Pule Mabe vs. Mail & Guardian
Mon, Aug 13, 2018
Ruling by the Press Ombud and a Panel of Adjudicators
9 August 2018
PARTICULARS OF COMPLAINT
Mr Pule Mabe, spokesperson of the ANC
Headlines, pages, author:
11 – 17 May 2018
Mabe and co in dodgy R49-million tender – ANC spokesperson and budding tech entrepreneur told to ‘pay back the money’ (page 1 – headline only)
Mabe tied to R49m North West tender – Despite his patent links with trustees, the ANC official says he’s innocent
(page 4; Thanduxolo Jika)
Editorial: Serial wrongdoers get away with it
Headlines, pages, author:
18 – 24 May 2018
Here’s the proof: Mabe’s links to R49m NW tender – And the spin doctor’s laundry app that just won’t wash
(page 1 – headline only)
Mabe’s fingers in many pies – ANC spokesperson’s links to companies, apps and patents in controversial R49-million deal (page 4; Jika)
Mvest laundry app will hang out to dry
(page 4; Nafisa Akabor)
Correction (page 4; editor)
Beauregard Tromp, deputy editor
Place and date
Johannesburg; 3 August 2018
Complainant represented by
Publication represented by
Khadiza Patel, editor-in-chief; Jika; Tromp
Also in attendance
Members of panel
Public representative: Mpho Chaka
Media representative: Fanie Groenewald
In general, ANC spokesperson Pule Mabe complains that the:
· reportage was false, unfair, biased, unverified, out of context, exaggerated and reckless;
· headlines did not reflect the content of the articles;
· caption to the embedded image in the second article falsely and misleadingly purported to be that of a service level agreement between the NWDC and companies linked to him; and
· correction published at the bottom of the second story was inadequate.
Mabe adds that, by associating him with unlawful behaviour, without evidence, the reportage has unnecessarily lowered his esteem as a public figure, a politician, a former MP, and a senior member of the ANC. He also submits that it has caused him harm as a businessman (which not only has adversely influenced his livelihood, but also those of his approximately 200 employees), and that it has unnecessarily tarnished his dignity.
He asks for a comprehensive and prominent retraction and apology by the M&G on all its platforms (the wording of which he wants to approve), and the removal of the articles from its website and social media channels.
The particulars of the complaint are dealt with below.
The first article said that Mabe had been implicated in an “extraordinary” R49-million tender awarded by a subsidiary of the North West provincial government regarding dry cleaning and laundry services as well as environmental projects. The second one elaborated that “a host of companies and patents” linked to him were part of this tender. The third text added that the public was not advised to install the Mvest Clean app as advised by Mabe. The editorial commented that all previous attempts to ensure that Mabe did not use his position to do business with the state have failed.
The first article
Mabe complains about the statements in the:
· headline, namely that the tender was “dodgy” and that he was told to “pay back the money”; and
· article which said:
o He has been “implicated in an extraordinary multimillion-rand tender”;
o “The trust submitted an invoice (on June 14, 2017) and was allegedly paid within two days”;
o According to an “insider”: “The board decided to hold Pule accountable and wrote a letter to him about the transaction”; and
o “The patent, his closed business association with the trustees and his appearance before the board of directors suggest he was intimately involved in the R49-million deal.”
Firstly, he submits that the headline was misleading as it presented inaccurate information (regarding his “involvement” in the impugned tender) as fact. Moreover, he says, the use of the word “dodgy” falsely implied that a definite finding of unlawfulness or illegality had already been made regarding this matter.
He adds that the statement in the sub-headline (“pay back the money”):
· was presented as though there had been a finding against him; and
· did not reflect the content of the article, which merely stated that the NWDC board “wrote a letter to him about the transaction” and had “also resolved to take action against those involved in the transaction”.
Mabe also asserts that the quoted statements, presented as fact, were materially false – and that they could not have been reasonably true. He adds that the use of the word “extraordinary” (with regard to the tender), without any justifiable basis, constituted distortion and exaggeration.
He adds that the journalist has failed to take reasonable steps to verify the accuracy of the allegations.
Tromp denies all of Mabe’s assertions above, save for an inaccuracy regarding his directorship (which was corrected the following week).
He adds that all the parties involved were given an opportunity to comment.
The deputy editor says an internal investigation conducted by the NWDC found the contract in question to be unlawful. Also, by his own admission, Mabe was linked to Mvest as a patent holder and did appear before the sub-committee of the NWDC – together with Mvest trustees.
