Ruling by the Press Ombudsman
27 January 2016
This ruling is based on the written submissions of journalist Pearlie Joubert, a former reporter at the Sunday Times newspaper, and those of Susan Smuts, legal editor of the same newspaper.
Complaint
Joubert is complaining about statements in articles published in Sunday Times on:
· 2 December 2015, headlined Times Media and Oppelt reject claims of Sunday Times improprieties (online), which included statements by the then editor, Phylicia Oppelt, and by Mr Andy Gill, the CEO of the Times Media Group; and
· 6 December 2015, headlined Our stories on rogue SARS unit are backed by three probes (which also appeared online).
She complains that the content of the statements and the articles were deliberate misrepresentations of her affidavit and unfairly maligned her integrity; they also contained falsehoods about her activities during her employ at the Sunday Times.
Joubert specifically:
· denies that she either stated or implied that Mr Rudolf Mastenbroek, a former SARS employee, had been the source for the Sunday Times’s “rogue unit” stories;
· calls the newspaper’s reportage “a shocking and deliberate distortion of a Hushmail-conversation between [Sunday Times journalist] Stephan Hofstatter and myself”;
· claims that the newspaper deliberately placed Mastenbroek’s words in her mouth; and
· takes strong exception to the “sexual innuendo” contained in the using of the word “relationship” to describe her “relationship” with Van Loggerenberg.
(Fuller details below.)
Joubert adds that the newspaper did not ask her for comment prior to publication.
I have not taken the following parts of the complaint into account:
· Joubert’s exclusion from the newspaper’s stories about the matters addressed above, even though she was part of the investigations unit at the newspaper; and
· A “sympathetic” article by Joubert about a charitable organisation with which Mr Johann van Loggerenberg was allegedly associated.
Not only are these matters rather irrelevant, but they are also based on speculation and assumptions that could only serve to cloud the real issues at hand.
The texts
The first story said that Times Media Group and Oppelt rejected claims by Joubert that the then editor’s husband had influenced the newspaper’s reporting on a rogue unit in SARS. It stated, “Joubert has claimed in an affidavit that Rudolf Mastenbroek, her friend of 26 years and previously a source of hers, had tried to plant information about alleged improprieties committed by former SARS commissioner Ivan Pillay and SARS investigator Johan (sic) van Loggerenberg. Mastenbroek was previously married to Oppelt.”
Oppelt was quoted as saying that an independent, external party had conducted a comprehensive examination of Joubert’s accusations. “None, however malicious and obviously driven by a personal agenda, was found to have substance – specifically the claim that my former husband held sway in the reporting on SARS.”
In her statement to The Media Online (visit http://themediaonline,co.za/2015/12/oppelt-no-substance-to-embittered-jouberts-sunday-times-claims for the full text), Oppelt inter alia asked why Joubert did not reveal:
· her discomfort around the issue when she resigned;
· the real reason for the breakdown in her relationship with her investigative colleagues, which allegedly involved a clear breach of her ethical obligations as a journalist on a matter entirely unrelated to this case;
· the nature of her relationship with Johan van Loggerenberg; and
· that she had written an anonymous and sympathetic article about Van Loggerenberg’s charity while in the employ of the Sunday Times.
Gill reportedly stated that Joubert’s perceptions of how the story was sourced were both “fanciful and vindictive”.
The second article said that there was no documentary evidence to prove Joubert’s allegations.
This story stated that Joubert:
· “…set the cat among the pigeons…by implying the source of our stories about a rogue unit at the South African Revenue Service that spied illegally on taxpayers was Rudolf Mastenbroek”;
· “…first tried to get the Sunday Times to pursue Pillay and Van Loggerenberg in August 2013 after she had spoken to a source, whom she revealed this week to be Mastenbroek...she says Pillay is ‘not straight’ and ‘does the dirty’.”; and
· “…goes on to say Pillay ‘has his own man who is literally doing all his bidding: Johann van Loggerenberg’. She calls Van Loggerenberg an ‘old security man. Very close to [former police chief Jackie] Selebi’...”
“We did everything by the book, and stand by our stories,” the article ended.
The arguments
False statements, maligning Joubert’s integrity
Mastenbroek not a source for ‘rogue unit’ stories
Joubert says the newspaper deliberately distorted the content of her affidavit – she denies that she either stated or implied that Mastenbroek had been the source for the Sunday Times’s “rogue unit” stories. “I said that I believed he was conflicted as a member of the Kroon advisory body given his expressed attitude towards…Pillay and…van Loggerenberg. It is on this basis that I submitted a letter to the Ministry of Finance and the affidavit referred to. The content of the affidavit speaks for itself.”
