Sibusiso Buthelezi vs. The Star


Mon, Aug 22, 2011

Ruling by the Deputy Press Ombudsman

August 16, 2011

This ruling is based on the written submissions of Tracy Sischy Attorneys, for Mr Sibusiso Buthelezi, and The Star newspaper, as well as on an informal hearing that was held in Johannesburg on July 27, 2011. Ms Tracy Sischy represented Buthelezi, who was also present together with a witness, GNS Project Manager Relibile Mofokeng; Jillian Green represented the newspaper, with Janet Smith and Anél Lewis participating by way of a telephone conference.

Complaint

Mr Sibusiso Buthelezi, the former head of Gauteng’s Transport and Public Works Department (DPTRW), complains about a story in The Star, published on November 8, 2010, and headlined DA to sue after Gauteng ignores R50 million overspend.

Buthelezi complains that the newspaper failed to verify the contents of the story with him and the GNS Risk Advisory Services (GNS) prior to publication.

He also says that the story falsely/untruthfully/inaccurately states or implies that:
• he is the culprit who illegitimately appointed GNS to G-Fleet and UTF;
• he overspent with R50 million on GNS;
• companies that replaced GNS were doing the same work;
• GNS was “exorbitant” and a “giant rip-off”;
• GNS did not do risk assessment for the DPTRW; and
• GNS provides guarding services.

Buthelezi adds that the story fails to state that the Auditor General did not make any adverse findings about the appointment and the costs charged by GNS.

Analysis

The story, written by Anél Lewis, says that the Gauteng Department of Roads and Transport will not take legal action against Buthelezi for overspending by more than R50 million on a security contract. This reportedly came despite a call from Public Protector Thuli Madonsela for an investigation by the Gauteng government and the National Treasury into a R71 million contract that had been awarded to a company with links to former communications minister Siphiwe Nyanda. The story says that a settlement was reached when Buthelezi resigned, adding that the DA was going to lay a charge of financial misconduct against him at the Police’s Commercial Crimes Unit.

I shall now consider the merits of the complaint:

Failed to verify

Buthelezi complains that the newspaper failed to verify the contents of the story in dispute or to seek his and GNS’s views prior to publication.

The Star admits this and says that it “could apologise” for not doing so.

At the hearing, the newspaper confirmed that it should have asked Buthelezi for comment and that it would apologise to him for not doing so. However, Smith also mentioned that the newspaper was not obliged to ask subjects for comment because the story was reporting on a legislative process.

Smith is, of course, correct. The same goes, for example, for court reporting.

Even though The Star says that it would apologise to Buthelezi for not asking him for comment, I cannot direct it to do so – it would put every newspaper in this country in an untenable position if this office expects publications to ask the subject of reportage for comment when reporting on legislative processes.

Of course, if the newspaper wants to apologise to him for not asking his comment, it is free to do so.

However, it has to be said that the story does not make it clear enough that it was reporting on a legislative process. The only words that may point to this are: “In a written reply to questions by the DA…” These words can refer to a legislative process, but that is not necessarily the case.

Lastly, in his last representation Buthelezi furnished me with a settlement agreement document between himself and the department that states the neither party shall make any adverse, untrue or misleading statement about the other. He argues that former MEC of Roads and Transport Bheki Nkosi therefore had a contractual duty to verify his replies with him – and complains that the MEC has failed to do so.

This may or may not be the case, but it surely is irrelevant as far as The Star is concerned. What has or has not expired between Nkosi and Buthelezi is none of its concern.

Culprit who illegitimately appointed GNS

Although the story does not say it explicitly, Buthelezi complains that the story implies that he has appointed GNS illegitimately.

Note that the complaint is not that the story falsely implies that he has appointed GNS, but only that he has done so illegitimately.

I am not going to entertain this part of the complaint, as the story is about alleged overspending – and there is nothing in the story that states or even suggests that the appointment itself was illegitimate.

Overspent R50 million on GNS

The intro reads: “The Gauteng Department of Roads and Transport will not take legal action against Sibusiso Buthelezi for overspending on a security contract by more than R50 million.”