He argues that the use of the words “extraordinary” and “dodgy” were appropriate in the context of the contract being questionable and under investigation. He says a NWDC board member has instructed the executive to recoup some money, and adds that this information was corroborated by another source and confirmed by the internal investigation.
Mabe replies that the complaint did not pertain to whether the parties were given an opportunity to comment, and adds that the M&G’s response to his complaint does not deal with the merits thereof.
Regarding the contract, he says that the NWDC Board was merely reported to have resolved to take action in relation to the impugned transaction – which did not equate to a finding that the contract was unlawful (as stated in the article).
He submits that only institutions vested with such powers can rightfully make such a finding – which has to be preceded by an investigative process where evidence is collected, analysed and led, as well as the complainant having had an opportunity to make representations in this regard.
As this has not happened, Mabe argues it was disingenuous for the Mail & Guardian to claim that the contract had been “found to be unlawful” (“by an investigation”, which did not happen). He says the thrust of the first article was to allege that he had been directly involved in the project as director of the alleged companies.
He says there is no evidence substantiating the claims of the “insider” relied upon by the Mail & Guardian (that the board had decided to hold him accountable), and submits that the newspaper has failed to adduce such evidence.
Mabe also argues that an internal instruction to executives is patently not the same as and can never equate to an instruction to him to repay any money – and denies that he has ever been requested to repay any money in relation to this matter.
He concludes that the newspaper has:
· failed to explain in what respect the contract was questionable;
· sought to rely on unverified allegations; and
· conducted a “campaign” which appears to be based on a personal vendetta harboured by one of its journalists against him.
The gist of Mabe’s complaint is that the reportage has, without supportive evidence, associated him with unlawful behaviour.
In this regard, we are firstly considering if the M&G was justified in stating in its:
· front-page headline that the contract worth R49-million in which Mabe was involved was “dodgy”;
· front-page sub-headline that he had been told to “pay back the money”; and
· introductory sentence that the tender in question had been “extraordinary”.
First issue: ‘dodgy’; ‘extraordinary’
The panel will deal with the M&G’s arguments one by one, in no particular order.
1. The former Acting CEO, Mr Mike Mthimunye, had no authority to sign off on the payment.
It is not in dispute that Mthimunye has signed off on the payment after a permanent CEO had been appointed. (The new CEO was appointed on 1 June 2017, the invoice was received on June 14, and payments seemed to have been made on June 23 and 29.)
After the publication of this story, Jika asked Mthimunye who gave him the authority to authorise the payment to Mvest Trust “whilst there was a CEO in place”, and in what capacity he did so.
He replied that he had been mandated by the newly appointed CEO to continue as Acting CEO during the month of June while the former was familiarising himself with the company and his role in it, and that he had acted in that mandated capacity.
However, a forensic report by Altimax refuted this argument. It stated: “The Acting CEO…acted materially outside [his] authorisation / delegation levels when authorising payments to the supplier. Furthermore the new CEO was appointed with effect from 1 June 2017, on this day Mr Mike Mthimunnye’s acting period ended. The payments were made on 23 and 27 June 2017. Mr Mike Mthimunnye was no longer the acting CEO at that time.”
(The newspaper says it had this report in its possession prior to publication. The report is dated 7 May 2018 – prior to the publication of this first story. The reason why the journalist did not refer to this report in his story, the panel was told, was to protect his sources.)
The report added that it had not found any evidence that the board had delegated the Acting CEO to approve the payments.
Given this scenario, as well as the fact that no evidence was put before the panel to substantiate that Mthimunnye had been authorised to sign off on the payment, we agree it was reasonable and justified for the M&G to report that the tender was “dodgy” and “extraordinary” – on the strength of this issue alone.
2. The sources
The newspaper says it has used a knowledgeable source (“insider”) who was a member of the board at the time, and that it has corroborated this information with another member of the former board.
The panel therefore accepts the newspaper believed that its sources were credible and knowledgeable.
3. The Board had no knowledge of the payment and never signed it off
Superficially, it may seem that the following sentence in the article might have given impetus to the newspaper’s argument: “Provincial spokesperson Brian Setswambung said the payment was not approved by director general, Lydia Sebogo…” However, the second part of that same sentence brought the necessary context: “…because the NWDC was responsible for the implementation of the entire project, including the procurement of goods and services [to do so].”