(Mastenbroek had been appointed to the Kroon Advisory Committee set up by Finance Minister Nhlanhla Nene to investigate the allegations about a rogue unit published by the newspaper.)
Smuts points out that Joubert wrote the following to Judge Kroon and the Minister and Deputy Minister of Finance:
· “I raised certain concerns regarding certain leaks about allegations pertaining to … [Pillay] with … Oppelt … I point out that … Oppelt happens to be the former wife of Advocate Rudolph Mastenbroek”; and
· “It is my firm believe (sic) that Rudolf Mastenbroek is not unbiased when it comes to his personal and professional views on the SA Revenue Service and his particular and expressed dislike in particular individuals who formerly held senior positions within SARS – especially … Pillay … van Loggerenberg and Adrian Lackay. Adv Mastenbroek has been actively soliciting the media with information of a particular hue and slant regarding SARS since 2013 after he left the employ of SARS. It was clearly his intention to discredit certain persons by way of the media as early as April 2013. I am of the firm opinion that Mastenbroek has played an active and decisive role in ‘influencing’ the very particular and devastating bias my former employer has shown on stories relating to the so-called ‘rogue spy unit’ within SARS.”
From this, Smuts concludes, “The passage speaks for itself. Once one adds the gratuitous reference in the affidavit to Mastenbroek being [Oppelt’s] ex husband (sic) the implication is complete.”
The legal editor submits that:
· none of the members of the newspaper’s investigative unit has used Mastenbroek as a source;
· Oppelt was not open to persuasion by her ex-husband and would not have risked her career to advance whatever agenda Joubert alleges he had; and
· Joubert’s conduct in respect of one particular investigation has led the other journalists to distrust her.
In her response to the above, Joubert replies:
· the newspaper does not dispute that:
o Mastenbroek sought to influence her while she was a journalist at the Sunday Times to write stories adverse to Pillay and Van Loggerenberg;
o the stories eventually published bore a remarkable resemblance to those Mastenbroek sought to have published. “That they were corroborated by other sources does not make the allegations true unless it can be demonstrated that those sources are independent of each other; and/or are in a position to relay reliable information; and/or do not share an interest in a particular narrative”;
o she articulated her unease to various journalists, the editor and the news editor at the time about the veracity of the stories they were publishing;
· it is a fact, not a gratuitous comment, to point out that Mastenbroek was Oppelt’s ex-husband at the time when the latter was the editor (“who oversaw the publication of the articles about Van Loggerenberg and Pillay”);
· it was common cause that Mastenbroek was a member of the Kroon Committee, whose remit included advising the Minister of Finance on the same matters as those covered in the Sunday Times;
· the paragraphs cited by the Sunday Times from her letter to Judge Kroon and from the affidavit did not disturb any of the above – “Claiming that I meant that Mastenbroek was the source is to deflect from the substance of my letter and affidavit, which is that Mastenbroek is conflicted”; and
· it was the Sunday Times that made gratuitous and demeaning statements about her – not the other way round.
My considerations
The following sentence sums up the issue at hand: “[Joubert] set the cat among the pigeons this week by implying the source of our stories about a rogue unit at the South African Revenue Service that spied illegally on taxpayers was Rudolf Mastenbroek.”
Firstly, the questions are whether:
· this statement misrepresented Joubert’s affidavit; and
· the newspaper’s reporting of her statements to Judge Kroon deflected from the substance of her letter and affidavit, which was that Mastenbroek had been “conflicted”.
I note that, in her affidavit, Joubert mentioned that Mastenbroek had:
· approached her, as a close personal friend for many years, seeking to inform her of certain instances “which he sought to be published in the Sunday Times”;
· advanced a number of allegations seeking to implicate Van Loggerenberg and Pillay in improper involvement in protecting the ANC; and
· been Oppelt’s ex-husband.
She added that she:
· became concerned about the veracity and accuracy of a series of articles concerning Van Loggerenberg and Pillay and their alleged involvement in a “rogue unit” at SARS – and when she voiced her concern, the newspaper isolated her regarding this matter; and
· was particularly concerned about Mastenbroek’s appointment to an advisory board headed by Judge Kroon, as Mastenbroek had already demonstrated his dislike of and bias against Van Loggerenberg and Pillay.