Buthelezi complains that the story falsely blames him for R50 million that was overspent on GNS.

He argues that he was as of 30 November 2009 no longer in the DPTRW employ, that he was suspended since 14 July 2009, and that he could therefore not have authorized any payment to GNS, nor could he have played a role in determining whether that company rendered value for invoices issued.

The Star admits that the intro “could be regarded as misleading” as the sentence says that no legal action would be taken “for overspending” by more than R50 million when, according to the newspaper, it should have read “for authorizing” the spending of that amount.

When Sischy reiterated Buthelezi’s argument at the hearing, the newspaper replied: “Point taken.”

In his last presentation to me Buthelezi explains that the reason why The Star erroneously blamed him for overspending more than R50 million is because the newspaper has failed to distinguish between G-Fleet, UTF and the department. He argues that this distinction is important as he can only be held liable for occurrences (during his tenure) in the department.

Buthelezi cites more examples of this lack of distinction, but these three will do:
• The headline and the story (twice) both mention an overspending of R50 million. The intro specifically links this amount to him, whilst he says that some of the amounts mentioned in the story were not departmental expenditure (for which he says that he was not responsible);
• The story mentions that GNS did work in Koedoespoort, but it does not state that the work was done for G-Fleet, and adds that Nkosi made this clear in an official document that was at the newspaper’s disposal; and
• The story says that GNS guarded the command centre – but Nkosi made it clear that GNS did this work for UTF.

He also notes that:
• the only allegation in the story about the department is that GNS had to do risk assessment for it for an amount of R1,2 million – this, he argues, is a far cry from the R50 million as alleged in the story; and
• nowhere did Nkosi say that there was an overspend of R50 million and that he was liable for that amount.

He concludes that the newspaper obtained the amounts from Nkosi’s answers to the DA, but that it nevertheless did not distinguish that GNS rendered services to the department as well as to G-Fleet and UTF – a distinction which is clearly made in the very same document. He adds that it is nonsensical for the newspaper to state that Abalozi cost R24 million per annum cheaper than GNS as it was the same company (only the names have changed).

For clarity’s sake, these amounts refer to the statements that GNS:
• was paid R848 160 a month to guard the government’s fleet in certain places, over against the R184 643 that a new contractor was paid;
• received R260 400 per month, as opposed to the R35 394 that another company was paid;
• was allocated a monthly budget of R1.2 million, whilst no work was done; and
• claimed R410 000 per month to guard the command centre, whilst another company would get R49 773 for the same service.

I am now faced with these two questions:
• Does the story make out Buthelezi to be the culprit who overspent money on GNS?; and
• If yes, was the newspaper justified in doing so?

The intro says that the department will not take legal action against Buthelezi for overspending on a (GNS) security contract by more than R50 million. This is repeated in the third paragraph and this time it is attributed to a source.

There is therefore little doubt that the story indeed blames Buthelezi for the overspending.

So, was the newspaper justified in doing so? To answer this question adequately, it would be helpful to establish whether The Star portrays the disputed issue as a fact or whether the newspaper presents it as an opinion.

On the face of it, the intro states it as a fact. It reads: “The Gauteng Department of Roads and Transport will not take legal action against Sibusiso Buthelezi for overspending on a security contract by more than R50 million”.

But “facts” can be misleading…

The structure of news stories are more often than not as follows: It starts with an opening statement (the intro); this is normally followed by a sentence or two that provides background or context (paragraphs two/three, or three/four); the next sentence then usually returns to the intro and expands on the information presented in the first sentence.

This, I think, is exactly what has happened here. After the intro and the second paragraph, that indeed provides background/context, the third paragraph elaborates on the first. Compare the phrase “Gauteng Department of Roads and Transport”, the words “will not take legal action against Sibusiso Buthelezi” and the statement “for overspending on a security contract by more than R50 million” of the intro to the third paragraph’s “The department”, “will not institute legal actions against Mr Buthelezi” and “in order to recover the money”.

The third sentence is clearly a continuation of the first one – and the third sentence quotes Nkosi directly.