The question, therefore, was not if North West Provincial Government had approved the payment, but indeed if the NWDC’s board had done so.
According to an “insider”, this did not happen. Jika reported: “The insider further alleged that the payment was never approved by the board and was signed off by … Mthimunye … even though he doesn’t have the authority…”
Prior to the publication of the first story, Jika asked the NWDC:
· why the transaction had not been referred to its board; and
· if its board had endorsed the transaction.
Ms Karen Landsberg, Acting Marketing & Communications Manager, responded as follows (on the same day – May 9 – on behalf of the NWDC’s management):
· “The project was approved for implementation by the Board”; and
· “A close up report has been finalised and reviewed by the Management of the NWDC. It will be presented to the Board during its next meeting.”
Clearly, the sources’ information and that of the NWDC’s management were at odds with each other.
To the journalist’s credit, he did report both sides.
Even though the NWDC did not provide the M&G with a board resolution, Landsberg’s comments mean that this part of the newspaper’s argument does not materially add to its justification for using the words “dodgy” and “extraordinary”.
4. No open tender
Prior to the publication of the first story, Jika asked the NWDC if a competitive tender bidding process had been followed for this transaction. Landsberg replied that Mvest Trust had “submitted an unsolicited bid as a Single Source Provider”.
On this issue, Altimax’s forensic report speaks for itself. It inter alia stated (unedited):
“During the review of the MVEST appointment, it was found that an amount of R48 952 830 was paid without following the SCM policy which states that in order to ensure proper control for procuring goods and service, expenditure for transactions with a value over R1 000 000, tenders must be advertised and adjudication process must be followed.
· We could not find evidence that any supply chain processes were followed in the appointment of MVEST Trust for the implementation of the project, or a reason why this specific supplier as appointed.
· We did not find a motivation for single source or sole supplier.”
This represents a strong argument in the M&G’s favour.
Altimax’s report stated it had no evidence that any work on the project started before payment was made, which indicated that a pre-payment was made.
It concluded: “The payments made to the supplier on 23 June 2017 and 29 June 2017 substantially represent prepayments as we could find no evidence of the work delivered by the supplier to that date incvluded in the payment requisitions. This also means non-compliance with two of the contractual obligations mentioned above as the contract between NWDC and the supplier does not make proviso for prepayments…”
Again, the use of the words “dodgy” and “extraordinary” were justified, given this scenario.
6. Other issues
At the hearing, the M&G raised several other issues that the report by Altimax also dealt with.
The report also stated that the firm did not find or obtain:
· a tax clearance certificate for Mvest;
· evidence that Mvest was on National Treasury’s Central Supplier Database; and
· evidence of declarations of interest.
7. Altimax’s conclusion
During the course of its argument, Altimax stated:
· “During the review no evidence could be found that the procurement of MVEST complied with SCM Regulations and the PFMA. This will result in irregular expenditure in terms of the SCM policy and the PFMA. This also means non-compliance with the contractual obligations as mentioned above as it was a specific requirement of the contract between the NWDC and the Office of the Premier that NWDC should ensure full compliance with the relevant procurement processes”; and
· “This also means non-compliance with two of the contractual obligations mentioned above as the contract between the NWDC and the Office of the Premier specifically requires that the funds be managed according to the repevant prescripts.”
The firm summarised its “overall conclusion” as follows:
“In managing the relationship with the supplier and when payments were made to the supplier:
1. The stipulations of the contract between NWDC and the Office of the Premier were violated
2. The stipulations of the contract between NWDC and the supplier were violated
3. SCM regulations were not complied with and as a result irregular expenditure was incurred
4. The NWDC delegation policy was violated
5. The NWDC payment policy was violated
6. The individual who signed as Acting CEO on the payment authorisation seemingly committed fraud by portraying himself as still being the Acting CEO
7. The individual who signed as Acting CFO on the payment authorisation seemingly also committed fraud by co-signing a payment that was signed by an individual who was not the Acting CEO at the time
8. The signatories on the bank payment seemingly also committed fraud by paying on authorisation documents signed by an individual who was not the Acting CEO at the time
9. The expenditure does not meet the PFMA requirements of fair, equitable, transparent, competitive and cost effective …”
Given these damning findings by Altimax, as well as other matters argued above, the panel concludes without hesitation that the M&G was justified to use the words “dodgy” and “extraordinary” with regards to the tender that was awarded to Mvest Trust.
