Ruling by the Deputy Press Ombud
Date
This ruling is based on the written submissions of Major-General Prince Mokotedi and Branko Brkic on behalf of the Daily Maverick.
Mokotedi is complaining about a story on the Daily Maverick website of 9 May 2016 headlined “House of Cards: O’Sullivan turns up heat on Gauteng Hawks” [http://www.dailymaverick.co.za/article/2016-05-09-house-of-cards-osullivan-turns-up-the-heat-on-gauteng-hawks/#.V8VU5GPww0R].
Complaint
Mokotedi complains that the article deliberately distorted his activities in law enforcement, which has tarnished his reputation and character.
More specifically, he complains the story inaccurately stated that he had:
• perjured himself during the Jackie Selebi trial;
• been charged by the NPA for allegedly leaking a report on an investigation against Ms Glynnis Breytenbach;
• been central to the “spy tapes” saga (together with Lieutenant-General Richard Mdluli); and
• been incarnated as the head of the integrity unit at the NPA and came in from the cold to replace suspended Gauteng Hawks Head, Shadrack Sibiya
The text
The article relates to the upcoming court case where lawyers representing forensic investigator Paul O’Sullivan had requested that the Gauteng Hawks head Prince Mokotedi appear. The story says that Mokotedi faces a grilling around several aspects surrounding O’Sullivan’s arrest. It goes on to say that O’Sullivan and Mokotedi have been “locked in a cat-and-mouse game ever since Mokotedi, in his previous incarnation as head of the NPA’s “Integrity Unit”, came out to bat for former police commissioner Jackie Selebi during his marathon trial for corruption in 2010, with Mokotedi perjuring himself in the process”.
The article says that O’Sullivan opened a case in October 2012 at the Silverton police station calling for the investigation and prosecution of Advocate Lawrence Mrwebi (currently the NPA’s Director of Public Prosecutions), Advocate Nomgcobo Jiba (current Deputy Director of the NPA), Lieutenant-General Richard Mdluli (former Crime Intelligence boss and alleged current keeper of the keys to Zuma's security kingdom), Prince Mokotedi (now Gauteng Hawks head), as well as several others, on charges of defeating the ends of justice, perjury and breaching Section 32 of the National Prosecuting Authority Act by unlawfully interfering in the prosecution of Selebi. The case has not been investigated.
The article says “Mokotedi resigned from the NPA in 2014 before facing a disciplinary hearing in relation to charges that he allegedly leaked to the media a document on former prosecutor Glynnis Breytenbach.
“And then suddenly in February 2016 Mokotedi found himself back in from the cold when he replaced suspended Gauteng Hawks Head, Shadrack Sibiya (now facing various charges related to the 'Zimbabwean rendition' case). Two months later Mokotedi and O’Sullivan’s paths once again crossed when the investigator was dragged off the plane at OR Tambo on 1 April.”
The arguments
The Daily Maverick argues that:
1. Transcripts of the Selebi trial show that Mokotedi testified that there were criminal charges again Advocate Gerrie Nel - thus perjuring himself.
2. Mokotedi resigned as head of the Integrity Commission before he was due to be charged with leaking Breytenbach documents to the media. “It stands to reason that he was not charged.” The question as to who had leaked the document could not be resolved as the hearing was not held. Daily Maverick also noted that the report stated he had “allegedly” leaked the document. It also cites other coverage of the hearing.
3. Mdluli’s role in the ”spy tapes” saga is well-known and is documented.
4. Mokotedi’s appointment to the SAPS occurred in 2015 or early 2016 and asked for his letter of appointment.
The Daily Maverick submitted that O’Sullivan’s role in the successful prosecution of the late Jackie Selebi was well-known and documented. It also submitted that Mokotedi had made it clear in a 2012 tweet that he was a staunch supporter of President Jacob Zuma. The publication submitted this must be borne in mind when considering his complaint and that as an employee of the SAPS, Mokotedi should serve the citizens without fear or favour and not display allegiance to any political principal.
“We submit that the involvement of elements in Criminal Intelligence, the State Security Services as well as other agencies in attempting to manipulate a public narrative should also be borne in mind and that in that end, what we can rely on is what is said and accomplished in an open court of law or in sworn statements submitted in various legal matters pertaining to the complex story that has surrounded the NPA as well as the Hawks and other agencies who have been caught up in a political battle over the years,” said the Daily Maverick.
Mokotedi replies that the judge in the Selebi trial accepted his evidence and character as credible. He denies that he was charged or found guilty of perjury.
Mokotedi says that he had met Mdluli three times and spoken to him over the phone. “To say that I am close or friends with him is simply mischievous.”
He says that to say he was “incarnated” insinuates that that he has no background in security or law enforcement or law when he rose through the ranks in law enforcement and policing and has extensive experience and qualifications.
Mokotedi says the allegations are inaccurate and meant to dent his image. “The bias is glaring given that the objectivity of the author is thwarted by the fact that she is the biographer of and that she authored a book on Paul O’Sullivan.”
Mokotedi asked for a retraction of the article and a public apology.
Analysis
This news analysis article is based largely on court documents. The issue is whether the reporter had taken care to “report the news truthfully, accurately and fairly” as per Section 1.1 of the Code of Ethics and Conduct for South African print and online media.
The article in question is in clearly in the public interest and, as head of the Gauteng Hawks, the general is a person of public interest. It is noted, however, that while Motokedi is the focus of the story, he was not asked for his comment in line with chapter 1.8 of the Code.
Perjury
While it has previously been reported that Mokotedi’s testimony in the Selebi trial was seen as a ploy to discredit Nel, Mokotedi has not been found guilty of perjury. As the story notes, charges laid by O’Sullivan have not been investigated and these remain charges - and, therefore, remain allegations.
Disciplinary Charges
Disciplinary charges against Mokotedi were not finalised as he left employment before they were brought against him. In its coverage, The Daily Maverick noted that he “allegedly” leaked these documents.
Spy tapes
There were a myriad of players within the spy tapes sagas. In saying Mokotedi and Mdludi were central to the spy tapes does not imply that they are friends but it does imply that they were two key players. There have been numerous previous stories which have captured Mokotedi’s role in the ongoing spy tapes saga and it would therefore be accurate to say he is a key player.
Incarnated as head of Gauteng Hawks
It is Mokotedi’s interpretation that incarnate implies he does not have the correct qualifications. The word incarnation here refers to his re-emergence within the public eye in a senior position.
Finding
Perjury
Mokotedi has not been found guilty of perjury. For this reason, the complaint is upheld.
Disciplinary hearing
Mokotedi left before these complaints were finalised. As the Daily Maverick indicated that these were allegations (“allegedly”), this complaint is dismissed.
Spy tapes
As Mokotedi has previously been reported on within the context of the spy tapes saga, this complaint is dismissed.
Incarnated
Saying Mokotedi was incarnated as head of Gauteng Hawks does not imply he has no qualifications for the position. This complaint is dismissed.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breaches of the Code of Ethics and Conduct as indicated above are a Tier 2 offence.
Sanction
Correction and apology. Daily Maverick needs to publish a correction under the online story that Motokedi was not found guilty of perjury.
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.
Paula Fray
Deputy Press Ombud