A reasonable conclusion may be that the statement that no legal action would be taken against Buthelezi for overspending more than R50 million (in the intro) was gleaned from a source (Nkosi).

However, as the information is not directly ascribed to Nkosi in the intro, it is also possible that the words “for overspending” was an interpretation of what the source actually had said.

Taking into account that The Star admitted that these words may have been misleading (as the newspaper says the phrase should have read “for authorizing”), I am inclined to agree with the newspaper.

Please note: I have accepted that the sentence should have read that legal action was taken against Buthelezi for authorizing the over-spending or R50 million – but this is not to say that it is true that Buthelezi indeed authorised R50 million.

However, this is not the end of this matter, as I still have to address the issues whether the amounts that the story mentions:
• refer to Buthelezi’s tenure; and
• were his responsibility (while he was at the department).

It would indeed be unfair to Buthelezi if these amounts fully or even partly refer to the period after his suspension and/or to expenses that fell outside of his jurisdiction.

So let’s take a closer look at some expenditures that the article mentions. The story attributes the amounts of R50 million and R24 million to a source (Bloom). The journalist was therefore justified to report these amounts. However, this is not the case with the amounts of R848 160, R260 000 and R410 000 that the story mentions in the last four paragraphs (these are amounts that GNS reportedly received).

The problem with these paragraphs is that they do not attribute the information contained in them to a source in any way – there is no “he said” or something to this effect, neither are quotation marks used. The information (containing data about how much was spent, in contrast to how much was saved) is simply presented as facts.

At the hearing, The Star indeed argued that this information had come from a questions-and-answers session in the legislature and from a statement by Bloom during or immediately after the session in question, and concluded from this that it was therefore justified in reporting the way it did.

I have no reason to doubt the newspaper’s word that the information was gained from a legislative session. The problem, however, is that the story does not make this clear enough.

At the hearing Buthelezi rightly said that these last four paragraphs rather give the impression that the newspaper has done its own investigation and that it was now presenting the information contained in them as facts.

Yes, it can be argued that these amounts are attributed to Nkosi, who is mentioned in the fifth last paragraph. However, the further the story goes away from Nkosi, the weaker this argument becomes.

This brings me to the conclusion that ordinary readers would probably have understood that Buthelezi was held responsible in the story for all or most of these overspendings.

Now: Buthelezi says that he was suspended since 14 July 2009 and that he was from 30 November of that year no longer in the department’s employ. Also keep in mind that GNS’s contract was cancelled in March 2010 – a full eight months after Buthelezi’s suspension and four months after his resignation. (The newspaper never disputed this information.)

It is therefore quite possible that at least a part of these amounts may have been (over)spent by somebody else. The implication in the story that he was responsible is therefore unfair, as he could at best (or worst) only be held partly responsible.

This leaves me with the question whether Buthelezi could have been held responsible for all the payments during his tenure as CEO.

He argues that he was responsible only responsible for the department, but I am not so sure of that. The document that contains the department’s contract with G-Fleet – which Buthelezi himself furnished me with – states that G-Fleet was:
• established by the department;
• managed through the department; and
• wholly funded by the department.

To me, this makes it reasonable to accept that Buthelezi was indeed responsible for expenditure regarding G-Fleet (during his tenure as CEO). If G-Fleet was managed through the department, surely it is reasonable to accept that work that GNS did for G-Fleet must have been authorized by him.

Rendering same services

The sentence in dispute reads: “…the companies that replaced GNS…were doing the same work for about R24m less a year.” The story mentions Abazoli, Pothlako Security and Cleaning Services, and Pholile Business Solutions in this regard.

Buthelezi complains that it was false to state that other companies rendered the same services that GNS.

In his last presentation to me, Buthelezi says that it would appear from Nkosi’s reply to the DA (document 5.TR081) that G-Fleet and UTF have decided to substitute GNS’s comprehensive integrated security services for companies that would render guarding services only.

He also referred me to a document (Annexure D) which outlines GNS’s work done for the UTF. This document provides UTF with a once-off “risk assessment comprehensive security strategy”. He concludes that it was therefore incorrect for The Star to state that GNS delivered the same service as other contractors.