Second issue: Told to ‘pay back the money’
The sub-headline on the front page read: ANC spokesperson and budding tech entrepreneur told to ‘pay back the money’. The article quoted a source as saying, “The board decided to hold Pule accountable and wrote a letter to him about this transaction.
Following Mabe’s persistent denial that he was under investigation, and that Mvest Trust had received any such communication, the panel asked the M&G who exactly “told” Mabe to pay back the money. The newspaper’s delegation conceded that the use of the word “told” in the sub-headline was not appropriate, as this suggested – as fact – that Mabe was told to pay back money, and not as an allegation (which is what it was, as it was not based on any evidence that the newspaper could produce).
Had the sub-headline used inverted commas regarding the word “told”, it would have solved the problem as that would have indicated that it was an allegation. Unfortunately, this neglect has resulted in a statement that was misleading, false and unfair to Mabe.
Third issue: Mabe implicated
Mabe also complains about the statement that he was implicated in this tender. However, as a patent holder of Mvest Trust he certainly was involved in this business transaction (as he has to receive an incentive as a licensee of certain intellectual property rights). Also, Mabe was the chairman of his company Rivalox, and Kariki Media, in which he is also involved, is a subsidiary of Rivalox.
This, inter alia, justified the following two sentences:
· “[Mabe has been] “implicated in an extraordinary multimillion-rand tender”; and
· “The patent, his closed business association with the trustees and his appearance before the board of directors suggest he was intimately involved in the R49-million deal.”
Fourth issue: Mabe held accountable
The sentence which quoted an “insider” as saying, “The board decided to hold Pule accountable and wrote a letter to him about the transaction” was justified as it was attributed to a source – even though Mabe disputes it, and the statement about writing a letter to him could be interpreted in more than one way.
Fifth issue: Payment made within two days
However, given the forensic report by Altimax, the panel has no reason to believe that the following sentence was accurate: “The trust submitted an invoice (on June 14, 2017) and was allegedly paid within two days” – according to that report, payment took place on June 23 and 29. The fact that the word “allegedly” was used, cannot condone or excuse incorrect reporting.
The second article
The gist of the complaint is that the article has confused “companies” with “platforms”.
Mabe therefore complains that the:
· headline and sub-headline falsely linked him to “companies” involved in the R49-million deal, and that it did not reasonably reflect the content of the article;
· article falsely stated the following:
o A “host of companies” and patents linked to him were part of the “extraordinary” R49-million tender;
o “These companies feature prominently in the multimillion-rand service level agreement signed between Mvest and the North West Development Corporation (NWDC)”;
o “In the agreement Enviro Mobi is said to be an ‘invention enrolled as a patent and a service delivery management platform designed to enhance and improve service delivery’ ”;
o “Last week, Mabe distanced himself from Mvest, saying his relationship with the company was that of a ‘licensee and licensor’. But Mabe and the trustees of Mvest Trust appeared before a subcommittee of the corporation’s board in September 2017…”;
o “But the payment is alleged to have been made without following proper procurement processes. Mabe, an MP at the time, is said to have been intimately involved in the process but has strenuously denied any wrongdoing”; and
o “He told the Mail & Guardian he had resigned from Enviro Mobi in 2014 and Kariki Media in 2015”.
Mabe adds that the text continued to refer to “companies”, when in fact it was referring to programmes, applications or platforms – while the newspaper was in possession of the service level agreement, or at least a substantial extract thereof.
He adds that the journalist did not verify the authenticity of the extract, thereby reporting as fact the “verifiably false” allegation that the service level agreement was between the NWDC and companies the M&G purported to link to him.
Tromp replies that Mabe was the direct source of the service level agreement that the newspaper is in possession of, and the relevant companies were the patent holders (according to his own admission). He says Mabe held directorship over the companies in that service level agreement before (he says that) he had he resigned.
The deputy editor adds that Mabe was also quoted by another media house that those were his subsidiaries.
It is in dispute whether Jika should have used the word “platforms”, instead of “companies” – and if he should, if it would have made any material difference to the story.
The panel is not convinced that that is the case, because:
· the two concepts are interlinked – applications / platforms are developed by companies; and
· some companies in which Mabe had an interest (Mvest and Kariki Waste Ways) were named in the Service Level Agreement (SLA).
