor adds that the journalist has discharged his duty by giving Mokaba-Phukwana an opportunity to respond, which was adequately reflected in the article.

Smuts nevertheless also submits that the:

·         MPA Investigation Team, even on Antonio's own version, was inter alia a debt collection company; the Public Protector's report also stated that the documents submitted when the contract was awarded were the CIPRO registration certificate, and the debt collection certificate;

·         mention of the missing computers was based on information given to the reporter during an interview with Mokaba-Phukwana – who told wa Afrika that a few days after she was appointed, a service provider called her to say he had taken some of their computers because he had not been paid. She then decided to find out what was going on in the department;

·         Public Protector's report did not traverse the scope of the contract. The only information Sunday Times had to go on, in this regard, was provided by the complainant;

·         complainant did not discuss with the journalist the reasons for bypassing the head of department. Had she done so, the newspaper would have reflected her response – in any event, “[w]e submit the proper place to make those submissions is to the Public Protector”;

·         article did not traverse the regularisation of the “irregular appointment”. However, this did not exonerate the MEC in the Public Protector's report;

·         fact that MPA had other qualifications was not disputed – however, the contract was awarded on the strength of the documents submitted at the time, being a CIPRO registration certificate and a debt collection certificate. The article did reflect the comment by Martins Antonio (husband of Mpho Antonio) that he was a forensic investigator, but he did not provide the publication (or, it would appear, the Public Protector) with certificates proving this;

·         complainant did not specifically deny the statement that Mr Mokhine had stayed at her mother's house – a statement which was reflected as fact in the Public Protector's report. In any event, this is not material – the issue is that the Public Protector found that Mokhine, as a “comrade” of the MEC or her family, recommended MPA for the job, and the MEC acted on this recommendation; and

·         reporter had a lengthy interview with Mokaba-Phukwana, after which he sent her a copy of the Public Protector’s report. She did not respond further, despite having the journalist's contact details.

Smuts concludes, “Ms Mokaba-Phukwana accuses the Public Protector of being economical with the truth regarding the findings against her. Again, we submit her complaints should be directed to the Public Protector and not to us.”

Mokaba-Phukwana replies        

Mokaba-Phukwana says the story was not “straightforward”, as claimed by Smuts, as it was leaked to the newspaper from the Public Protector’s office and it was provisional at the time of publication (it was not authorized by the PP as it did not carry her signature). The matter reported to the PP’s office and the malady was acknowledged by the Public Protector (copies attached as Annexure A & B for ease of reference).

She adds that, at the time the report was leaked, she had not as yet been given an opportunity to respond “to the official provisional report”.

“It could thus have been the miscarriage of law to divulge sub-judice and confidential information to the newspaper.  In addition, the journalist did not ask nor prompt for further information,” she says.

Mokaba-Phukwana declares, “My major bone of contention is that your journalist illegally acquired the PP’s draft provisional report and published the contents thereof without verifying the status of the report with the Public Protector.”

She adds that wa Africa phoned her on 18 November 2016, and she requested the source of information, which was e-mailed to her on that same day.  “There was no further conversation between me and the journalist until I noticed the article in the Sunday Times of 20 November 2016,” she asserts.

Mokaba-Phukwana points out that she has not been found guilty of any wrong-doing by any tribunal, including that of the Public Protector.

She concludes, “[The reportage] has caused major harm to my personhood and my reputation as public figure and representative of my constituency. We tend to suspect that the Journalist allowed commercial, political, personal or other nonprofessional considerations to influence his slant reporting.  He failed to avoid conflict of interest as well as arrangements or practices that could lead audiences to doubt the media's independence and professionalism.”           

Analysis

R6-million paid

The newspaper did not state it as fact that MPA had been paid al­most R6-mil­lion to carry out a foren­sic in­ves­ti­ga­tion into com­put­ers miss­ing from Lim­popo’s trans­port depart­ment – it quoted a (provisional) report which contained this information.

If Mokaba-Phukwana has a problem with it, she should take up the matter with the PP and not with the newspaper.

It is true that the story did not disclose the scope of work listed in the MPA letter of appointment and the service level agreement – but then, the story was about the PP’s report, and that document did not outline those matters either.

As it was not the purpose of the article to comprehensively outline all the aspects of the matter, but merely to report on the content of the report, I do not blame Sunday Times for not mentioning the content of the letter of appointment or that of the service level agreement.

I therefore disagree with Mokaba-Phukwana that it was “grossly misleading” to suggest that the Limpopo Department of Transport paid almost R6 million to investigate stolen computers. 

No tender process

The statement about the lack of a tender process came from the PP’s report – which Sunday Times was justified to quote.

No proper qualifications

The statement that MPA did not have the qualifications to conduct the investigation came from the PP’s report – and the newspaper was justified in quoting it.

Five-day crash course

Mokaba-Phukwana’s argument that there is nothing wrong for someone to continue improving the skills and competencies for empowerment is correct – but then, the story did not say that anything was wrong with it. Besides, it merely referred to the PP’s report.

Political comrade

The statement about a political comrade came from the PP’s report – which Sunday Times was justified to quote.

Sole director acting untoward

Mokaba-Phukwana says she does not want to comment further on this matter. The same goes for me.

Improper; maladministration

If the findings of the Public Protector’s preliminary report in this regard were “economical with the truth”, as Mokaba-Phukwana alleges, she should take up the matter with the PP and not blame the messenger.

General comment

I need to make this clear: It was not the newspaper’s mandate to establish the merits of the case for or against Mokaba-Phukwana, and neither is it mine. The publication’s only task was to accurately and fairly report the content of the PP’s (provisional) report; and my sole interest in this matter is whether Sunday Times has done so adequately.

This matter is rather simple – Mokaba-Phukwana does not, in any way, complain that Sunday Times has misrepresented the provisional report; instead, she consistently argues against the essence of the findings in that report.

Smuts is therefore correct – the story stated that the report was provisional, and the newspaper was justified to report on the matter, in the public interest.

Sunday Times was merely the messenger, and it has not done anything wrong in this regard.

Finding

The complaint is dismissed.

Appeal

Our 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