The Star says this information comes from its source.

That is true, at least as far as the reference to Abalozi is concerned – the sentence preceding the one in question mentions Bloom and the sentence in which the phrase occurs puts the words “giant rip-off” in inverted commas.

The story, however, does not make it clear that the references to the other companies come from a source. The same problem stated above surfaces here – information from a source is presented as a fact, but without attribution.

Although this is sloppy journalism and the information may well be incorrect, I cannot find against the newspaper as I have no evidence that it is indeed not accurate.

GNS ‘exorbitant’, a ‘giant rip-off’

The story quotes Bloom who reportedly estimated that the department overpaid more than R50 million; the next sentence uses the phrase a “giant rip-off” in inverted commas.

The article also cites some examples of companies that have replaced GNS and that have done work for less. These include companies that:
• did the same work for about R24 million less per year;
• received R35 394 per month, in contrast to GNS’s R260 000; and
• earned R49 773 per month, over against the R410 000 that GNS received.

Buthelezi complains that it is untruthful and inaccurate to state that GNS was “exorbitant” and that the payments were a “giant rip-off”. He says that GNS rates were in accordance with the Department of Public Service and Administration’s rates for consultants published in the Government Gazette in January each year.

In his last representation to me Buthelezi denies that GNS’s fees were excessive, and argues that the charges were as per contracts that GNS entered into with the department, with G-Fleet and with UTF respectively.

He also argues that the companies that have replaced GNS did less work and that their invoices would therefore be less costly. He says: “This would explain the reduced price.”

The newspaper says that it was merely quoting its sources.

The Star is correct – the story ascribes the phrase “giant rip-off” to Bloom. This phrase appears in the sentence that follows the statement that Bloom estimated that the department has overpaid more than R50 million on the contract. The inverted commas clearly refer to Bloom’s comment, rather than to the newspaper’s view (as Sischy put it at the hearing).

The story ascribes the word “exorbitant” to Nkosi.

The Star was therefore justified to quote its sources as having used the words “exorbitant” and “giant rip-off”.

No risk assessment

The story says: “A monthly budget of R1.2m was allocated for GNS to do risk assessment” for the DPTRW and adds that “no work was ever done”.

Buthelezi denies that no work was done. He says that, before the department paid GNS it had received detailed invoices, timesheets and monthly reports. He adds that GNS would continuously update its threat and risk assessment. To this effect, he provided me with a document headlined Department of Public Transport Roads and Works – Compliance and Monitoring. This document, he says, is the contract between G-Fleet and GNS.

At the hearing, another document headlined Department of Public Roads and Works – Comprehensive Security Strategy, was tabled to prove that risk assessment was indeed done. Sischy claimed that this (undated) document contains the risk assessment strategy that GNS has done for the department – “proof that work was completed”.

Buthelezi also later argued that it was clear from Nkosi’s outlining of costs that not all of the services rendered were monthly services, but that some of the costs were once-off fees – and said that the R1.2 million that the story mentions was such a fee.

The newspaper says the information in dispute comes from Nkosi.

Although the “strategy” document is unsigned (and undated), it does refer to GNS a few times, and from that I can conclude that company at least did some work.

The following sentence in this document is important: “On Thursday, 26 June 2008 GNS conducted TRA (Threat Risk Assessment) for the provision, installation and maintenance of an integrated state of the art security system that would manage pedestrian access control, garage access control, license plate recognition, CCTV and remote monitoring capability.”

This is evidence that GNS did at least do some work.

I would have ruled for the newspaper if it was clear that the information came from the legislature/source – but it is not clear. The story states it as a fact – which it is not.

GNS providing guarding services

The sentence in dispute says: “GNS claimed R410 000 a month to guard the command centre.”

Buthelezi complains that it is untruthful and incorrect to state that GNS provides guarding services. He argues that this implies that GNS employs guards – which he says is not the case. He explains that it renders asset surveillance services and has a variety of specialists with experience in criminal law, finance, due diligence, forensic audits, law enforcement, military regulation, research and security.