The M&G also commented that Mabe himself was the source who supplied it with the SLA – which made it difficult to understand why he then complained that the journalist did not verify that information.
The third article
Mabe complains that this text constituted reportage on an app that was unrelated to the impugned tender – he says the M&G has commissioned an “independent expert” to conduct a test on the wrong app, and then sought to use that flawed test in its “campaign” against him.
Tromp replies that Mabe himself was (again) the source – he says the latter showed the app to the journalist to try and convince him that the contract was genuine and that work had been done. The Mail & Guardian then tested this app with an independent person, without providing the tester any context.
Mabe says the newspaper’s argument that he has shown the app to the journalist is irrelevant, as the source of the app or its provenance is not the subject of his complaint.
He says that Tromp again fails to deal with the complaint that the app was provided in relation to a different subject matter, nor does he attempt to respond to the fact that the so-called “independent” person was someone who had previously received financial benefits from the Mail & Guardian for publication of her work.
He adds the Mail & Guardian’s averment that he had “showed the app to try and convince the reporter that the contract was genuine” is not supported by a plain reading of the correspondence sent to Jika.
He says Jika asked him the following question: “As a patent holder why were you paid by Mvest Trust when your laundry app did not work (not functioning)? we have independently had the app tested and it has been confirmed by experts that it does not work”.
He responded as follows: “… you could not have asked this question if you took reasonable efforts to understand the nature and scope of the project including the phases involved. This project was not about the development of an app and was about the development of an innovative enterprise platform, referred to as the youth enterprise combo”.
He argues that, when the Mail & Guardian’s response is scrutinised against this exchange, it further indicates that the article appears to be motivated by personal agendas or vendettas.
Mabe says this view is buttressed by the fact that Jika has threatened him by saying: “this stament (sic) is testing my character. you don’t want to go down this road”; and: “you do not want to go this route, careful leader”.
He concludes that, following this correspondence, Jika wrote several negative articles on him in quick succession, which sought to portray him as being involved in unlawful activity based on unverified allegations.
The gist of the complaint is that this article constituted reportage on an app that was unrelated to the impugned tender.
Even if that is the case, it cannot be in breach of the Press Code – surely, the newspaper is entitled to report on matters other than the main issue. Likewise, the M&G was justified to use an expert to test the application.
The panel also explained that personal notes between a journalist and a complainant is a matter for the editor to handle.
Mabe complains that the following statements were false, unfair, and misleading:
· “Mabe … [continues] to do the same things but [expects] something different to happen, namely, not to get caught”;
· “… Mabe has been fingered as being at the centre of what appears to be a highly irregular tender from a parastatal associated with the North West government”;
· “The rushed payment was so peculiar that the board of the parastatal is now embarking on its own ‘pay back the money’ campaign”;
· “KG Media was found to have ‘improperly’ received a communication contract worth R33-million from Prasa without correct tender processes being followed” ;
· “We’re not even considering the time when Mabe was arrested amid allegations that he dished out welfare money to his buddies and also used it to repay his credit card debt. He was acquitted by a court”; and
· “Although Mabe, a former MP – a publicly elected representative – protests his innocence, any previous attempt to ensure that he did not use his position to do business with the state has failed to prevent a recurrence of something similar.”
He singles out the statement that he had been “fingered” (as though there had been a finding against him); that he had “dished out welfare money to his buddies” (and then relegating the fact that he had been acquitted as an afterthought); and that KG Media was found to have improperly received a contract (instead, the finding was against the former CEO of Prasa).
Tromp rejects Mabe’s assertions, saying that the matter was of public record and that it was contained in the Public Protector’s report. He also asserts that Mabe was found guilty and was fined by Parliament.
Mabe replies that the said report did not assign any blame to him – the findings made were against the conduct of Prasa and its former executives.
He adds that the Mail & Guardian again fails to deal with the specific complaints in this regard.
He says the statement that he had “dished out welfare money to his buddies”, he points out that this matter was ventilated before a court of law and adjudicated – and that he was subsequently acquitted.
Mabe argues the thrust of this article was that he had been found guilty of having concluded an unlawful contract (wilfully misreported as “KG Media was found to have ‘improperly’ received a communication contract”) – which was not the case.
He concludes that the reportage was deliberately skewed to attribute blame to him for any failures within Prasa (even though the report it has based its reportage on, made no findings of “wrongdoing” on his part).