In her letter to Judge Kroon et al, Joubert was at pains to describe her reluctance to identify her source – after which she mentioned Mastenbroek. She stated that she had a personal friendship with him going back some 26 years, and noted that he was Oppelt’s ex-husband. Then she attested, “I no longer believe that it is in the interest of honesty and openness to protect my old friend Rudolf Mastenbroek as a journalistic source.”
She reiterates that the latter should not be in a position to advise the Judge on matters pertaining to Van Loggerenberg and Pillay.
From the above, it is clear – according to Joubert – that Mastenbroek had been a source to her (she was in the employ of the Sunday Times at the time). This fact, I submit, is beyond dispute.
Joubert also alleged, in so many words, Mastenbroek told her that he had tried to plant stories at the newspaper – she stated that he had “informed” her of certain matters “which he sought to be published in the Sunday Times” (emphasis added).
I also take into account Joubert’s argument that the newspaper’s stories bore a remarkable resemblance to the ones Mastenbroek sought to have published.
Let me now take another look at the sentence in dispute. It said, “[Joubert] set the cat among the pigeons this week by implying the source of our stories about a rogue unit at the South African Revenue Service that spied illegally on taxpayers was Rudolf Mastenbroek.” (Emphasis added.)
I cannot fault Sunday Times for stating that its former employee “implied” (not stated as fact) that Mastenbroek had influenced the newspaper’s reporting on a rogue unit in SARS, or had at least tried to do so.
Distortion of Hushmail-conversation
Joubert calls the newspaper’s reportage “a shocking and deliberate distortion of a Hushmail-conversation between [Sunday Times journalist] Stephan Hofstatter and myself”.
Smuts does not respond to this part of the complaint.
My considerations
Joubert did not specify exactly what had been “distorted”.
Hofstatter started his reply to several observations made by Joubert as follows:
“woaah, steady on!
“heard some of this before. problem is a lot of this comes from the factional camps in SAPS and former SAPS vs Scorpions, so in the absence of any proof (ie if we have to rely on sources) we'd need to do a very thorough drilling down of who the sources are and if they aren't just circulating the same planted stuff for their own agendas.” (Unedited.)
After having perused the rest of the correspondence in question, I have no reason to believe that the newspaper did distort the conversation in question.
Placing Mastenbroek’s words in Joubert’s mouth
Joubert submits that the newspaper deliberately placed Mastenbroek’s words in her mouth. “I clearly wrote that that is what my source (Mastenbroek) told me and is not MY view or opinion. I was merely relaying what [he] told me. In 2013 I had no information about who Pillay and Van Loggerenberg were, apart from what was available in the public domain; I undertook no investigation into these people and was approached with information as happens in our profession.”
Smuts does not respond to this part of the complaint.
My considerations
Again, Joubert did not specify exactly what part of the stories had deliberately placed Mastenbroek’s words in her mouth.
Having carefully perused both articles, I have no reason to uphold this part of the complaint.
‘Sexual innuendo’
The sentence in question (in the first story) read, “According to Oppelt, key issues that Joubert failed to address in her affidavit [included] … the nature of her relationship with … van Loggerenberg.”
Joubert complains that, to refer to her “extremely limited” interactions with Van Loggerenberg as a “relationship” amounted to a complete distortion of the truth. “I take strong exception to the sexual innuendo. I am a professional journalist. I met Van Loggerenberg at SARS well after Mr Mastenbroek had approached me about him. There has never been and is no ‘relationship’ to speak of,” she says.
She asks that the newspaper withdraws statements that have impugned her integrity.
Smuts replies it was unclear what Joubert’s relationship with Van Loggerenberg was or is, and denies that the articles suggested a sexual relationship between them. “… Joubert raises it.”
My considerations
I have no reason to underscore any sexual innuendo underlying the statement in dispute.
Not asked for comment
Joubert complains that the newspaper has not asked her for comment prior to publication.
Smuts admits that the newspaper did not ask Joubert for comment, as the content of her affidavit and letter had been widely publicised and the newspaper was entitled to defend its position on this matter. It was also clear from her affidavit that she was antagonistic towards the paper.
Joubert replies that the articles in dispute were critical of her (she was supposedly influenced by ulterior motives in preparing the affidavit, and there was something untoward in the relationship between her and Van Loggerenberg) and the newspaper should therefore have sought comment from her prior to publication – as required by the Press Code.
She asks this office to direct Sunday Times to grant her a right of reply.
My considerations
Sunday Times is correct – the newspaper merely defended itself on the claims and accusations made by Joubert in her affidavit and letter. The publication had the right to do so, without asking for her opinion (which was explicitly contained in her correspondence to the court and the Minister).
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 Ombudsman