At the hearing, Mofokeng (from GNS and a witness for Buthelezi) explained that GNS provides integrated security services and not “guarding” services.

In Buthelezi’s last presentation to me, he qualifies this statement by saying that the only possible “guards” referred to (Annexure B) are six reaction agents – a small part of the services rendered by GNS.

Further on in his complaint, Buthelezi also says: “The guards later posted by GNS…” (emphasis added). He says they were highly trained officials who formerly worked for the NIA and military intelligence. He adds that guarding by its officials was “only a small component of the work done by GNS”.

The newspaper says this information comes from Nkosi – an argument that again does not hold water (as argued above) as it is not attributed to him.

The question now is how to interpret the word “guarding”. Does this only refer to people in uniform, maybe carrying firearms, or could it also include other surveillance services?

I am opting for the latter – an ADT system, for example, can also be described as a guarding device or service. Besides, Buthelezi himself admitted that guarding by its officials was at least part of GNS’s work.

Failing to state

Buthelezi complains that the story does not state that the Auditor General did not make any adverse findings about the appointment and the costs charged by GNS.

The newspaper said at the hearing that it did not know this at the time.

I take into account that, from The Star’s perspective, it was merely reporting on a legislative process (although the story does not make this clear enough). I therefore am not going to blame the newspaper for not mentioning the Auditor General.

Finding

Failed to verify

This part of the complaint is dismissed – the newspaper was under no obligation to ask Buthelezi for comment as it was merely reporting on a legislative process.

As The Star has indicated that it would apologise to Buthelezi for failing to ask him for comment, it is free to do so without such a direction from this office.

Culprit who illegitimately appointed GNS

This part of the complaint is dismissed as the story does not say or imply that Buthelezi illegitimately appointed GNS.

Overspent R50 million on GNS

The newspaper correctly admitted that he phrase “for overspending” in could be misleading and that it should have read “for authorizing”. This is in breach of Art. 1.2 of the Press Code that states: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation…or summarization.”

I was also unfair to create the impression that he was responsible for all the amounts that were mentioned later on in the story, as at least a part of the expenditures may well have been spent by somebody else after his initial suspension and later resignation (a period of eight months has elapsed between his suspension and the cancellation of GNS’s contract). This is in breach of Art. 1.1 of the Press Code that states: “The press shall be obliged to report news…fairly.”

Rendering same services

This part of the complaint is dismissed – one part of this complaint is attributed; I have no evidence regarding the other part to make a decision either way.

GNS ‘exorbitant’, a ‘giant rip-off’

This part of the complaint is dismissed, as both statements are attributed.

No risk assessment

The story states it as a fact that GNS did not do risk assessment – a statement that is not true, based on documentation at my disposal. This is in breach of Art. 1.1 of the Press Code that states: “The press shall be obliged to report news … accurately …”

GNS providing guarding services

This part of the complaint is dismissed as the concept “guard” can also refer to guarding systems and not only to people who do a guarding job.

Failing to state

This part of the complaint is dismissed. The newspaper was under no obligation to state that the Auditor General did not make any adverse findings about the appointment and the costs charged by GNS as it was merely reporting on a legislative process.

Sanction

The Star is reprimanded for:
• misleadingly stating that Buthelezi has overspent R50 million, instead of saying that he has authorized that amount;
• unfairly creating the impression that Buthelezi was responsible for all the expenditure that were mentioned towards the end of the story; and
• erroneously stating it as a fact that GNS did not do risk assessment.

The newspaper is directed to apologise to Buthelezi for the first two issues that it is reprimanded for.

The Star is directed to publish a summary of this finding (not necessarily the whole ruling) and the sanction. The story should put the matter in context and start with what the newspaper got wrong. It is then free to elaborate on the parts of the complaint that were dismissed.

Our office should be furnished with the text prior to publication.

Please add the following sentence at the end of the text: “Visit www.presscouncil.org.za (rulings, 2011) for the full finding.”

Appeal

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at khanyim@ombudsman.org.za.

Johan Retief
Deputy Press Ombudsman