The panel has a serious problem with the use of the word “serial”, which was used in direct connection with “wrongdoers”. (The headline read: Serial wrongdoers get away with it.)
The context was as follows: The editorial started with the statement that the definition of insanity was “doing the same thing over and over again and expecting a different result”. Directly following this, the text stated that Mabe was an example of such insanity – meaning: doing the same “things” (read: “wrongdoings”), but expecting the same result (read: not to get caught).
The word “serial” implies the plural – at least two, if not more. In this case, though, the editor used three “examples”, to “prove” a trend. However, only one of these “examples” was justified.
These were the “examples”:
1. Mabe had been fingered as being at the centre of what appeared to be an irregular tender. However, he had not been found guilty of any “wrongdoing” in this regard, except by the editor – “fingered”, or not;
2. Mabe’s company KG Media was found to have received a contract worth R33-million from Prasa without correct tender processes being followed, after which a Parliamentary committee recommended that he be fined for benefitting from that contract – which seems not to be in dispute; and
3. Mabe had been arrested for dishing out welfare money to his friends and for repaying his credit card debt with it – for which, the editorial itself stated, he was acquitted. (It is a serious question why the editor found it necessary to use this “example” in the first place, as it was not an example of wrongdoing at all.)
Then came the editor’s conclusion: “But clearly there’s a problem.”
In this case, 1 + 1 + 1 amounted to 1 (the editor only succeeded in mentioning one credible example, while one other was rejected by a court, and the third one was not proven at all).
This made the use of the word “serial” in the headline, as well as editorial itself that blew up one example in an attempt to establish a trend, misleading and unnecessarily harmful to Mabe.
Under the headline “Protected Comment” (inter alia referring to editorials such as this one), Section 7 of the Press Code says:
“The media shall be entitled to comment upon or criticise any actions or events of public interest. Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it… has taken fair account of all material facts that are substantially true…”
The editorial clearly did not meet this criterion.
For clarity’s sake: If the editorial referred to the Prasa case, and merely pointed out that question marks (once again) hung over Mabe, there would have been no problem.
The difficulty came in when the newspaper:
· changed that question mark to an exclamation mark (read: interpreted the allegation regarding Mvest as being a fact); and
· used the question mark about the welfare money, which have been removed since.
Again, the M&G has the right to its opinion, even if it is extreme, unjust, unbalanced, exaggerated and prejudiced – but then it also has to take “fair account of all material facts that are substantially true”.
The correction read as follows: “In last week’s Mail & Guardian we reported that Pule Mabe has resigned from Enviro Mobi in January 2018. That is incorrect. He had resigned from the company years before. The M&G regrets the error.”
Mabe complains that this correction was inadequate as it:
· should have been an apology instead;
· continued to report the inaccuracy as though it was merely an assertion by him (taking the rest of the article into account);
· was published at the bottom of the page, merely as an afterthought;
· suggested that the rest of the offending article was materially correct; and
· failed to state that he had not been a director of the companies during the relevant periods, as reported.
Tromp replies that the newspaper printed a correction as soon as it was made aware of the error, “as is fit and proper for a publication to do”.
Mabe says the M&G’s reply does not address the particulars of his complaint.
He adds that the newspaper has in later articles repeated its error by merely reporting his denial – without acknowledging its correctness or even (however obliquely) referring to its own purported correction.
Even though the headline referred to a “correction”, the newspaper in fact apologised to Mabe as the text itself used the word “regrets”. We are satisfied that this particular mistake was satisfactorily dealt with.
The caption to an image (in the second article)
The caption reads as follows: “Deal: the document is the service level agreement between North West Development Corporation and companies linked to Pule Mabe”.
The companies mentioned in this extract are Enviro Mobi and Kariki Waste Ways.
Mabe complains that this caption falsely and misleadingly purported to be that of a service level agreement between the NWDC and “companies” linked to him – while, in fact, it was an image of various innovative programmes or applications referred to in the service level agreement, and not to “companies”.
He adds that the service level agreement was provided to the Mail & Guardian on an “off the record” basis – and yet it has disclosed the terms of the service level in the article.
Be that as it may, Mabe continues, the source of the service level agreement is not the issue. “The issue is crisp. The Mail & Guardian published a photo of an extract of the service level agreement as its basis for the allegations regarding [his] companies being parties to the service level agreement,” he asserts.
He denies that he was a director of any of the companies mentioned.
This part of the complaint is akin to the one about the second article, which we have already dealt with.
Dignity and reputation
Mabe complains that, by associating him with unlawful behaviour, without evidence, the reportage has lowered his esteem as a public figure, a politician, a former MP, and a senior member of the ANC.
He also submits that it has caused him harm as a businessman (which not only has adversely influenced his livelihood, but also those of his approximately 200 employees), and that it has unnecessarily tarnished his dignity.
Tromp says the newspaper is well aware of Mabe’s position in society and the ruling party – hence its interest in reporting on these troubling allegations that involve him. “Due care was taken in the publication of the current series of articles relating to him,” he submits.
In summary, the panel has found that the gist of the reporting was justified. However, the following parts of the reportage have undoubtedly caused some serious unnecessary harm to Mabe’s reputation and dignity:
· The sub-headline on the front page of the first story, which inaccurately and unfairly referred to him having been “told” to “pay back the money”; and
· Even more so, the unfair and unjustified references in both the headline and the text of the editorial to him as a “serial” wrongdoer who qualified for the definition of “insanity”.
Section 3.3 of the Press Code says: “The media shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only if it is in the public interest and in the following circumstances:
3.3.1. The facts reported are true or substantially true; or
3.3.2. The reportage amounts to fair comment based on facts that are adequately referred to and that are true or substantially true; or …
3.3.4. It was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.”
The panel does not believe that any of these exceptions apply in this specific case.
The first article
This part of the complaint is dismissed.
The statement that payment was made within two days after an invoice was submitted was inaccurate and in breach of the Press Code (despite the use of the word “allegedly”) which says: “The media shall take care to report news … accurately.”
Sub-headline: Told to ‘pay back the money’
The sub-headline portrayed the allegation that Mabe was told to pay back the money as fact. This was in breach of Section 1.1 of the Press Code, which states: “The media shall take care to report news truthfully, accurately and fairly.”
The second article
This part of the complaint is dismissed.
The third article
This part of the complaint is dismissed.
Both the headline and the text concluded, without proper regard for the facts which were available, that Mabe was a “serial” wrongdoer who took the “insane” route of time and again expecting not to be caught. This was in breach of Section 7 of the Press Code which states: “The media shall be entitled to comment upon or criticise any actions or events of public interest. Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it… has taken fair account of all material facts that are substantially true…”
This part of the complaint is dismissed.
The caption to an image
This part of the complaint is dismissed.
Dignity and reputation
The sub-headline which stated as fact that Mabe had been “told” to “pay back the money”, as well as the unfair and unjustified references in both the headline and the text of the editorial as to him being a “serial” wrongdoer who qualified for the definition of “insanity”, were in breach of Section 3.3 of the Press Code. This section stipulates: “The media shall exercise care and consideration in matters involving dignity and reputation.”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The breaches of the Press Code as indicated above are all Tier 2 offences.
The Mail& Guardian is directed to apologise to Mabe for:
· inaccurately, untruthfully and unfairly stating in:
o a sub-headline on the front-page that he had been told to pay back the money;
o the editorial that he was a “serial” wrongdoer; and
· not exercising care and consideration in matters involving dignity and reputation as a result of the above
The newspaper is reprimanded for inaccurately stating that payment was made within two days after an invoice was submitted, even though the word “allegedly” was used.
The newspaper is directed to publish:
· the apology:
o at the top of page 4, with a headline containing the words “apology” or “apologises”, and “Mabe; and
o online, at the top of the relevant page;
· the reprimand; and
· a kicker on its front page, immediately underneath its masthead, containing the words “apology” or “apologises” and “Mabe”, and referring to the text on page 4.
The M&G is free to add to this text the parts of the complaints that the panel have dismissed.
The text should:
· be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
· refer to the complaint that was lodged with this office;
· end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
· be published with the logo of the Press Council (attached); and
· be prepared by the publication and be approved by the panel.
Addressing on sanction
Section 5.5 of the Complaints Procedures reads, “At the conclusion of a hearing, and after a Panel has reached a decision, both parties shall be entitled to address the Panel, personally or in writing, on sanctions and where appropriate mitigation.”
This section should not be confused with an appeal – it merely gives each party an opportunity to address the panel on the sanction itself. The opportunity to appeal, either the finding or the sanction, remains open for the next seven workings days, as outlined below.
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.
Mpho Chaka: Public representative
Fanie Groenewald: Media representative
Johan Retief: Press Ombud